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 Rinaldo Martorelli (Brazil), member Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member Essah M. Saleh Al-Housani (United Arab Emirates), member on the claim presented by the player, Player A, from country S as Claimant / Counter-Respondent against the club, Club O, from country C as Respondent / Counter-Claimant regarding an employment-related dispute 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 Rinaldo Martorelli (Brazil), member Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member Essah M. Saleh Al-Housani (United Arab Emirates), member on the claim presented by the player, Player A, from country S as Claimant / Counter-Respondent against the club, Club O, from country C as Respondent / Counter-Claimant regarding an employment-related dispute between the parties I. Facts of the case 1. On 16 July 2011, Player A, from country S (hereinafter: the player), and Club O, from country C (hereinafter: the club), entered into an employment contract valid until 31 May 2013 (hereinafter: the contract). 2. On 17 July 2011, the parties also signed a private agreement (hereinafter: the private agreement) containing additional financial conditions to the contract. 3. According to the contract, the club agreed to pay the player a salary of EUR 30,000, payable in 20 instalments of EUR 1,500 each for the duration of the contract, the first instalment payable until 30 August 2011 and the last instalment on 31 May 2013. 4. According to the private agreement, the club agreed to pay the player inter alia a salary of EUR 140,000, payable in 20 instalments of EUR 7,000 each for the duration of the contract, the first instalment payable until 30 August 2011 and the last instalment on 31 May 2013. 5. In a letter dated 21 February 2012 addressed to the club, the player informed the latter that the salaries under the contract and the private agreement regarding October 2011, November 2011, December 2011 and January 2012 in the aggregate amount of EUR 28,000 were outstanding and, therefore, requested the payment of the relevant amount until 23 February 2012. 6. The club responded to the player’s notice in a letter dated 22 February 2012, whereby it expressed its surprise due to the fact that the player, allegedly, had never complained about any outstanding payments and informed him that “the notice for payment of outstanding salaries within the next day is unfounded and rejected”. The club informed the player, however, that it would proceed to make the payment “within the next few days”. 7. In a letter dated 24 February 2012 addressed to the club, the player terminated the contract and the private agreement. 8. On 5 March 2012, the player filed a claim with FIFA, requesting the payment of: • EUR 28,000 as outstanding salaries; • compensation for breach of contract “equal to the monthly salaries until the expiration of the said Contract of Employment and Agreement”; and • legal expenses. 9. In this regard, the player explained that the club failed to pay him part of the salary of October 2011 as well as the salaries regarding November and December 2011 and January 2012, and that consequently he had just cause to terminate the contracts concluded with the club. 10. On 27 March 2012, the club presented its response to the player’s claim as well as a counter-claim. The club maintained that the unilateral termination of the contract by the player was illegal and that the player acted in bad faith. 11. The club confirmed that, due to some financial difficulties, it had outstanding payments towards the player, but that this “was well known to the player and he was never complained about this”. 12. In continuation, the club asserted that the first time the player complained about the outstanding payments was by means of his letter dated 21 February 2012, which the club claimed to have received only on 22 February 2012. The club stated that the fact that the player set a deadline of one day for the payment to be made is “against the FIFA Regulations and/or the DRC and the CAS’ jurisprudence”. 13. The club also asserted that, in virtue of payments made before the termination of the contract, the outstanding salaries at the date of termination were in the amount of EUR 27,700 only, and not EUR 28,800 as claimed. In addition, the club stated that the player also received the amount of EUR 488.75 in excess for accommodation. In this respect, the club submitted payment receipts in country G only. 14. For the aforementioned reasons, the club considered the termination by the player of the contract to have occurred without just cause and requested compensation equal to the remaining salaries due to the player under the contract and the private agreement in the amount of EUR 146,700. The club also claimed for “damages as the Dispute Resolution Chamber deems fit in the premises as following from the Player’s behaviour and/or alleged termination and/or breach”. 15. On 27 June 2012, the player presented his replica and reaffirmed the allegations set forth in his claim. Notwithstanding the above, the player accepted that the outstanding salaries at the time of termination amounted to EUR 27,700 only, but rejected the allegation that he received the amount of EUR 488.75 in excess for accommodation. 16. The player restated that the termination of the contract was lawful and that, as such, the club’s counter-claim must be rejected. 17. In its final position, the club reaffirmed the statements made in its original reply. 18. The player informed FIFA that he remained unemployed until the expiry date of the contracts concluded with the club. 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 5 March 2012, thus after 1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 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, 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 player from country S and a club from country C. 3. Furthermore, the DRC 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 2012 and 2010) and also considering that the present claim was lodged in front of FIFA on 5 March 2012, the edition 2010 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Dispute Resolution Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. 5. In this respect, the Chamber recalled that the parties had signed an employment contract valid from 16 July 2011 to 31 May 2013, in accordance with which the player was entitled, inter alia, to a total remuneration in the amount of EUR 30,000, payable in 20 instalments. The DRC also recalled that the parties signed a private agreement that established an additional remuneration in the amount of EUR 140,000, also payable in 20 instalments. 6. The DRC further acknowledged that the player filed a claim with FIFA against the club for breach of contract and requested the payment of outstanding remuneration, compensation as well as legal costs. 7. In this context, the Chamber, first and foremost, took note that it remained undisputed by the parties that the player unilaterally terminated the contractual relationship in writing, on 24 February 2012. 8. On account of the above, the members of the Chamber proceeded to analyze whether the player had just cause to unilaterally and prematurely terminate the contractual relationship. 9. In this respect, the Chamber acknowledged that, by letter dated 21 February 2012, the player sent a default notice letter to the club requesting the payment of an allegedly outstanding amount of EUR 28,000, to be paid until 23 February 2012. 10. The DRC also took due note of the player’s allegation that, upon the termination of the contract on 24 February 2012, the club had failed to pay almost four salaries according to the contract and the private agreement, i.e. part of the salary of October 2011 as well as the salaries for the months of November 2011, December 2011 and January 2012. 11. In continuation, the members of the Chamber carefully analyzed the club’s position in these proceedings and came to the conclusion that the latter never contested having failed to make the contractually agreed payments to the player. The Chamber emphasized that, in fact, the club had specifically stated in its letter dated 22 February 2012 that it would pay the outstanding amounts. 12. On the other hand, the DRC took note that the club considered the termination made by the player as unjustified, since the player established a very short deadline, i.e. allegedly only one day. As a consequence, the club lodged a counter- claim, asking for compensation for the breach of the contract allegedly committed by the player. 13. At this juncture, the members of the Chamber wished to emphasize that, according to its long-standing jurisprudence, confirmed by the Court of Arbitration for Sport, the non-payment of remuneration by an employer does in principle - and particularly if repeated as in the present case - constitutes a just cause for termination of an employment contract, since the employer’s payment obligation is his main obligation towards the employee. The Chamber wished to underline in this respect that, once the employer repeatedly fails with this obligation, the employee can no longer be expected to pursue the employment relationship. 14. Considering all the above, the Chamber considered that, uncontestedly, more than three salaries were already outstanding at the moment of termination, which constitutes a just cause for the player to unilaterally terminate the contract on 24 February 2012. 15. Additionally, the Chamber highlighted that the player did request the payment of the outstanding amounts via letter, on 21 February 2012, warning the club, before terminating the contract unilaterally. 16. Having established that the player had just cause to terminate the contract, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive from the club an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contracts. 17. First of all, the Chamber reverted to the player’s financial claim, which includes outstanding remuneration of EUR 27,700 pertaining for the months of October 2011 to January 2012. The members of the Chamber recalled that the club failed to demonstrate that it had in fact paid such remuneration to the player. 18. Moreover, the DRC took note that the club alleged having paid the amount of EUR 488.75 to the player regarding accommodation, allegation which was denied by the player. 19. In this regard, the members of the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). In particular, the members of the Chamber also pointed out that, according to the burden of proof rule, it was upon the club to prove that such payment was made. 20. In this regard, the DRC took note that, although informed about the contents of art. 9 par. 1 lit. e) of the Procedural Rules which establishes that all documents of relevance to the dispute shall be translated into one of the official FIFA languages, the club submitted copies of payment receipts only in country G language. 21. As a consequence, the members of the DRC considered that the club had failed to prove having paid the amount of EUR 488.75 to the player. 22. On account of all the above, taking into account the documentation remitted by the player to substantiate his claim and the fact that the employment contract was terminated on 24 February 2012, the Chamber decided that the player is entitled to receive from the club outstanding remuneration in the amount of EUR 27,700 relating to payments due to the player as from October 2011 up to and including January 2012 in accordance with the contract and the private agreement. 23. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly reminded 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. 24. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract and private agreement 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. In this regard, the Chamber established that no such compensation clause was included neither in the employment contract nor in the private agreement at the basis of the matter at stake. 25. The Chamber also noted that the player had requested the payment of compensation for breach of contract corresponding to the residual value of the contracts, corresponding to the aggregate amount of salaries to which he would be entitled under the employment contract and the private agreement from the date of termination until its original expiry date. 26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract and the private agreement until 31 May 2013 and concluded that the player would have received EUR 136,000 as salaries had the contracts been executed until the expiry date. 27. In continuation, the Chamber assessed 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, 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. 28. In this respect, the Chamber noted that, according to the player, he did not sign any employment contract until the present date. 29. Consequently, on account of all of the above-mentioned considerations, the remaining period of the contract and the specificities of the case at hand, the Chamber decided that an amount of EUR 93,500 as compensation would be adequate in the case at hand. 30. In addition, the Chamber held that the player’s claim for the reimbursement of legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules as well as the Chamber’s respective longstanding jurisprudence. 31. Moreover, the members of the DRC decided that any further claims lodged by the player are rejected. 32. The Chamber concluded its deliberations in the present matter by establishing that any claims lodged by club are rejected. ** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player A, is partially accepted. 2. The Respondent/Counter-Claimant, Club O, has to pay to the Claimant/Counter- Respondent outstanding remuneration in the amount of EUR 27,700, within 30 days as from the date of notification of this decision. 3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter- Respondent compensation for breach of contract in the amount of EUR 93,500, within 30 days as from the date of notification of this decision. 4. In the event that the aforementioned amounts are not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further request filed by the Claimant/Counter-Respondent is rejected. 6. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter- Claimant immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 7. The claim of the Respondent/Counter-Claimant 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: Jérôme Valcke Secretary General Encl. CAS directives