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 12 December 2013, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Todd Durbin (USA), member Theodoros Giannikos (Greece), member on the claim presented by the player, Player J, from country S as Claimant against the club, Club M, from country T 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 12 December 2013, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Todd Durbin (USA), member Theodoros Giannikos (Greece), member on the claim presented by the player, Player J, from country S as Claimant against the club, Club M, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 16 July 2009, Player J, from country S (hereinafter: player or Claimant) and the Club M, from country T (hereinafter: club or Respondent), signed an employment contract valid as from the date of signature until 31 May 2012 (hereinafter: contract). 2. Additionally to the contract, on 24 November 2010, the player and the club signed an ``Amendment Contract’’, valid for the 2010/11 and 2011/12 seasons (hereinafter: amendment). 3. Moreover, on 24 November 2010, the player and the club signed a ``Professional Football Player Contract’’ valid as from 1 June 2012 until 31 May 2013 (hereinafter: second contract). 4. According to the amendment, the player was entitled to receive, inter alia, for the 2011-2012 season the amount of EUR 100,000 as ``Transfer advance payment’’, payable on or before 30 August 2011, twelve monthly equal instalments of EUR 10,000 each, payable between 5 August 2011 and 5 July 2012 as well as per match payments with a potential maximum entitlement of EUR 150,000 for the 2011-2012 season (EUR 4,411 per match, equivalent to 100% of the per match payment, x 34 matches). 5. Moreover, the amendment stipulated that the player would receive 100% of the per match payment if he played in the squad of first eleven, that he would receive 75% of the per match payment if he was nominated in the squad of eighteen and participated during the game, and 50% of the per match payment, for matches in which he was nominated in the squad of eighteen but did not participate in the game. The player was not entitled to any per match payment if he was not nominated in the squad. 6. According to the second contract, the player was entitled to receive from the club, inter alia, for the 2012/13 season, a maximum remuneration of EUR 370,000 as follows: ``Transfer Advance Payment’’ in the amount of EUR 100,000, payable on or before 30 August 2012, twelve monthly equal instalments of EUR 10,000 each, payable between 5 August 2012 and 5 July 2013 as well as per match payments, with a maximum potential entitlement of EUR 150,000 depending on the starting lineup and the player’s participation during the match (cf. point I./5. above). 7. On 22 March 2012, the player put the club in default of payment of the total amount of EUR 110,000. The player, having received no reply to the default notice, on 9 April 2012, sent to the club a second request for payment of the outstanding sums, i.e. EUR 134,170, which also remained unanswered. Consequently, on 24 April 2012, the player terminated the employment contract in writing. 8. On 8 May 2012, the player lodged a claim against the club in front of FIFA for breach of contract requesting that the club be ordered to pay the total amount of EUR 534,170, which was detailed as follows: • EUR 134,170 relating to outstanding salaries for the 2011/12 season a) ``Transfer advance payment’’ (cf. amendment) EUR 100,000 b) Monthly salaries as from August 2011 to April 2012 EUR 90,000 c) Per match credits corresponding to 27 league games EUR 109,170 (21 matches in the first eleven, 3 matches in which player participated during the game and 3 matches in which player was nominated in the squad of 18 but did not participate during the game) d) Amount paid by the club (as from October 2011 until March 2012) - EUR 165,000 • EUR 400,000 as compensation for breach of contract: a) Monthly salaries from May 2012 to July 2012 (EUR 10,000 x 3 months) EUR 30,000 b) ``Transfer payment’’ for the 2012/13 season EUR 370,000 9. Furthermore, the player requested to be awarded 5% legal interests p.a. on the amount of EUR 134,170 accrued as from the date on which the claim was lodged. 10. According to the player, from the very beginning of the season the club failed to comply with its financial obligations; the player sustained that the club only paid EUR 165,000, as from 3 October 2011 until 26 March 2012, out of the total amount due of EUR 299,170 corresponding to his salaries, the ``transfer advance payment’’ and match bonuses. 11. In reply to the player’s claim, the club held that the amount due to the player did not correspond to the sum that he claimed, since ``based on the Professional Player Contract signed on 16 July 2009 and other amendment contracts’’ he was paid by the club the amount of EUR 754,178. 12. On account of the above, the club maintained that the sum owed to the player amounts to EUR 65,976. 13. Moreover, the club alleged that despite its financial difficulties, it tried to fulfill the liabilities arising from the contract and that it acted in good faith. The club also requested the Dispute Resolution Chamber to take into consideration that the club was relegated and lost its highest income source, i.e. TV rights. The club alleged that, during meetings held with the team at the beginning of the 2011/12 season due to the club’s cash flow issues, the player verbally agreed to new milestone payments. Moreover, on 17 April 2012, the player apparently requested the club to grant him ``a leave’’, which was authorised by the club that very same day. The club further sustained that, despite having obtained the mentioned permit, a week later the player terminated the contract. According to the club, the player left due to the relegation of the club and acted in bad faith. 14. According to the employment contract signed with his new country S club, Club H, on 26 August 2012 and valid as of 27 August 2012 until 30 November 2012, the player was entitled to receive, inter alia, a monthly salary of currency of country S 50,000 as well as a monthly allowance of currency of country S 750 for food ``after practice each month at the club’’. Furthermore, on 7 January 2013 the player signed an agreement with the country T club, Club B, valid as from 7 January 2013 until 31 May 2014, according to which the player was entitled to receive, inter alia, an advance payment in the total amount of EUR 28,000 as well as four equal instalments of EUR 18,000 each, payable at the end of January, March, April and May 2013 respectively. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or 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 8 May 2012. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 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 conjunction 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 a country S player and a country T 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 (editions 2012 and 2010), and considering that the present claim was lodged on 8 May 2012, the 2010 edition of said regulations (hereinafter: 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. First, the DRC recalled that the parties had signed an employment contract valid as from 16 July 2009 until 31 May 2012, with a subsequent amendment on 24 November 2010. According to the amendment, the Claimant was entitled to receive, inter alia, for the 2011/12 season a transfer advance payment in the amount of EUR 100,000, payable on or before 30 August 2011, twelve monthly equal instalments of EUR 10,000 each, payable between 5 August 2011 and 5 July 2012, as well as per match payments representing a maximum potential entitlement of EUR 150,000. 6. The members of the Chamber further observed that the parties had signed a second employment contract, valid as from 1 June 2012 until 31 May 2013, in accordance with which the Claimant was also entitled to receive, inter alia, for the 2012/13 season, a maximum remuneration of EUR 370,000 with the same break down as included the amendment. 7. In continuation, the Chamber acknowledged that it was undisputed by the parties that, on 24 April 2012, and after having put the Respondent in default of payment of his monthly salaries, a transfer advance payment as well as 27 per match payments on two occasions, the Claimant notified the Respondent of the termination of the contract on the basis of outstanding remuneration. 8. Furthermore, the Chamber duly noted that, on account of the above, the Claimant is seeking payment by the Respondent of the amount of EUR 134,170 corresponding to i) allegedly outstanding remuneration totalling EUR 299,170, claimed on the basis of the amendment, related to salaries as from August 2011 until April 2012, a transfer advance payment in the sum of EUR 100,000 as well as EUR 109,170 relating to match bonuses and ii) deductions made on the basis of the payments remitted by the Respondent to the Claimant as from October 2011 until March 2012 in the total amount of EUR 165,000. In this respect, by deducting the total amount he acknowledges having received from the Respondent from the total amount that he considers to be entitled to receive, the DRC concluded that the Claimant had not presented any precise breakdown of the specific contractual financial obligations included in the claimed amount of EUR 134,170. 9. Equally, the DRC noted that the Claimant deems that he had just cause to terminate the employment contract on 24 April 2012 in the light of the aforementioned allegedly outstanding remuneration. Consequently, the Claimant requests that the Respondent is ordered to pay compensation for breach of contract in the amount of EUR 400,000. 10. The members of the Chamber took into account that the Respondent, for its part, deems that the Claimant left due to the club’s relegation and that he acted in bad faith. 11. On account of the above, the DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to terminate the contractual relation on 24 April 2012. The Chamber also underlined that, subsequently, if it were found that the employment contract was terminated by the Claimant with just cause, it would be necessary to determine the consequences thereof. 12. In this respect, the Chamber wished to emphasize that, according to the Claimant, at the time of the termination of the contract on 24 April 2012, the total amount of EUR 134,170 was yet to be paid by the Respondent. As stated above, the Claimant failed to provide a breakdown of the specific contractual financial obligations included in said amount and therefore, it is not clear which (monthly) remuneration is included in this amount of EUR 134,170. As regards the Claimant’s claim related to match bonuses, while referring to art. 12 par. 3 of the Procedural Rules, the members of the Chamber took into account that the Claimant failed to provide evidence of the matches he allegedly played. 13. The DRC then turned its attention to the arguments of the Respondent and acknowledged that according to the latter, EUR 754,178 were paid to the Claimant on the basis of all the contracts signed between the parties. 14. Furthermore, the Chamber duly noted that the Respondent admitted that salaries and match bonuses in the total amount of EUR 65,976, the details of which were not specified by the Respondent, had not been paid to the Claimant. 15. In continuation, the DRC stressed that according to the legal principle of the burden of proof contained in the aforementioned art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact carries the burden of proof. 16. In view of the above, the DRC stressed that the Claimant carries the burden of proof to demonstrate that he was entitled to receive the additional sum of EUR 68,194, i.e. EUR 134,170 minus EUR 65,976, which amount has not been acknowledged by the Respondent as outstanding. In this respect, and as already stated above, the Chamber noted that the Claimant had not presented any supporting documentation in this regard. As a consequence, the DRC decided to reject the Claimant’s claim pertaining to said amount of EUR 68,194. 17. Furthermore, and irrespective of the foregoing consideration, the Chamber highlighted that, the Respondent carries the burden of proof with regard to the allegations that the amount of EUR 754,178 was paid to the Claimant on the basis of all the contracts. The Chamber pointed out that there are no documents on file indicating that the Claimant received said amount from the Respondent. Consequently, the DRC decided to reject the Respondent’s argument in this connection. 18. Bearing in mind the aforementioned considerations and the documentation on file, the Chamber established that a considerable part of the Claimant’s remuneration, i.e. EUR 65,976, which, in fact, represents more than six monthly salaries of the Claimant, had fallen due and remained outstanding at the time of the termination of the contract by the Claimant. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant. 19. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant had just cause to unilaterally terminate the contracts on 24 April 2012 and that the Respondent is to be held liable for the early termination of the contracts with just cause by the player. 20. Bearing in mind the previous considerations, the Chamber focussed its attention on the consequences of such termination. 21. First of all, the DRC stressed that the Respondent must fulfil its obligations as per the employment contract in accordance with the principle of pacta sunt servanda. As a consequence, and bearing in mind the above, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. the amount of EUR 65,976. 22. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR 65,976 as of 8 May 2012 until the date of effective payment. 23. In continuation, the DRC 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. 24. In this context, the DRC 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. 25. In application of the relevant provision, the DRC held that it 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 established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 26. 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 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. 27. Furthermore, the Dispute Resolution Chamber emphasized that each request for compensation for contractual breach has to be assessed by the Chamber on a case- by-case basis taking into account all specific circumstances of the respective matter. 28. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 29. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contracts as from the date of termination of the employment contracts with just cause by the Claimant, i.e. 24 April 2012, until 31 May 2013. As from April until July 2012, in accordance with the contract/amendment, the Claimant was entitled to receive EUR 40,000 of remuneration. In accordance with the second contract the Claimant was entitled to receive the transfer advance payment in the amount of EUR 100,000 and remuneration as of 5 August 2012 until 5 July 2013 in the amount of EUR 120,000. In this respect, the members of the Chamber deemed it fit to highlight that no match payments could be taken into consideration in the calculation of the amount of compensation, since according to the relevant contractual clause, the player’s entitlement to such payment was linked to the player’s participation in matches, which, moreover, were to take place after the termination of the employment relation, which entitlement was thus hypothetical. Consequently, the Chamber concluded that the amount of EUR 260,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 30. The Chamber then took due note of the employment situation of the Claimant after the termination of the contracts with the Respondent and of the relevant new employment contract(s) that he had entered into, by means of which he was able 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. 31. It was duly noted that, on 26 August 2012, the Claimant and the Club H, from country S, signed an employment contract, valid as from 27 August 2012 until 30 November 2012, according to which the Claimant was entitled to a monthly salary of currency of country S 50,000 as well as monthly allowance of currency of country S 750 for food ``after practice each month at the club’’. Furthermore, the Chamber noted that, on 7 January 2013, the Claimant and the Club B, from country T, signed an employment contract valid as from 7 January 2013 until 31 May 2014, according to which the Claimant was entitled to receive, inter alia, an advance payment in the total amount of EUR 28,000 as well as four instalments of EUR 18,000 each (i.e. EUR 28,000 + 72,000). Consequently, the members of the Chamber established that these employment contracts enabled the Claimant to earn an income of EUR 118,405 for the period as from 27 August 2012 until 31 May 2013. 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 that the Respondent must pay the amount of EUR 141,595 to the Claimant as compensation for breach of contract in the case at hand. 33. In view of all the above, the DRC partially accepted the Claimant’s claim and decided that the Respondent is liable to pay to the Claimant the amount of EUR 65,976 corresponding to remuneration outstanding at the time of the unilateral termination of the contract with just cause by the Claimant and the amount of EUR 141,595 as compensation for breach of contract. 34. 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 J, is partially accepted. 2. The Respondent, Club M, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 65,976, plus interest of 5% p.a. as of 8 May 2012 until the date of effective payment. 3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 141,595 within 30 days as from the date of notification of this decision. 4. In the event that the above-mentioned amounts due to the Claimant 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 its 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: Markus Kattner Deputy Secretary General Encl.: CAS directives