F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 27 February 2013, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member on the matter between the player, Player G, from country B as Claimant/Counter-Respondent and the club, Club D, from country U as Respondent/Counter-Claimant and the club, Club S, from country P as Intervening Party 1 as well as the club, Club E, from country B as Intervening Party 2 regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 27 February 2013, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member on the matter between the player, Player G, from country B as Claimant/Counter-Respondent and the club, Club D, from country U as Respondent/Counter-Claimant and the club, Club S, from country P as Intervening Party 1 as well as the club, Club E, from country B as Intervening Party 2 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 10 August 2009, Player G, from country B (hereinafter: the player or Claimant / Counter-Respondent), and Club D, from country U (hereinafter: the club or Respondent / Counter-Claimant) signed an employment contract (hereinafter: the contract) valid as from the date of its signature until 9 August 2014. Art. 3 of the contract stipulates that: “The club shall pay the monthly salary to the player in accordance with item 1 of Annex 1 to this Agreement.” 2. On the same date, the player and a company named “XY MANAGEMENT Ltd.” (hereinafter: the Company) signed an “agreement to the contract” (hereinafter: the agreement). The preamble of the agreement stipulated that it was “concluded by [the player] with [the Company] on salary and bonuses payment as well as application of the penalty sanctions.” 3. In accordance with the agreement, the Company undertook to pay the player per year, the total amount of USD 500,000, to be paid in eleven equal monthly installments and bonuses. Equally, the Company would provide the player with “service apartments”. 4. Moreover, art. 6 of the agreement stipulated the following sanctions: - for absence of the player in the disposition of the team: penalty in amount of 20 000 (twenty thousand) US dollars for every missed day (including for every incomplete day); - for unauthorized leaving/departure from the team training and/or residential ground: penalty in amount of 50 000 (fifty thousand) US dollars per each case; - for non-compliance/non-observance of the instructions of the coaches of the club or the club management: penalty in amount of 20 000 (twenty thousand) US dollars per each case; - for unsporting behavior before, during or after the matches and/or trainings of the team: penalty in amount of 10 000 (ten thousand) UD dollars per each case. 5. On 16 September 2011, the player lodged a claim against the club in front of FIFA claiming that, on 12 August 2011, he was left with no other option but to unilaterally terminate the employment contract with just cause. 6. The player explained that on 28 July 2011, he formally notified the club of its arrears, apparently amounting to USD 66,432: USD 15,000 as part of his February 2011 salary, USD 20,432 as part of his March 2011 salary, USD 25,000 as part of his salary for May 2011 and USD 6,000 as monthly accommodation allowances for May, June and July 2011. By means of said notice, the player provided the club with a seven days deadline to comply with its contractual obligations, or in defect he would have to terminate the labour relationship. 7. Subsequently, on 4 August 2011, the club replied as follows: - Regarding the salary for February 2011, the club claimed that it had effectively been paid in advance, by mistake, together with his salary for January 2011; an assumption which the player rejects as he claims that the extra amount paid in January, was in fact part of a bonus payment. - Regarding the salary for March 2011, the club apparently acknowledged that it had failed to pay such an amount and that it would do so “together with the next monthly payment”. - Regarding the salary for May 2011, the club apparently withheld the amount of USD 25,000 in connection with a fine that was apparently imposed on the player for an alleged disciplinary infringement. In this respect, the player rejects this argument, and claims to have never been officially notified of any infringement nor of any disciplinary procedure against him and even less about any decision implementing such alleged disciplinary fine. - Regarding the accommodation allowances, the club mentioned that such amounts will be cancelled in due course. - Also, the club refused to pay the money to the bank account indicated in the letters of the player (i.e. the letters of his representative) as the bank account was different. 8. On 8 August 2011, the player provided the club with a second notice for payment, granting it a three day deadline in order to comply with its relevant outstanding financial obligations, failure of which would lead to the immediate unilateral termination of the contract without further notice. 9. On 11 August 2011, the club replied stating that it had held a meeting with the player in the previous week and that all pending issues had been checked and the procedure of settlement agreed. The player however underlined he had never held a meeting nor discussed the situation with anyone linked with the club. 10. Subsequently, on 12 August 2011, the player formally notified the club of the unilateral termination of the employment contract. 11. Notwithstanding the above, the player acknowledges that on 16 August 2011 the club did proceed with the payment of the outstanding part of his salary for March 2011. 12. In view of all the above, the player requests to be awarded the following amounts: 1) Outstanding payments: USD 107,583.57 plus 5% interest p.a. “as from the date they became due”: - USD 15,000 corresponding to part of his salary for February 2011; - USD 25,000 corresponding to part of his salary for May 2011; - USD 45,454.54 corresponding to his salary for July 2011; - USD 16,129,03 corresponding to 11 days of work in August 2011; - USD 6,000 corresponding to his accommodation allowances for May, June and July 2011 (2,000 x 3). 2) Compensation: USD 1,454,545.50 13. In its reply, the club stated that as of January 2011 the player’s performances declined and he was sent to the reserve team. On 22 April 2011, the player misbehaved by refusing to follow the instructions of the coach which resulted in a reprimand. The club explains that the misbehavior continued and that the player refused to take part in a team’s away game, and although having been invited to explain himself for such behavior the player did not do so. Such breach of internal discipline provided for a fine of USD 50,000, however the club opted for a fine of only USD 25,000. 14. Furthermore, on 20 June 2011, the player apparently returned from holidays four days late, reason for which the player could have been fined USD 20,000 for each day of absence, however, the club opted for a more lenient approach, consisting of a fine of USD 5,000. The player was once again granted the opportunity to provide his reasoning for such a delay, but he failed to do so. 15. Secondly, as to the allegations of the player in relation to the outstanding amounts, the club states the following: • As to the salary for February 2011, the club explained that it had mistakenly paid the player a surplus of USD 15,000 in January 2011, reason why in February 2011, this surplus was consequently deducted from his salary. This is confirmed by the payment receipt of January 2011, which indicates that the player had received USD 63,036 (i.e. monthly salary + USD 15,000 surplus + USD 3,000 in bonuses). • According to the club, “the actual payer of the relevant payments was not the Club itself but its partner – the company “XY Management Ltd”, located outside country U, which is licensed jointly with Club D by the Football Federation of country U for participation in all country U Football competitions (…)”. In January 2011, a mistake was made in favor of the player (overpayment of USD 15,000) whereas in March 2011, the mistake was made to the detriment of the player (underpayment of USD 20,000). Moreover, the club maintains that it was only after the player´s first notice letter dated 28 July 2011 that it became aware of the latter’s salary underpayment for March 2011; which was effectively paid two weeks after the aforesaid notification. • As to the salary for May 2011, the amount of USD 25,000 was deducted in accordance with the fine imposed. • As to the USD 6,000 concerning the monthly accommodation allowances for May, June and July 2011, the club underlines that the club possesses a specific pattern on rental payment procedures: “they are made on quarterly basis (after each three months rental period). This procedure was well-known by the player and followed by him for quite a while”. Moreover, after the first notice letter issued by the player in July 2011, the club reminded the player where he could go to get the reimbursement for those expenses. • As to the salary for July 2011, the club provided proof of payment of USD 60,506.61 for July 2011 (20,059.61 regarding the March salary + 40,447 – 5,000 for the fine imposed on him, on 5 July 2011, after arriving late from vacation). 16. In brief, the club indicates that out of the USD 66,432 claimed by the player in his first notice to the club, the only sum which was mistakenly underpaid was the sum of USD 20,432, which was in fact paid to the player on 16 August 2011, 17 days after his first notification. 17. As a result, the club is of the firm belief that this mistake should not be considered a serious breach of contract, providing the player with just cause to unilaterally terminate the contract. 18. Subsequently, the club deems that the dispute at hand should be assessed in light of art. 17 of the Regulations on the Status and Transfer of Players but vice versa: “it was the Player, who without a good reason and just cause had unilaterally terminated the Contract in breach of its binding nature; and the consequences, provided by the art. 17, shall be applied to him”. 19. Consequently, the club filed a counterclaim against the player, requesting to be awarded the total amount of EUR 1,342,128.6 plus 5% p.a. as from 12 August 2011, based on the following: - “the club paid to Club C [player´s previous club] as its part of the transfer compensation EUR 2 200 000 for the transfer of the Player (this sum did not include the solidarity contributions to third clubs); the solidarity mechanism payments to the third clubs amounted to EUR 36 884 [evidence on file]. Thus the total amount paid by the Club for acquisition of the Player makes EUR 2 236 881”. - Moreover, “his yearly salary under the contract made USD 500 000 (payable in 11 equal and monthly instalments of USD 45 454 45). The remaining term of the Contract, early terminated by the Player, without just cause makes 36 months (3 years)”. 20. Finally, the club indicated that the player was already negotiating terms with Club S, from country P. 21. In his duplica, the player indicated that most of the disciplinary infractions of which he is accused of, are entirely false. Nevertheless, the player acknowledges having returned from vacation with a delay of four days, which happened against his will. 22. With regard to the other accusations, in particular, the one that the player refused to travel and participate in one of the club´s away games, the player for his part categorically rejects this allegation. 23. Also, in order for a club to impose a disciplinary sanction on a player, it first needs to indicate a disciplinary procedure against such a person, granting him a notice to submit his defence before reaching a decision and imposing a sanction. 24. Moreover, in connection with the documents presented by the club, the player claims not to be aware of them as apparently, they had never been communicated to him. The player also underlines that the documents presented by the club are not signed by him, are not recognized by a public notary and, more importantly, the club has failed to present any fax reports or registered letters proving that the player had indeed been notified of such documents. 25. Having said this, the player categorically refutes the allegations regarding the USD 25,000 apparently discounted from his salary for May 2011. 26. In connection with the amounts claimed, the player stated that the amount of USD 15,000 was never erroneously paid in advance as part of his salary for January 2011, but rather as a payment for match bonuses. Moreover, as to the salary for March 2011, in the amount of USD 20,432, the player wishes to reiterate that the club only cancelled USD 20,000, after the player had unilaterally terminated the contract on 12 August 2011, in a desperate attempt to remedy its contractual breaches. However, the player maintains that USD 432 still remains outstanding. 27. With regard to the accommodation allowances, the club voluntary acknowledged such debt, but again failed to make any payment. 28. As to his salary for July 2011, the player acknowledged that on 16 August 2011, the club in fact cancelled the amount USD 40,447, however still owing him USD 5,007.54. 29. Therefore, the player entirely rejects the allegations put forward by the club, but amended his claim for outstanding remuneration as follows: 1) Outstanding payments: USD 67,568.57 plus 5% interest p.a. “as from the date they became due”: - USD 15,000 corresponding to part of his salary for February 2011; - USD 432 corresponding to part of his salary for March 2011 - USD 25,000 corresponding to part of his salary for May 2011; - USD 5,007,54 corresponding to his salary for July 2011; - USD 16,129,03 corresponding to 11 days of work in August 2011; - USD 6,000 corresponding to his accommodation allowances for May June and July 2011(2,000 x 3). 30. Finally, the player stated that on 18 August 2011, he signed an employment contract with Club S, from country P, valid until 30 June 2014. The player underlines that at the moment of the relevant contractual termination, the possibility of him signing with Club S was not guaranteed, particularly as the country P club had merely shown its interest and intention, which had apparently been clearly and openly communicated to Club D. However, before registering him with the country P Football Federation, Club S decided to communicate such decision to Club D, who in turn informed Club S the player was not a free agent. 31. As a result, Club S apparently decided not to register said employment contract. The player indicated that, in view of Club S´s decision to unlawfully declare the contract null and void, the player remained unemployed i.e. without receiving any remuneration until he signed an employment contract with Club E, from country B, on 10 January 2012, valid as from the date of signature until 10 January 2014, with a monthly remuneration of currency of country B 622. 32. In its final position, the club rejected all the arguments put forward by the player claiming that the latter had failed to prove the existence of just cause for the early termination of the contract, whilst also failing to rebut the counterarguments or discredit the documentary evidence presented by the club. 33. The club emphasized that the player effectively admitted, that six days after illegally leaving the club under the pretext of an unilateral termination of the contract with just cause, he entered into a contractual relationship with Club S, which from the previous negotiations conducted with the club [Club D] was clearly aware of the fact that the player was contractually bound with the latter. The club, as well as maintaining its initial request for relief, now considers that the player was induced to enter into the contract with Club S, requesting that the amount of EUR 1,342,128.6 plus 5% p.a. as from 12 August 2011 “should be paid jointly and severally by the Player, Player G, and Club S – Football, SA”. 34. In its reply, Club S stated it had never concluded a valid employment contract with the player; at the end of the 2010/2011 season they apparently tried to sign the player, but no agreement was ever reached with Club D. Subsequently, in the summer of 2011, the player and his respective agent travelled to country P contacting Club S, assuring them that he was now a free agent and that the situation with his previous club [Club D] had been definitively solved. 35. Club S explained that the possible contract would only be concluded subject to the presentation of documentary proof “that the player had terminated with just cause the contract (...)”, however, such proof was never presented and it was not until August 2011, after entering into contact with the player that they effectively realized that the player was still under contract; reason for which, Club S claims to have never concluded a valid and effective employment contract with the captioned player. Finally, Club S wished to point out that an arbitration tribunal in country P decided that there was no sporting link between the player and the new club, and that the parties had never concluded a valid and effective employment contract. 36. Finally, and in spite of having been invited by FIFA to do so, the country B club, Club E, which according to the Transfer Matching System (TMS) was the first club with which the player was registered after Club D, has failed to provide any comments. ***** II. Considerations of the Dispute Resolution Chamber 1. 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 submitted to FIFA on 16 September 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the 2008 and 2012 editions of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber is competent to hear employment-related disputes between a club and a player of an international dimension. Therefore, the Chamber decided that it was, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country B player and an country U club, with the involvement of a country P and a country B club. 3. In this respect, the Chamber pointed out that contrary to the information contained in FIFA’s letter dated 22 February 2013 by means of which the parties were informed of the composition of the Chamber, the members Mr M and Mr A refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr M has the same nationality as two of the parties involved in the present proceedings. In order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr A refrained from participating and, thus, the Dispute Resolution Chamber adjudicated the case in the presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players. 4. Furthermore, 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 (editions 2010 and 2012), and considering that the present claim was lodged on 16 September 2011, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the substance of the matter at hand. 5. In this respect, the members of the Chamber started their deliberations by indicating that before entering into the substance of the present matter, if necessary, they first had to address the following issues: I. By whom were the contract and the agreement to the contract signed? II. Where were the financial terms reflected? 6. With regard to the first issue, the members of the Chamber duly acknowledged that the Claimant / Counter-Respondent and the Respondent / Counter-Claimant had concluded an employment contract valid as from 10 August 2009 until 9 August 2014. Moreover, the Chamber acknowledged that on 10 August 2009, i.e. on the same date as when the contract was signed, the Claimant / Counter-Respondent and a company named “XY Management Ltd.” had signed an agreement to this contract, according to which the Company undertook to pay the Claimant / Counter-Respondent the total amount of USD 500,000 per year. Equally, the agreement to the contract stipulated that the Company would provide the Claimant / Counter-Respondent with bonuses and a “serviced apartment”. 7. In this respect, the Chamber wished to highlight that it was undisputed by the parties that the employment contract at hand was signed by the Claimant / Counter-Respondent and the Respondent / Counter-Claimant, whilst the agreement to the contract was signed by the Claimant / Counter-Respondent and the Company. 8. The Chamber then turned its attention to the issue as to whether the financial terms were reflected in the employment contract concluded between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant or whether they were in fact reflected in the agreement concluded between the Claimant / Counter-Respondent and the Company. 9. After a thorough analysis of the documents on file, the members of the Chamber unanimously agreed that the employment contract concluded between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant at the heart of the dispute did not provide for any financial terms. The only indication to any sort of financial obligations between the parties was reflected in art. 3 of the employment contract, which indicated that “the Club shall pay the monthly salary to the player in accordance with item 1 of Annex 1 of this Agreement”. However, when requested by the FIFA administration to provide a copy of “Annex 1 of this Agreement”, the Claimant / Counter- Respondent indicated that, in fact, the agreement to the contract concluded with the Company was to be considered as “Annex 1 of this Agreement”. 10. At this point, the Chamber established that the employment contract itself, which was concluded and signed between - and by - the Claimant / Counter-Respondent and the Respondent / Counter – Claimant, did not contain any financial obligations whatsoever between the Claimant / Counter – Respondent and the Respondent / Counter Claimant. 11. Thereupon, the Chamber focused its attention on the agreement to the contract concluded between the Claimant / Counter-Respondent and the Company which, in the present matter, was considered to be the only document effectively containing financial obligations. In this respect, the Chamber noted that this agreement to the contract was not signed by the Respondent / Counter – Claimant, but only by the Company and the Claimant / Counter – Respondent. What is more, article 1 of said agreement clearly stated that the Claimant / Counter-Respondent´s salary was to be paid by the Company. In addition, the payment receipts provided by the Claimant / Counter-Respondent effectively confirmed that it was indeed the Company paying for the Claimant / Counter-Respondent´s salaries and not the club itself. 12. Moreover, the members of the Chamber also recalled, that in the Respondent / Counter-Claimant´s statement of defense, it had stated that “the actual payer of the relevant payments was not the Club itself but its partner – the Company “XY Management Ltd.” (…). 13. Having stated the aforementioned, and in line with the reasoning of the DRC in previous and almost identical matters, the members of the Chamber considered that the Claimant / Counter-Respondent´s claim was directed to the wrong party and, subsequently, had to be rejected. The Chamber deemed that Claimant / Counter – Respondent should have initiated proceedings against the Company, which was the entity responsible for the payments to the Claimant / Counter – Respondent in accordance with the agreement concluded between the Company and the Claimant / Counter - Respondent. 14. Subsequently, after having concluded that the player´s claim was directed to the wrong party and thus rejected by the DRC, the Chamber turned its deliberations to the counterclaim presented by the club and whether such a counterclaim, taking into account the abovementioned interpretation of the documents on file, could be upheld. 15. In this respect, and prior to taking a decision, the Chamber carefully discussed the values and principles behind the essence of any contractual relationship between a player and a club. According to the Chamber, the relationship between a club and a player should be based on a bilateral or reciprocal contract in which both parties have mutual rights and obligations. A contract is bilateral when the parties obligate themselves reciprocally. Simply put, in an employment relationship between a club and a player, the latter renders his services to the club, and, in return for the services rendered, the club pays the player remuneration. 16. However, in the matter at hand, as previously exposed, no reciprocal exchange of obligations existed between the club and the player. Since, in accordance with the employment contract, the Respondent / Counter – Claimant had no financial obligations whatsoever towards the Claimant / Counter – Respondent, the latter could not be considered bound by the employment contract, since said contract failed to establish one of the main obligations of the employee: the remuneration payable for the services rendered by the employer. 17. In light of the above-mentioned, the members of the Chamber unanimously agreed that the counterclaim of the Respondent / Counter-Claimant also had to be rejected. The Chamber deemed that a club cannot discharge its financial obligations by means of a private company and then on the other hand benefit from the possible and eventual disrespect of the relevant obligations by said company. 18. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim of the Claimant / Counter-Respondent and the counterclaim of the Respondent / Counter-Claimant are rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player G, is rejected. 2. The claim of the Respondent/Counter-Claimant, Club D, is rejected. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl. CAS directives