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 29 November 2013, in the following composition: Geoff Thompson (England), Chairman Taku Nomiya (Japan), member Mohamed S. Al-Saikhan (Saudi Arabia), member Alejandro Marón (Argentina), member Theodore Giannikos (Greece), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), member Carlos González Puche (Colombia), member John Bramhall (England), member on the claim presented by the player, Player K, from country E as Claimant against the club, Club R, from country A as Respondent regarding an employment-related contractual dispute arisen between the Claimant and the Respondent

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 29 November 2013, in the following composition: Geoff Thompson (England), Chairman Taku Nomiya (Japan), member Mohamed S. Al-Saikhan (Saudi Arabia), member Alejandro Marón (Argentina), member Theodore Giannikos (Greece), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), member Carlos González Puche (Colombia), member John Bramhall (England), member on the claim presented by the player, Player K, from country E as Claimant against the club, Club R, from country A as Respondent regarding an employment-related contractual dispute arisen between the Claimant and the Respondent I. Facts of the case 1. On 27 June 2011, Player K, from country E (hereinafter the Claimant), and the Club R, from country A (hereinafter the Respondent), concluded a “Professional Football League Work Contract” (hereinafter the contract), valid until 30 June 2013. 2. According to article 5 of the contract, “Football player’s salary”, paragraph 1 and 2, the Claimant was entitled to the following remuneration: - USD 5,000 as monthly salary for the season 2011/2012; - USD 6,000 as monthly salary for the season 2012/2013; - USD 7,000 as initial payment for the season 2011/2012; - USD 5,000 as initial payment for the season 2012/2013; 3. In particular, the article 4 of the contract, “Termination of the contract”, established the following: “ 4.1 This contract may be terminated in the following cases stated below: a) If [Respondent] does not pay the salary intended in Article 5.1 of the contract during 3 months. b) If the [Respondent] does not make payments intended in Article 5.2. [initial payment] of the contract. c) If there are other justifiable reasons intended in the Article on the status and transfer of the football players of FIFA and Regulations on status and transfer of the football players of Association of Football Federations of country A. 4.2 This contract may be terminated by the request of the club in the following cases stated below: a) If [Claimant] does not observe the disciplinary rules; b) If there are cases intended in the Article on the status and transfer of the football players of FIFA and Regulation on status and transfer of the football players of Association of Football Federations of country A. c) In the case of negative situations the [Respondent] has authority to break the contract unilaterally and to stop the payment [Claimant].” 4. On 14 October 2011, the Claimant lodged a claim against the Respondent, claiming the aggregate amount of USD 136,500, detailed as follows: - Outstanding remuneration: • USD 1,000, as the residual part of the initial payment due for the season 2011/2012; • USD 10,000, corresponding to the monthly salaries for the months of August and September 2011; - Compensation: • USD 45,000, corresponding to the salaries from October 2011 until June 2012; • USD 1,500, corresponding to the bonus for the season 2011/2012; • USD 5,000, corresponding to the initial payment for the season 2012/2013; • USD 72,000, corresponding to the salaries for the season 2012/2013; • USD 2,000, corresponding to the bonus for the season 2012/2013. Additionally, the Claimant requested interests and procedural costs. 5. In this respect, the Claimant submitted a copy of the contract signed by both parties in which, under its article 5, there is a handwritten note stating “Bonuses 1500$ - 2000$”. 6. The Claimant declared that up to date, the Respondent paid him only the amount of USD 6,000, corresponding to part of his initial payment due for the season 2011/2012. Further, the Claimant affirmed that, on 28 September 2011, the Respondent’s vice president verbally informed him that he was released from the club and that he should no further attend the trainings. 7. In view of the above, the Claimant asserted having sent an e-mail to the Respondent, by means of which he requested to be formally informed, i.e. in written, about the decision to release him and clarify whether he should attend trainings as well as requested the payment of the outstanding remuneration. 8. According to the Claimant, the Respondent only replied to him on 6 October 2011, sending him a correspondence through which the Respondent informed him that it signed a contract with him without any trial but that his performance was not enough to play in a professional club and that due to this fact, “the club management decided to break the contract with [the Claimant] unilaterally and stop the payment according to the article 4.2 (c) of the contract. The Claimant provided a copy of the aforesaid correspondence. 9. In this respect, the Claimant denied the allegations made by the Respondent, stating that in his opinion the article mentioned by the latter is null and void and is not applicable. The Claimant pointed out that nowhere in the contract it is defined what are the “negative situations” and that according to the Regulations on Status and Transfer of Players, a contract may only be terminated upon its expiry or where there is a just cause. In this respect, the Claimant alleged that the Regulations on Status and Transfer of Players do not allow to unilaterally terminate a contract only because the club is not satisfied with the player’s performance, thus the arguments presented by the Respondent do not constitute a just cause. Additionally, the Claimant held that in any case the allegations made by the Respondent, concerning his performance, are not true as well as that it is not true that the Respondent had paid all debts until the breach of the contract. 10. The Respondent submitted its position, rejecting the Claimant’s claim. In this respect, the Respondent declared that, since the beginning, the Claimant showed to be unprofessional and that due to mistakes made by him the Respondent had to face hard situations as well as was deprived of important victories. The Respondent further alleged that the Claimant was repeatedly warned by the head coach of the team regarding this situation as well as regarding his “physical unfitness”, without any improvement by the Claimant. As a result, the Respondent affirmed that the head coach as well as the goalkeeper’s coach sent an official report to the club’s management, which led the Respondent to decide to terminate the contract with the Claimant and stop the payment of his salaries, in accordance with art. 4.2 c) of the contract. Finally, the Respondent alleged having paid all salaries and bonuses until the termination of the contract. 11. In replica to the Respondent’s position, the Claimant maintained all his previous allegations. The Claimant emphasized that the Respondent failed to demonstrate that in fact it did comply with the payments established in the contract. Furthermore, the Claimant held that he was never notified about his “physical unfitness” as well as had no previous knowledge of the report allegedly sent by the head coach and the goalkeeper’s coach to the club’s management. Anyway, the Claimant pointed out that the Respondent failed to submit evidence that said report was sent or delivered before the filing of his claim. In regards to the Respondent’s allegations of his low performance, the Claimant asserted that said allegations are not true considering that while the contract was in force he was summoned by the country E national team as well as he “was declared fit in the physical tests made by the [Respondent] just a few days before signing the contract”. Finally, the Claimant requested to apply sporting sanctions. 12. The Respondent provided its final comments insisting in the arguments already submitted and submitted the following documents: - The contract signed with the Claimant, which was already enclosed by the Claimant in his claim, but said copy did not include the handwritten clause regarding the bonuses; - The official report from the head coach and goalkeeper’s coach dated 11 September 2011; - A notification from the Respondent’s executive director addressed to its vicepresident, dated 13 September 2011, concerning the Claimant’s bad behaviour. 13. Regarding his contractual situation, the Claimant informed the following: - From 28 October 2011 until 19 January 2012, he remained unemployed; - On 20 January 2012, he concluded a contract with Club F, from country B, valid until 31 October 2012, being entitled to a monthly salary of EUR 1,300. - From 1 November 2012 until 21 February 2013, he remained unemployed; - On 22 February 2013, he concluded a contract with Club D, from country C, valid until 21 February 2014, being entitled to a monthly salary of currency of country C 28,000,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter the Chamber or the DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 October 2011. Consequently, the Rules Governing the Procedures of the Claimants’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 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 is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country E player and an country A club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012 and 2010), and considering that the present claim was lodged on 14 October 2011, the 2010 edition of the said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC firstly acknowledged that the Claimant and the Respondent signed an employment contract on 27 June 2011 valid until 30 June 2013. 6. Equally, the members acknowledged that it remained undisputed that the Respondent had unilaterally terminated the employment contract with the Claimant on 6 October 2011 by written notice, according to art. 4.2 c) alleging that his performance was not enough to play in a professional club. 7. In continuation, the Chamber took note that the Claimant lodged a claim against the club for termination of contract without just cause, claiming outstanding remuneration and compensation amounting to USD 136,500 plus interests and procedural costs. 8. In this respect, the members of the DRC took note that the Claimant held that the article 4.2 c) of the contract is null and void and thus, not applicable. Moreover, the Claimant pointed out that the dissatisfaction with the performance of a player does not constitute a just cause to terminate the contract. 9. On the other hand, the DRC acknowledged that the Respondent declared that the Claimant showed to be unprofessional and was warned by the Respondent regarding his behaviour and his “physical unfitness”, without showing any improvement. As a consequence, the Respondent stating having decided to terminate the contract with the Claimant and stop the payment of his salaries, in accordance with art. 4.2 c) of the contract, considering this as a “negative situation”. 10. The members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine if the unilateral termination of the contract by the Respondent, on 6 October 2011, was with or without just cause. The Chamber also underlined that, subsequently, if it were found that the contract was terminated without just cause, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation. 11. In this respect, the Chamber pointed out that, as a general rule, a party may terminate an employment contract for just cause at any time (cf. art. 14 of the Regulations). The Chamber noted that in the case at stake, the Respondent had terminated the contract for “negative situations” (in accordance with clause 4.2 c) of the contract), indicating the alleged poor performance and unprofessional behaviour of the Claimant as reasons for the early termination of the employment contract.. 12. In this regard, the Chamber referred to its well-established jurisprudence according to which an alleged poor performance of a player could not justify a premature termination of an employment contract by a club as the assessment of the performance of a player is a subjective perception which could not be measured on an objective scale and therefore, has to be considered as inadmissible grounds for premature termination of an employment contract. 13. In this context, and for the sake of completeness, the Chamber also focussed its attention on the said art. 4.2 c) of the contract, which reads as follows: “4.2 This contract may be terminated by the request of the [Respondent] in the following cases stated below: c) In the case of negative situations the [Respondent] has authority to break the contract unilaterally and to stop the payment for [Claimant].” 14. In this regard, the Chamber took into account that such clause appears to be unilateral and to the benefit of the Respondent only. What is more, this criteria of ”negative situations” could not be take into account unilaterally and left to the fully discretion of the Respondent to terminate the contract. In the light of such potestative character of the pertinent contractual clause, the members of the Chamber agreed that art. 4.2 c) of the contract is not acceptable. 15. Therefore, the Chamber concurred that the said art. 4.2 c) of the contract does not constitute a reason that can be validly invoked nor a legal basis to unilaterally terminate the contract. Consequently, the Chamber rejected the Respondent’s argument in this respect. 16. The Chamber stated that in view of all of the above, the Respondent had no just cause to unilaterally terminate the employment contract with the Claimant and had therefore, terminated the employment contract without just cause. 17. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focussed its attention on the consequences of such breach of contract. 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. 18. Regarding the outstanding remuneration, the members of the DRC first took note that, on one hand, the Claimant alleged that the Respondent failed to pay part of the initial payment for the season 2011/2012, i.e. USD 1,000, as well as the monthly salaries for August and September 2011 in the aggregate amount of USD 10,000. On the other hand, the Respondent alleged having paid all salaries and bonuses until the termination of the contract. 19. At this point, the members of the DRC referred to the general legal principle of the burden of proof and highlighted that, according to art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this context, the Respondent had failed to present documentary evidence demonstrating that it had in fact paid the Claimant the residual part of the initial payment due for the season 2011/2012 and the monthly salaries for the months of August and September 2011. 20. In this context and considering the fact that the contract was considered terminated as of 6 October 2011 (cf. no. II/6. above), the Chamber decided that the Respondent is liable to pay to the Claimant the amount of USD 11,000 corresponding to the abovementioned outstanding remuneration. 21. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the date of claim, i.e. 14 October 2011. 22. In continuation, 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. 23. 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 which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. Consequently, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 24. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that the said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 25. Equally, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the contract as well as the time remaining on the same contract, as well as the professional situation of the Claimant after the early termination occurred until the present moment. 26. Also the Chamber took into account that the Claimant, for his part, claims the amount of USD 125,500 as compensation for breach of contract, allegedly corresponding to the remaining value of the pertinent employment contract as of the moment on which the breach of contract occurred. In particular, the DRC took note that the aforementioned amount is composed of the monthly salaries from October 2011 until June 2013, the initial payment for the season 2012/2013 as well as bonuses for the seasons 2011/2012 and 2012/2013 27. At this point, the Chamber considered that the bonuses were handwritten in the version of the contract submitted by the Claimant, while the version of the contract submitted by the Respondent did not include any reference to bonuses. Notwithstanding the aforementioned, the DRC took note that the clause inserted in the version of the contract provided by the Claimant was vague and did not establish the purpose of the bonuses. Moreover, in view of its undeniably variable character and uncertainty from one season to another, the Chamber could not establish beyond doubt that the Claimant would have been paid bonuses and, if any, in what proportion. Consequently, the DRC had no other alternative but to refuse to take into consideration said bonuses while assessing the residual value of the contract. The members of the DRC also recalled the principle of burden of proof and stressed that the Claimant had neither presented any documentary evidence proving that he would have been entitled to bonus payments nor explained the purpose of the bonuses. 28. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination by the Respondent, i.e. 6 October 2011, until 30 June 2013, and concluded that the Claimant would have received in total the amount of USD 122,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 122,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 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 DRC, 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. The Chamber recalled that on 20 January 2012, the Claimant concluded a contract with Club F, from country B, valid until 31 October 2012, in accordance with which he was entitled to a monthly salary of EUR 1,300. In particular, the salary for January 2012 “will be calculated from the day of the signing of this contract”. The DRC further recalled that on 22 February 2013, the Claimant concluded a contract with the Club D, from country C, valid until 21 February 2014, on accordance with which he was entitled to a monthly salary of currency of country C 28,000,000. 31. The Chamber concurred that the approximate amount of USD 29,000 under the new employment contracts signed by the Claimant shall be taken into consideration in the calculation of the amount of compensation for breach of contract in the case at hand. 32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 93,000, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand. 33. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of this decision until the date of effective payment. 34. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 35. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. * III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player K, is partially accepted. 2. The Respondent, Club R, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 11,000 plus interest at 5% p.a. on the said amount as of 14 October 2011 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 in the amount of USD 93,000 plus interest at 5% p.a. on the said amount as of 29 November 2013 until the date of effective payment. 4. In the event that the above-mentioned amounts (cf. points 2 and 3) plus interest due to the Claimant are 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 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