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 passed in Zurich, Switzerland, on 31 July 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Ivan Gazidis (England), member on the claim presented by the player, Player A, from country S as Claimant against the club, Club P, from country R as Respondent regarding an employment-related dispute arisen 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 passed in Zurich, Switzerland, on 31 July 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Ivan Gazidis (England), member on the claim presented by the player, Player A, from country S as Claimant against the club, Club P, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 July 2011, Player A, from country S (hereinafter: the Claimant), and the Club P, from country R (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from the date of its signing until 30 June 2015. 2. According to the contract, the Claimant was entitled to receive the following amounts: - EUR 4,500 per month for season 2011-2012, if the Claimant participates in at least 50% of the official football matches of the first team; - EUR 5,500 per month for season 2012-2013, if the Claimant participates in at least 50% of the official football matches of the first team; - EUR 6,000 per month for season 2013-2014, if the Claimant participates in at least 50% of the official football matches of the first team; - EUR 7,000 per month for season 2014-2015, if the Claimant participates in at least 50% of the official football matches of the first team; - EUR 300 per month in order to pay the rent of an apartment. 3. Article 9.7 of the contract stipulates “the club [the Respondent] preserves its right to give other money bonuses depending on the performance of the players and based on the decisions of the Managing Board”. 4. Article 17.3 of the contract establishes the following: “Disputes that outcome from the performance of the subject matter Contract is to be solved in the following procedural schedule: (17.3.1) Peaceful manner; (17.3.2) Instituting the dispute before the Courts of the country R Football Federation , Professional Football League (LPF), District Football Association (AJF), according to the case”. 5. On 9 September 2012, the Claimant lodged a claim in front of FIFA claiming that the Respondent had unilaterally terminated the contract without just cause and, consequently, requested the following: - EUR 19,550 corresponding to (i) outstanding salaries of April, May, June (EUR 13,500) and 26 days of July 2012 (EUR 4,613), (ii) EUR 1,347 for a remaining amount of a bonus allegedly due to the Claimant in relation to match bonuses, and (iii) EUR 90 for “salary differences due to the exchange rate”; - EUR 228,187 corresponding to compensation, calculated by adding the remaining salaries of the term of the contract together with the amount for the apartment rent; - 5% interest; - disciplinary actions to the Respondent. 6. The Claimant explained that during the season 2011-2012 he played more than 50% of the official matches with the first team, however, he did not receive the salaries for the months of April, May, June and part of July 2012, neither a part of his bonus. 7. Furthermore, the Claimant indicated that in June 2012 the Respondent informed him that it did not count on his services anymore and offered him to join another club in country R, however, he had no interest in joining that club. 8. Throughout June and July 2012, the Claimant sent eight notifications to the Respondent requesting it (i) to pay the outstanding salaries due at that moment, (ii) to provide him with appropriate training requirements as allegedly he had to train on his own for more than 17 days, and (iii) medical care as he had an injured knee. However, since the Respondent did not pay the outstanding amounts and since the Claimant was not provided with appropriate training conditions, the Claimant, on 27 July 2012, terminated the contract by means of a termination letter sent to the Respondent and left country R on the same day. 9. On 25 October 2012, the Claimant informed FIFA that “the NDRC of the country R Football Professional League invited the player [the Claimant] to join a hearing in the same month, which he refused to join due to the pending case before the DRC of FIFA”. 10. On 28 March 2013, the Respondent rejected the Claimant’s claim on the basis of a decision rendered, on 3 October 2012, by the “Football Professional League Committee on Dispute Resolution”. According to the Respondent, the claim of the Claimant should be rejected because the aforementioned decision of the country R Professional League NDRC already decided that the contract had been unilaterally terminated by the Respondent with just cause. 11. Furthermore, the Respondent declared that, on 29 March 2013, it had paid the Claimant the requested amount as outstanding salaries, i.e. EUR 19,550 and therefore, according to the Respondent, the Claimant had no further financial rights towards the Respondent. 12. On 5 April 2013, the Claimant confirmed he had received the amount of EUR 19,550 from the Respondent and, additionally, amended his initial claim still requesting to be awarded with compensation for breach of contract in the amount of EUR 228,187. 13. Upon FIFA’s request to the Respondent to provide the pertinent documentation to prove the competence of the country R Professional League NDRC to decide upon the present matter, the country R Football Federation sent the Regulations on the Status and Transfer of Players, which also govern the procedures before the arbitration tribunals of the country R Football Federation and the country R Professional Football League and which were approved on 8 July 2011 by the Executive Committee of the country R Football Federation. 14. Article 26.5 of the abovementioned regulations establishes the composition of the country R Football Federation’s NDRC as follows: (i) a chairman and a deputy chairman, chosen by the representatives of players and clubs from a list of five names prepared by consensus the country R Football Federation Executive Committee; (ii) three player representatives, suggested by the Association of Amateur and Non-amateur Football Players; and (iii) three club representatives, suggested by the country R Football Federation Executive Committee. The decisions of this NDRC are taken, according to article 33.1 of the relevant regulations, by simple majority of the panel and, in the event of a tie, the chairman will have the final vote. 15. Art. 26.8 of the aforementioned regulations states that the competence for solving disputes and cases involving only clubs that participate in the First League National Championship, and their players, shall be determined exclusively by the jurisdictional bodies of the LPF, i.e. the NDRC of the LPF and the LPF Review Commission. The NDRC of the LPF and the LPF Review Commission shall be composed of 5 members, two acting as chairman and deputy chairman, respectively. The nominal composition of the NDRC of the LPF and the LPF Review Commission is approved by the LPF Executive Committee, for a one-year mandate. 16. No further information regarding the composition of the NDRC of the LPF or the LPF Review Commission is provided within the documents. 17. The regulations also provide the existence of an appeal board named the Review Commission, both for the country R Football Federation and the LPF. According to article 34 of such regulations, the decisions of the NDRC can be appealed before the abovementioned Review Commission and, likewise, the decisions of the latter may be appealed in front of the Court of Arbitration for Sport (CAS), according to article 36.17 of the regulations. 18. Upon FIFA’s request, the Claimant confirmed that on 1 August 2012 he signed a new employment contract with the Club P, from country H valid as from the date of signing until 30 June 2013. According to such contract, the player is entitled to a monthly remuneration of currency of country H 370,000. 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 9 September 2012. 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. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country S player and a country R club regarding an alleged breach of the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis that the “Football Professional League Committee on Dispute Resolution”, i.e. the NDRC of the LPF, had already rendered a decision on the same matter on 3 October 2012, by means of which it was declared that the employment contract was unilaterally terminated by the Respondent with just cause. 5. In this regard, the Chamber acknowledged that the Claimant had been notified of the hearing of the NDRC of the LPF and that he had refused to attend, in view of the fact that there was already a proceeding regarding the same matter pending in front of FIFA. 6. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. When examining whether the DRC was competent to adjudicate on the present matter, the members of the Chamber first referred to clause 17.3 of the employment contract and outlined that the content of said clause is rather vague and that it does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. In other words, the Chamber held that there is no clear reference in the employment contract granting jurisdiction to any specific arbitration body in country R in the sense of art. 22 lit. b) of the aforementioned Regulations. 8. Having established the above, the members of the Chamber wished to stress that, even if the contract at the basis of the present dispute would have included such clear arbitration clause in favour of a national dispute resolution body, the Respondent was unable to prove that, in fact, the relevant arbitration body of the LPF, i.e. the arbitration body that had rendered the decision on 3 October 2012, met the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in the NDRC Standard Regulations. 9. In this respect, the DRC turned its attention to the principle of equal representation of players and clubs and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”. 10. In view of the above, the Chamber went on to examine the documentation presented by the Respondent and acknowledged that the country R Football Federation Regulations - edition 2011 - provided by the latter appear to be applicable to the proceedings of the relevant arbitration tribunals, in accordance with art. 39.1, 39.2 and 41.1 of the country R Football Federation Regulations. 11. Firstly, the members of the Chamber stressed the fact that, at least, two deciding bodies of the first instance appeared to exist in country R at national level, i.e. the NDRC of the RFF and the NDRC of the LPF, and analysed the respective jurisdiction of the two aforesaid deciding bodies. In this respect, the DRC noted that, whereas the NDRC of the country R Football Federation is competent inter alia to decide on disputes concerning “the construing, enforcement and performance of the contractual clauses in the contracts executed between clubs and players, as well as regarding the maintenance of contractual stability” (art. 26.2 of the RFF Regulations), the NDRC of the LPF is “exclusively” competent to solve disputes “involving only clubs that participate in the First League National Championship, and their officials, players and coaches (…) according to the annual agreement between the country R Football Federation and the PFL” (art. 26.8 of the country R Football Federation Regulations). 12. On account of the above, the members of the Chamber were eager to point out that the NDRC of the LPF was the relevant decision-making body to analyse in the present matter, as the Respondent is a club participating in the First League National Championship in country R and, in fact, it was the body that rendered the decision submitted by the Respondent. 13. With regard to the composition of the NDRC of the LPF, the DRC observed that art. 26.8 in fine of the country R Football Federation Regulations stipulates that the NDRC of the LPF - and its appeal body - is composed of “five members, two of them acting as chairman and deputy chairman, respectively. The nominal composition of the NDRC of the LPF and the LPF Review Commission [the appeal body] is approved by the LPF Executive Committee, for one-year mandate.” The DRC noted that, whereas the composition of the NDRC of the country R Football Federation was further detailed in art. 26.5 of the country R Football Federation Regulations, no additional documentation and/or information was provided in relation with the exact composition of the NDRC of the LPF. 14. In view of the lack of documentary evidence, the Chamber deemed that the Respondent had failed to prove that the NDRC of the LPF was indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. 15. In view of all the above and referring to the principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, 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. 16. In connection with the above, the Chamber determined that whenever a decision is passed by a national body that was not entitled to adjudicate on a specific matter for formal reasons, such decision does not have to be recognized by other competent bodies, in casu the DRC. Therefore, the DRC decided that it is not bound by the decision rendered by the NDRC of the LPF, which had established that the Respondent had terminated the contract with just cause. 17. Subsequently, 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 2010 and 2012) and, on the other hand, to the fact that the present claim was lodged on 9 September 2012. Therefore, the Dispute Resolution Chamber concluded that the 2010 edition of the Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 18. The competence of the Dispute Resolution Chamber 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 matter as well as the documentation contained in the file. 19. In this respect, the members of the Chamber acknowledged that the parties had signed a valid employment contract on 1 July 2011 in accordance with which the Respondent would pay the Claimant, for the season 2011-2012, the amount of EUR 4,500 per month, for the season 2012-2013, the amount of EUR 5,500 per month, for the season 2013-2014, the amount of EUR 6,000 per month and for the season 2014-2015, the amount of EUR 7,000 per month. Furthermore, the Chamber acknowledged that, according to the employment contract, the Claimant was entitled to a monthly amount of EUR 300 for accommodation expenses. 20. Equally, the Chamber noted that the Claimant maintains that the Respondent is to be held liable for the early termination of the employment contract towards the end of July 2012 by having failed to remit his remuneration for the months of April, May, June and part of July 2012. 21. In this regard, the Chamber, first and foremost, highlighted that the underlying issue in this dispute was to determine whether the employment contract had been unilaterally terminated with or without just cause and, which party was responsible for the early termination of the contractual relationship in question. 22. In doing so, the members of the Chamber took into account that, according to the Claimant, his salaries as from April 2012 had remained unpaid and the Respondent did not reply to the several notices of default sent by the Claimant. The members of the Chamber noted that the Respondent did not contest such particular allegations, by failing to present its response as to the substance of the claim lodged by the Claimant, in spite of having been invited to do so. In this way, the Chamber was of the opinion that the Respondent renounced to its right of defence in relation to the substance of the matter and, thus, accepted the allegations of the Claimant. What is more, the members of the Chamber took note that during the course of the present procedure, the Respondent paid the outstanding salaries that were due to the Claimant, which, as noted by the Chamber, affirmed the validity of the employment contract. 23. On account of the above circumstances, the Chamber established that the Respondent had obviously no longer been interested in the Claimant’s services by failing to remit his salaries without any valid reason during a considerable amount of time and by explicitly informing him in June 2012 that it did not count anymore on him, the latter allegation equally having remained contested by the Respondent. Such conduct constitutes, in line with the long- lasting jurisprudence of the Chamber, a clear breach of contract. Accordingly, the Chamber concurred that the Claimant had just cause to unilaterally terminate the employment contract on 27 July 2012. Consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 24. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract. 25. In this respect, the members of the Chamber reiterated that the outstanding remuneration initially requested by the Claimant was paid by the Respondent during the course of the present procedure, this payment having been confirmed and acknowledged by the Claimant. 26. Therefore, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract 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. 27. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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. 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 30 June 2015, taking into account that the player’s remuneration until July 2012 is fully settled (cf. no. II/25 above). Consequently, the Chamber concluded that the amount of EUR 227,000 (i.e. salary plus accommodation expenses as from August 2012 until June 2015) serves as the basis for the final determination of the amount of compensation for breach of contract. 29. In continuation, the Chamber verified as to 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 Dispute Resolution Chamber, 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. Indeed, on 1 August 2012, the Claimant found employment with the Club P, from country H. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 30 June 2013, the Claimant was entitled to receive a monthly salary of currency of country H 370,000. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and the new club for the period as from August 2012 until and including June 2013 amounted to currency of country H 4,070,000, corresponding to EUR 13,926. 31. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player 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. What is more, the Chamber also considered it important to point out that the employment contract concluded between the Claimant and the Respondent would run until June 2015, an element that should be equally taken into consideration in the calculation of the amount of compensation. 32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided that the Respondent must pay the Claimant the amount of EUR 129,074 which was to be considered a reasonable and justified amount of compensation for breach of contract in the matter at hand. 33. In addition and with regard to the Claimant's request for interest, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 31 July 2013 until the date of effective payment. 34. The 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 A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club P, from country R, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 129,074 plus 5% interest p.a. on said amount as of 31 July 2013 until the date of effective payment. 4. If the aforementioned sum plus interest is not paid by the Respondent within the stated time limit, 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 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: Jérôme Valcke Secretary General Encl. CAS directives