F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 13 December 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player K, from country H as Claimant against the club, Club L, from country C 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(DRC) judge passed in Zurich, Switzerland, on 13 December 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player K, from country H as Claimant against the club, Club L, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 19 June 2012, Club L, from country C (hereinafter: the Respondent), and Player K, from country H (hereinafter: the Claimant), concluded an employment contract (hereinafter: the contract) valid as from 1 July 2012 until 31 May 2013. 2. In accordance with the contract, the Claimant was entitled to the total amount of EUR 15,000, payable in 10 installments of EUR 1,500, the first payment falling due on 30 August 2012. 3. Art. 15 of the contract stipulates that “Both parties to the present agreement recognize, accept and agree that any dispute that might arise between the parties according to the present agreement will be resolved only by the relevant adjudicatory bodies and or dispute resolution bodies of FIFA.” 4. On the same day, the Claimant and Respondent signed an “image rights agreement”, valid for the same period of time as the employment contract, in accordance with which the Respondent would pay the Claimant the total amount of EUR 65,000 in 10 installments of EUR 6,500, the first payment falling due on 30 August 2012. 5. Equally, the image rights agreement established that the Claimant was entitled to various bonuses, a car, accommodation and 4 flight tickets. 6. Art. 6 of the image rights agreement stipulates that “Both parties to the present agreement recognize, accept and agree that any dispute that might arise between the parties according to the present agreement will be resolved only by the relevant adjudicatory bodies and or dispute resolution bodies of FIFA.” 7. Also on 19 June 2012, the parties signed a supplementary agreement for the 2012/2013 season, which referred to the employment contract and the image rights agreement, and indicated that if the Respondent wanted to extend the contract to the 2013/2014 season, it would pay the Claimant a “monthly salary of EUR 9,000 in total.” 8. On 4 July 2013, the Claimant lodged a claim in front of FIFA against the Respondent indicating that he was entitled to the total amount of EUR 80,000 in the 2012/2013 season, however, he had only received the amount of EUR 27,500. Therefore, the Claimant requested payment of the amount of EUR 52,500 plus interest, “linkage differentials” and legal expenses. 9. The Claimant explained that, on 9 May 2013, he could no longer survive and therefore he approached the Respondent asking the latter to mutually terminate the employment contract. As a result, “the parties signed a contract termination on 9 May 2013” by means of which the Respondent recognized that all amounts owed to the Claimant would be “discussed and resolved by the end of the present football season.” 10. In reply to the claim, the Respondent first contested the competence of FIFA to deal with the present matter alleging that the Dispute Resolution Committee (DRC) of the country C Football Association is the only competent judicial body. 11. Equally, the Respondent held that FIFA has no competence in relation to image right agreements. 12. As to the substance, the Respondent rejected the claim asserting that the Claimant was entitled to EUR 15,000 under the employment contract and EUR 9,000 under the supplementary agreement, i.e. the total amount of EUR 24,000 only. Hence, the Respondent alleged that it paid the Claimant in full. 13. On 21 October 2013, the Claimant reverted to FIFA stating that art. 6 of the image rights contract stipulated that FIFA is the competent body to adjudicate on any dispute in relation to said agreement. Also, the Claimant contested that he was paid in full. 14. Although having asked the Respondent for its final comments, it did not provide any final comments. 15. Upon request, the Claimant informed FIFA that he had not entered into any new employment contract between 9 May 2013 and 1 July 2013. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 4 July 2013. Consequently, the DRC judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. With regard to the competence of the DRC judge, art. 3 par. 1 and par. 2 of the Procedural Rules state that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of the aforementioned Regulations, the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country H player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies asserting that the parties to the contract had agreed to submit any dispute to the DRC of the country C Football Federation. 4. Taking into account the above, the DRC judge emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players he 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 DRC judge referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 5. In relation to the above, the DRC judge deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC or the DRC judge can settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant arbitration tribunal derives from a clear reference in the employment contract. 6. Therefore, while analysing whether he was competent to hear the present matter, the DRC judge considered that he should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained an arbitration clause. 7. In this framework, the DRC judge analysed the content of the employment agreement submitted by the Claimant and duly noted that said agreement did not contain an arbitration clause in favour of a decision-making body of the country C Football Federation. Furthermore, the contract and the additional agreement concluded between the parties stated in its art. 15 and 6 that the “dispute resolution bodies” of FIFA are competent to resolve any dispute deriving from such agreement. 8. As a result, taking into consideration that the employment contract at the basis of the present dispute contained an arbitration clause in favour of FIFA, the DRC judge concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute had to be rejected. Therefore, the DRC judge is competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 9. In continuation, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012), and considering that the claim was lodged in front of FIFA on 4 July 2013, the 2012 edition of the aforementioned regulations is applicable to the matter at hand as to the substance. 10. Furthermore, the DRC judge acknowledged that he had to verify, for formal reasons, whether he was competent to decide on the claimed payments in connection with the document titled “image rights agreement”. In fact, it remains that this part of the claim could possibly not be considered due to the DRC judge lacking competence to deal with disputes related to image rights. 11. While analysing whether he was competent to hear this part of the claim, the DRC judge wished to highlight that said agreement contained elements which led to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract, i.e. directly linked to the services of the Claimant as a player. 12. In this context, the DRC judge referred to the jurisprudence of the Chamber, which has established that, as a general rule, if there are separate agreements, the Chamber tends to consider the agreement on image rights as such and does not have the competence to deal with it. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. In the case at hand, the DRC judge concluded that such elements appear to exist. In particular, the agreement contains inter alia provisions regarding bonuses directly related to the achievement of sporting objectives, which are typical for employment contracts and not for image rights agreements. Also, the image rights agreement contains provisions regarding accommodation, flight tickets and the use of a car, which again, are typical for employment contracts. Consequently, the DRC judge decided not to consider the image rights agreement as such, but determined that said agreement was in fact an additional agreement to the employment contract instead. 13. In view of all the above, the DRC judge established that the image rights agreement is to be considered, meaning that he is in a position to take into consideration the relevant agreement when assessing the Claimant’s claim. 14. In continuation, the DRC judge acknowledged that, thus, the parties to the dispute had signed an employment contract as well as an additional agreement, both dated 19 June 2012, in accordance with which the Claimant was entitled to receive, inter alia, the total amount of EUR 80,000 as remuneration for the period as from 1 July 2012 until 31 May 2013. 15. Turning to the claim of the Claimant, the DRC judge observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of EUR 52,500 plus interest, asserting that the Respondent had not complied in full with its contractual obligations towards him. Equally, the Claimant requested “linkage differentials” and legal expenses. 16. Likewise, the DRC judge observed that the Respondent held that the Claimant was entitled to EUR 15,000 under the employment contract and EUR 9,000 under the supplementary agreement, i.e. the total amount of EUR 24,000 only, and that it had, therefore, paid the Claimant in full. 17. In this respect, the DRC judge was eager to emphasise that the amount of EUR 9,000 was only stipulated in the supplementary agreement for the 2013/2014 season, which indicated that if the Respondent wanted to extend the contract to the 2013/2014 season, it would pay the Claimant a “monthly salary of EUR 9,000 in total.” Thus, the amount stipulated in the supplementary agreement has no connection whatsoever with the amounts claimed by the Claimant in the present proceedings, which deals with the financial aspects of the 2012/2013 season. 18. As a consequence, the DRC judge established that there was no legal basis to establish that the Claimant was entitled to EUR 24,000 only, since the agreements clearly stated that the Claimant was entitled to a monthly salary of EUR 1,500 and EUR 6,500, respectively, and, therefore, to a total remuneration of EUR 80,000 in the 2012/2013 season. 19. Furthermore, the DRC judge took note of the content of the letter dated 9 May 2013, issued by the Respondent, which stipulates that the contractual relationship was ”mutually terminated” and that the Claimant’s services were no longer needed. In this respect, the DRC judge in particular noted that the letter was only signed by the Respondent. 20. Having taken into consideration the previous considerations, the DRC judge decided that it could be established that the Respondent had terminated the employment contract without just cause by informing the Claimant on 9 May 2013 that all agreements were terminated with immediate effect. The DRC judge wished to outline that although the relevant letter stipulates that the contractual relationship was ”mutually terminated”, there was no documentary evidence on file that the Claimant had indeed consented to the early termination of the contract. 21. On account of the above, the DRC judge decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 9 May 2013 and that, consequently, the Respondent is to be held liable for the early termination of the employment contract. 22. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 23. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination, i.e. the amount of EUR 44,500. 24. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 25. In this context, the DRC judge outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 26. In application of the relevant provision, the DRC judge held that he first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 27. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC judge took into account that at the time of the termination of the employment contract, the contract would run for another month. Consequently, the DRC judge concluded that the remaining value of the contract as from its early termination until the regular expiry of the contract amounts to EUR 8,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 28. In continuation, the DRC judge remarked that the Claimant had not found new employment with another club in the period between 9 May 2013 and 1 July 2013. 29. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR 8,000 to the Claimant as compensation for breach of contract. 30. As a consequence, the DRC judge decided that the Respondent is liable to pay the total amount of EUR 52,500 to the Claimant, consisting of the amount of EUR 44,500 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract and the amount of EUR 8,000 corresponding to compensation for breach of contract. 31. In continuation and with regard to the Claimant's request for interest, the DRC judge decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of EUR 44,500 as from 4 July 2013 and on the amount of EUR 8,000 as from 13 December 2013. 32. Furthermore, the DRC judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules. 33. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player K, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club L, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 44,500 plus 5% interest p.a. on said amount as from 4 July 2013 until the date of effective payment. 4. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 8,000 plus 5% interest p.a. on said amount as from 13 December 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 3. and 4. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. 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 DRC judge 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 DRC judge: Markus Kattner Deputy Secretary General Encl. CAS directives