Labour Disputes
Texto da decisão
REF FPSD-4734
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Sébastien
Wüthrich
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Sébastien Wüthrich, Switzerland
Represented by Ludovic Deléchat
RESPONDENT:
Ratchaburi FC, Thailand
Represented by Christophe Larrouilh
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REF FPSD-4734
I.
Facts of the case
1.
On 23 May 2021, the Swiss player, Sébastien Wüthrich (hereinafter: the Claimant or player),
and the Thai club, Ratchaburi FC (hereinafter: the Respondent or club) signed an employment
contract (hereinafter: contract) valid as from 1 June 2021 until 30 April 2023.
2.
According to the information contained in the Transfer Matching System (TMS), there is a
second contract (hereinafter: TMS contract) uploaded with the same duration, but with
different salaries (cf. below).
3.
The Respondent undertook to pay the Claimant, inter alia, the following monies:
USD 7,000 net as monthly salary between 1 June 2021 and 31 May 2022
(based on contract);
USD 8,000 net as monthly salary between 1 June 2022 and 30 April 2023
(based on contract);
USD 15,000 net as monthly salary between 1 June 2021 and 31 May 2022
(based on TMS contract);
USD 20,000 net as monthly salary between 1 June 2022 and 30 April 2023
(based on TMS contract);
USD 400 as “winning per match in Thai Premier League only” (based on both
contracts).
4.
Art. 11 of the both contracts reads as follows: “[…] In the event that the participation has
been terminated by the Club or the player prior to the expiry of the contract for any cause
other than those provided in Clause 6 and 7 above, the party who cancel the contract will be
entitled to pay a compensation equivalnet to 2 (two) months’ salary maximum as full and
final settlement of the playing contract (salary)”.
5.
On 25 November 2021, according to the player, he was prevented from accessing the training
facilities.
6.
On 26 November 2021, the player sent a letter to the club complaining that he is prevented
from taking part in training.
7.
On 27 November 2021, the club sent a letter to the player terminating the contract as of 30
November 2021 referring to art. 11 of the contract.
8.
On 29 November 2021, the Claimant sent a letter to the club protesting against the
termination and requesting his outstanding remuneration while proposing to amicably settle
the matter at hand.
9.
On 8 December 2021, the player requested again payment of his outstanding remuneration.
10. The player informed the FIFA administration that he remained unemployed until today.
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II. Proceedings before FIFA
11. On 5 January 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the player Claimant requested payment of the following monies:
USD 22,817 net as outstanding remuneration plus 5% interest p.a. as of the due dates;
USD 310,000 net as compensation, corresponding to the residual value of the contract,
plus 5% interest p.a. as of the date of termination.
13. The player held that the Respondent breached the contract without just cause, as the
termination occurred without previous warning.
14. Furthermore, the Claimant maintained that the Respondent did not react to his letters 29
November 2021 and 8 December 2021.
15. In this context, the player requested payment of outstanding remuneration as follows:
USD 15,000 net as salary for November 2021;
USD 2,000 as match bonuses, corresponding to 5 victories;
USD 5,817 corresponding to the salaries between July 2021 until October 2021, since
the wrong exchange rate was applied.
16. Moreover, the player argued being entitled to compensation for breach of contract in the
amount of the residual value of the contract (i.e. USD 310,000; December 2021 until 30 April
2023).
17. In this regard, the player argued that art. 11 of the contract is no compensation clause as its
content is “vague and unclear” and its content “lacks clarity and leads to misunderstanding”.
b. Position of the Respondent
18. The Respondent failed to submit its reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 05 January 2022 and submitted for decision
on 24 February 2022. Taking into account the wording of art. 34 of the October 2021 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
20. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Swiss player and a
Thai club.
21. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 05 January 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
22. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
23. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
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i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that the club terminated the contract on 27
November 2021 without just cause, without prior warning and for unclear reasons.
25. The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
26. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred
that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the Claimant.
27. First of all, the members of the Chamber wished to establish on which of the two contracts
on file, the decision shall be based. In this regard, the DRC noted that the Claimant provided
a contract with a different salary than he referred to in his submissions. Nevertheless, in TMS,
said alleged salary was reflected in the uploaded version and therefore, clearly agreed upon
Furthermore, the DRC pointed out that the Respondent did not contest the player’s
allegations, and therefore the Chamber concluded that the TMS contract shall be taken into
account.
28. In this context, the Chamber acknowledged that its task was to examine the circumstances
of the club’s termination and decide on the consequences thereof.
29. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to assure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only be an ultima ratio.
30. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that a termination with no clear reason as such in the case at hand
cannot be deemed as a substantial breach of an employment contract by the player.
31. Therefore, the DRC decided that the Respondent did not have just cause to terminate the
contract on 27 November 2021.
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ii. Consequences
32. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
33. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to USD 20,817 net.
34. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. USD 20,817 net.
35. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
36. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
37. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract.
38. In this regard, the Chamber took note of the wording of art. 11 of the contract, which
established that “[…] In the event that the participation has been terminated by the Club or
the player prior to the expiry of the contract for any cause other than those provided in Clause
6 and 7 above, the party who cancel the contract will be entitled to pay a compensation
equivalnet to 2 (two) months’ salary maximum as full and final settlement of the playing
contract (salary)”.
39. After analysing the content of the aforementioned clause, the Chamber concluded that the
clause in question is unclear and did not fulfil the criteria of reciprocity and proportionality, in
line with the Chamber’s longstanding jurisprudence, and therefore could not be taken into
account for establishing the amount of compensation payable to the club by the player.
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40. As a consequence, the Chamber determined that the amount of compensation payable by
the player to the club had to be assessed in application of the other parameters set out in art.
17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
41. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of USD 310,000 net (i.e. salaries between December 2021 until April 2023)
serves as the basis for the determination of the amount of compensation for breach of
contract.
42. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
43. In this regard, the Chamber noted that the player remained unemployed up to the date of
the decision.
44. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 310,000
net to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
45. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of the date of claim until the date of effective payment.
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iii. Compliance with monetary decisions
46. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
47. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
48. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
49. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
50. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
51. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
52. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sébastien Wüthrich, is partially accepted.
2.
The Respondent, Ratchaburi FC, has to pay to the Claimant, the following amount(s):
- USD 5,817 net as outstanding remuneration plus 5% interest p.a. as from 1 November 2021
until the date of effective payment;
- USD 15,000 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2021 until the date of effective payment;
- USD 310,000 net as compensation for breach of contract plus 5% interest p.a. as from 05
January 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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