TAS - CAS 5578 de 2018

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2018/A/5578 Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018

Panel: Prof. Petros Mavroidis (Greece), President; Mr Clifford Hendel (USA); Mr Efraim Barak

(Israel) Football Termination of employment contract without just cause Burden of proof Just cause Notice prior to termination

1. It follows from Article 8 of the Swiss Civil Code that unless the law provides otherwise, the burden of proving the existence of an alleged fact shall rest on the person who derives rights from that fact. Put differently, facts pleaded have to be proven by those who plead them. In practice this means that a party invoking a specific right is required to prove such facts as normally comprise the right invoked, while the other party is required to prove such facts as exclude, or prevent, the efficacy of the facts proved, upon which the right in question is based. Also under established CAS jurisprudence any party wishing to prevail on a disputed issue must discharge its burden of proof, i.e. must give evidence of the facts on which its claim is based. The two requisites included in the concept of ‘burden of proof’ are (i) the ‘burden of persuasion’ and (ii) the ‘burden of production of the proof’. In order to fulfil its burden of proof, a party must therefore provide the CAS panel with all relevant evidence that it holds, and, with reference thereto, convince the panel that the facts it pleads are true, accurate and produce the consequences envisaged by it. Only when these requirements are complied with has the party fulfilled its burden and has the burden of proof been transferred to the other party.

2. While the FIFA rules do not precisely define the concept of “just cause”, this concept – referenced in Article 14 FIFA Regulations on the Status and Transfers of Players – is quite similar to “good reason” included in Article 337.2 Swiss Code of Obligations.

When considering the existence of a “just cause” or “good reason”, respectively, CAS has often followed the jurisprudence of the Swiss Federal Tribunal, according to which “good reason” exists when the quintessential terms and conditions (either general/objective or specific/personal) which formed the basis of the contractual arrangement are no longer respected. Put differently, only material, serious breaches of a contract can possibly be considered as “just cause”. Lack of respect of auxiliary terms and conditions, conversely, could not be offered as “good reason” (just cause) for lawfully terminating a contract. In this vein, the Swiss Federal Tribunal has repeatedly held that in presence of good cause, the party terminating the employment relationship cannot be reasonably required to continue performing its obligations.

CAS 2018/A/5578 2

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018

3. For a party to be allowed to validly terminate an employment contract, it is often required, based the principle of good faith, that it has provided the other party with adequate notice, in order for the latter to have the opportunity to comply with its obligations. However, the duty to issue a reminder or a warning, respectively, is not absolute, and there are circumstances where no reminder and no warning were deemed necessary. In a nutshell, this is the case when it is clear that the other side does not intend to comply with its contractual obligations.

I. THE PARTIES

1. Jean-Sony Alcenat (“the Player” or “the Appellant”) is a professional football player, born in Haiti on January 23, 1986. He currently resides in Portugal.

2. Steaua Bucuresti (“the Club” or “the Respondent”) is a football club based in Bucharest, Romania. It is a member of the Romanian Football Association (“HFF”), which in turn is a member of the Fédération Internationale de Football Association (“FIFA”).

II. FACTS

3. The parties to the dispute disagree on whether the contract linking the Player to the Club was

(or was not) terminated with just cause, and if so, by whom. The Player claims that the Club breached the contract by terminating it without just cause, and, in the alternative, that he himself terminated it, albeit with just cause and accordingly without breach. The Club, conversely, claims that it is the Player who had breached the contract by terminating it without just cause. Because of their diverging positions on this score, the parties to the dispute reach diametrically opposed conclusions regarding the legal consequences of the alleged breach.

4. The dispute between the parties was first submitted to the FIFA Dispute Resolution Chamber

(DRC). It is against the DRC decision that the Player has raised his appeal. In what immediately follows, the Panel first explains the factual background that gave rise to the dispute before the DRC, and then presents the DRC decision in a nutshell. The Panel then moves on to discuss the appeal before the CAS and the respective legal claims and arguments of the parties before the CAS (Section III), before presenting the Panel’s decision with respect to its jurisdiction (Section IV), the applicable law (Section V), the merits of the case (Section VI), and finally the attribution of the costs of the proceedings (Section VII).

A. Background

5. The Player and the Club concluded an employment contract valid as from the date of signature

(July 1, 2015) until June 30, 2018. The employment contract (that is, the official translation thereof provided to the Panel, the content of which is not in dispute between the parties), under its Article J (1), provides for a monthly salary of an amount equivalent to 18,334 EUR, payable CAS 2018/A/5578 3 Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 on 30th of each calendar month. Furthermore, in its relevant part to this dispute, the

employment contract reads as follows: Article S: a) The applicable law is the Romanian law. b) This individual labour contract will be deemed as signed in Romania and all dispute, controversy and misunderstanding resulting from or in relation to this individual labour contract will be governed, interpreted, understood and resolved in accordance with the Romanian law in force, as well as with the statutes and sports regulations. c) The contractual liability, establishing the damages and penalties are regulated by the civil law, the sports statutes and regulations, as well as the annexes to this individual contract.

Article V: The provisions of his individual labour contract are supplemented with the provisions of the Law No. 53/2003 – Labour Code and the applicable collective labour agreement ….

6. The contract is supplemented by a “Professional Annex”, which both parties signed and agreed forms an integral part of the contract. The Professional Annex, in its relevant part reads as

follows: Article 3.1(b):

The player is obliged: ….

(b) To present immediately, in case of injury or sickness during its activity of professional player, to the medic of the football team and to submit to all the medical and therapy measures indicated by the latter or by the specialists to which he is sent; Article 3.1(j): Failure to comply with any of the provision under letter a) – i) will entail sanctions, in accordance with legal or regulations provisions, namely: - Written warning; - Interdiction of participating to official, friendly matches or training sessions for a term of 1-3 months; - Sports penalty of up to 25% of the value of contractual rights of the player during one competition year.

CAS 2018/A/5578 4

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 Article 4.4:

The Club undertakes: ….

To ensure to the player 500 euro (in RON at the NBR exchange rate of the date of payment) monthly for the

payment of the rent and 2 return plane tickets per season for the player and his family, for the route Bucharest – Port au Prince (Haiti) – Bucharest.

7. The Player was granted a Romanian residence visa running until July 31, 2016. Following a few months at the Club, the Player was loaned to FC Voluntari, another Romanian club, and signed a contract to this effect running from February 19, 2016 to June 30, 2016. He modified his visa status on December 22, 2015 to take account of his move to Voluntari, without however modifying the date of expiry of his visa. As Voluntari is located within one kilometre from the Northern border of Bucharest, the Player kept the apartment he had originally rented upon arrival at the Club. The lease contract for his apartment was running from August 1, 2015 until July 31, 2016, and it forms part of the record before the Panel.

8. While at FC Voluntari, the Player was informed by the Club, through its employee, Robert Ioan, of the procedure for renewing his visa. This communication took place on April 28, 2016, and the Club deposited the fee required for extension. The Player informed the Club (at a meeting held on May 13, 2016) that he had been called to participate in the 2016 Copa Centenario tournament where he would represent his country, Haiti. The official invitation to participate had been issued on May 6, 2016. The Player would have to be on international duty from June 3 to June 26, 2016. Because he had to leave in the next days, he decided that he would proceed with the renewal of his visa upon return to the Club on July 1, 2016 (since his loan to FC Voluntari would have expired on June 30, 2016).

9. While on international duty, the Player suffered an injury. The injury was suffered during a game

against Colombia on May 29, 2016, a friendly training match before the official kick off of the 2016 Copa Centenario. It was reported as hamstring injury that could lead to further complications, if aggravated. The Player participated in two of the three games that Haiti played during the tournament. Because his team, Haiti, lost all three games that it played, Copa Centenario was over for the Player as of June 12, 2016.

10. The Player followed the team doctor to Miami, Florida where he spent three days, and returned to Haiti on June 15, 2016. He continued rehabilitation with the same doctor in Haiti until his return to Bucharest on July 14, 2016, even though the medical doctor had taken the view that the Player should continue rehabilitation until July 30, 2016. He was contacted by the Club on July 1, 2016, the Club urging him to return to Bucharest, since his loan to FC Voluntari had expired, and the Copa Centenario was over by that time. In a WhatsApp message sent that day, he claimed that he was still in the United States for rehabilitation purposes.

11. He eventually returned to Bucharest on July 14, 2016. He had already sent the documents requested by Mr. Ioan on May 13, 2016. Nevertheless, under Romanian law, the Player’s CAS 2018/A/5578 5

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 physical presence was required for his request for renewal to be processed. The Player agreed to appear before the Romanian authorities.

12. The request to renew the visa was denied by a decision issued on July 11, 2016 because the application was not properly done. On July 20, 2016, the Player and Mr. Ioan appeared before the Immigration Office of Voluntari, only to hear that their request for renewal had been denied.

13. There is disagreement between the parties as to the facts here. The Player believes that the

reason for refusal was the lack of production of various documents (taxes, the so-called REVISAL (an internal document of the Club), passport, that the Club could and should have submitted to the authorities. The Club states that the request for renewal was denied because the Player had not procured evidence of a new rental agreement. Furthermore, the Club also maintains that the Player had erroneously requested an application of a “civil” visa, while he was in possession of an “employment” contract linking him to the Club from June 30, 2015 for a period of three years.

14. Following the lack of renewal, the Club, on July 22, 2016, sent a letter to the Player informing him of the suspension of their contractual relationship. The Club in this and subsequent communications with the Player maintained that it wanted to revive its contractual relationship with the Player, and denied any wrongdoing and/or lack of diligence regarding the renewal of the Player’s visa. The Player, in various communications with the Club during this period, stated that he had received no help from the Club throughout this process. On August 11, 2016, he sent his letter of termination to the Club, stating as reason the Club’s alleged lack of diligence to obtain and submit the necessary documents to the authorities in order for them to process his request for renewal. On August 21, 2016, the Club offered its collaboration to resolve the issue. Nothing much happened after that, until the day when the Player sued for damages against the Club before the DRC. The Player eventually signed a new contract with C.D. Feirense, a Portuguese club, for the 2016-2017 season, subsequently renewing it for the 2017-2018 season as well.

B. Proceedings before the FIFA Dispute Resolution Chamber (DRC)

15. The Player sued before the DRC, which issued its decision on July 13, 2017. The DRC found against the Player on two grounds. First, because the Player had consulted with the medical doctor of the national team of Haiti, without respecting his contractual obligation to inform the

Club and do as told in this matter. Second, because it stems from the facts that neither the Player, nor the Club had interest in renewing the contractual relationship between them.

16. The DRC held that it did not have sufficient elements at its disposal in order to determine whether the refusal to renew the contract was due to the non-presentation of a rental agreement.

In its view, the facts before it, as presented by the parties, could not tilt the decision towards one or the other direction. As it had already enough grounds to issue its decision, it did so leaving the relevance of the rental agreement undecided.

17. The DRC found that the Club had to pay the Player the salary for the ten days of the month of July 2016 the Player was present in Romania (that is, between July 14-24, 2016), as well as the CAS 2018/A/5578 6

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 price for the air ticket the Player purchased on his own account, even though the Club was contractually obliged to do so. Specifically, the DRC held:

1. The claim of the Claimant/Counter-Respondent, Jean-Sony Alcenat, is partially accepted.

2. The Respondent/Counter-Claimant, FC Steaua Bucuresti, has to pay to the Claimant/CounterRespondent within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of EUR 8,297.87, plus 5% interest p.a. on said amount as from 1

August 2016 until the date of effective payment.

3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent within 30

days as from the date of notification of the present decision, additional outstanding remuneration in the amount of CHF 1,900.

5. In the event that the aforementioned sum is not paid within the state time limit, interest at the rate of 5% p.a. will fall due as from the expiry date and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

6. Any further claim lodged by the Claimant/Counter-Respondent is rejected.

[…].

18. The DRC decision was communicated to the parties by email on January 30, 2018.

19. It is against this decision of the DRC that the appeal has been lodged.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

20. On February 19, 2018 the Statement of Appeal was lodged with the Court of Arbitration for Sport (“the CAS”) in accordance with Articles R47 et seq. of the Code of Sports-related

Arbitration (“the Code”).

21. On March 6, 2018 the Appellant submitted his Appeal Brief in accordance with Article R51 of the Code.

22. On March 8, 2018, FIFA informed the CAS Court Office that it renounced its right to request its possible intervention in the present proceedings.

23. On April 4, 2018, following disagreement between the parties whether to submit the case to a CAS Panel of three arbitrators or a Sole Arbitrator, the CAS Court Office informed the parties that the President of the Appeals Arbitration Division had decided to appoint a three-member Panel to hear the appeal.

CAS 2018/A/5578 7

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018

24. On May 11, 2018, the Respondent filed its Answer to the Appeal in accordance with Article R55 of the Code.

25. On May 17, 2018, the CAS Court Office, on behalf of the President of the Appeals Arbitration

Division, confirmed the constitution of the Panel as follows:

President: Mr. Petros C. Mavroidis, Professor, Commugny, Switzerland

Arbitrators: Mr. Clifford J. Hendel, Attorney-at-law in Madrid, Spain

Mr. Efraim Barak, Attorney-at-law in Tel Aviv, Israel.

26. On June 25 2018 and June 27 2018, the Respondent and the Appellant, respectively, submitted a signed version of the Order of Procedure.

27. On July 16, 2018, a hearing was held at the CAS headquarters in Lausanne, Switzerland. In addition to the Panel, Ms. Carolin Fischer, Counsel to the CAS attended the hearing. - The Player was present at the hearing, and was represented by Mr. Josep Francesc Vandellos Alamilla, Attorney-at-law in Valencia, Spain; - The Club was represented by Mr. Gauthier Bouchat, Attorney-at-law in Brussels, Belgium, who was accompanied by Mr. Robert Ioan, a club employee.

28. Upon request by the Panel, the parties confirmed that they had no objection with regard to the composition of the Panel, and the manner in which the process had been handled up to the hearing-stage. At the end of the hearing, both the Appellant and the Respondent explicitly confirmed that their right to be heard had been fully observed throughout the arbitration proceedings.

29. The Panel reminded the Appellant that there was an outstanding issue, namely the production of the renewal of the contract that the Player had signed with C.D. Feirense, subsequent to the termination of his contractual relationship with the Club. The Player’s counsel confirmed that he would be sending a copy within the briefest deadlines. On July 17, 2018, the CAS Court Office received a copy of the renewal. The CAS Court Office distributed the copy to the members of the Panel, as well as to the Respondent for comments.

IV. PARTIES’ POSITIONS AND PRAYERS FOR RELIEF

30. The following section summarises the parties’ main arguments in support of their respective requests for relief. Even though the Panel has examined the full record submitted by the parties to the dispute, in what follows it presents only the claims and arguments, which, in the Panel’s view, were relevant in deciding the issues before it.

CAS 2018/A/5578 8

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018

A. The Appellant

31. It is the view of the Appellant that the Club had de facto terminated the contract without just cause, by refusing to provide the Player with the requisite help in order to process the renewal for visa. The letter of the Club of July 22, 2016 is clear testimony to this fact. The duty of the Club is circumscribed in Article 18.4 of the FIFA Regulations on the Status and Transfers of Players (“RSTP”), which is the legal benchmark to decide this dispute. Alternatively, the Appellant maintains that he terminated the contract with just cause, precisely because he was facing total lack of cooperation from the Club, and could not process the application for renewal on his own. As a result, the Club must pay the remainder of the contract (Article 17 of the RSTP; Article 337 Swiss Code of Obligations (“CO”)). Assuming the Panel agreed to the claim, it would have to set aside the DRC decision.

32. Romanian Law is irrelevant in the Appellant’s view. Article 18.4 RSTP suffices by and large to adjudicate the present dispute. Nevertheless, assuming the Panel were to apply Romanian law, then it would have to reach the same outcome. Article 18.4 RSTP shifts the burden to deal with all administrative issues regarding visas to the Club. The rationale for this provision is that clubs are better equipped to address similar issues, and players should anyway focus on their profession, and not be distracted by administrative hassle. At the very least, the Club should

take the lead and involve the Player only to the extent strictly necessary in order to renew a visa. The Club failed to do as much.

33. The Club acted in bad faith throughout the period in which the renewal of the residence visa was discussed and applied for, and especially in the critical month of July 2016. Its first reaction to the numerous requests by the Player to proceed with the application came only on July 20, 2016 when the request for renewal of visa had been denied. It then sent an email to the Player stating that the contract between them was henceforth “invalid”.

34. Contrary to the Club’s allegations, the Player had repeatedly requested assistance in order to process his application, but received none. Of course, no one could reasonably expect the Player to renew the visa by himself, since he lacked the expertise to do that. Knowledge of Romanian law is a necessary, if not decisive, element in this endeavour. Lack of help by the Club thus, amounted to de facto termination of the contract without just cause.

35. The Club was effectively implementing a strategy to dissociate itself from the Player, especially since the latter returned to Romania on July 14, 2016. All its actions and inactions during the days that preceded and followed the Player’s arrival in Romania point to a well-thought attitude aiming at terminating the contractual relationship with the Player. The Club could, for example, if it wanted to assist the Player and act in good faith, insert a hotel address to take care of the rental-related issues, as it had done the first time he had signed with the Club. The Club chose not to do so.

36. The Player had not taken meaningful steps in connection with the renewal of his residence visa prior to returning to Romania on July 14, 2016 because he wanted to focus on his international obligations, and play a good tournament with the Haiti national team. The Copa Centenario is a very prestigious tournament, and the Player had been presented with a unique opportunity to CAS 2018/A/5578 9

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 show his talent. Alas, he was injured a few days before official kick off. The Player suffered from chronic knee problems, and this was much known to the Club. He further suffered a hamstring injury on May 29, 2016 while playing for the national team in an exhibition game against Colombia. It is this latter injury that needed additional treatment, which he underwent first in Miami and then in Haiti where he returned around June 15, 2016. He informed the Club of his injury only on July 1, simply because until June 30, 2016 he was on loan to Voluntari FC, and consequently, he did not need to inform the Club before that date.

37. Still, the Player was diligent. He gathered all documents he could reasonably be expected to put together, and submitted for civil visa renewal only because the Club has similar arrangements with other players as well, and because his loan contract with FC Voluntari was a “civil”, not an “employment” contract.

38. The Appellant maintains that the request for renewal of his visa was denied for reasons other than the lack of a rental renewal. The Club has disingenuously offered the lack of a rental agreement as the real reason behind the refusal. In truth, the visa was not renewed because the Club lacked due diligence and did not submit a series of documents at its disposal to the competent Romanian authorities. The Appellant does not deny that a valid rental agreement is necessary in order to renew the visa. In his view, though, the fact that his lease continued in effect until the end of July 2016 (one week after the expiry of the visa) established that he had a fully-sufficient rental agreement in effect on the date of expiry of the visa. Furthermore, the lack of production of a rental agreement was in any event due to lack of diligence by the Club, since it could have used a hotel address, as it had been the case when the Player had signed his

contract with the Club in 2015. Finally, the Player’s Annex 7bis (the authenticity of which the Respondent initially challenged, but later at the hearing changed its position and admitted its authenticity) indicates that the visa was denied for reasons other than lack of a rental renewal.

39. The President of the Club left the Player in no doubt, when communicating to him that the contract was invalid, and that he had to leave the country as a result as per applicable Romanian law. The letter sent by the President to the Player on July 20, 2016 leaves no room for further discussion on this point.

40. The Appellant therefore asks the Panel to accept its appeal, set aside the DRC decision, and impute all legal and administrative costs to the Respondent.

41. Specifically, the Appellant submitted the following requests for relief: 1) The decision passed by the FIFA Dispute Resolution Chamber on 13 July 2017 is set aside. 2) The appeal filed by the Appellant against the Decision by the FIFA Dispute Resolution Chamber on 13 July 2017 is upheld and the Panel issues a new decision declaring that: The Appellant terminated the employment contract with the Respondent, with just cause on 11 August 2016, or in the alternative, that the Respondent Club terminated it CAS 2018/A/5578 10

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 without just following the failure to obtain the visa/work permit or following the suspension of the employment contract. The Respondent has to pay the Appellant all outstanding salaries at the moment of termination, in the amount of 24.839,61 EURO NET plus interest of 5% p.a. or in the amount determined by the Panel, as from the due date pursuant to the Employment Contract, until the date of effective payment. The Respondent has to pay the Appellant compensation for breach of contract in the amount of 414.585 EURO NET plus interest of 5% p.a. as from 11 August 2016 or in

the amount determined by the Panel. Alternatively, compensation shall be calculated from the date of termination of the contract by the club; The Respondent has to pay the Appellant 2.738 Euro representing the cost of the flight ticket of 23 July 2016 (vid. Annex 11). To impose the Respondent a sanction equivalent to half of the annual wages of the Player for one sporting season corresponding to the “specificity of sport” and according to article 337c al. 3 of the Swiss Code of Obligations. 3) To fix a sum, to be paid by the Respondent to the Appellant, in order to pay its defence fees in the amount to be determined at the full discretion of the Panel, and condemn the Respondent to the reimbursement of any and all advance of costs and court office fee paid by the Appellant.

B. The Respondent

42. The Respondent claims that the law applicable to this dispute are the FIFA Statutes and FIFA Regulations, complemented by Swiss law, to the extent there are gaps in the FIFA Regulations.

For issues such as renewal of visa, where the FIFA Statutes or FIFA Regulations are silent, it is the law provided for in the contract that applies. The contract explicitly provides for the application of Romanian law in this respect.

43. Article 18.4 RSTP does not apply, since it concerns the issuance of work permits, not residence permits, which is the issue in dispute. What is at stake here is the renewal of a contract, the validity of which has not been disputed. The Respondent accepts, nonetheless, that although distinct, there is no firewall between work permitand visa-requirements. The Player had to renew the visa while in possession of a valid work permit. Renewal of the visa is the responsibility of the Player, and the Club is, of course, under the duty to assist. Indeed, the Club did try to help quite in time, when already in April 2016, Mr. Ioan alerted the Player to the expiry

of his visa in July 2016, and offered to help him throughout the process of renewal.

44. The Club was in good faith throughout the process, and there are various elements on record that prove that this had indeed been the case. The relevant narrative starts well before July 20,

2016. It starts when Mr. Ioan, anticipating the return of the Player to play with the Club after the termination of the loan to Voluntari, already in April 2016 asked the Player to start CAS 2018/A/5578 11

Jean-Sony Alcenat v. Steaua Bucuresti, award of 26 October 2018 proceedings leading to the renewal of visa. It is the Player who refused to comply with the request, stating that he would take care of renewal upon his return from international duty, around mid-June 2016. This fact, in and of itself, establishes that the Club was diligent in renewing the visa. It is the Player who took a risk, when leaving it for the last minute to proceed with the renewal. Additional proof that the Club had been diligent, and wanted indeed to proceed with the renewal, is the fact that it paid all administrative fees for renewal already on April 28, 2016, as bank documents on record prove.

45. Conversely, it is the Player who had adopted a dubious, and often non-cooperative attitude throughout the process. First, as already stated, he left renewal for the last minute. Second, he should have informed the Club, as per his contra