F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 7 June 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member Johan van Gaalen (South Africa), member Mario Gallavotti (Italy), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, Player D, from country B as Claimant against the club, Club A, from country G as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 7 June 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member Johan van Gaalen (South Africa), member Mario Gallavotti (Italy), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, Player D, from country B as Claimant against the club, Club A, from country G as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. In July 2008, the country B player, Player D (hereinafter: the player or the Claimant), and the country G club, Club A (hereinafter: the club or the Respondent), concluded an employment contract (hereinafter: the contract) valid as from 1 July 2008 until 30 June 2010. 2. Art. 4.4 of the contract provided that the player would be entitled to a total remuneration of EUR 352,411.16 payable in 18 instalments, as follows: - EUR 16,395.94 per month for the period as from 30 August 2008 until 30 May 2009 (10 salary payments); - EUR 23,556.47 per month for the period as from 30 August 2009 until 30 March 2010 (8 salary payments). 3. On 10 August 2009, the club and player concluded an “agreement” in the language P, the translated version of which reads as follows: - 1. The club wishes to terminate the agreement of this player and wished to lend him for the period 2009-10, for a team which shall be interested in buying the player. 2. The PLAYER also wishes and accepts the conditions hereof. 3. Both parties agree and execute this lending agreement as follows: “FIRST: The Player shall have receive from Club A the amount which supplements the agreement offered by the Club to which he shall be lent, until it completes the net amount in the agreement the player would have with Club A within the period 2009-10”. - “SECOND: The Club shall enter into a new agreement with the player, in July 2010, with two years term, and the following quantities: For the period between 2010-11, the free amount of EUR 220,000.00 (…), and for the period between 2011-12, the free amount of EUR 230,000.00 (…)” - “THIRD: If any Club appears to hire the player for such period, the player shall exercise in the Club, receiving the amount set forth in his agreement on due dates, and if the player acquires his multiple passport, the Club reactivates the player in the period of transfers of January 2010 as part as its team”. 4. On 26 March 2010, the player lodged a claim against the club in front of FIFA and requested, after amending his claim, a total amount of EUR 188,451.88 composed of the following elements: - EUR 70,670 as outstanding salaries for the months of August, September and October 2009; - EUR 18,060 as outstanding salary for the 23 days worked in November 2009; - EUR 99,721.88 as compensation for breach of contract. 5. Furthermore, the player requested 5% interest p.a. “over the total amount due, as from the date of payment of each instalment” as well as legal costs and disciplinary sanctions. 6. The player explained that he had fulfilled all his obligations in accordance with the contract, but that the club, in July 2009, informed him that it was no longer interested in continuing the employment relationship, as he had not been granted the country P nationality. The player refused the termination of the contract, however, “was convinced by the club to accept it under some conditions established on another contract” i.e. the agreement of 10 August 2009. The player indicated that pursuant to the agreement, the club was “interested in terminating the previous employment contract and in loaning the player during the 2009/2010 season.” 7. The Claimant stressed that the agreement of 10 August 2009 stipulated that: i) If he was not hired by another club during the 2009/2010 season, he would continue to train with the Respondent and receive his salaries in accordance with the contract, and ii) In case the player would obtain a country P passport, he would be officially reintegrated in the team. 8. Consequently, and since the Respondent was not able to find him a new club, the player was requested to continue to render his services to the Respondent. However, the Respondent did not honour the contract and, on 6 November 2009, the Claimant requested the payment of his salaries for August, September and October “2010”, which request remained unanswered. Two further letters were sent in November 2009, which also remained unanswered, after which the player terminated “his professional relationship” with the club by means of a letter dated 23 November 2009. 9. In reply to the claim lodged against it, the Respondent stated that the parties, on 10 August 2009, decided to terminate the contract of July 2008 by mutual consent. In this respect, the Respondent submitted another document dated 10 August 2009, addressed to the country G Football Federation called “solemn declaration”, which was signed by the Claimant and stipulated “I accept the termination of my contract with mutual consent with [the Respondent]. I also declare that I do not have, neither I will raise in the future any financial claim against [the Respondent] regarding regular payments or bonuses after the payment of 12,000 euros”, which amount was paid to the player on 17 August 2009. The Respondent acknowledged that, on the same day, the parties signed the “agreement” by means of which the Respondent “undertook the obligation to help the player find a new club and by means of which the terms of a possible future co-operation between the parties were also agreed”. 10. In this context, the Respondent first stated that FIFA has no jurisdiction to decide on the claim based on the agreement dated 10 August 2009, since the Regulations on the Status and Transfer of Players do not “include disputes arising from or related to agreement like the one in question”, asserting that only ordinary civil courts have jurisdiction in this respect. 11. As to the substance, the club asserted that with the agreement of 10 August 2009 “indeed, the executive director of [the Respondent] and the player agreed that [the Respondent] would try to find a club for the player to go and play until the moment he would have been able to return to [the Respondent] and sign a new employment contract with the club, that is, until the moment he would receive his country P passport in order to be a community player since all the foreign players’ positions of [the Respondent] were already taken or until a position for a foreign player was freed”. The Respondent pointed out that the Claimant had misled it when he signed the employment contract reassuring the Respondent that he would obtain the country P nationality by the end of 2008, which however did not happen. 12. The Respondent added that the intention of the parties was that the Claimant would join another club and that, if he obtained his country P passport, he would return to the Respondent in January 2010. Otherwise, the parties had agreed upon the terms of a “possible future co-operation” from July 2010 until June 2012. Further, the club stated that the agreement signed on 10 August 2009 is not an employment contract, since “no employment was agreed and no employment existed following the termination of the employment contract of 8 July 2008”. 13. The Respondent continued and stated that “in an effort to help the player and make him feel more secure following the termination of his employment contract, [the Respondent] agreed to pay the player, in case no team were to be found to sign him for the 2009-2010 season, the amount that the player would have received if his contract had not been terminated and to allow him to be training with [the Respondent], in order for him to remain fit. However, it is more than obvious that the said arrangement and agreement of the parties is not an employment contract, since no employment is established by the said arrangement”. According to the Respondent, the Claimant only had the right to participate to the team’s trainings, but no obligation. 14. Moreover, the Respondent stated that if there was a club willing to sign the Claimant and the salary offered was lower than the one the Claimant would have received if his employment contract was not terminated on 10 August 2009, the Respondent agreed to pay an additional amount to the player in order for him to receive the same amount that he would have received if his employment contact had not been terminated. 15. In this respect, the Respondent stated that it was in fact the Claimant who had breached the agreement of 10 August 2009; it had presented several proposals from other clubs to the player, one of which coming from the country G club Club L, all of which the player rejected since he “preferred to stay unemployed and then demanded [the Respondent] to pay him the amounts that he would have received if the employment contract had not been terminated”. In this context, according to the Respondent, exemplary for the bad faith of the Claimant is that he refused to sign a contract with Club L when the Respondent proposed it to him, but that, later on, he signed an employment contract valid as from 2 January 2010 until 30 June 2011 with the exact same club. In this respect, the Respondent submitted a letter received from Club L dated 18 September 2009 which reads as follows: “We kindly ask you to give us the player Player D and to inform us of the terms under which you accept the said transfer”. 16. Finally, the Respondent alleged that the Claimant is “wrongly asking for the payment of gross amounts as being net” since the amounts established in the employment contract are gross amounts. Therefore, 21,2% tax is to be withheld according to country G legislation. 17. In his replica, the Claimant firstly indicated that FIFA is competent to hear the present matter, since the dispute relates to the breach of the employment contract and not just to a simple agreement. Thereby, the agreement was subsidiary and linked to the employment contract and clearly stipulated that if the player would not be hired by another club, he would receive his salaries in the same conditions as under the employment contract. 18. As to the merits, the Claimant stressed that he entirely fulfilled his obligations and even travelled to re-join the squad when the club already owed him 3 salaries in an attempt to avoid the collapse of the employment relationship. As to the alleged offers made, the Claimant stated that the Respondent only submitted one letter of Club L in which the latter club merely demonstrates its “intention in acquiring the player’s rights”. 19. Furthermore, the Claimant outlined that he never deceived the Respondent by stating that he had the country P nationality “what would be arranged upon the signature of the employment contract”. In this respect, the player pointed out that he played for the team in the first year under the country B nationality. Moreover, the player indicated that the contract signed with Club L was only signed after the termination of the employment relationship with the club. 20. Finally, the player referred to art. 4.4 of the contract and alleged that the total remuneration to be received should be interpreted as a net amount, since the contract literally stipulates “Al jugador le será pagada una cantidad total de 352.411,16 (…)”. 21. In its duplica, the club reiterated its previous position in full, pointing out that: i) There was no employment relationship as the club had not agreed to pay the player salaries, but merely an amount equal to the salaries that he would have received if the employment contract of 8 July 2008 had not been terminated; the player neither rendered his services to the club, nor had any obligations to the club; ii) Art. 17 of the Regulations on the Status and Transfer of Players does not apply to the present matter; iii) In country G the amounts mentioned in the contracts of the League and the country G Football Federation are always gross amounts, unless specifically mentioned as net. 22. The Claimant informed FIFA that he had signed a contract with Club L valid as from January 2010 to 30 June 2010 in accordance with which he would receive EUR 40,000. According to the player, said contract was terminated on 7 May 2010. 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 26 March 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) is applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 edition 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 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. In this respect, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies to adjudicate on the present matter, asserting that the dispute is not an employment-related dispute, but that the dispute rather derives from the conclusion of an agreement for which only ordinary civil courts have jurisdiction. 4. The Chamber noted that, in turn, the Claimant insisted on his claim in front of FIFA, arguing that the present dispute is employment-related and falls under art. 22 lit. b) of the Regulations on the Status and Transfer of Players 5. In view of the aforementioned, the Chamber noted that it first had to verify whether or not the present matter is to be considered an employment-related dispute that falls under art. 22 lit. b) of the Regulations on the Status and Transfer of Players and, thus, whether or not FIFA is competent to adjudicate on the present matter. 6. In this respect, the Chamber considered that the two agreements signed in August 2009 had not put an end to the contractual relationship between the parties, since the Claimant remained bound to the Respondent, with the latter trying to loan the Claimant to another club. Since no loan was eventually agreed upon, the Claimant continued to be contractually bound to the Respondent. In this respect, the Chamber deemed that the conclusion of the agreement in August 2009 should be considered in light of the employment contract signed in July 2008, the former being a direct consequence and closely related to the signing of the latter. In view of the foregoing, the Chamber was unanimous in its opinion that the present dispute is an employment-related dispute that falls under the jurisdiction of FIFA. 7. What is more, the Chamber outlined that there is an arbitration clause for FIFA by reference, since the Respondent is affiliated to the country G Football Federation, and, as a consequence, is an indirect member of FIFA and therefore subject to its Statutes and Regulations. The same applies to the Claimant, through his registration with the country G Football Federation. 8. On account 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. 9. Subsequently, and entering into the substance of the matter, 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 26 March 2010. The Dispute Resolution Chamber concluded that, therefore, the 2009 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 10. The competence of the Chamber and the applicable regulations having been established, the members of the Chamber started by acknowledging that, in July 2008, the Claimant and the Respondent had concluded an employment contract valid as from 1 July 2008 until 30 June 2010, in accordance with which the Respondent would pay the Claimant the total amount of EUR 352,411.16 in 18 instalments, as follows: - EUR 16,395.94 per month for the period as from 30 August 2008 until 30 May 2009 (10 salary payments); - EUR 23,556.47 per month for the period as from 30 August 2009 until 30 March 2010 (8 salary payments). 11. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of EUR 188,451.88, asserting that he terminated the employment contract with just cause in November 2009 after the Respondent had failed to pay him his salaries for August, September and October 2009. 12. The Respondent for its part explained the ratio behind the signing of the contract in August 2009 and deemed that in fact it was the Claimant who had breached the employment contract by rejecting various loan offers. What is more, the Respondent held that the Claimant had clearly acted in bad faith by initially rejecting the offer made from Club L, but later on signing a contract with the same club. 13. Finally, the Respondent argued that the Claimant was only entitled to gross amounts and that it was thus wrongly asking for net amounts. 14. Taking into account the foregoing positions of the parties, the Chamber first reiterated, as mentioned in point II./6. above, that the conclusion of the two agreements in August 2009 did not put an end to the contractual relationship between the Claimant and the Respondent, since the Claimant remained bound to the Respondent, the latter trying to loan the Claimant to another club. However, the Chamber noted that eventually no loan was agreed upon due to a lack of interested clubs. In this respect, the Chamber wished to stress that the approach of Club L could not be considered as a concrete offer, but merely as a first step into negotiations. Further, the Chamber noted that the Respondent had not submitted any offers from the other clubs allegedly interested in loaning the Claimant. Hence, and in reference to art. 12 par. 3 of the Procedural Rules, the Respondent had not proven to the satisfaction of the Chamber that the Claimant had rejected all the offers allegedly made nor that the Claimant had acted in bad faith. What is more, the Chamber deemed that, regardless of the foregoing, the Claimant was also still at liberty not to accept the relevant offer(s), if not to his liking. 15. As a consequence, the Chamber pointed out that the Claimant continued to be contractually bound to the Respondent and that all parties had to comply with the respective employment-related obligations as agreed upon in the agreement and employment contract. In this respect, the Chamber noted that the Claimant had terminated the contract on 23 November 2009, after having put the Respondent in default for his outstanding salaries. The Respondent for its part did not deny that it had not proceeded with the payment of these salaries. 16. In view of the foregoing, the Chamber determined that it could be established that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time. Therefore, the Chamber considered that the Respondent was found to be in breach of the employment contract and that the breach was of such seriousness that, in line with the Chamber’s long-standing and well-established jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 23 November 2009. 17. On account of the above, the Chamber established that the Claimant had terminated the contractual relationship with just cause on 23 November 2009 and that, consequently, the Respondent is to be held liable for the early termination of the contractual relationship with just cause by the Claimant. 18. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the contractual relationship with just cause by the Claimant. 19. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination of the contract i.e. on 23 November 2009. 20. At the time of the termination, the Chamber noted that the salaries for August, September and October 2009 were outstanding, i.e. the total amount of EUR 70,669. As a result, the Respondent is liable to pay to the Claimant the amount of EUR 70,699 as outstanding remuneration. 21. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations on the Status and Transfer of Players, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant contract. 22. In this context, the Chamber outlined that, in accordance with said provision, 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. 23. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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 contract at the basis of the matter at stake. 24. At the time of the termination of the contractual relationship on 23 November 2009, the contract would run for another 8 months, whereas the last salary would be paid in March 2010. Consequently, the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounted to EUR 117,782 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 25. In continuation, the Chamber remarked that following the early termination of the contract at the basis of the present dispute the Claimant had found new employment with Club L, in accordance with which he would be remunerated with a total amount of EUR 40,000. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant 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. 26. In view of all of the above, the Chamber decided that the Respondent must pay the amount of EUR 77,782 to the Claimant as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount as compensation. 27. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR 148,451 to the Claimant, consisting of the amount of EUR 70,669 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract with just cause by the Claimant and the amount of EUR 77,782 corresponding to compensation for breach of contract. 28. In this respect, the Chamber wished to outline that the Respondent’s argumentation that the amounts were gross had not been supported by any documentary evidence, nor did such argument have a contractual basis. 29. In relation to the Claimants’ request for interest, the Chamber decided that the Respondent had to pay 5% interest on the amount of EUR 70,669 as from the respective due dates and on the amount of EUR 77,782 as from 7 June 2013. 30. As to the Claimant’s request for legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules and decided to reject this part of the Claimant’s claim. 31. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player D, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club A, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 70,669.41 plus 5% interest until the date of effective payment as follows: a. 5% p.a. as of 31 August 2009 on the amount of EUR 23,556.47; b. 5% p.a. as of 1 October 2009 on the amount of EUR 23,556.47; c. 5% p.a. as of 31 October 2009 on the amount of EUR 23,556.47. 4. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 77,782 plus 5% interest p.a. on said amount as from 7 June 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 3. and 4. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives