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 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Essa M. Saleh Al-Housani (UAE), member on the claim presented by the player, Player T, from country B as Claimant against the club, Club K, from country T 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 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Essa M. Saleh Al-Housani (UAE), member on the claim presented by the player, Player T, from country B as Claimant against the club, Club K, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 13 July 2010, Player T, from country B (hereinafter: player or Claimant) and Club K, from country T (hereinafter: club or Respondent), signed an employment contract valid as from the date of signature until 31 May 2012 (hereinafter: contract). 2. According to the contract, the player was entitled to receive, inter alia, for the 2010/11 season the total amount of USD 300,000: USD 150,000 as of 14 July 2010 as advance payment, 10 monthly equal instalments of USD 15,000 each as of August 2010 until May 2011, all payable on the 10th day of each month, and a bonus of USD 50,000 in the event that the club was promoted to the Super League at the end of the 2010/11 season. For the 2011/12 season the player was entitled to receive, inter alia, the total amount of USD 300,000: USD 150,000 as of 1 July 2011 as advance payment as well as 10 monthly equal instalments of USD 15,000 each as of August 2011 until May 2012, all payable on the 10th day of each month. 3. On 6 May 2011, the player put the club in default of payment of the total amount of USD 85,000 relating to his remuneration. 4. On 15 June 2011, when the total amount allegedly outstanding was USD 100,000, the player formally notified the club of the unilateral termination of the contract. 5. According to the player, the issuance of the International Transfer Certificate (ITC) was rejected by the club twice, firstly when he intended to move to the country B, Club S, during the summer transfer window 2011 and, secondly, when he had the possibility of signing a contract with Club I, from country B, during the following transfer window. 6. Consequently, on 15 February 2012, the player and the club signed a document referred to as ``Protocol’’ (hereinafter: protocol), according to which the club was to approve the issuance of the ITC and give its consent to the player’s transfer to Club I, while the player was to waive part of the remuneration he was entitled to receive in accordance with the contract. 7. In accordance with the protocol, the player was entitled to the total amount of USD 30,000, to be paid by the club on or before 30 March 2012. According to art. 4.1 of the protocol, if the club failed to pay the amount of USD 30,000 on its due date, ‘’all the receivables been born from the professional player’s employment contract shall become due’’. 8. Moreover, the player maintained that the club failed to make the payment of USD 30,000 on 30 March 2012 and that, consequently, he is entitled to the amount due to him under the contract. Furthermore, the player alleged that due to the club’s refusal to issue the ITC, his market value decreased dramatically. 9. On the basis of the above-mentioned facts, on 16 May 2012, the player lodged a claim against the club in front of FIFA, sustaining that the club had breached the contract without just cause. 10. Therefore, the player requested that the club be ordered to pay the total sum of USD 698,100, which was detailed as follows: • USD 100,000 as outstanding salaries relating to the 2010/11 season: a) Part of the monthly salary corresponding to November 2010 USD 10,000 b) Six monthly salaries, as from December 2010 to May 2011 (USD 15,000 X 6 instalments) USD 90,000 • USD 598,100 as compensation for breach of contract: a) Residual value of the contract (one season) USD 300,000 b) Specificity of sports USD 300,000 c) Minus value of player’s new contract - USD 1,894 11. Furthermore, the player requested that the club be sanctioned, that the club bears the procedural costs and that he be awarded interest of 5% p.a. as follows: interest as of the date each individual salary fell due over the amount of USD 100,000 and interest as of the date of termination of the contract over the amount of USD 598,100. 12. In its response, the club claimed that the sums of USD 213,941.16 and currency of country T 31,463 were paid to the player and requested that player’s claim be rejected. Furthermore, the club, in support of its position, presented several bank documents relating to the payments made by the club to the player as from 13 July 2010 until 9 May 2011. 13. In addition, the club alleged that prior to the termination of the contract, fines had been imposed on the player, i.e. a fine of USD 25,000, which was imposed on the player on 16 May 2011, for undisciplined behavior (such as failure or late attendance to trainings and allegedly provoking the issuance of a second yellow card in order to serve a one-match suspension for the last game of the season) and currency of country T 7,000 as a sanction for a lost match. Moreover, the club stated that, on ``12th of May in 2011 and on 13th May in 2011’’ the player had left the country and did not keep in contact with the club. 14. In his replica, the player alleged that most of the payments made by the club to him correspond to match bonuses as well as to the accommodation allowance that he allegedly was entitled to receive. Moreover, the player argued that he went home with the club’s permission, that a player cannot be fined for receiving a yellow card and that the club verbally forgave him for his late arrival to the training session. 15. In its duplica, the club reiterated its position and asked that the player’s claim be rejected. 16. Finally, the player signed a contract with a new club, Club I, valid as from 1 February 2012 until 15 May 2012, according to which he was entitled to receive currency of country B 1,000 per month. 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 16 May 2012. 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 and par. 2 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 B player and a country T club. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 24 June 2013 by means of which the parties were informed of the composition of the Chamber, the member Mr M and the member Mr G refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr M has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr G refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. 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 and 2010), and considering that the present claim was lodged on 16 May 2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. 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 13 July 2010 until 31 May 2012, in accordance with which the Claimant was entitled to receive, inter alia, the amount of USD 300,000 for both the 2010/11 season and the 2011/12 season. 6. In continuation, the members of the Chamber noted that, on 15 June 2011 and after having put the Respondent in default of payment of his remuneration, the Claimant notified the Respondent of the unilateral termination of the contract on the basis of outstanding remuneration. 7. In continuation, the members of the Chamber acknowledged that it was undisputed by the parties that, on 15 February 2012, they signed a protocol according to which the Claimant was to waive part of the remuneration he was entitled to receive under the contract and the Respondent was to approve the issuance of the relevant ITC in order for the player to register with his new club. 8. In this respect, the Chamber acknowledged that art. 4.1 of the protocol stipulates that if the Respondent failed to pay the amount of USD 30,000 on its due date, ``all the receivables been born from the professional player’s employment contract shall become due’’. 9. Furthermore, the Dispute Resolution Chamber noted that it was also undisputed by the parties that said amount of USD 30,000 had not been paid to the Claimant by the Respondent on or before its due date, i.e. 30 March 2012. In this respect, the Chamber stressed that the Respondent’s line of defence is merely based on circumstances that allegedly occurred prior to the termination of the contract by the Claimant and, more importantly, prior to the signature of the protocol by and between the parties. 10. On account of the above, the members of the Chamber agreed with the Claimant that art. 4.1 of the protocol finds application and that thus the situation when the termination of the contract occurred is reverted to, which forms the basis of the Claimant’s claim. 11. In this respect, the DRC acknowledged that, according to the Claimant, at the time of the termination of the contract, i.e. on 15 June 2011, out of the total amount of USD 300,000 for the 2010-11 season, the amount of USD 100,000 remained unpaid, i.e. USD 10,000 corresponding to part of the monthly salary of November 2010, as well as six instalments corresponding to the months of December 2010 until May 2011 in the amount of USD 90,000. 12. The DRC then turned its attention to the arguments of the Respondent and acknowledged that according to the latter, USD 213,941.16 and currency of country T 31,463 (approx. USD 17,353) were paid to the Claimant for the 2010/11 season. In this context, the DRC noted that the Respondent had submitted documentary evidence demonstrating that, as from 13 July 2010 until 9 May 2011, it had paid remuneration to the Claimant in the amount of USD 226,133. 13. The DRC further noted that the Claimant, for his part, alleged that most of the payments made by the Respondent for the said time period corresponded to match bonuses as well as the accommodation allowance that he allegedly was entitled to receive. 14. In continuation, the DRC referred to the legal principle of the burden of proof contained in 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. 15. In view of the above, the DRC concluded that the Claimant shall carry the burden of proof in connection with his allegations that the amount of USD 226,133 was paid to him by the Respondent mainly in connection with bonuses and other benefits. The members of the Chamber observed that the Claimant had failed to present any pertinent documentary evidence in this respect. 16. Furthermore, the Chamber duly noted that, according to the Respondent, fines totalling approximately USD 28,860, which were imposed on the Claimant by the Respondent as a sanction for a lost match as well as for alleged undisciplined behavior, were to be deducted from the Claimant’s receivables. 17. Moreover, the members of the Chamber acknowledged that the Claimant rejected that fines were to be deducted from his receivables. 18. In this context, the Chamber concurred that the fines imposed on the Claimant by the Respondent do not appear to be justified and shall thus be disregarded. 19. 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’s argument in this connection. 20. Taking into account the above-mentioned considerations as well as the documentation presented by the parties, the members of the Chamber concluded that at the time when the Claimant terminated the employment contract, i.e. on 15 June 2011, the amount of USD 73,867 (USD 300,000 minus USD 226,133), which equals five monthly salaries, had remained outstanding. 21. As a result thereof and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that that the Claimant had just cause to unilaterally terminate the contract on 15 June 2011 and that the Respondent is to be held liable for the early termination of the contract with just cause by the player. 22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount that was outstanding under the contract at the moment of the termination, i.e. USD 73,867, corresponding to the advance payment in the amount of USD 150,000, plus ten equal monthly instalments of USD 15,000 each, payable as of August 2010 until May 2011, minus USD 226,133 which were paid by the Respondent to the Claimant for the 2010/11 season. 23. In addition, taking into consideration the Claimant’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 interest at the rate of 5% p.a. on the outstanding amount of USD 73,867 as of 10 May 2011 until the date of effective payment. 24. In continuation, having established that the Respondent is to be held liable for the termination of the contract with just cause by the Claimant, the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay compensation to the Claimant. 25. Subsequently, the Chamber focused its attention on the calculation of the amount of compensation payable to the Claimant by the Respondent 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. 26. 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. 27. The Chamber recalled that the Claimant had requested compensation for breach of contract in the amount of USD 598,100, including the aggregate amount of salaries that he would have been entitled to under the contract until its original expiry date, an amount claimed as specificity of sports, minus the income as per the Claimant’s employment contract with his new club. 28. 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 31 May 2012 and concluded that the Claimant would, in fact, have received USD 300,000 as advance payment and salaries (as from August 2011 until May 2012) had the contract been executed until its expiry date. 29. In continuation, the Chamber assessed 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. 30. In this respect, the Chamber noted that the Claimant signed an employment contract with Club I from country B, in accordance with which he was entitled, inter alia, to a monthly salary of currency of country B 1,000. 31. Consequently, on account of 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 USD 298,250 to the Claimant as compensation for breach of contract. 32. Furthermore, taking into account the Claimant’s petition and the constant practice of the DRC, the Chamber decided to award the Claimant interest at the rate of 5% p.a. over the amount of compensation, as from 28 June 2013 until the date of effective payment. 33. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player T, is partially accepted. 2. The Respondent, Club K has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 73,867, plus interest at 5% p.a. as of 10 May 2011 until the date of effective payment. 3. 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 in the amount of USD 298,250 plus interest at 5% p.a. as of 28 June 2013 until the date of effective payment. 4. In the event that the above-mentioned amounts due to the Claimant 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 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