FIFA - Decisión disputa Locadia 21092023

REF. FPSD-9764

Decision of the Dispute Resolution Chamber passed on 21 September 2023 regarding an employment-related dispute concerning the player Jurgen Locadia BY: Frans de Weger (the Netherlands), Chairperson Michele Colucci (Italy), member Dana Mohamed Al-Noaimi (Qatar), member

CLAIMANT:

FC Persepolis, Iran IR

RESPONDENT 1:

Jurgen Locadia, the Netherlands Represented by Archana Mahabiersing

RESPONDENT 2:

Cangzhou Mighty Lions FC, China PR pg. 2

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I. Facts of the case

1. On 10 August 2022, the Dutch player Jurgen Locadia (hereinafter the Respondent 1 or the Player) and the Iranian club FC Persepolis (hereinafter the Claimant or Persepolis) concluded an employment agreement (hereinafter the Employment Agreement), valid until the end of season 2022/2023.

2. In accordance with the Transfer Matching System (TMS), the respective season ran as from 21 June 2022 until 20 May 2023.

3. In Clause 7 of the Employment Agreement, the Claimant and the Respondent (jointly referred to as the Parties) agreed upon a total contract value for season 2022/2023 in the amount of USD 1,080,000 net, payable as follows: − USD 216,000 “after the signature of the employment contract, after the issuance of the ITC, and after the successful result of medical tests which will be made by the Iran Football Federation”; − USD 172,800 (plus possible bonus) on 1 October 2022; − USD 172,800 (plus possible bonus) on 1 December 2022; − USD 172,800 (plus possible bonus) on 1 February 2023; − USD 172,800 (plus possible bonus) on 1 April 2023;

− USD 172,800 (plus possible bonus) on 1 June 2023. the bonuses were based upon performance of the Player/team.

4. Under Clause 4 of the Employment Agreement, Persepolis was obliged to provide the Player with (a) accommodation; (b) mobile phone; (c) residency and work permit; (d) oneround business ticket Tehran-Netherlands or Spain-Tehran.

5. Any unauthorized Player’s absence was to be punished in accordance with Clause 4.7 and Clause 4.8 of the Employment Agreement as follows: “In case of any inexcusable delay in returning from the vacation (leave days), the club is entitled to penalize the player for the amount of USD 5,000 for every single day of the delay, In case of the continuation of the inexcusable delay, up to more than one week, in addition to the daily charge, the Club is entitles to penalize the player by deducting at most %25 of the amount of the Player’s annual contract.

For any inexcusable absence, in each training session USD 5,000 (Five Thousand Dollars) and for each inexcusable absence in any competition USD 50,000 (Fifty Thousand Dollars) will be deducted the club from the payments agreed to be paid to the player in the contract (contract value).” pg. 3

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6. On 16 September 2022, the 22-year-old Mahsa Amini died in police custody.

7. On 3 October 2022, the Player posted the following message on his Instagram: “Mahsa, Amini, may your soul Rest in Peace. Wish I could have scored a goal and win the game yesterday for you and your family and for the rest of Iran. We will be stronger on Friday.”

8. Allegedly, in October 2022, the Dutch government amended its travel advice related to visits of Iran IR to “red”, recommending all Dutch citizens to depart from the country. The

Player provided no evidence as to when this measure was implemented.

9. On 16 October 2022, the legal representative of the Player sent a WhatsApp message to Mr Hosseini (i.e. Club’s representative), requesting information regarding the transfer value of the Player in case of a potential transfer. Mr Hosseini replied that Persepolis is not interested to sell the Player.

10. Allegedly, in October/November 2022, the Player’s teammates and the head coach were “contacted by the police and were threatened for posting on social media and their opinion regarding the anti-regime protests.” The Player provided no evidence to these allegations.

11. According to the Player, in mid-November 2022, Persepolis took his passport, which was only returned on 13 December 2022.

12. Between 21 – 29 November 2022, the legal representative of the Player and Mr Hosseini have exchanged WhatsApp regarding a potential transfer of the Player.

13. On 12 December 2022, FIFPro released a statement that “shocked and sickened by reports that professional footballer Amir Nasr-Azadani faces execution in Iran after campaigning for women’s rights and basic freedom in his country.”

14. On 17 December 2022, the Player wished to leave Iran IR, yet he was not able to as he did not have the necessary permission to do so. In this regard, the Player asserted that he purchased a flight ticket for the said date.

15. On 17 December 2022, the Player contacted Mr Hosseini, who advised the Player to contact team manager to request a permission to leave Iran IR.

16. Allegedly, the Player reached to the Dutch embassy in Iran IR in order to leave the country on 17 December 2022. Based on the Player’s submission, the embassy could not help him due to a potential diplomatic conflict between the countries.

17. On 18 December 2022, the Player requested Persepolis to be granted a “permission to leave

the country for a couple of days due to a family emergency.” pg. 4

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18. The request was reiterated by the Player’s legal representative.

19. On 18 December 2023, Persepolis granted the Player the leave and requested him to “take part in training session on 21/12/2022”.

20. On the same day, the Player left Iran IR.

21. On 21 December 2022, the Player sent the following letter to Persepolis: “(…) As you know, the situation in Iran changed drastically following the death of Mahsa Amini on 16 September 2022: There have been – and still are – massive protests against the regime; Tehran is trying to turn the tide with censorship, internet blockades, the arrest of journalists, police brutality, mass arrests and the death penalty; Dozens of people who were involved in the protests have been sentenced to death. In early December Iran carried out the first two executions of individuals who were arrested during the protests. Both individuals were 23 years old. One of them was executed in public.

The Ministry of Justice of Iran announced that it had arrested 40 foreigners for their involvement in the anti-regime protests, without giving further details about their nationality. Authorities previously said nine Europeans had been arrested, including a Dutchman. In total, at least 15.000 people have been arrested. Mr Locadia tried to make the best of the situation in the hope that things would get better. Unfortunately the opposite is happening: things are getting worse and worse every day and literally no one is safe: Some team mates of Mr Locadia have already been contacted by the police and were threatened for posting on social media and their opinion regarding the anti-regime protests; A friendly match against another club was cancelled due to the captain’s arrest for being pro anti-regime protesters; The jewelry store of Ali Daei was closed by the Iranian government because of his support to

the anti-regime protesters; Iran's most celebrated actress, Taraneh Alidoosti, was arrested last week after she condemned the state's use of the death penalty against protesters; Iranian soccer player Amir Reza Nasr Azadani has been sentenced to death after he was arrested last month for joining nationwide protests against the country's clerical establishment.

Last but not least: the Dutch government is very clear in its advice: “The security situation in Iran has deteriorated. Consequently, there is a red travel advisory in place for the whole of Iran. Do not travel to Iran. This advice applies, regardless of your circumstances. The Ministry of Foreign Affairs is unlikely to be able to help you if you get into difficulties. If you are in Iran, leave the country if you can do so safely.” pg. 5

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Termination Employment Agreement In short: the situation in Iran is flat out dangerous. Mr Locadia fears for his safety when he is in Iran and will not return. Therefore he regrets to inform you that – under these circumstances – he cannot carry on his sportive career at Persepolis. Mr Locadia has no choice but to unilaterally terminate his Employment Agreement with immediate effect, based on just cause (clause 14 sub 1 of the FIFA Regulations on the Status and Transfer of Players). It goes without saying that Mr Locadia regrets that it has come to this and wishes the club, his (former) team mates, the head coach, the both of you and everyone else involved, nothing but the best.”

22. On 22 December 2022, Persepolis replied to the Player as follows: “(…) It should be mentioned that the Persepolis club has fulfilled all its contractual obligations from the first day until now.

Accordingly, refuting all your claims in the termination notice dated 21 December 2022, since your absence will cause irreparable damages to the Persepolis club while reminding the

provisions of the employment agreement and FIFA regulations, you will be given 48 hours (until 25 December 2022) to change your decision and adhere to your contractual obligations. Otherwise, the necessary legal actions will be taken against you in FIFA, and in addition to the responsibility for unjustified unilateral termination, you will also be responsible for compensating all the damages caused to the club.”

23. In reply thereto, the Player informed Persepolis that he “regrets this unforeseen situation, but is not planning to return to Iran and the club (Persepolis fc). The reasons summed up in my letter of 21 December 2022 undeniable qualify as just cause (as specified in clause 14 sub 1 of the FIFA Regulations on the Status and Transfers of Players), meaning that Mr Locadia has the right to terminate the employment agreement before the end date. Therefore we are confident that Mr Locadia will be successful in any proceedings brought by the club.

However, it goes without saying that we hope that the club understands, respects and accepts the decision of Mr Locadia and does not bring the case to the FIFA courts. If you should wish to receive additional explanation as a result of the above and my previous letter, I will be happy to provide it.”

24. On 1 April 2023, the Player signed a new employment agreement (hereinafter the New Employment Agreement) with the Chinese club Cangzhou Mighty Lions FC (hereinafter Respondent 2) valid as from the signing date until 31 December 2023.

25. In accordance with Clause 3 of the New Employment Agreement, the Player is entitled to a monthly salary of EUR 60,000 net. pg. 6

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II. Proceedings before FIFA

26. On 28 March 2023, 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

27. The requests for relief of the Claimant were the following:

“H-1: recognize the player for termination of the employment contract without just cause, and H-2: to condemn the Respondent to pay in favor of the Claimant, compensation of net USD 518,400 (Five Hundred Eighteen Thousand and Four Hundred Dollars). H-3: to condemn the Respondent to pay in favor of the Claimant, compensation of net USD 115,200 (One Hundred Fifteen Thousand and Two Hundred Dollars) salary from 21/12/2022 until 31/1/2023. H-4: to condemn the Respondent to pay in favor of the Claimant, the fine of net USD 5,000 (Five Thousand Dollars) as the absent penalty for not participating in the training on 21.12.2022 (Art 4-8 of the contract). H-5: to condemn the Respondent to pay in favor of the Claimant, the fine of net USD 400,000 (Four Hundred Thousand Dollars) as the compensation of the amount which is to be paid to the new player of Persepolis for half season. H-6: to condemn the Respondent to pay in favor of the Claimant, all the legal expenditures. H-7: to condemn the Respondent to pay in favor of the Claimant default interest of 5% per year on the aforementioned amount starting from the respective date of maturity until the effective date of the payment. H-8: according to provisions of Article 17. of FIFA RSTP, the above amounts should be paid within 45 days as from the date of notification of the decision in the present matter to the Respondent; and H-9: in order to prevent similar examples of contractual breaches, Persepolis suggests the honorable chamber, just in case of their discretion, impose sporting sanctions against the Respondent (and his probable new club, just in case he enters into a new employment contract), all in the light of FIFA.”

28. The Claimant contested the allegations of the Player contained in the termination letter

regarding his fears for safety as it argued that other foreign players did not experience such fears.

29. To support its argument, the Claimant furthermore provided a letter of the Football Federation Islamic Republic of Iran (FFIRI) dated 1 March 2023, stipulating that approximately 40 foreign citizens are performing their services in the football industry in

Iran IR.

30. Equally, a letter of the Sports and Youth Ministry was submitted, that further 70 athletes are working in Iran IR. pg. 7

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31. The Claimant also stressed that the Player breached art. 13 et seqq. of the Regulations and terminated the Employment Agreement without just cause since the Club was duly fulfilling its financial obligations throughout the contractual relationship.

32. In this respect, the Claimant believed that a political unrest cannot automatically lead to a conclusion that the employment contract cannot longer be executed.

33. Based on the above, Persepolis requested compensation calculated as follows: “F-1: According to the Art 7 of the employment contract, Persepolis was obliged to pay the salaries based on the below timetable: The net amount of USD 216,000 Net (two hundred sixteen thousand dollars, will be paid to the player after the signature of the employment contract, after the issuance of the ITC, and after the successful result of medical tests which will be made by Iran Football Federation.

The remaining amount of the contract, namely the amount of USD 864,000 (eight hundred sixty four thousand dollars) will be paid to the player in five equal instalments. each instalment USD 172,800 during the season 2022 - 2023 and each instalment will be paid in two months according to the following schedule: 1 October 2022: EUR USO 172,800 (plus possible bonus) 1 December 2022: EUR USO 172,800 (plus possible bonus) 1 February 2023: EUR USO 172,800 (plus possible bonus)

1 April 2023: EUR USO 172,800 (plus possible bonus) 1 June 2023: EUR USO 172,800 (plus possible bonus) In other words, − by receiving USD 216,000, Player was committed to playing for Persepolis until 31 Sep 2022. − by receiving USD 172,800, on 1 Oct 2022, Player was committed to playing for Persepolis until 31 Nov 2022. − by receiving USD 172,800, on 1 Dec 2022, Player was committed to playing for Persepolis until 31 Jan 2023. On 27 Nov 2022, the club paid USD 172,800 to the player and therefore player was committed to playing for Persepolis until 31 Jan 2023 (date of next payment). However, player terminated the contract on 21.12.2022 and therefore he should return USD 115,200 (One Hundred Fifteen Thousand and Two Hundred Dollars) to the club. pg. 8

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F-2: as the player terminated the contract on 21/12/2022, unilaterally and without just cause, therefore the amounts of the remaining duration of the contract validity must be paid by the player to the club: Payment of 1 Feb 2023 - USD 172,800, plus Payment of 1 Apr 2023 - USD 172,800, plus Payment of 1 Jun 2023 - USD 172,800 = USD 518,400 (Five Hundred Eighteen Thousand and Four Hundred Dollars). F-3: the fine of net USD 5,000 (Five Thousand Dollars) as the penalty for not participating in the training on 21.12.2022 (Art 48 of the contract), as the termination contract was sent after the training session on 21.12. 2022 and therefore he was absent from the session.

F-4: after the termination, Persepolis entered into an employment contract with a Brazilian player. The amount of the contract is USD 1,100,000 and the amount to be paid for the halfseason, in addition to the side expenditures (tickets, Hotel, Etc.), costs USD 400,000 (Four Hundred Thousand Dollars) for the club and thus the amount of USD 400.000 should be paid by the respondent to the claimant.” b. Position of the Respondent 1

34. In his reply, the Player argued that he had just cause to terminate the contract based on art. 14 of the Regulations. In this respect, the Player argued that art. 14 of the Regulations encompasses “political or socio-cultural reasons”, which were given in the matter at hand.

35. The Player asserted that, in particular: “No one in Iran was safe anymore. The protesters in the first place, but also random bystanders, children (!), people offering help to injured protesters or people serving women without headscarves in stores and restaurants. Anyone could be arrested, mistreated, killed or be sentenced to death.

The Iranian government also did not shy away from arresting or intimidating and threatening athletes, artists, actors and actresses – through their families or otherwise. Many actors, actress and other prominent Iranian citizens, have also fled Iran; Jürgen himself was already marked as an opponent of the regime because of a post with a photo of himself and a rest-in-peace message for Mahsa Amini; The Dutch government has marked Iran as a code red country. The Dutch government (as well as governments from other countries) has urged – and is still urging – all its residents to pg. 9 REF. FPSD-9764 not go to Iran and if in Iran, to immediately leave Iran. Those who choose to stay cannot count on help and support from the Dutch government.”

36. As to the alleged just cause, the Player asserted that based on the political situation in Iran IR, he felt he could no longer stay there. In this respect, the Player argued that “the

turmoil that arose after the death of Mahsa Amini was definitely not predictable, beyond control of the parties and therefore [he] could not have anticipated this.”

37. The Player further added that the Claimant did not timely fulfil its contractual obligations.

What is more, the Player mentioned that certain expenses that were contractually covered by the contract were paid by him.

38. Pointing out to the newly signed contract, the Player argued that such contract was less lucrative and, hence, he was not motivated to sign this contract to earn “more money elsewhere”. He also highlighted that it took him four months to find the new employment.

39. The Player rejected the claim of the Claimant, yet specifically refrained from lodging a counterclaim.

40. Shall the DRC rule that the Player did not have just cause, the latter argued that no damages are due to the Claimant as it “did not suffer any damages”. In this respect, the Player pointed out to the sporting results of the Club, as well as to the fact that the damages shall be calculated based on the positive interest theory, which the Claimant failed to substantiate with the necessary evidence.

c. Position of the Respondent 2

41. In its reply to the claim, the Respondent 2, argued that it did not sign the Player until 31 March 2023 and that it duly checked the documents submitted by the Player before signing.

42. In this respect, the Respondent 2 asserted “that the player has the rightful reasons to unilaterally terminate his contract with Persepolis FC, and FIFA agrees that under Swiss Law, the player cannot be compelled to remain with his employer against his will.”

43. The Respondent 2 furthermore added the Player was duly registered in China PR on 6 April 2023 by FIFA and, consequently, the claim of the Claimant shall be rejected.

d. Replica

44. In its replica, the Claimant rejected the allegations of the Respondent and insisted on its initial request for relief. pg. 10

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45. In particular, the Claimant was of the opinion that the Player merely points out political issues which are “mostly false” and that such “political matters should not be involved in football matters”.

46. The Claimant also contested any allegations regarding its non-fulfilment of the contractual obligations and argued that any delay in payments was caused by the non-cooperation of the Player himself.

47. The Claimant finally pointed to the WhatsApp messages of October 2022 and argued that the Player wanted to terminate his contract as of then and, consequently, both the Player and his new club shall be liable due to the alleged breach of art. 18 par. 3 of the Regulations.

e. Duplica of the Respondent 1

48. In his duplica, the Player mainly reiterated his position that he had just cause to terminate the contract.

49. Concerning the political situation in Iran IR, the Player argued that “[i]t is hard to believe Persepolis is ignoring these hard cold facts. And it’s essential to keep in mind that if the Iranian government does not shy away from killing, torturing, arresting and executing its own citizens – including prominent people (that tent to cause a lot of extra (unwanted) attention) and children – what stops them from doing the same to Jürgen? And please keep in mind that – as explained in the Response – it does not matter if someone I participating in the protests or not. You can get arrested for basically anything. Jürgen legitimate felt that he could no longer stay safely in

Iran.”

50. Regarding the arguments of the Claimant concerning the wilful termination as of October 2022, the Player submitted new evidence (see summary paras. 14 – 15), claiming that his legal representative “was upfront regarding Jürgen’s wish to leave Iran because of the dangerous situation. And just as important: Mrs. Mahabiersing told Mr. Hosseini that Jürgen did not had any offer. It is typical that Persepolis did not submitted this part of the same

conversation, because they know it would mess with their own completely unsubstantiated claim that Jürgen was already in contact/negotiating with Cangzhou when he left Iran.”

51. In this respect, the Player submitted further evidence dated March 2023, related to the transfer to his new club.

f. Duplica of the Respondent 2

52. Despite being invited to do so, the Respondent 2 failed to submit its duplica. pg. 11

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III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

53. 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 28 March 2023 and submitted for decision on 21 September 2023. Taking into account the wording of art. 34 of the March 2023 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.

54. 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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Iranian club, a Dutch player and a Chinese club.

55. 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 (May 2023 edition) and

considering that the present claim was lodged on 28 March 2023, the March 2023 edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

56. 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 TMS.

c. Merits of the dispute

57. 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. pg. 12

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1. Main legal discussion and considerations

58. The foregoing having been established, the Chamber moved to the substance of the matter, and took note that this is a claim of an Iranian club against a Dutch player and his new Chinese club.

59. In this context, the Chamber acknowledged that the crux of the claim lies in the assessment of the Player’s termination on 21 December 2022. In particular, the DRC acknowledged that their task is to decide if such termination was with just cause, based on art. 14 of the

Regulations.

60. First of all, the DRC referred to the content of art. 14 of the Regulations, which provides that “a contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause”.

61. In this context, the Chamber recalled its longstanding and well-established jurisprudence that only a breach or misconduct which is of a certain severity justifies the termination of a contract, i.e. only when there are objective criteria which do not reasonably permit to expect a 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 ensure the employee’s fulfilment of his contractual duties, and vice versa, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

62. The Chamber further recalled that the definition of just cause and whether just cause exists shall be established in accordance with the merits of each particular case and that it the party issuing termination that carries the burden to substantiate and prove that there was just cause.

63. With this in mind and after having carefully analysed the Parties’ submissions, the Chamber firstly pointed out that it remained undisputed by the Player that he received his remuneration for the respective period, despite alleging a few days delays and/or alleged problems with cashing the respective payments.

64. Thereafter, the Chamber focused on the main arguments of the Parties and noted that whereas the Player insisted that it was no longer safe for him to provide his services in Iran IR due to the worsening of the local political situation, Persepolis argued that a political unrest cannot automatically lead to a conclusion that the employment contract cannot longer be executed.

65. Having said that, the DRC started by recalling the chronology of the case and noted that the Parties signed a contract in August 2022, i.e. prior to the political events taking place as of September 2022. pg. 13

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66. In this respect, the DRC did not wish to omit that even before entering into the employment agreement, Iran IR was a country experiencing safety risks and, consequently, it must be

conceded that the Player was aware of the possible risks at the moment of concluding the Employment Agreement.

67. The members of the Chamber nonetheless recalled the arguments of the Player that, allegedly, in October 2022, the Dutch government recommended all Dutch citizens to depart from the country.

68. While referring to the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, the Chamber highlighted that the Player failed to provide the appropriate timeline as to when these recommendations were issued, i.e. if the country status (Iran IR) had actually changed since August 2022.

69. The DRC also duly noted the Player’s arguments concerning the threats purportedly experienced by the latter, yet it was not able to assess their veracity nor their existence as the Player equally failed to provide any evidence thereto.

70. The DRC continued that the same applies to the Player’s allegations concerning his missed flight on 17 December 2022 or his alleged contact with the Dutch embassy on the same day.

71. At this point, the members of the Chamber highlighted that the Player failed to address his concerns for safety to the Claimant; in particular, the Chamber found it noteworthy that the Player’s request for absence mentions “family emergency”, yet the termination notice brings forward very different reasons.

72. After thoroughly analysing the evidence on file, the DRC emphasised that the Player did not seek to contact the Claimant in order to discuss on a possible solution or to request from the latter security guarantees. In this regard, the DRC did not neglect the arguments by the Player that he could not have stated to the Claimant that he felt unsafe. Nonetheless, the DRC highlighted that had it truly been dangerous for the Player to leave the country and had he indeed communicated his fears to the Dutch authorities, it would be expected for him to provide the respective evidence thereto.

73. In light of the abovementioned considerations, the DRC determined that, far from acting

with caution, the R