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 Carlos Soto (Chile), member Zola Majavu (South Africa), member on the claim presented by the player, Player J, from country P as Claimant against the club, Club A, 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 15 March 2013, in the following composition: Geoff Thompson (England), Chairman Carlos Soto (Chile), member Zola Majavu (South Africa), member on the claim presented by the player, Player J, from country P as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 and 2 July 2010, Player J, from country P (hereinafter: the Claimant), and the Club A, from country C (hereinafter: the Respondent), signed, respectively, an employment contract (hereinafter: the contract) and a supplementary agreement to it, both valid as from 1 July 2010 until 31 May 2013. 2. According to art. 3 of the contract and art. 1, 2 and 3 of the supplementary agreement, the Claimant is entitled to receive, inter alia: - EUR 110,000, payable in 10 equal monthly instalments of EUR 11,000 each, as from 1 September 2010 until 31 May 2011; - EUR 120,000, payable in 10 equal monthly instalments of EUR 12,000 each, as from 1 September 2011 until 31 May 2012; - EUR 120,000, payable in 10 equal monthly instalments of EUR 12,000 each, as from 1 September 2012 until 31 May 2013. 3. Article 4 of the contract established that “until 31 May 2012, the employer will have the right to terminate the contract of employment with the employee by notifying the latter by correspondence at any time, and the employee will have no right for compensation and/or any damages and/or claims”. 4. In addition, art. 11 of the contract stipulates that “the employer has the right and shall pay all the employee’s emoluments in the manner specified herein with a grace period of 90 (ninety) days”. 5. On 26 July 2011, the Claimant terminated the employment contract, in writing, since the Respondent had failed to pay his salaries for April and May 2011, and excluded him from the trainings with the professional team. 6. On 5 August 2011, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract without just cause, and requested the payment of the total amount of EUR 262,000, made up of: - EUR 22,000 as outstanding salaries for April and May 2011; - EUR 240,000 as compensation, corresponding to the rest value of the contract and the supplementary agreement; - legal fees. 7. In addition, the Claimant requests that sporting sanctions should be applied to the Respondent. 8. The Claimant states having been prevented by the Respondent from performing his duties, since it excluded him from participating in the trainings of the first team, by means of its correspondence dated 28 June 2011, 29 June 2011, 4 July 2011 and 8 July 2011. Through its letter dated 12 July 2011, the Respondent informed the Claimant of his training schedule. Subsequently, the Claimant realized that the aforementioned trainings were carried out individually and in the absence of a coach. 9. In his correspondence of 21 July 2011, the Claimant reminded the club of its arrears in the amount of EUR 22,000, for April and May 2011, and advised that the contract would be terminated in case said outstanding amounts would not be acquitted and he would not be readmitted to the trainings of the professional team, by 22 July 2011. 10. In its response, the Respondent argues that, taking into account art. 4 of the contract and the fact that the contract was terminated by the Claimant - which the Respondent refused to accept, in its correspondence of 29 July 2011 -, the latter would not be entitled to any compensation whatsoever. 11. Furthermore, according to art. 11 of the contract, the Respondent has a period of grace of 90 days to pay the Claimant’s salaries and, therefore, by the time the contract was terminated, the salaries of April and May 2011 were not yet outstanding. Thus, the contract was terminated without just cause by the Claimant. Finally, the Claimant is subject to the club’s regulations and shall carry out his activities accordingly. 12. In his replica, the Claimant maintains his previous allegations and, furthermore, states that the Respondent did not provide any proof that he has terminated the contract without just cause or that it took any measures in order to revert the alleged breach. 13. In spite of having been invited to do so, the Respondent did not submit its final position. 14. Finally, upon FIFA’s request, the Claimant informed having signed a new employment contract with Club B, from country C, valid as from 2 January 2012 until 31 May 2013, and according to which he was entitled to receive EUR 3,000 as monthly salary payable as from January to May 2012 and EUR 3,500 as monthly salary payable as from August 2012 until May 2013. II. Considerations of the Dispute Resolution Chamber 1. First of all, the DRC analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 5 August 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations (edition 2010), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country P player and a country C club. 3. Furthermore, the DRC analysed which edition of the 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 (edition 2010) and considering that the present matter was submitted to FIFA on 5 August 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 5. In this respect, the DRC acknowledged that it was undisputed by the parties that the Claimant and the Respondent had signed an employment contract and a supplementary agreement to it, on 1 and 2 July 2010, valid as from 1 July 201 until 31 May 2013. 6. In continuation, the Chamber took note that it is undisputed by the parties involved that the employment relationship had been terminated by the Claimant, in writing, on 26 July 2011. 7. The DRC noted that, on the one hand, the Claimant claims that the Respondent has breached the contractual relationship without just cause, by failing to pay his salaries for April and May 2011 and excluding him from the trainings with the professional team. In this regard, the Chamber acknowledged the documentation provided by the Claimant, consisting of letters of the Respondent regarding his exclusion from the first team, dated 28 June 2011, 29 June 2011, 4 July 2011 and 8 July 2011, as well as his new training schedule outlined in the Respondent’s letter of 12 July 2011, which according to the Claimant, was carried out individually and in the absence of a coach. The Chamber further observed that, by means of his correspondence of 21 July 2011, the Claimant reminded the Respondent of its situation of breach of contract. As the Respondent did not react to such reminder, the Claimant terminated the contract on 26 July 2011 and requested, by means of his claim before FIFA, the payment of EUR 22,000 as outstanding salaries for April and May 2011, EUR 240,000 as compensation for breach of contract, legal fees and the imposition of sporting sanctions on the Respondent. 8. Subsequently, the DRC noted that, on the other hand, the Respondent claims that the Claimant terminated the contract without just cause, since his salaries of April and May 2011 were not yet outstanding on 26 July 2011, considering the grace period of 90 days established in art. 11 of the contract. In addition, taking into account art. 4 of the contract, the Claimant would not be entitled to receive any type of compensation from the Respondent. 9. In continuation, the Chamber observed that, in his replica, the Claimant points out that neither did the Respondent submit any evidence of the alleged termination without just cause, nor did that it had taken any measure to revert the alleged breach. 10. Finally the DRC noted that the Respondent did not submit its final comments to the present affair. 11. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 12. In view of the above, the DRC firstly noted that, while the Claimant bases the termination of the employment contract, inter alia, on the existence of two outstanding salaries, for the months of April and May 2011, the Respondent claims that a period of grace of 90 days for the payment of salaries was established in art. 11 of the contract and that no salaries were outstanding by the time of termination. 15. In this respect, the DRC recalled the wording of art. 11 of the contract, according to which “the employer has the right and shall pay all the employee’s emoluments in the manner specified herein with a grace period of 90 (ninety) days”. 16. Subsequently, the Chamber observed that said clause was included in the contract as a result of mutual consent of the parties and, therefore its legal consequences were accepted by the Claimant. 17. In addition, the Chamber recalled that the inclusion of such stipulations in the contract, regarding the payment date of remuneration, is not prohibited by the FIFA Regulations. 18. Consequently, the DRC concluded that art. 11 of the contract, as a valid clause established by the free will of the parties, is applicable to the matter at hand and, therefore, the salaries of April and May 2011 were indeed not yet outstanding by the time of termination and cannot be considered as a valid cause to justify the unilateral termination of the contract by the Claimant on 26 July 2011. 19. Notwithstanding the foregoing, the DRC focused its attention on the second reason given by the Claimant to terminate his contract with the Respondent on 26 July 2011, namely, his exclusion from the first team and his subsequent assignment to individual training. 20. At this point and for the sake of good order, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. 21. In this respect, the Chamber acknowledged the documentation provided by the Claimant, consisting of letters of the Respondent dated 28 June 2011, 29 June 2011, 4 July 2011 and 8 July 2011, regarding his exclusion from the trainings of the first team. The Chamber further noted that the Claimant claims that, the training schedules established in the Respondent’s letter of 12 July 2011, happened to consist of individual training, in the absence of a coach. 22. The Chamber equally noted that the Respondent did not contest the allegations of the Claimant regarding his exclusion from the first team and his assignment to individual trainings, neither presented any documentation in this regard. 23. Bearing in mind the aforementioned allegations of the parties, the Chamber further observed that the Claimant’s exclusion from the first team occurred for at least the period comprised between the 28 June and the 12 July 2011, as it can be inferred from the documentation provided by the Claimant in this regard. The indicated period forms part of what is considered to be a crucial phase of preparation for the upcoming season, during which all players are required to display their performance, in order to be able to undergo a selection by the club’s coach for the next season. 24. It was during this highly important preparation phase that the Claimant was not only excluded from the trainings of the first team, but was also obliged to train individually and without a coach. 25. In view of the aforementioned facts, the DRC was of the opinion that the Claimant had founded reasons to believe that the Respondent was no longer interested in his services for the upcoming season and that the latter would no longer provide him with any remuneration for his services. 26. As a consequence of all the aforementioned allegations combined with the documentation provided by the Claimant, the Chamber considered that the Respondent was to be considered responsible for the breach of contract without just cause, consisting of the Claimant’s exclusion from trainings, from the first and from the second teams, in a decisive phase of preparation for the upcoming seasons. Consequently, the Chamber concluded that the Claimant had a valid reason to terminate his contractual relation with the Respondent and that it should be considered as a well-founded just cause. 27. Having established the above, the Chamber turned its attention to the question of the consequences of the Respondent’s breach of the contract without just cause. 28. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation from the Respondent for breach of contract without just cause. 29. The members of the Chamber firstly recalled 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. 30. 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. The members of the Chamber assured themselves that no such compensation clause was included in the employment contract at the basis of the matter at stake. 31. 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasized beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 32. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 33. In accordance with the contract signed by the Claimant and the Respondent, which was to run for two more years, i.e. until 31 May 2013, after the termination occurred, the Claimant was to receive the total amount of EUR 240,000, corresponding to his salaries for August 2011 until May 2013. 34. Subsequently, the Chamber took note of the fact that the Claimant claims to have signed a new employment contract with Club B, from country C, valid as from 2 January 2012 until 31 May 2013, being entitled to remuneration in the total amount of EUR 50,000. 35. Taking into account all the aforementioned objective elements as well as the specificities in the matter at hand, the Dispute Resolution Chamber decided that the total amount of EUR 100,000 was to be considered reasonable and justified as compensation for breach of contract to be paid by the Respondent to the Claimant in the case at hand. 36. Furthermore, the members of the Chamber took into account that no salaries were outstanding by the time of termination. 37. In continuation, the Chamber focused its attention on the Claimant’s salaries of April and May 2011. In this respect, it concluded that, in spite of the fact that such salaries were not outstanding by the time of termination on 26 July 2011, considering the grace period of 90 days established in art. 11 of the contract, the Claimant has as a matter of fact rendered his services to the Respondent during these two months and is entitled to receive remuneration for the aforementioned period. 38. Consequently, the Chamber equally decided that the Respondent is to be held liable to pay the Claimant the amount of EUR 22,000 as unpaid remuneration for the services rendered in the months of April and May 2011. 39. Furthermore, the DRC held that the Claimant’s claim pertaining to legal costs has to be rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 40. For all the above reasons, the DRC decided to partially accept the claim of the Claimant and holds the Respondent liable to pay the Claimant the amount of EUR 22,000 as unpaid remuneration, as well as the amount of EUR 100,000. 41. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player J, is partially accepted. 2. The Respondent, Club A, is ordered to pay to the Claimant, Player J, the amount of EUR 22,000 as outstanding remuneration, within 30 days as from the date of notification of this decision. 3. The Respondent, Club A, is ordered to pay to the Claimant, Player J, the amount of EUR 100,000 as compensation for breach of contract, within 30 days as from the date of notification of this decision. 4. If the aforementioned sums are not paid within the above-mentioned time limit, an interest rate of 5% p.a. will apply as of expiry of the fixed time limits until the date of effective payment and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further claims lodged by the Claimant, Player J, are rejected. 6. The Claimant, Player J, is directed to inform the Respondent, Club A, 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