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 (DRC) passed in Zurich, Switzerland, on 25 April 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Diallo (France), member Alejandro Marón (Argentina), member Theo van Seggelen (Netherlands), member Joaquim Evangelista (Portugal), member on the claim presented by the player, Player B, from country H as Claimant / Counter-Respondent against the club, Club D, from country T as Respondent / Counter-Claimant 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 (DRC) passed in Zurich, Switzerland, on 25 April 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Diallo (France), member Alejandro Marón (Argentina), member Theo van Seggelen (Netherlands), member Joaquim Evangelista (Portugal), member on the claim presented by the player, Player B, from country H as Claimant / Counter-Respondent against the club, Club D, from country T as Respondent / Counter-Claimant regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 10 July 2009, Player B, from country H (hereinafter: player or Claimant/ Counter- Respondent), and Club D, from country T (hereinafter: club or Respondent/Counter- Claimant), signed an employment contract, valid as of 10 July 2009 until 31 May 2012 (hereinafter: contract). 2. According to the contract, the player was entitled to receive, inter alia, for the 2009/10 season the following amounts: • Advance payment (on or before 9 July 2009) EUR 75,000 • Payment (on or before 31 July 2009) EUR 25,000 • Monthly salary as from August 2009 to May 2010 (EUR 10,000 X 10 instalments, all due at the end of the month) EUR 100,000 • Per match payments duly specified in the contract • Monthly legal minimum wage 3. Moreover, the contract stipulates that the player was entitled to the equal amount of EUR 200,000 for each of the 2010/11 and 2011/12 seasons, totaling EUR 400,000. 4. On 3 May 2010, the player formally notified the club of the unilateral termination of the contract. In his termination notice the player claimed that the club failed to comply with the payment terms under the contract and stated that his salaries as well as 20 per match payments from the 2009/10 season were still outstanding. 5. On 4 May 2010, the player lodged a claim against the club in front of FIFA maintaining that, at the time of the termination of the contract, i.e. 3 May 2010, the club had failed to pay the following amounts (totalling EUR 74,616): - EUR 50,000 for his salaries (as from December 2009 until April 2010) - EUR 22,416 relating to per match credits: a) EUR 13,230 corresponding to 9 matches in the first eleven; 9 x EUR 1,470; b) EUR 3,306 corresponding to 3 matches in which player participated; c) EUR 5,880 corresponding to 8 matches in which player was nominated in the squad of 18 but did not participate. - EUR 2,200 for his minimum wage according to country T Labour Law. 6. Therefore, the player requested the Dispute Resolution Chamber to order the club to pay the total amount of EUR 74,616 as outstanding salaries plus 5% interest. The player also requested to be awarded EUR 510,000 as compensation for breach of contract, which amount he amended later on during the proceedings to the amount of EUR 250,000 (cf. point I. / 12. below). 7. On 14 June 2010, with its reply to the player’s claim the club lodged a counterclaim against the player maintaining that the player unilaterally terminated the contract, due to the fact that the team possibly would be relegated, as it was communicated to the player three weeks before the end of the 2009/10 season. 8. Moreover, according to the club, EUR 140,000 were paid against the player’s EUR 200,000 credit for the 2009/10 season, which left an outstanding amount of EUR 60,000, plus EUR 22,419 owed to him as per match payments, totaling EUR 82,419. 9. The club further submitted that fines had been imposed upon the player, in the total amount of EUR 92,105, which, according to the club, is to be deducted from the amount of EUR 82,419 owed to the player. 10. In light of the above, the club requested that the player be ordered to pay to the club EUR 9,686. 11. In his reply to the club’s counterclaim, the player alleged that as of the date of the unilateral termination of the contract, i.e. 3 May 2010, there was no longer a legal relationship between the parties, thus he could not validly have been imposed fines for the total amount EUR 92,105 subsequent to the date of termination of the contract. Moreover, he argued that the fine amounting to currency of country T 2,500 imposed on him for sportive reasons was not valid. 12. The player requested that the club’s claim be rejected, maintained his request to be awarded EUR 74,616 and asked compensation in the amount of EUR 250,000 instead of EUR 510,000, plus 5% interest on both amounts. 13. In its replica, the club alleged that the amount of compensation requested by the player constitutes unjustified enrichment and insisted on its previous statements. 14. In his final comments, the player reiterated his previous position and referred to the employment contract with his new club explaining that he suffered a significant loss on wages. 15. According to the employment contract with his new club, Club D, valid as of 1 July 2010 until 30 June 2012, the player was entitled to receive, inter alia: - for the 2010/11 season a monthly salary in the amount of EUR 13,000; - for the 2011/12 season, the monthly salary was not indicated and for the 2012/13 season, if the contract was extended, a monthly salary of EUR 15,500 was agreed upon. 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 4 May 2010. 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. art. 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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), 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 country H player and a country T club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2010 and 2009), and considering that the present claim was lodged on 4 May 2010, the 2009 edition of said regulations (hereinafter: 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 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. In this respect, the Chamber recalled that the parties had signed an employment contract valid as from 10 July 2009 until 31 May 2012, in accordance with which the Claimant/Counter-Respondent was entitled to receive, inter alia, a total guaranteed amount of EUR 200,000 for the 2009/2010 season (partly consisting of ten monthly instalments of EUR 10,000), plus a monthly legal minimum wage, the amount of which was not specified in the employment contract, as well as per match payments, i.e. EUR 1,470 per match if he played in the squad of first eleven, EUR 1,102.50 if he joined during the game and EUR 735 if he was nominated in the squad of eighteen but he did not participate. 5. In continuation, the members of the Chamber noticed that it was undisputed by the parties that, on 3 May 2010, the Claimant/Counter-Respondent notified the Respondent/Counter-Claimant of the termination of the contract on the basis of outstanding remuneration and twenty per match payments corresponding to the 2009/10 season. 6. The DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant/Counter-Respondent had just cause to terminate the contract on 3 May 2010. The Chamber also underlined that subsequently, if it were found that the employment contract was terminated with just cause, it would be necessary to determine the consequences thereof. 7. In this respect, the Chamber wished to emphasize that, according to the Claimant/Counter-Respondent, at the time of the termination of the contract on 3 May 2010, the total amount of EUR 74,616, corresponding to salaries as from December 2009 until April 2010, as well as EUR 22,416 relating to match bonuses, was yet to be paid by the Respondent/Counter-Claimant. 8. The DRC then turned its attention to the arguments of the Respondent/Counter- Claimant and acknowledged that according to the latter, EUR 140,000 were paid against the Claimant/Counter-Respondent’s EUR 200,000 credit for the full 2009-2010 season. In this context, the DRC noted that the Respondent/Counter-Claimant had submitted documentary evidence demonstrating that, in fact, it had paid remuneration to the Claimant/Counter-Respondent in the amount of EUR 140,000. 9. Furthermore, the Chamber duly noted that the Respondent/Counter-Claimant admitted that salaries and match bonuses in the total amount of EUR 82,419, i.e. consisting of EUR 60,000 relating to salaries and EUR 22,419 relating to match bonuses, had not been paid to the Claimant/Counter-Respondent. However, the Respondent/Counter-Claimant deemed that fines totalling EUR 92,105, which were imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant for alleged undisciplined training and failure to attend a match without permission, are to be deducted from the amount of EUR 82,419. Consequently, the Respondent/Counter-Claimant submitted that it was owed the amount of EUR 9,686 by the Claimant/Counter-Respondent. 10. Therefore, the Respondent/Counter-Claimant lodged a counterclaim against the player, maintaining that the Claimant/Counter-Respondent terminated the contract due to the fact that the team could be relegated and requested that the Claimant/Counter-Respondent be ordered to pay EUR 9,686 to the club. 11. In continuation, the members of the Chamber acknowledged that the Claimant/Counter-Respondent rejected the Respondent/Counter-Claimant’s claim sustaining that the fines were not to be deducted from his receivables and pointed out that said fines were imposed upon him after the termination of the contract and that the fine amounting to currency of country T 2,500 imposed on him for sportive reasons was not valid. After careful study of the documentation presented by the Respondent/Counter-Claimant with regard to said fines, the members of the Chamber duly noted that, indeed, apart from the fine amounting currency of country T 2,500, the fines were imposed by the club on the player subsequent to the date of termination of the employment contract. 12. In this context, the Chamber concurred that the fines imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant shall not be taken into consideration, since a) a fine based on bad sporting performances cannot be considered valid and b) a fine based on the absence of a player after the player terminated the employment relation cannot be justified. 13. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent/Counter-Claimant’s argument in this connection. 14. In continuation, the DRC stressed that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact carries the burden of proof. 15. In view of the above, the DRC stressed that the Claimant/Counter-Respondent carries the burden of proof in connection with his allegations as regards the sum of EUR 2,200 claimed as minimum wages in accordance with country T labour law, which amount has not been acknowledged by the Respondent/Counter-Claimant as outstanding. The Chamber highlighted that the contract does not indicate any specific amount applicable as such minimum wage and that the Claimant/Counter- Respondent had not presented any other supporting documentation in this regard. As a consequence, the DRC decided to reject the Claimant/Counter-Respondent’s respective claim pertaining to said amount of EUR 2,200 as legal minimum wage. 16. Furthermore, as a consequence of the aforementioned considerations, in particular numbers II. / 9 and II. / 12, the Chamber established that at least five monthly salaries as well as a considerable part of the match bonus payments had fallen due and remained outstanding at the time of the termination of the contract by the Claimant/Counter-Respondent. Consequently, the Chamber concurred that the Respondent/Counter-Claimant had seriously neglected its financial contractual obligations towards the Claimant/Counter-Respondent. 17. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant/Counter- Respondent had just cause to unilaterally terminate the contract on 3 May 2010 and that the Respondent/Counter-Claimant is to be held liable for the early termination of the contract with just cause by the player. 18. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, bearing in mind the financial claim of the Claimant/Counter-Respondent the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 72,416 corresponding to match bonuses in the amount of EUR 22,416 and salaries amounting to EUR 50,000. 19. In addition, taking into consideration the Claimant/Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the outstanding amount of EUR 72,416 as of 4 May 2010 until the date of effective payment. 20. In continuation, having established that the Respondent/Counter-Claimant is to be held liable for the termination of the contract with just cause by the Claimant/Counter-Respondent, 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 Respondent/Counter-Claimant is liable to pay compensation to the Claimant/Counter-Respondent. 21. Consequently, the Chamber decided that the Claimant/Counter-Respondent is entitled to receive compensation from the Respondent/Counter-Claimant for the termination of the contract with just cause in addition to the aforementioned amount of EUR 72,416 on the basis of the relevant employment contract. 22. Subsequently, 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/Counter-Respondent 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. 23. 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. 24. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 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. 25. In order to estimate the amount of compensation due to the Claimant/Counter- Respondent in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant/Counter- Respondent 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. 26. In accordance with the contract signed by the Claimant/Counter-Respondent and the Respondent/Counter-Claimant, which was to run until 31 May 2012, the Claimant/Counter-Respondent was entitled to receive the total amount of EUR 410,000, made up of EUR 400,000 of remuneration for the 2010/11 and 2011/12 seasons plus EUR 10,000 payable on or before 31 May 2010. Consequently, the Chamber concluded that the amount of EUR 410,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 27. The Chamber then took due note of the employment situation of the Claimant/Counter-Respondent after the termination of the contract with the Respondent/Counter-Claimant and of the relevant new employment contract that he had entered into, by means of which he was able to reduce his loss of income. It was duly noted that, on 1 July 2010, the Claimant/Counter-Respondent and Club D, from country G, signed an employment contract, valid as from 1 July 2010 until 30 June 2012, according to which the Claimant/Counter-Respondent was entitled to a monthly salary of EUR 13,000 for the 2010/11 season, as well as a monthly salary for the 2011/12 season which, however, was not indicated in the contract signed between the parties. The Chamber took into account that, according to the new employment contract, the Claimant/Counter-Respondent was entitled to a monthly salary of EUR 15,500 for the 2012/13 season in the event that the contract was extended. Consequently, the members of the Chamber established that the value of the new employment contract concluded between the Claimant/Counter-Respondent and Club D for the period as from 1 July 2010 until 30 June 2012 amounts to EUR 299,000 (23 months x EUR 13,000). 28. The Chamber highlighted that in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under the new employment contract(s) shall be taken into account for the calculation of the amount of compensation for breach of contract. 29. For all the above reasons, the Chamber decided that the Respondent/Counter- Claimant must pay the amount of EUR 111,000 to the Claimant/Counter-Respondent, as compensation for breach of contract. 30. Furthermore, taking into account the Claimant/Counter-Respondent’s petition and the constant practice of the Dispute Resolution Chamber, the members of the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the amount of compensation, i.e. EUR 111,000, as from 25 April 2013 until the date of effective payment. 31. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the counterclaim of the Respondent/Counter-Claimant as well as any further claims lodged by the Claimant/Counter-Respondent are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player B, is partially accepted. 2. The counterclaim of the Respondent/Counter-Claimant, Club D, is rejected. 3. The Respondent/Counter-Claimant, Club D, has to pay to the Claimant/Counter- Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 72,416, plus interest at 5% p.a. as of 4 May 2010 until the date of effective payment. 4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 111,000 plus interest at 5% p.a. as from 25 April 2013 until the date of effective payment. 5. In the event that the above-mentioned amounts due to the Claimant/Counter- Respondent are not paid by the Respondent/Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and decision. 6. Any further claim lodged by the Claimant/Counter-Respondent is rejected. 7. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter- Claimant 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