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 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member Todd Durbin (USA), member on the claim presented by the club Club A, from country G, as Claimant / Counter-Respondent against the player Player M, from country B, as Respondent / Counter-Claimant regarding a contractual 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 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member Todd Durbin (USA), member on the claim presented by the club Club A, from country G, as Claimant / Counter-Respondent against the player Player M, from country B, as Respondent / Counter-Claimant regarding a contractual dispute arisen between the parties. I. Facts of the case 1. On 30 June 2008, Club A, from country G (hereinafter: the Claimant) and Player M, from country B (hereinafter: the Respondent), concluded an “Agreement- Professional Employment Contract” (hereinafter: the agreement) valid for two years. 2. According to clause 3.3. of the agreement, the agreed remuneration of the Respondent was as follows: “The NET (free of any tax and charge) salary of the PLAYER per year will be € 300.000 (i.e. 300.000 € Net for 2008-09 and 300.000 € Net for 2009-10). All these annual amounts will be paid as follows: Season 2008 - 2009 • 100.000,00 € upon signing this agreement • Ten equal installments of 20.000,00 € each paid at the end of each month with the first instalment due in September 30, 2008 and the 10th installment due in June 30, 2009. Season 2009 - 10 • 100.000,00 € on July 30th 2009 • Ten equal instalments of 20.000,00 € each paid at the end of each month with the first installment due in September 30, 2009 and the 10th installment due I June 30, 2010.” 3. Furthermore, the Claimant was to provide the Respondent “a fully furnished apartment” and “round-trip country B - country G tickets” for his wife and three children, “for every season of this contract”. 4. The parties also signed a standard contract of the country G Superleague valid as from 8 July 2008 until 30 June 2010, which provides that the Claimant would receive, for the whole duration of the contract (all amounts are net), a monthly instalment of EUR 1,000, the amount of EUR 472,000 payable in twenty instalments, plus bonuses for Christmas, Easter and a holiday benefit, i.e. a total of EUR 500,000. 5. On 18 March 2009, the Claimant lodged a claim in front of FIFA against the Respondent, explaining that on 13 August 2008, the Respondent sustained an injury during training and that eventually he was unable to play. In the meantime, the Claimant had allegedly satisfied all its financial obligations towards the Respondent. 6. According to the Claimant, on 16 November 2008, the Respondent sent an email to the Claimant which contained a medical report from the Respondent’s doctor in country B and in which he stated that after having taken into serious consideration the medical reports which all concluded to a very unlikely chance of playing football again, he had decided to stop playing football at professional level. The Respondent subsequently indicated to the Claimant the contact details of his counsel in country B in order to finalise the termination of the employment contract. 7. However, according to the Claimant, not only did the parties not reach an agreement regarding the termination of the employment contract, but the Respondent also claimed that the Claimant did not pay him his salary of November 2008. Finally, on 7 December 2008, the Respondent sent a letter to the Claimant informing the latter that he had returned to country B. 8. The Claimant further asserted that until 16 November 2008, the Respondent had allegedly received the total amount of EUR 138’200 as follows: - EUR 100,000 (advance payment for season 2008/2009), - EUR 1,000 on 3 September 2008, - EUR 18,600 on 6 October 2008, - EUR 18,600 on 30 October 2008. 9. Furthermore, according to the Claimant, it had to pay EUR 168 to the country G airport’s parking, the Respondent having left his car there upon his departure from country G, and EUR 512.44 for house expenses that the Respondent allegedly left unpaid. 10. The Claimant further underlined that in accordance with the agreement, the Respondent’s monthly salary was of EUR 25,000 net (i.e. EUR 300,000 yearly, to be paid in 12 equal instalments). As it appears, the Respondent has received, until 16 November 2008, the amount of EUR 138,200, while he was allegedly entitled to receive EUR 125,000 (i.e. 5 x EUR 25,000 for the months of July to November 2008). 11. The Claimant concluded that the employment relationship signed between the parties must be considered as having been terminated by the Respondent without just cause as from 16 November 2008. In this context, the Claimant claims that the Respondent should reimburse the amount of EUR 13,200 which he allegedly received in excess of the agreement, as well as EUR 680.44 relating to a parking ticket and house expenses, thus in total EUR 13,880.44. 12. In reply to the Claimant’s claim, the Respondent confirmed that he sent an email to the management of the Claimant on 16 November 2008, supposedly, to inform them of the diagnosis following his injury, while at the same time continuing to exercise his profession by presenting himself each day at the club and continuing his medical treatment. Thereafter, he received a letter dated 2 December 2008 from the Claimant where the latter acknowledged the situation and put an end to their contractual relationship, and requested that the finalisation of the termination of the employment contract be settled within two weeks. 13. In this context, the Respondent contacted the Claimant’s lawyer in order to find a settlement and requested to be paid his salary of November 2008 in the amount of EUR 20,000 as well as some outstanding payments relating to his salaries of September and October 2008 and the reimbursement of his flight tickets capital of country G- capital of country B. However, he received a negative answer from the Claimant’s lawyer. 14. In continuation, the Respondent affirmed that the email sent to the Claimant on 16 November 2008 does not constitute a letter of termination of the employment contract and that the fact that he allegedly continued to exercise his duties towards the Claimant until 2 December 2008 proves that he was still under contract with the latter after 16 November 2008. The Respondent equally submitted that the Claimant’s letter dated 2 December 2008 demonstrates that it is in fact the Claimant which terminated the contract and not him. 15. Regarding the Claimant’s financial claim against him, the Respondent stated that the payment of EUR 100,000 which occurred in August 2008 corresponds to a signing-on fee and not, as alleged by the Claimant, to an advance payment, and referred to the wording of the agreement in this respect, which stipulates that said amount is due “upon signing this agreement”. Equally, the Respondent emphasized that this amount is not transcribed in the standard Superleague contract, thus it cannot be considered as a classic remuneration to be paid over the period of validity of the employment contract. 16. In addition, the Respondent stated that in accordance with the agreement, he should have received, until 2 December 2008, the following remuneration: - EUR 100,000 net as signing-on fee (paid in August 2008), - EUR 20,000 net payable until 30 September 2008, - EUR 20,000 net payable until 30 October 2008, - EUR 20,000 net payable until 30 November 2008, these amounts corresponding, except for the signing-on fee, to the amount mentioned under the standard Superleague contract (i.e. EUR 18,600 + 1,000 + miscellaneous payments). 17. However, the Respondent underlined that the Claimant itself had admitted having paid him in total only EUR 138,200. 18. Therefore, the Respondent deems that up to 2 December 2008, the Claimant owed him the balance of EUR 21,800. 19. Regarding the expenses paid by the Claimant, the Respondent recognised that he could be held liable for the payment of the parking ticket in the amount of EUR 168 but refused to reimburse the housing expenses in the amount of EUR 512.44 since these latter expenses were allegedly incurred from the fact that he had travelled to country G upon the Claimant’s request in order to meet with the medical staff chosen by the latter. Therefore, the Respondent deems that the housing expenses should be covered by the Claimant. 20. Finally, the Respondent claimed that according to the agreement, the Claimant was supposed to pay for flight tickets country G - country B for his family and himself. Therefore, the Respondent requested that the club reimbursed him the amount of EUR 3,239.03 which he had to pay in order to purchase the relevant flight tickets. 21. In view of the above, the Respondent lodged a counter-claim against the Claimant, requesting from the latter the amounts of EUR 21,800 as outstanding salaries + EUR 3,239.03 as flight tickets - EUR 168 for the parking ticket, thus a total of EUR 24,871.03. 22. In reply to the Respondent’s counterclaim, the Claimant rejected the Respondent’s assertion that the official diagnosis on his condition was revealed only in early December 2008 and instead affirmed that it was already evident that he was unable to play by mid-November 2008. The Claimant deems that its letter dated 2 December 2008 was only an acknowledgement of the Respondent’s decision to put an end to the employment contract. 23. In addition, the Claimant refuted the player’s allegation that the amount of EUR 100,000 paid to the Respondent in August 2008 corresponded to a signing-on fee and maintained that this amount rather corresponded to an advance payment. Therefore the Claimant insisted that with the “advance payment” included in the player’s salary, his salary amounted to EUR 25,000 per month and that the Respondent received EUR 13,200 in excess at the time of the termination of the contract. 24. The Claimant therefore rejected the Respondent’s counterclaim and upheld its initial claim entirely. 25. Finally, regarding the Respondent’s request for flight tickets, the Claimant admitted that it did not find in its accounts that it had paid the Respondent any flight tickets and thus suggests that the amounts paid by the Respondent himself be deducted from the amounts that he allegedly owes the Claimant. ** II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also: Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, the DRC took note that the present matter was submitted to FIFA on 18 March 2009. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the 2008 and 2012 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 on the Status and Transfer of Players (edition 2012), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country G club and a country B player. 3. Furthermore, 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, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations (editions 2008, 2009, 2010 and 2012), and considering that the present matter was submitted to FIFA on 18 March 2009, the 2008 edition of said regulations (hereinafter: the 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 by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 5. The Chamber first of all acknowledged that on 30 June 2008, respectively 8 July 2008, the parties signed two separate agreements, i.e. an agreement titled “Agreement- Professional Employment Contract” (hereinafter: the agreement) and a standard contract of the country G Superleague, both valid for the 2008/2009 and 2009/2010 seasons. 6. Furthermore, it is uncontested that on 13 August 2008, the Respondent sustained an injury during training and that, despite having received treatment, it became evident that said injury had rendered him permanently unable to perform his duties towards the Claimant. 7. In continuation, the Chamber noted that, while the Claimant deems that it is the Respondent who put an end to the employment contract by means of an email dated 16 November 2008, the Respondent, however, refutes such allegation and asserts that it is rather the Claimant which terminated the employment relationship by means of a letter of 2 December 2008. 8. The Claimant thus claims that, up until the date of termination by the Respondent of the employment contract, i.e. 16 November 2008, the Respondent had received the amount of EUR 13,200 in excess of the agreement, and that it had to pay the amount of EUR 680.44 relating to a parking ticket and housing expenses, thus in total EUR 13,880.44, which the Respondent should reimburse the Claimant. 9. On the contrary, the Respondent claims that when the Claimant terminated the employment relationship on 2 December 2008, the latter had been in default of payment of the amount of EUR 24,871.03, while acknowledging that he could be held liable for the reimbursement of the expenses relating to a parking ticket but not to those relating to housing expenses. 10. After having recalled the aforementioned, the DRC went on to establish that the parties’ divergent positions in the present matter essentially centre around the two following questions: a. Who terminated the employment relationship and when? b. At the time of the termination of the employment relationship, did the Respondent receive some amounts in excess of the agreement, or was, on the contrary, the Claimant in default of payment of some amounts? 11. As to the first question, the Chamber, after having acknowledged the parties’ divergent positions in this respect, came to the conclusion that the email sent by the Respondent to the Claimant on 16 November 2008 clearly manifested the Respondent’s intention not to pursue the employment relationship, this decision being driven by the conclusion of his doctor that he should stop the practise of professional football. 12. In continuation, the DRC could not follow the Respondent’s argument that he was at the Claimant’s disposal throughout the month of November 2008, as it was not supported by any documentary evidence (cf. art. 12 par. 3 of the Procedural Rules). 26. In conclusion, the Chamber concurred that it was the Respondent who had terminated the employment relationship between the parties on 16 November 2008 and that the Claimant had merely ratified such termination by means of the correspondence dated 2 December 2008. 13. As to the second question, the Chamber underlined, as a preliminary remark, that although the Claimant had claimed that the Respondent had terminated the employment relationship without just cause, it was only claiming for the reimbursement of amounts allegedly received by the Respondent in excess of the agreements concluded between the parties. 14. In view of the foregoing, the DRC deemed that the question as to whether the Respondent had terminated the employment contract with or without just cause could be left aside and that it could focus on the main issue at stake, which is to settle any pending debt which the parties could have towards one another up until the date of termination of the employment contract. Besides, the Chamber was not entirely convinced that the termination could be viewed as having been breached unilaterally by the Respondent since, as mentioned previously, the Claimant had, by means of the letter dated 2 December 2008, ratified the termination of the employment contract, and had not at that point in time raised any allegation of an unlawful termination. 15. Having stated the aforementioned, the DRC pointed out that the issue as to whether the Respondent had received some amounts in excess of the agreement or whether it was the Claimant, on the contrary, which had been in default of some payments towards the Respondent upon the termination of the employment relationship on 16 November 2008, could be tackled by analysing which were the payments contractually due by the Claimant to the Respondent up until said date. As to some alleged payments being due beyond that date, the members of the Chamber agreed that since it is understood that the Respondent deliberately and voluntarily put an end to the employment contract on 16 November 2008, he is not entitled to any further amounts contractually agreed upon beyond that date. 16. The Chamber went on to consider that the parties’ disagreement lies in the interpretation of clause 3.3 of the agreement, in particular of the payment in the amount of EUR 100,000 due in the season 2008-2009 “upon signing this agreement”. The Chamber indeed recalled that, while the Claimant deemed that such amount constituted an advance payment, the Respondent, on the contrary, was of the opinion that it corresponded to a signing-on fee. 17. In this regard, the DRC remarked that clause 3.3 of the agreement is drafted in rather ambiguous terms; indeed, for the season 2008-2009 the payment of EUR 100,000 is due “upon signing this agreement”, whereas it also provides for a similar payment of EUR 100,000 in the season 2009-2010, which would have been due on 30 July 2009. In other words, while the first payment of EUR 100,000, due upon signature of the agreement, would typically correspond to a signing-on fee, the fact that the exact same payment is also due at the start of the next season rather speaks for the amount being due as an advance payment. 18. In view of the above, the Chamber held that agreements drafted in ambiguous terms can only be held against the party which drafted the agreement in question, i.e. in casu the Claimant. Furthermore, the DRC emphasised that the agreement unequivocally stipulated a payment date for the amount of EUR 100,000 due in the season 2008-2009, this is, the date of signature of the agreement. 19. The foregoing considerations thus led the DRC to affirm that the payment of the amount of EUR 100,000 due upon signature of the agreement should be considered as a signing-on fee, and therefore that the Claimant cannot claim the reimbursement on a pro rata basis of such amount in view of the early termination of the agreement by the Respondent. Therefore, the DRC decided to reject the Claimant’s claim pertaining to the reimbursement of the amount of EUR 13,200. 20. In continuation, the Chamber reverted to the Claimant’s claim for the reimbursement of some house expenses which it allegedly had to cover on behalf of the Respondent in the amount of EUR 512.44. In this regard, it noted that the evidence provided by the Claimant in support of such allegation was unclear as to the precise nature of these expenses. What is more, the Chamber recalled that according to the agreement, the Claimant was to provide the Respondent with a fully furnished apartment. On account of these considerations, the DRC decided to also reject this part of the Claimant’s claim. 21. Finally, the DRC turned to the Respondent’s counter-claim, according to which the Claimant would have an outstanding debt of EUR 24,871.03 towards him, corresponding to EUR 21,800 as outstanding salaries, EUR 3,239.03 as flight tickets, from which the amount of EUR 168 should be deducted for the airport parking ticket which the Claimant had to pay on his behalf. In this regard, the Chamber held that it must compare the amounts due to the Respondent up until 16 November 2008 in accordance with the agreements concluded between the parties and the amounts which the Claimant confirmed having paid to the Respondent. 22. The Chamber thus went on to proceed to the calculation of the amounts due to the Respondent until the date of termination of the employment relationship and found that the Respondent was entitled to a signing-on fee of EUR 100,000, monthly salary payments for the months of September and October 2008 of EUR 20,000 each, as well as the salary for the equivalent of 16 days of November 2008, i.e., on a pro rata basis, EUR 10,666, amounting to a total of EUR 150,666. The Chamber then took note of the Claimant’s own statement that until 16 November 2008 it had made payments to the Respondent in the total amount of EUR 138,200. 23. The foregoing considerations led the DRC to conclude that up until 16 November 2008, i.e. the date of termination by the Respondent of the employment contract, the Claimant had failed to pay outstanding salaries in the amount of EUR 12,466 to the Respondent. 24. Regarding the Respondent’s claim in relation to flight tickets, the Chamber reverted to the terms of the agreement and pointed out that the Respondent was entitled to “round-trip country B - country G tickets” for his wife and three children, “for every season of this contract”. In this regard, the Respondent had presented two separate receipts, for the amounts of EUR 1,871.03, respectively EUR 1,638, corresponding to two round-trips country A - country B - country A for the Respondent and his family, one in the month of July 2008, the other in the month of October 2008. The Chamber found that the agreement is, in this respect, unclear as to the number of round-trips which the Claimant had committed itself to cover. Therefore, the DRC deemed it fair and equitable to grant the Respondent the costs linked to one of the two round-trips, i.e. the one in July 2008 for the amount of EUR 1,871.03, which undoubtedly corresponds to the trip made by the Respondent following the conclusion of the employment contract. 25. As a final consideration, the Chamber deemed it also reasonable to deduct the costs of the airport parking ticket in the amount of EUR 168 from the outstanding debt of the Claimant towards the Respondent, since the Respondent had admitted owing this specific amount to the Claimant. 26. In view of all of the above, the DRC decided that the claim of the Claimant is rejected, that the counter-claim of the Respondent is partially accepted and that the Claimant must pay the Respondent the amount of EUR 14,169.03, consisting in EUR 12,298 in outstanding salaries (with the deduction of EUR 168 for the airport parking ticket) and EUR 1,871.03 in flight tickets. Any further claims lodged by the Respondent are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Club A, is rejected. 2. The counter-claim of the Respondent / Counter-Claimant, Player M, is partially accepted. 3. The Claimant / Counter-Respondent, Club A, has to pay to the Respondent / Counter- Claimant, outstanding salaries in the amount of EUR 12,298, as well as costs for flight tickets in the amount of EUR 1,871.03, within 30 days as from the date of notification of this decision. 4. Any further claims lodged by the Respondent / Counter-Claimant are rejected. 5. If the aforementioned sums are not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 6. The Respondent / Counter-Claimant, Player M, is directed to inform the Claimant / Counter-Respondent, Club A, 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