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 7 June 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member Johan van Gaalen (South Africa), member Mario Gallavotti (Italy), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player Player C, from country A as Claimant against the club Club F, from country C as Respondent 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 7 June 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member Johan van Gaalen (South Africa), member Mario Gallavotti (Italy), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player Player C, from country A as Claimant against the club Club F, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 4 August 2010, Player C, from country A (hereinafter: player or Claimant) and Club F, from country C (hereinafter: club or Respondent), signed an employment contract and an “Agreement” valid as of the date of signature until 31 May 2012 (hereinafter: contract & agreement). 2. According to the contract, the club agreed to pay to the player: • From 30 August 2010 until 31 May 2011 – EUR 67,500 in ten monthly equal instalments of EUR 6,750; • From 30 August 2011 until 31 May 2012 – EUR 67,500 in ten monthly equal instalments of EUR 6,750. 3. According to art. 1 of the agreement “The parties agree that the Player will assign and the player assigns with the present agreement all his image rights for commercial exploitation to the Club for the season 2010-2011 and 2011-2012 in consideration of the following amounts” • A signing-on fee of EUR 50,000; • From 30 August 2010 until 31 May 2011 – EUR 17,500 in ten monthly equal instalments of EUR 1,750; • From 30 August 2011 until 31 May 2012 – EUR 67,500 in ten monthly equal instalments of EUR 6,750. Besides the abovementioned amounts, bonuses and flight tickets are also included in the agreement. 4. Furthermore, art. 17 of the contract states that “if the player shall be guilty of serious misconduct or the Disciplinary Rules of the Club or the terms and conditions of this Agreement, the Club may, on giving notice to the player by recorded delivery letter, stating the full reasons for the action taken, terminate this Agreement. Such action shall be subject to the player´s right of appeal as follows: to the Dispute Resolution Chamber established to the country C Football Association; to any tribunal or labour Court in country C; to FIFA and its competent departments”. 5. On 21 March 2011, the player lodged a claim against the club before FIFA claiming that, on 2 December 2010, the club had terminated the contract without just cause and should be thus held liable for the payment of compensation. 6. The player claims to have always acted in compliance with his contractual obligations, however, during the month of November 2010, and after the alleged resignation of the club´s head coach, the player claims to have been disregarded by the newly appointed coach, whom from a purely sporting point of view, did not count on his services. 7. Shortly after, on 2 December 2010, and allegedly in compliance with art. 17 of the contract, the player was formally notified by the club of its decision to unilaterally terminate the contract. 8. As a result of the club´s apparent unilateral termination without just cause, the player claims to have seeked explanations from the club whilst requesting the latter permission to rejoin training. 9. On 6 December 2010, and in reply to his aforementioned request, the player was provided with a second termination letter which stated the following “further to our letter dated 2nd December 2010 regarding the termination of the contract and/or agreement, and in reply to your oral request, we advise you that you are not obliged to follow the team´s training schedule”. 10. In light of the above, the player firmly believes that the club´s decision to unilaterally terminate the contract on the basis of art. 17 is truly unfounded and unsubstantiated. According to the player, the club invoked art. 17 of the contract in a very general manner, failing to indicate whether the former had actually incurred in any type of breach of the club´s disciplinary rules. 11. Moreover, the player acknowledges to have received his monthly salaries for August, September and October 2010, as well as EUR 20,250 of the corresponding EUR 50,000 which were due upon the signing of the agreement. 12. On the basis of the above-mentioned facts, and as a result of the club´s alleged unilateral termination of the contract without just cause, the player is requesting to be awarded the total amount of EUR 229,500, plus interests: a. Amounts requested under the contract: - EUR 47,250 corresponding to the amounts due as from 30 November 2010 until 31 May 2011 (6,750 x 7); - EUR 67,500 corresponding to the amounts due as from 30 August 2011 until 31 May 2012 (6,750 x 10). b. Amounts requested under the agreement: - EUR 29,750 corresponding to the remaining amount of the signing-on fee (50,000-20,250); - EUR 17,500 corresponding to the amounts due as from 30 August 2010 until 31 May 2011 (1,750 x 10); - EUR 67,500 corresponding to the amounts due as from 30 August 2011 until 31 May 2012 (6,750 x 10). 13. In its reply, the club rejects the player´s allegations and principally claims that FIFA has no competence or jurisdiction in the matter at hand. The club claims that according to art. 17 of the contract, the parties had clearly agreed that the player “had to submit any of his claim against the termination of the contracts to the DRC of the country C Football Federation”. 14. Upon FIFA’s request to provide the pertinent regulations as well as the procedural rules, the country C Football Federation provided a copy of the “Regulations for the registration and transfer of football players” (edition 2005; hereinafter: the Regulations of the country C Football Federation), which entered into force on 15 June 2005. a) With regard to the jurisdiction of the Dispute Resolution Committee (hereinafter: the Committee): According to art. 22.11 of the Regulations of the country C Football Federation, the Committee is competent to “adjudicate and/or resolve any financial or other disputes which may arise: a) between clubs and non-amateur players […]”. b) as to the composition: Art. 22.1 par. 1 and par. 3 of the Regulations of the country C Football Federation establishes that the Committee consists of five members (Chairman, Vice-Chairman and three members). The Chairman, Vice-Chairman and one of the three members are elected by the Executive Committee of the country C Football Federation, whereas the two remaining members are nominated by the country C Football Players’ Association c) finally, with respect to the possibility of an appeal: Concerning the possibility of an appeal against a decision taken by the Committee, art. 22.10 stipulates that “any decision of the [Committee] may be appealed to the Disciplinary Authority of the country C Football Federation. The Disciplinary Authority shall finally decide on the appeals referred thereto”. 15. Moreover, the club maintains that according to FIFA´s jurisprudence, FIFA has “no jurisdiction to try any case and/or any dispute which arises out of an image rights contract”. 16. Notwithstanding the claim of lack of competence of the DRC, the club also submitted a statement as to the substance of the dispute, maintaining that on 2 December 2010, it had effectively terminated the contract and the image rights agreement with just cause. According to the club, the player had caused serious troubles with the team´s head coach, which allegedly led the latter, apparently in accordance with the club´s internal regulations, to submit the case to the club´s board. 17. In this respect, and as a result of the player´s alleged gross violation of art. 17 of the contract, the club´s board decided to put an end to the employment relation with immediate effect, whilst claiming to have fully complied with its contractual obligations towards the player. 18. Upon FIFA´s request, the player for his part insists that FIFA has jurisdiction to deal with the present matter and indicates that on 13 January 2011, he concluded an employment contract with the Club D, from country G, valid as from the date of signature until 26 November 2011, with a monthly remuneration of currency of country G 1,665,915. Moreover, the player indicates that on 15 January 2012, he concluded an employment contract with Club D, from country G, valid as from the date of signature until 31 December 2012, with a monthly remuneration of USD 8,000. ***** II. Considerations of the Dispute Resolution Chamber 1. First of all, the Chamber analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2008 and 2012; hereinafter: Procedural Rules). The present matter was submitted to FIFA on 21 March 2011, thus, after the 2008 edition entered into force on 1 July 2008, but before the 2012 edition came into force. Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country C club. 3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 17 of the employment contract according to which the parties had clearly agreed that the player “had to submit any of his claim against the termination of the contracts to the DRC of the country C Football Federation”. Equally, the Chamber took into account that the Respondent also contested FIFA´s competence with regards to the agreement signed by the parties on 4 August 2010 (cf. point I./3 above). According to the Respondent, “FIFA has no jurisdiction to try any case and/or any dispute which arises out of an image rights contract”. 4. In this regard, the Chamber noted that the Claimant rejected such position and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 5. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber deemed it first and foremost of utmost importance to highlight that the employment contract does not contain a specific jurisdiction clause, since art. 17 of the employment contract stipulated the following: “if the [Claimant] shall be guilty of serious misconduct or the Disciplinary Rules of the Club or the terms and conditions of this Agreement, the [Respondent] may, on giving notice to the [Claimant] by recorded delivery letter, stating the full reasons for the action taken, terminate this Agreement. Such action shall be subject to the [Claimant´s] right of appeal as follows: to the Dispute Resolution Chamber established to the country C Football Association; to any tribunal or labour Court in country C; to FIFA and its competent departments”. 7. Hence, art. 17 of the employment contract does not contain an exclusive arbitration clause in favour of the Dispute Resolution Chamber of the country C Football Federation. To the contrary, art. 17 of the employment contract grants the Claimant the explicit right to refer a potential dispute to FIFA. In view of the foregoing, the Chamber held that the parties to the present dispute had explicitly agreed that the Claimant could lodge his claim in front of FIFA. Therefore, the DRC considered that it was competent to adjudicate on the present employment-related dispute between the Claimant and the Respondent. 8. However, for the sake of completeness, the members of the Chamber wished to stress that, even if the contract at the basis of the present dispute would have included such arbitration clause in favour of national dispute resolution, the Respondent was unable to prove that, in fact, the Dispute Resolution Committee of the country C Football Federation meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 9. In this respect, general principle of equal representation of players and clubs, and underlined that the DRC referred to the this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. 10. Indeed, this prerequisite is not only mentioned in the Regulations on the Status and Transfer of Players, but also in FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives […]; b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives […].” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal […]. Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.” 11. The members of the Chamber concurred that the country C “Regulations for the registration and transfer of football players” (edition 2005), in accordance with which, inter alia, the chairman, vice-chairman as well as one member are elected by the Executive Committee of the country C Football Federation, and two members are elected by the country C Football Players’ Association, do not meet the aforementioned principle of equal representation. 12. In view of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 13. In continuation, with regards to the claimed payments in connection to the alleged image rights agreement signed by the parties, the Chamber also had to verify whether it was competent to deal with this specific affair or not for formal reasons. In fact it would be possible that this part of the claim could not be considered due to the lack of competence as the Chamber has no competence to deal with disputes related to image rights. 14. While analysing whether it was competent to hear this part of the claim, the Chamber, without entering into any discussion regarding the actual wording of art. 1 of the agreement, which undoubtedly defines the agreement as an image rights agreement, wished to highlight that said agreement contained further elements which led to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract. 15. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relation. In the case at hand, such elements appear to exist, in particular, the agreement contains inter alia a signing-on fee, bonuses and flights tickets, which are typical for employment contracts and not for image rights agreements. Consequently, the Chamber decided not to consider the image rights agreement as such, but determined that said agreement was in fact an additional agreement to the employment contract instead. 16. In view of all the above, the Chamber established that the image rights agreement is to be considered. 17. In continuation, the Chamber analysed which edition of the FIFA Regulations should be applicable as to the substance of the matter. In this respect, the Chamber 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 21 March 2011, the 2010 edition of said Regulations is applicable to the matter at hand as to the substance. 18. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber acknowledged that it was undisputed by the parties that they had signed an employment contract as well as an agreement, both dated 4 August 2010, in accordance with which the player was entitled to receive, inter alia, the total amount of EUR 270,000 for the period of time between August 2010 and May 2012. 19. In continuation, the Chamber also took note that it is uncontested by the Respondent that the contractual relationship between the parties to the present dispute was terminated by the Respondent on 2 December 2010, at the moment when the Respondent had submitted its termination letter to the Claimant. 20. In this regard, the Chamber took due note that the Claimant argued that the Respondent had unilaterally terminated the contractual relationship without just cause pointing out inter alia that the Respondent was in delay of payment of his salary for November 2010 under the employment contract, whilst under the agreement, it was still owing him his salary for August, September, October and November 2010 as well as part of his signing-on fee. Equally, the Claimant pointed out that the Respondent, in the termination letter, had not specified any reason whatsoever which would potentially justify the termination of the employment contract and the agreement. On the other hand, the Respondent was of the opinion that the relevant employment contract and agreement had been terminated with just cause, in particular, alleging that the player had misbehaved and caused serious troubles with the team´s head coach. The Respondent further held that it duly terminated the contractual relationship in accordance with art. 17 of the employment contact and that, consequently, the player had no right to any damages. 21. In view of the above, the Chamber subsequently went on to deliberate as to whether the player´s alleged serious misconduct, which is invoked by the Respondent in its defence, can be considered as a just cause for the Respondent to prematurely terminate the employment relationship. 22. In this context, whilst referring to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber deemed it fit to highlight that the Respondent had not presented any documentary evidence corroborating its allegations regarding this particular point. 23. Notwithstanding the foregoing consideration, the Chamber pointed out that the player´s alleged misconduct could not constitute, per se, a valid reason for the termination of an employment contract. Only a breach or misconduct which is of certain severity would justify the termination of a contract without prior warning. In other words, 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 assure the employee´s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 24. In view of all the above, the Chamber was of the opinion that the Respondent did not have just cause to prematurely terminate the employment contract and the agreement with the Claimant, since there would have been more lenient measures to be taken (i.e., among others, a suspension or a fine), in order to sanction the alleged misconduct, which was apparently at the basis of the termination of the employment relationship by the Respondent. 25. Overall, the Chamber decided that there was no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and that, therefore, the Respondent had breached the employment contract and agreement without just cause. 26. Having established that the Respondent is to be held liable for the early termination of the employment contract and the agreement without just cause, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract and the agreement. 27. First of all, the Chamber reverted to the Claimant´s financial claim, which includes outstanding remuneration of EUR 6,750 relating to his monthly salary for November 2010 under the contract, EUR 7,000 relating to his monthly salary from August to November 2010 under the agreement and EUR 29,750 relating to the remaining part of the signing-on fee reflected in the agreement. 28. In this respect, the members of the Chamber recalled that the Respondent had failed to demonstrate that it had paid such remuneration. 29. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim, the lack of documentary evidence provided by the Respondent as well as the fact that both the employment contract and the agreement were considered terminated as of 2 December 2010, the Chamber decided that the Respondent is liable to pay the Claimant, the amount of EUR 43,500 relating to payments due to the Claimant as from August 2010 up to November 2010. 30. In continuation, the Chamber focussed 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 recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant 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. 31. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 32. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 33. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of both the employment contract and the agreement until 31 May 2012, taking into account that the player´s remuneration up until November 2010 is included in the calculation of the outstanding remuneration (cf. no. II./29. above). Consequently the Chamber concluded that the amount of EUR 186,000 (i.e. salary as from December 2010 until May 2012) serves as the basis for the determination of the amount of compensation for breach of contract. 34. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract(s) 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(s) 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. 35. Indeed, on 13 January 2011, the Claimant found employment with the Club D, from country G. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 26 November 2011, the Claimant was entitled to receive a monthly salary of currency of country G 1,665,915 (approx. EUR 2,803). Equally, on 15 January 2012, the Claimant concluded an employment contract with Club S, from country E, valid until 31 December 2012, according to which he was entitled to a monthly remuneration of USD 8,000 (approx. EUR 6,447). 36. Consequently, the Chamber established that the value of the new employment contracts concluded between the Claimant, Club D and Club S for the period as from December 2010 until and including May 2012 amounted to EUR 63,068. 37. In this respect and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 122,932 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 38. For all the above reasons, the Chamber decided to partially accept the Claimant´s claim and that the Respondent must pay to the Claimant the amount of EUR 43,500 as outstanding remuneration, plus 5% interest p.a. on said amount as of 21 March 2011 and EUR 122,932 as compensation for breach of contract plus 5% interest p.a. on said amount as of 7 June 2013. 39. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player C, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club F, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 43,500 plus 5% interest p.a. on said amount as of 21 March 2011 until the date of effective payment. 4. The Respondent has to pay to the Claimant within 30 days as from the date of notification of this decision, compensation for breach of contract amounting to EUR 122,932 plus 5% interest p.a. on said amount as of 7 June 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 3. and 4. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** 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