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 October 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 M, from country A as Claimant against the club, Club C, 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 October 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 M, from country A as Claimant against the club, Club C, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 8 May 2008, Player M, from country A (hereinafter: the Claimant), and Club C, from country R (hereinafter: the Respondent, signed an employment contract (hereinafter: the contract), valid from 1 July 2008 until 30 June 2011. 2. According to the contract, the Claimant was entitled to receive the following remuneration: - USD 120,000 for the season 2008/2009, payable in equal monthly instalments of USD 10,000; - USD 180,000 for the season 2009/2010, payable in equal monthly instalments of USD 15,000; - USD 240,000 for the season 2010/2011, payable in equal monthly instalments of USD 20,000; - USD 50,000 as sign-on fee, due until 1 August 2008. Art. 3 of the contract established that the payments “shall be made on the 15th of each month, for the preceding month”. 3. The Claimant was also entitled to “benefit from an airplane ticket for the route country R-country A-country R for each competition season”, according to art. 4 b) of the contract. 4. On 11 February 2010, the Claimant lodged a claim with FIFA against the Respondent for breach of contract without just cause and requested the payment of USD 395,000 made up of: - USD 5,000 corresponding to salary for June 2009; - USD 45,000 corresponding to three monthly salaries (September, October and November 2009); - USD 345,000 corresponding to the remaining value of the contract, from December 2009 to June 2011; The Claimant further requested currency of country A 1,801 corresponding to surgery-related medical expenses and EUR 1,981.80 corresponding to flight ticket as well as interest on all the amounts claimed and legal fees. 5. In addition, the Claimant requested that the Respondent be banned from registering any new players, either nationally or internationally, for the next two registration periods. 6. In this respect, the Claimant stated that, in 2005, he had signed an employment contract with the Respondent valid from 1 March 2006 until 30 June 2010. 7. According to the Claimant, he only signed a new employment contract on 8 May 2008 (cf. point I.1) after the Respondent threatened to send him to the second team for the rest of the employment contract in force at that time if he refused to do so. 8. Moreover, in May 2009, the Claimant allegedly had surgery in connection with an injury incurred during the course of the contract. The Claimant held that the surgery-related expenses cost him currency of country A 1,801, submitting copy of the relevant receipts. The Claimant allegedly asked the Respondent on multiple occasions to reimburse him the surgery-related expenses, but the Respondent apparently refused to do so. 9. The Claimant further held that the Respondent paid only half of his remuneration for June 2009 as well as failed to pay the salaries for September, October and November 2009. In addition, the Claimant had to pay for his own flight ticket to country A, in accordance with the instructions of the Respondent, while the Respondent failed to reimburse him the relevant amount. 10. The Claimant alleged having put the Respondent in default in writing on 16 December 2009 and the Respondent allegedly refused the pay the relevant amounts. 11. As a consequence, the Claimant terminated the contract in writing on 21 December 2009. 12. Despite being invited by FIFA to do so, the Respondent has not submitted its position regarding the substance of the claim lodged by the Claimant. 13. Even though invited to do so, the Claimant failed to inform FIFA of any new employment contract signed by him during the validity of the contract. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 11 February 2010. 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 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 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 A player and a country R club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2010 and 2009), and considering that the claim was lodged on 11 February 2010, the 2009 edition of the aforementioned 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 the above-mentioned facts as well as the arguments and 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 of all, the members of the Chamber acknowledged that, on 8 May 2018, the Claimant and the Respondent had concluded an employment contract valid as from 1 July 2008 until 30 June 2011. 6. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the payment of outstanding remuneration as well as compensation and reimbursement of costs with flight tickets and surgery expenses. 7. In this respect, the Chamber observed that the Respondent failed to present its response regarding the substance of the claim of the Claimant, despite having been invited to do so. In this way, so the Chamber deemed, the Respondent renounced to its right of defence and, thus, accepted the allegations of the Claimant. 8. As a consequence of the preceding consideration, the Chamber established that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant. 9. In line with the above, the Chamber took into consideration that according to the Claimant, the Respondent had failed to pay his remuneration in the total amount of USD 50,000 amount composed of USD 5,000 related to part of the monthly salary for June 2009 as well as USD 45,000 representing the monthly salaries of September to November 2009, in the amount of USD 15,000 each. 10. The DRC took note that, according to the contract, the Claimant was entitled to a monthly salary of USD 10,000 for the season 2008/2009 and USD 15,000 for the season 2009/2010. 11. Moreover, the members of the DRC acknowledged that the Claimant had terminated the contract in writing, on 21 December 2009, after having put the Respondent in default. 12. Considering the financial conditions of the contract as well as the arguments brought forward by the Claimant, the DRC took note that on the date of termination, i.e. 21 December 2009, more than three salaries were outstanding. 13. Having taken into consideration all of the above, the Chamber decided that it could be established that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time. Therefore, the Chamber considered 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 21 December 2009, having previously put the Respondent in default of payment of the outstanding amounts. 14. On account of the above, the Chamber established that the Claimant had terminated the employment contract with just cause on 21 December 2009 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 15. 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 an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract. 16. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber 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 USD 50,000, consisting of three monthly salaries of USD 15,000 each, corresponding to the months of September, October and November 2009, as well as the amount of USD 5,000, corresponding to the unpaid portion of the salary of June 2009. 17. In addition, the Chamber considered the Claimant’s request for reimbursement of EUR 1,981.80 corresponding to a roundtrip airplane ticket from country R to country A. 18. In this respect, the Chamber first acknowledged that the contract provided that the Claimant would benefit from a roundtrip airplane ticket from country R to country A each season. In addition, the Chamber took note that the Claimant provided evidence of the amount paid for the flight ticket. However, the DRC took note that the documentary evidence provided by Claimant was in the amount of USD 1,982 and thus, the currency was not in euros. As a consequence, the DRC decided that the Respondent must pay the amount of USD 1,982 to the Claimant corresponding to the cost of the Claimant’s roundtrip airplane ticket from country R to country A. 19. In this regard, the DRC recalled the basic principle of 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. As a consequence, the DRC decided that the Respondent must pay the amount of USD 1,982 to the Claimant corresponding to the cost of the Claimant’s roundtrip airplane ticket from country R to country A. 20. In continuation, the DRC analysed the Claimant’s request for currency of country A 1,801 corresponding to surgery-related expenses. In this regard, the Chamber highlighted that the contract does not provide for surgery-related expenses and thus, the Claimant’s request for surgery-related expenses had no contractual basis and had to be rejected. 21. As a consequence, the DRC decided that the Respondent is liable to pay the total amount of USD 51,982 to the Claimant, consisting of the amount of USD 50,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract by the Claimant and the amount of USD 1,982 corresponding to compensation for the Claimant’s roundtrip airplane ticket from country R to country A. 22. In addition, taking into consideration the Claimant’s claim for interest and in accordance with its well-established jurisprudence, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the date of the claim. 23. In continuation, the Chamber focused 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. 24. In application of the relevant provision, the Chamber 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 25. 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. 26. The members of the Chamber then 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. 27. 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 with just cause by the Claimant, i.e. 21 December 2009, until 30 June 2011, and concluded that the Claimant would have received in total EUR 345,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 345,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 28. 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. 29. In this respect, the DRC took note that the Claimant, even though requested, failed to provide information regarding his contractual situation following the termination of the contract and during the relevant period until 30 June 2011. 30. In this context, and in particular, considering the general obligation of the player to mitigate his damages, the Chamber considered it had to assume that the Claimant earned more than USD 345,000 for the relevant period and thus, is not entitled to receive any compensation. 31. The Dispute Resolution 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 M, is partially accepted. 2. The Respondent, Club C, 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 51,982, plus interest at 5% p.a. as of 11 February 2010 until the date of effective payment. 3. In the event that the amount due to the Claimant 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. 4. Any further request filed by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the 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