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) judge passed in Zurich, Switzerland, on 27 August 2012, by Mr Philippe Diallo (France), DRC judge, on the claim presented by the player, Player B, from country A as Claimant against the club, Club K, from country U as Respondent regarding an employment-related dispute 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) judge passed in Zurich, Switzerland, on 27 August 2012, by Mr Philippe Diallo (France), DRC judge, on the claim presented by the player, Player B, from country A as Claimant against the club, Club K, from country U as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 9 July 2009, Player B, from country A (hereinafter: the Claimant), and Club K, from country U (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1 July 2009 until 30 June 2010. 2. According to the contract, the Claimant was entitled to receive, inter alia, a monthly salary of USD 30,000. 3. According to art. 3.4 of the contract, the “club has the right: [… - Monitor the performance of footballer duties, give the necessary instructions to footballer to apply to football and disciplinary sanctions measures imposed by statute or collective agreement of the Club [….” 4. According to art. 6 of the annex to the employment contract, titled “penalties”, the amount of financial sanction is of “100% for Absence from training camp without valid reason and warning.” 5. On 13 July 2010, the Claimant lodged a claim before FIFA, requesting from the Respondent outstanding salaries amounting to USD 90,000 as follows:  USD 10,000 partial salary of February 2010;  USD 10,000 partial salary of March 2010;  USD 10,000 partial salary of April 2010;  USD 30,000 salary of May 2010;  USD 30,000 salary of June 2010. 6. In its reply, the Respondent rejected the Claimant’s claim and explained that the Claimant returned two days too late after his Christmas holidays, i.e. on 13 January 2010 instead of 11 January 2010. Also, the club provided a statement dated 13 January 2010, which was to be signed by the Claimant and the club affirming that the Claimant did not appear on 11 January 2010, which was, however, not signed by the Claimant. 7. According to the Respondent, thereafter, the Claimant did not perform his duties at the Respondent’s training camp in country T. Consequently, on 26 January 2010, the Respondent decided, after a meeting held with its coaches to move the Claimant to its second team as from 1 February 2010 until 30 April 2010. In this respect, the Respondent provided an “Order”, according to which the Claimant’s monthly salary would be reduced to USD 20,000 for this time period, which was also not signed by the Claimant. 8. The Respondent further argued that due to the Claimant’s poor performance and according to the Respondent’s statutes, the Claimant’s salary was reduced to USD 20,000 per month for the months of February until April 2010. Therefore, the claim of the Claimant for the months of February until April 2010 of USD 10,000 each is to be rejected, since he received a justified monthly salary of USD 20,000 until the end of April 2010. 9. In this respect, the Respondent provided its statutes and referred to its art. 9.3.3. which states that the “General Director of the Company has the following powers: […] payment of wages of the Company employees […]”. According to the Respondent, since the Respondent’s director decided that the Claimant’s salary should be reduced, the decision was in accordance with the Respondent’s statutes. 10. In addition, the Respondent claims that three players were asked to join the country A national team’s friendly matches and to be released as from 18 May 2010 until 2 June 2010. Although the Respondent’s director refused the Claimant’ leave for the training camp beforehand, the Claimant left on 7 May 2010 without the Respondent’s permission. According to the Respondent, due to the Claimant’s leave, he missed the physical examination as well as the last important match in the country U Premier League. 11. Consequently, the Respondent decided in its meeting held on 10 May 2010 that due to the Claimant’s unauthorized leave, he would not receive his salary for May 2010 in accordance with art. 6 of the contract’s annex, but would only receive the minimal country U wage equivalent to USD 100. 12. Furthermore, the Respondent decided in its meeting of 11 June 2010, that since the Claimant did not attend the Respondent’s training camp which started on 10 June 2010, the Claimant’s salary of June 2010 should also not be paid to him. 13. In his replica, the Claimant stressed that he never violated the Respondent’s rules and that when the Respondent’s new coach arrived, the latter was no longer interested in the Claimant. Also, the Claimant explained that there were often misunderstandings between him and the Respondent, due to language barriers. 14. The Claimant pointed out that he always arrived to the training camps on the day that was communicated to him by the Respondent and that he was relegated to the Respondent’s second team due to its lack of interest. Also, the Claimant claims that the start of the second team’s training camp was not on 10 June 2010 as stated by the Respondent, but on 16 June 2010. Therefore, he returned to country U on 15 June 2010 after which the Respondent asked him to sign the document that he did not show up for the first team’s training camp on 10 June 2010, which he refused to sign. 15. With regard to his release to be able to play for the country A national team, the Claimant claims that the Respondent was obliged to release him also for its training camp. 16. Regarding the evidence submitted by the Respondent, the Claimant stated that it could not be taken into account, since all documents provided were all signed only by the Respondent. 17. Despite having been invited by FIFA to do so, the Respondent did not provide its final position. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 13 July 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations; edition 2010), the DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country U club. 3. Furthermore, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2010 and 2009), and considering that the claim was lodged on 13 July 2010, the 2009 edition of the said regulations is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established and entering into the substance of the matter, the DRC judge acknowledged the above-mentioned facts as well as the documentation contained in the file. 5. In doing so, the DRC judge first of all noted that it was undisputed that the parties had signed, on 9 July 2009, an employment contract as well as its annex valid as from 1 July 2009 until 30 June 2010. 6. In addition, the DRC judge acknowledged that the Claimant claimed outstanding salaries in the total amount of USD 90,000, made up of partial salaries of USD 10,000 each for the months of February until April 2010 as well as the monthly salary of USD 30,000 each for the months of May and June 2010. 7. On the other hand, the DRC judge noted that the Respondent, in its reply, rejected that it owed the Claimant any outstanding salaries, since the Claimant was moved to its second team in February 2010 and consequently the Respondent decided to reduce the Claimant’s salary in accordance with art. 9.3.3. of its statutes to USD 20,000 for this time period until end of April 2010. With regard to the salaries of May and June 2010, the Respondent argues that since the Claimant left without an authorization on 7 May 2010 to the training camp of the country A national team as well as his absence in the Respondent’s training camp in June 2010, the Claimant would not receive his salary in accordance with art. 6 of the contract’s annex for those months. 8. In view of the above, the DRC judge considered that he had to establish whether the Respondent still had outstanding obligations towards the Claimant. In this regard, the DRC judge, first of all, acknowledged that it was uncontested by the parties that the Claimant had not received the claimed amount of USD 90,000 for the salaries of February until June 2010. 9. Moreover, the DRC judge noted that the Respondent based its arguments for not having paid the Claimant the partial salaries for February until April 2010 on art. 9.3.3. of its statutes and the salaries for May and June 2010 on art. 6 of the contract’s annex. 10. In view of the foregoing, the DRC judge recalled the wording of art. 9.3.3. of the Respondent’s statutes, provided by the latter, according to which the “General Director of the Company has the following powers: […] payment of wages of the Company employees […]”. Based on said article, the Respondent argued that it reduced the Claimant’s salary for the period of February until April 2010, since the Claimant did not perform his duties at the Respondent’s training camp in country T and thus the Claimant moved to the Respondent’s second team. In this respect, the Respondent provided an “Order” according to which the player’s monthly salary would be reduced to USD 20,000 until April 2010. 11. In this regard, the DRC judge deemed it appropriate to analyse whether such clause could be considered as valid at all. The DRC judge deemed that the above-mentioned rule was ambiguous and that its application was arbitrary, since it lead to an unacceptable result based on non-objective criteria, which entitled the Respondent to unilaterally change the Claimant’s salary during the employment relationship. The DRC judge emphasised that the lack of objective criteria by the application of the relevant rule lead to an unjustified disadvantage of the Claimant’s financial rights. 12. Furthermore, the DRC judge observed that the motive presented by the Respondent for the reduction of the Claimant’s salary was his allegedly insufficient professional requirements, which are rather a characteristic of the player than a deliberate act of non-compliance with his professional duties, as per the employment contract. 13. In view of the foregoing, the DRC judge was of the opinion that art. 9.3.3. of the Respondent’s statutes invoked by the Respondent in order to reduce the Claimant’s salary for the period of February until April 2010 was clearly potestative, i.e. to the sole benefit of the Respondent and leaving the Claimant at an unfair disadvantage, in clear violation of the terms agreed upon signature of the employment contract. Consequently, the respective argumentation of the Respondent could not be upheld by the DRC judge. 14. Therefore, the DRC judge decided that the amount of USD 30,000 made up of the partial salaries of February until April 2010 of USD 10,000 each was to be considered outstanding. 15. In continuation, the DRC judge turned his attention to the argument of the Respondent according to which the salaries of May and June 2010 were not payable since the Claimant left without an authorization on 7 May 2010 to the training camp of the country A national team as well as his absence in the Respondent’s training camp in June 2010 and thus the Claimant would not receive his salary in accordance with art. 6 of the contract’s annex. 16. In this regard, the DRC judge recalled that the Respondent had invoked art. 6 of the contract’s annex titled “penalties” according to which the amount of financial sanction is of “100% for Absence from training camp without valid reason and warning.”. 17. First of all with regard to the outstanding salary of May 2010, the DRC judge noted that the Respondent argued that it received a request of players’ release from the Football Association of country A on 20 April 2010, for the release of the Claimant and three other players for the period of 18 May until 2 June 2010, however, the Claimant, being the only one, decided to leave without the Respondent’s permission beforehand on 7 May 2010. 18. In this respect, the DRC judge took into account that the Respondent provided the above-mentioned letter from the Football Association of country A in order to prove that the release of the Claimant was only as of 18 May 2010. Moreover, the DRC judge noted that it was uncontested by the Claimant that he decided to leave the Respondent on 7 May 2010, i.e. 11 days before the official request of release from the Football Association of country A, to join the training of the national team of country A, but that the Claimant considered that he was allowed to join the training of the national team. 19. In view of the above, the DRC judge concluded that the Claimant was not authorized to leave before the date of the requested release of the Football Association of country A, i.e. on 18 May 2010, but that the Respondent is responsible to pay the Claimant’s salary during the entire period of his release. In this regard, since the Claimant has left the Respondent without an authorization 11 days before the official request of release from the Football Association of country A, these days shall be deducted from the Claimant’s salary for May 2010. 20. Consequently, the DRC judge decided that the Claimant is entitled to receive the outstanding amount of USD 19,355 for the salary of May 2010, made up of USD 30,000 minus 11 days, equalling USD 10,645. 21. Furthermore, the DRC judge analysed the Respondent’s argument that the latter does not owe the Claimant’s salary for June 2010, since the Claimant was absent from the Respondent’s training camp on 10 June 2010 and that in accordance with art. 6 of the contract’s annex shall not be entitled to his salary for June 2010. 22. In this respect, the DRC judge noted that the Claimant argued that he always arrived to the training camps on the day that was communicated to him by the Respondent and that the Respondent’s second team’s training camp was not on 10 June 2010 as stated by the Respondent, but on 16 June 2010. Therefore, the Claimant only returned to country U on 15 June 2010. 23. In view of this, the DRC judge recalled the principle of art 12 par. 3 of the Procedural Rules and noted that the Claimant has not supported any documentary evidence in this respect whatsoever. 24. Notwithstanding the aforementioned, the DRC judge took into account that it was undisputed by the Respondent that the Claimant returned to the Respondent on 15 June 2010 and therefore decided that the Claimant shall be partially entitled to his salary in June 2010, when he resumed his services with the Respondent for 15 days. 25. Therefore, the DRC judge decided that as for the salary of June 2010, the Claimant shall be entitled to 15 days for the period of 16 June until 30 June 2010, equalling USD 15,000. 26. On account of all of the above considerations, the DRC judge decided that in accordance with the principle of pacta sunt servanda, the Respondent must pay the Claimant the amount of USD 64,355 consisting of the partial salaries for February until April 2010 of USD 10,000 each, the partial salary of May 2010 of USD 19,355 as well as the partial salary of June 2010 of USD 15,000. 27. The DRC judge concluded its deliberations by deciding that any further claims of the Claimant are rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Club B, is partially accepted. 2. The Respondent, Club K, has to pay the amount of USD 64,355 to the Claimant within 30 days as from the date of notification of this decision. 3. If the aforementioned sum is not paid within the above-mentioned deadline, interest at the rate of 5% per year will apply as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its consideration and a formal decision. 4. Any further request filed by the Claimant is rejected. 5. 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 DRC judge 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 DRC judge Jérôme Valcke Secretary General Enclosed: CAS directives