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 15 March 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Carlos Soto (Chile), member Mario Gallavotti (Italy), member Zola Majavu (South Africa), member on the claim presented by the player, Player H, from country G as Claimant against the club, Club F, from country R 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 15 March 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Carlos Soto (Chile), member Mario Gallavotti (Italy), member Zola Majavu (South Africa), member on the claim presented by the player, Player H, from country G as Claimant against the club, Club F, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 15 June 2010, Player H, from country G (hereinafter: the Claimant) and Club F, from country R (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as of 1 July 2010 until 30 May 2011. 2. According to the contract, the Claimant was entitled to a total remuneration of EUR 210,000 net, for the period of 1 July 2010 until 30 May 2011, payable as follows: - EUR 50,000 net due in July 2010; - EUR 50,000 net due in September 2010; - EUR 110,000 net, payable in 11 monthly instalments of EUR 10,000 net each, due on the 15th day of each month. 3. Clause IV.1 lit. c) of the contract established that the Claimant was also entitled to two flight tickets per season, “on the route country R-country G-country R”. 4. Clause VII.2 of the contract specified that “disputes arising from the performance or interpretation of the provisions of this civil contract shall be settled amicably or, otherwise, by the competent bodies of country R Football Federation and LPF under the aegis of FIFA”. 5. On 27 July 2010, the Claimant lodged a claim against the Respondent before FIFA requesting the acknowledgement of the unilateral termination of contract with just cause as well as the following amounts: - EUR 210,000 net as compensation for the breach of contract by the Respondent, corresponding to the whole value of the contract; - EUR 30,000 as compensation for moral damages; - interest of 5% p.a. “on deferred payment”. 6. In this respect, the Claimant declared that after signing the contract, he moved with the team on 28 June 2010 to Austria for pre-seasonal training and matches. However, on 4 July 2010, the Claimant was allegedly told by the Respondent to undertake “some extra medical exams”, which had to be done in country P, where the Claimant had his residence. The Respondent then paid the Claimant a one way flight ticket country D-country P for the 7th of July 2010 and, according to the Claimant, the Respondent informed that a return ticket would be provided after the medical exams were concluded. 7. The Claimant explained that after trying to contact the Respondent by telephone without any response, on 13 July 2010 he sent a fax to the Respondent stating that “he was ready to return to country R” and requested them to provide him with a return ticket. On 16 July 2010, the Claimant once again requested the Respondent to provide him with a return ticket to country R before the 19th of July 2010 or “he would be forced to proceed with the unilateral termination of the contract, with just cause, with all due and legal consequences”. Due to the alleged lack of response from the Respondent, the Claimant terminated the contract on 20 July 2010. 8. In this regard, the Claimant alleged that he had not received any of the amounts as agreed upon in the contract and therefore, besides the compensation for the breach of contract, he requested an additional compensation for moral damages as he was put in a difficult financial situation by the Respondent. 9. The Respondent, in its response to the claim, firstly alleged FIFA’s lack of competence to deal with the present matter on the basis of Clause VII.2 of the contract. Moreover, it invoked that “the country R Football Federation has independent arbitration tribunals, which guarantee fair proceedings and respect the principle of equal representation of players and clubs”. In this respect, the Respondent indicated that the Claimant had “failed to resort to the bodies of the country R Football Federation or the country R Professional League”. 10. Upon several requests of FIFA to provide FIFA with the pertinent documentation to prove that the matter should be dealt with by the relevant deciding body in country R, the Respondent sent only a part of the country R 2010 edition of the Regulations for the Status and Transfer of Players, as well as part of the 2010 edition of the Statutes of the country R Football Federation. According to the articles provided, the composition of the National Dispute Resolution Chamber (NDRC) under the RFF would consist of “one president and one vice-president elected by consensus by the players’ and the clubs’ representatives […], three players’ representatives proposed by the Association of Amateur and Non-Amateur players; and three clubs’ representatives proposed by the Executive Committee of the country R Football Federation”. 11. Regarding the appeal procedure, the provisions sent by the Respondent state that the rulings of the NDRC can be appealed before the Appeal Commission existing under the RFF and, at the same time, the decisions of the latter can be appealed before the Court of Arbitration for Sport in Lausanne. 12. With regard to the substance, the Respondent firstly stated that the contract could not be properly registered under the Professional Football League (PFL) because of the Claimant’s fault, as he did not provide the Respondent with the documents required to a foreign citizen in order to register the contract, which is required by art. 19 of the Regulations on the Status and Transfer of Players of the country R Football Federation. 13. In addition, the Respondent contested the facts presented by the Claimant. In this regard, it alleged that the Claimant asked for a few days leave in order to fly to country P “claiming he had urgent matters to solve”. Consequently, the Respondent paid the Claimant a flight ticket “although it was not under the obligation to do so”. The Respondent indicated that after 7 July 2010, it was impossible to get in contact with the Claimant and that, because of his absence, it was forced to sign another player. 14. Furthermore, the Respondent acknowledged the receipt of the Claimant’s faxes dated 13 and 16 July 2010, but was surprised of its contents as it expected the Claimant’s return before the end of the training trip in country A, which ended on 12 July 2010. In this respect, the Respondent stated that it was not obliged to provide the Claimant with flight tickets other than for the route “country R-country G-country R”, and therefore allegedly informed the Claimant by telephone that he should pay for his own return ticket to country R, which the Claimant confirmed to do. Finally, upon the receipt of the fax dated 20 July 2010, the Respondent allegedly tried to clarify the unilateral termination of the contract and contacted the Claimant without any success. 15. The Claimant, in his comments to the Respondent’s position, declared that he was not told to provide any additional documentation for the registration of the contract and insisted that the Respondent instructed him to travel to country P in order to take extra medical exams, the Respondent therefore being obliged to pay the return ticket. In this respect, the Claimant submitted two documents issued by a clinic in country P dated 12 July 2010. 16. Furthermore, the Claimant declared that he would not “abandon a EUR 210,000 net contract for a EUR 30,000 contract on the country P second division”. 17. The Claimant further asserted FIFA’s competence to deal with the matter at hand since the “bodies of PFL/country R Football Federation do not comply with the standards and rules imposed by FIFA”. 18. In its final position, the Respondent reassured that in order to request an International Transfer Certificate (ITC) to enable the Claimant’s registration, at least a registered contract from the Claimant’s former club is necessary and so it is the Claimant’s obligation to provide such type of documentation. 19. Furthermore, the Respondent denied that it sent the Claimant to country P for medical exams, since there are specialized doctors working for the Respondent and “such medical controls could only be made in country R, at authorized medical centres”. 20. Finally, upon FIFA’s request, the Claimant confirmed that he signed a new employment contract with the country P club, Club M, on 26 July 2010 and valid until 30 June 2011. According to the employment contract, the Claimant received remuneration in the total amount of EUR 16,625 for the whole term of the contract (made up of ten instalments in the amount of EUR 1,662.5 each, payable as of August 2010 until and including May 2011). II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 27 July 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country G player and a country R club regarding an alleged breach of the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause VII.2 of the employment contract and alleging that only the deciding bodies of the country R Football Federation and/or the PFL were competent to deal with the present case. In particular, the Chamber took note that the Respondent argued that the country R Football Federation has independent arbitration tribunals that respect the principles set out in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, FIFA Circular no. 1010 of 20 December 2005 and the National Dispute Resolution Chamber (NDRC) Standard Regulations, in particular, the Respondent held that such arbitration tribunals respect the principle of equal representation of players and clubs and guarantee fair proceedings. 5. In this regard, the Chamber acknowledged that the Claimant contested the competence of the deciding bodies of the country R Football Federation and PFL and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 6. 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. XXXX 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. 7. While analysing whether it was competent to decide on the present matter, the Chamber first referred to the fact that the Respondent indicated that the player had never been registered with the country R Football Federation. The Chamber held that, as a consequence of the fact that the player had never been registered with the country R Football Federation, the player had evidently also never fallen under the jurisdiction of the country R Football Federation. The foregoing fact was, in the Chamber’s view, the first basis on which it could be established that the relevant arbitration bodies in country R were not competent to adjudicate on the matter between the Claimant and Respondent. 8. What is more, the Chamber referred to clause VII.2 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said clause VII.2, “disputes arising from the performance or interpretation of the provisions of this civil contract shall be settled amicably or, otherwise, by the competent bodies of country R Football Federation and LPF under the aegis of FIFA”. Hence, the members of the Chamber outlined that the content of clause VII.2 is rather vague and that said clause does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. In other words, the Chamber held that there is no clear reference in the employment contract granting jurisdiction to any specific arbitration body in country R. 9. Having established the above, the members of the Chamber wished to stress that, even if the contract at the basis of the present dispute would have included such clear arbitration clause in favour of national dispute resolution, the Respondent was unable to prove that, in fact, the relevant arbitration bodies of the country R Football Federation and/or PFL meet 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 the FIFA Circular no. XXXX as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 10. In this respect, the DRC referred to art. 12 par. 3 which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. It is therefore the obligation of the Respondent, i.e. the party asserting that the national arbitration bodies in country R guarantee fair proceedings and respect the principle of equal representation of players and clubs, to submit the documentary evidence to prove that such national arbitration bodies indeed respect the aforementioned requirements. 11. In this context, the Chamber noted that the Respondent had merely submitted an excerpt of the relevant rules and regulations which, in the Respondent’s view, were applicable to proceedings conducted in front of the country R national arbitration bodies. The Chamber acknowledged however that, even after having been requested several times to provide the complete set of rules as well as the full translation of such rules, the Respondent had not provided the complete documentation. The members of the Chamber emphasised that it cannot base their decision on the basis of documentation that is incomplete. Hence, the Chamber was firm in its conclusion that, in absence of the complete version of the applicable rules, it could not establish that the relevant arbitration bodies in country R respect the principle of equal representation between players and clubs and guarantee fair proceedings. This even more so in the present procedure, where the Respondent indicated that the settlement of the disputes “rests exclusively with the qualified bodies of The PFL/The country R Football Federation” and the excerpt provided by the Respondent exclusively refers to the jurisdiction of the arbitration body of the country R Football Federation and does not mention anything in relation to the arbitration body of the PFL. 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. Subsequently, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009, 2010 and 2012) and, on the other hand, to the fact that the present claim was lodged on 27 July 2010. The Dispute Resolution Chamber concluded that the 2009 edition of the Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 14. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the members of the Chamber started by acknowledging that the parties to the dispute had signed an employment contract on 15 June 2010 in accordance with which the Respondent would pay the Claimant two instalments of EUR 50,000, on 1 July and on 1 September 2010 respectively, as well as a monthly salary of EUR 10,000. 15. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had breached the employment contract by showing no interest in his services and by failing to remit his salaries. 16. Thereafter, the members of the Chamber took note of the reply of the Respondent, who alleged that the absence of the Claimant in the team was not attributable to it, but only to the Claimant as he requested a personal leave and never returned to the Respondent. 17. Moreover, the Chamber noted that the Respondent held that the employment contract could not be properly registered within the PFL due to the Claimant’s fault, the latter not providing the relevant documentation 18. In this context, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which is the sole responsibility of a club and on which a player has no influence. As regards the matter at stake, the Respondent asserted that in order to request an ITC to enable a player’s registration, it is the obligation of such player to provide the club with the relevant documentation. Bearing in mind that according to Annexe 3 of the Regulations an ITC request depends on the new club’s application to the new association to register a professional, the club is actually in the position to prevent the occurrence of the condition precedent of receipt of an ITC by willfully choosing not to proceed with the application for an ITC request. The Chamber emphasized that, in accordance with art. 2 par. 1 of Annexe 3 of the Regulations, an application to register a professional shall be accompanied by a copy of the contract between the new club and the professional. For these reasons and since the Claimant and the Respondent had already signed a contract, the members of the Chamber decided to reject the Respondent’s arguments in this regard. 19. Subsequently, the Chamber recalled that according to the Claimant, the Respondent informed him that he had to undertake certain medical examinations in country P and, accordingly, the Respondent provided him with a one way flight ticket. The Respondent, on the other hand, held that the Claimant asked for permission to fly to country P alleging urgent matters and, in consequence, the Respondent accepted the request for a few days leave and booked the corresponding flight ticket for the Claimant. Moreover, the members of the Chamber took note that the Respondent acknowledged the receipt of the correspondences sent by the Claimant requesting to be provided with a return flight ticket in order to reincorporate to the Respondent, after which the Respondent had informed the Claimant over the phone that he should pay for his own ticket. Furthermore, after receiving the Claimant’s fax of 20 July 2010, the Respondent claimed that they could not contact the Claimant to clarify the situation. 20. In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber was eager to point out that the Respondent had failed to present any documentation in support of its position. In particular, the members of the Chamber observed that the Respondent was not able to corroborate that it tried to contact the Claimant in order to inform him that he should pay for the return flight ticket, as the Respondent alleged it did. As a consequence, the Chamber concluded that the Respondent had not presented any evidence proving the existence of any communication expressing its interest in the Claimant’s return to the team. 21. On account of all the above circumstances, in particular, by providing the Claimant only with a one way flight ticket to country P, by not requesting the relevant ITC although this being the responsibility of the Respondent, and by not replying to the various fax communications of the Claimant although acknowledging having received such fax communications, the Chamber established that the Respondent had no longer been interested in the Claimant’s services. Such conduct constitutes, in the Chamber’s view, a clear breach of contract. Accordingly, the Chamber concurred that the Claimant had just cause to unilaterally terminate the employment contract on 20 July 2010 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 22. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, 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. 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 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. 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 contains 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. 25. 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 until 30 May 2011 and concluded that the Claimant would have received a total remuneration of EUR 210,000 had the contract been executed until its expiry date. 26. In continuation, the Chamber verified as to whether the Claimant 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. 27. Indeed, on 26 July 2010, the Claimant found employment with the country P club, Club M. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 30 June 2011, the Claimant was entitled to receive a monthly salary of EUR 1,662.50. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and the new club for the period as from August 2010 until and including May 2011 amounted to EUR 16,625. 28. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. What is more, the Chamber also considered it important to point out that, although the employment contract was fully valid and enforceable, the execution of the contract actually never started, an element which equally should be taken into consideration in the calculation of the amount of compensation. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided that the Respondent must pay the Claimant the amount of EUR 65,000 which was to be considered a reasonable and justified amount of compensation for breach of contract in the matter at hand. 30. In addition and with regard to the Claimant's request for interest, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 15 March 2013 until the date of effective payment. 31. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of EUR 30,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal basis or evidence that demonstrated the damage suffered or its quantity. In this context, the members of the Chamber referred to the general legal principle of the burden of proof, according to which a party deriving a right from an alleged fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules). Moreover, the members of the DRC recalled that it had already granted the Claimant compensation for the breach of the contract and, for that reason he could not claim any further compensation. On account of the aforementioned, the Chamber decided that the request for compensation related to moral damages shall be rejected. 32. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant. * III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player H, 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, the amount of EUR 65,000 plus 5% interest p.a. on said amount as of 15 March 2013 until the date of effective payment. 4. If the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent 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. ** 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