F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 23 September 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player P, from country A as Claimant against the club, Club U, from country C as Respondent regarding an employment-related dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 23 September 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player P, from country A as Claimant against the club, Club U, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. In August 2012, Club D, form country A, loaned the country A player, P (hereinafter: the player or the Claimant), to Club U, from country C (hereinafter: the club or the Respondent). 2. On 10 August 2012, the player and the club concluded an employment contract (hereinafter: the contract) valid as from 10 August 2012 until 30 May 2013 as well as a supplementary agreement valid for the same period of time. 3. In accordance with the contract, the player was entitled to the amount of EUR 20,000, payable in ten monthly installments of EUR 2,000. 4. In accordance with the supplementary agreement, the player was entitled to the amount of EUR 35,000, payable in ten monthly installments of EUR 3,500. 5. Additionally, in accordance with the supplementary agreement, the player was entitled to EUR 10,000 “with the signing of the contract” as well as to the rent “of a furnished flat for the needs of the player (maximum 350 Euros per month)”. 6. On 17 May 2013, the player lodged a claim before FIFA against the club indicating that, by 18 December 2012, the club should have paid the amount of EUR 33,400 (4 x EUR 5,500 + 4 x EUR 350 + EUR 10,000), however, it had only paid him the amount of EUR 7,500. 7. Therefore, on 18 and 26 December 2012 respectively, the player sent a letter to the club requesting the latter to pay the amount of EUR 25,900 within 3 days as of receipt of the notification of such letter. Nevertheless, no payment was received and, as a result, the player informed the club on 1 January 2013 that he terminated the contract. 8. On 11 January 2013, Club D entered an instruction into the Transfer Matching System (TMS) in order for the player to return, however, the request was rejected by the Respondent. 9. On account of the above, the Claimant requested to be awarded with the amount of EUR 47,900 as well as interest, calculated as follows: - EUR 31,400 as outstanding remuneration; - EUR 16,500 as compensation for breach of contract. 10. In reply to the claim, the Respondent stated that: - it had paid the Claimant the amount of EUR 19,500 in cash; - the Claimant was “allowed to receive the amount of EUR 27,500 (5 x EUR 2,000 and 5 X 3,500).” - the total amount of EUR 8,000 is still outstanding, which the Respondent is willing to pay in four monthly installments. 11. Upon request, the player informed FIFA that after the termination of the contract, he resumed his employment relationship with Club D. In accordance with his contract with the country A club, the player would receive a monthly salary of USD 7,000. 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, the DRC judge took note that the present matter was submitted to FIFA on 17 May 2013. Consequently, the DRC judge concluded that the 2012 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 Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), he is competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between an country A player and a country C club. 3. Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012) and considering that the present claim was lodged in front of FIFA on 17 May 2013, the 2012 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. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 5. In this respect and first of all, the DRC judge acknowledged that the Claimant and the Respondent concluded an employment contract as well as a supplementary agreement both valid as from 10 August 2012 until 30 May 2013. 6. Equally, the DRC judge duly noted that the Claimant asserted that the Respondent had only paid him the amount of EUR 7,500 between August and December 2012, reason for which he had put the club in default on 18 and 26 December 2012, however to no avail. As a result, the Claimant informed the Respondent on 1 January 2013 that he terminated the contract. 7. In this regard, the DRC judge observed that the Claimant requested the amount of EUR 31,400 as outstanding remuneration and the amount of EUR 16,500 as compensation for breach of contract. 8. In addition, the DRC judge took note that, for its part, the Respondent asserted that it had paid the Claimant the amount of EUR 19,500 in cash and that therefore only an amount of EUR 8,000 was still outstanding. 9. In this context, the DRC judge first recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 10. In this respect, the DRC judge noted that the Respondent did not present any documentary evidence in respect of the payments it sustained to have paid in cash to the Claimant. As a result, in view of the lack of documentary evidence provided by the Respondent, the DRC judge decided he could not take into consideration the aforementioned statement of the Respondent. 11. Having taken into consideration all the previous considerations, the DRC judge noted that, as from August 2012 until, and including, December 2012, the Claimant was entitled to the total amount of EUR 39,450, corresponding to five monthly salaries, five rent payments and the sign-on fee. Equally, the Claimant noted that the player had only received the amount of EUR 7,500. 12. On account of the above, the DRC judge decided that it could be established 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 1 January 2013, having previously put the Respondent in default of payment of the outstanding amounts. 13. On account of the above, the DRC judge established that the Claimant had terminated the employment contract with just cause on 1 January 2013 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 14. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 15. First of all, the DRC judge decided that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of EUR 31,400, as requested by the Claimant as outstanding remuneration. 16. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the Regulations, 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 employment contract. 17. In this context, the DRC judge 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. 18. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 19. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC judge took into account that the remaining value of the contract as from its early termination by the Claimant until the regular expiry of the contract amounts to EUR 29,250 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 20. In continuation, the DRC judge remarked that the Claimant had returned to his club of origin where he was entitled to a monthly salary of USD 7,000. 21. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR 2,750 to the Claimant, which is considered by the DRC judge to be reasonable and justified amount as compensation for breach of contract, given the particular circumstances of the present dispute. 22. As a consequence, the DRC judge decided that the Respondent is liable to pay the total amount of EUR 34,150 to the Claimant, consisting of the amount of EUR 31,400 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract by the Claimant and the amount of EUR 2,750 corresponding to compensation for breach of contract. 23. In continuation and with regard to the Claimant's request for interest, the DRC judge decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of EUR 31,400 as from 17 May 2013 and on the amount of EUR 2,750 as from 23 September 2013. 24. The DRC judge concluded his deliberations in the present matter by rejecting any further claim of the Claimant. III. Decision of the DRC judge 1. The claim of the Claimant, Player P, is partially accepted. 2. The Respondent, Club U, 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 31,400 plus 5% interest p.a. on said amount as from 17 May 2013 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 amounting to EUR 2,750 plus 5% interest p.a. on said amount as from 23 September 2013 until the date of effective payment. 4. In the event that the above-mentioned amounts plus interest 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. 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 remittances are to be made and to notify the DRC judge of every payment received. ** Note relating to the motivated decision (legal remedy): According to article 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 Encl. CAS Directives