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 theDispute Resolution Chamber passed in Zurich, Switzerland, on 12 December 2013, in the following composition: Geoff Thompson (England), Chairman Todd Durbin (USA), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), member Johan van Gaalen (South Africa), member on the claim presented by the player, Player V, from country S as Claimant against the club, Club S, from country M 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 theDispute Resolution Chamber passed in Zurich, Switzerland, on 12 December 2013, in the following composition: Geoff Thompson (England), Chairman Todd Durbin (USA), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), member Johan van Gaalen (South Africa), member on the claim presented by the player, Player V, from country S as Claimant against the club, Club S, from country M as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 19 December 2011, Player V, from country S (hereinafter: the Claimant), and Club S, from country M (hereinafter: the Respondent), signed, according to the Claimant, an employment contract (hereinafter: the contract) valid as from the day of signing and throughout the following three years. The alleged contract, which is drafted on the letterhead of the Respondent and signed by both parties as well as stamped by the Respondent, reads as follows: “ Club S, GTO. A; 19/DIC/11 Player: Player V Agreement: 3 years of contract Salary first year: $15.500 dls. T/c 12,50 Salary second year: $17.500 dls. T/c Salary third year: $19.500 dls. Contribution for rent $7.500 currency of country M a month If the club promotes to the first League increase of salary with 65% Payment for the termination of contract and the purchase of the federative rights is set on $350.000 dls 2 flights (return) country M-country U “por Torneo” [Signatures]” 2. On 21 November 2012, the Claimant lodged a claim against the Respondent in front of FIFA, claiming that the Respondent had unilaterally terminated the contract without just cause, and requested to be awarded with compensation in the amount of USD 1,124,640 plus 5% interest as from 27 December 2011 as well as legal and procedural costs, according to the following breakdown: - USD 350,000 as the outstanding “signing-on fee” allegedly agreed between the Respondent and the Claimant; - USD 630,000 as outstanding remuneration for the value of the contract ([15,500 x 12] + [17,500 x 12] + [19,500 x 12]); - USD 19,440 as the accommodation expenses for the whole term of the contract (currency of country M 7,500 x 36 months); - USD 8,200 for the flight tickets of the Claimant and his family that he had to purchase “to reach country M and sign the employment contract and to travel to country U after the club’s breach”; - USD 117,000 as specific compensation for the specificity of sport (USD 19,500 x 6 months). 3. The Claimant explained that the same day of the signing of the contract, he began to train with the team and he continued to train daily until 26 December 2011, when “a club’s representative unofficially contacted the player by telephone” and informed him that, due to a change of the Respondent’s management, the Respondent did not want the services of the Claimant anymore. According to the Claimant, in this same conversation, he was informed that he was free to look for another club. 4. Furthermore, the Claimant declared that the next morning he went to train as usual but the Respondent did not let him enter the training facilities “without any valid reason”. Thereafter, the Claimant allegedly tried to contact the Respondent, however unsuccessfully, and he did not receive any explanation of the situation. Therefore, on 30 December 2011, the Claimant and his family were obliged to leave country M and travelled to country U. 5. On account of the above, the Claimant filed a claim before the Dispute Conciliation and Resolution Commission of the country M Football Federation for breach of contract, however the country M Football Federation rejected the claim by stating that the Claimant was not registered within this football association and therefore it could not deal with the matter. 6. In its response, the Respondent rejected the claim and argued that the contract was not a valid contract because it was signed by the accountant of the Respondent, who, according to it, does not have enough capacity to assume obligations on behalf of the Respondent. 7. In addition, the Respondent declared that the contract never existed, this is, that the Claimant and the Respondent never had an employment relationship and that no contract was registered with the country M Football Federation. According to the Respondent, the contract that the Claimant enclosed to his claim was not a real and valid contract i.e. an employment contract, but was only a document with the conditions that both parties were negotiating upon, i.e. a letter of intention. 8. Moreover, the Respondent indicated that the Claimant never rendered his services to the Respondent and that there was not any kind of labour relationship between the Claimant and the Respondent. In this regard, the Respondent denied all the facts described by the Claimant alleging that they are “false”. 9. In view of all the above, the Respondent requested to dismiss the claim. 10. The Claimant provided his replica and alleged that he acted in good faith by trusting the capacity of the person that signed the contract to act on behalf of - and bind - the Respondent. In this regard, the Claimant referred to the following decisions: DRC no. 811295 of 10 August 2011 and CAS 2011/A/XXXX Club I v. Club D. Moreover, the Claimant indicated that the person that signed the contract was not the accountant as invoked by the Respondent, but the executive vice-president of the Respondent, as stated on the business card he gave the Claimant during the negotiations. In this respect, the Claimant enclosed a business card of the person that signed the contract on behalf of the Respondent which indicated that he was the “Vice-President”. 11. Additionally, the Claimant stated that the contract contains all the essentialla negotii of an employment contract and that he even began to train with the team and rendered his services to the Respondent, therefore, giving the contract the character of valid and binding. Furthermore, the Claimant indicated that the Respondent had already presented him to the press. 12. Moreover, the Claimant referred to the FIFA Regulations on the Status and Transfer of Players and the DRC jurisprudence and argued that it was the duty of the Respondent to request the relevant International Transfer Certificate (ITC) and to subsequently register it with the country M Football Federation. Consequently, the Claimant considered he should not suffer any harm due to the Respondent’s negligence. 13. The Claimant furthermore stated that the signing fee he claims as part of his outstanding salaries, is due because the Respondent did not have to pay any transfer compensation to the Claimant’s former club and, as a result, according to the Claimant, the Respondent consented to pay him such amount as an advance payment. 14. In its duplica, the Respondent reiterated its previous arguments and added that the Claimant did not train with the team as he establishes, but only made some tests as a result of the negotiations that the parties were holding. In this regard, the Respondent declared that the document the Claimant provided as the contract does not include all the essentialla negotii of an employment contract, but only contains the conditions under which a valid agreement would have taken place. 15. Furthermore, the Respondent alleged that the business card enclosed by the Claimant allegedly belonging to the person that signed the contract on behalf of the Respondent, was a false document created by the Claimant, which according to the Respondent, proved the Claimant’s bad faith. In this respect, the Respondent enclosed another business card of the person that signed the contract on behalf of the Respondent which indicated that he was the “secretario tecnico”. In addition, the Respondent stated that it never assumed any payment compromise for the concept of a signing fee or for any other concept, as it never had the intention of signing the Claimant. 16. Finally, the Respondent declared that it was not a negligent act not to request the relevant ITC or not to proceed with the registration of the contract. According to the Respondent, it did not do so because there was no will of the Respondent to sign the Claimant and since there was simply no valid employment contract to register. 17. Upon request of FIFA, the Claimant confirmed that he entered into three new employment relationships, with the following conditions and duration: • Employment contract with country C Institute of Technology F.C. valid as from 8 March 2012 until 9 November 2012, according to which the Claimant received a total remuneration for the whole term of the contract of USD 56,000. • Employment contract with Club J valid as from 28 January 2013 until 31 July 2013, according to which the Claimant was entitled to receive a monthly salary of currency of country U 24,940 (approx. USD 1,260), which makes a total remuneration for the whole term of the contract of currency of country U 149,640 (approx. USD 7,560). • Employment contract with the Club B, form country I valid as from 3 September 2013 until 30 June 2014, according to which the Claimant was entitled to receive a total remuneration for the whole term of the contract of EUR 125,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 21 November 2012. Consequently, the previous edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 3 of the 2012 edition of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. In continuation, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, it referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2012), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 21 November 2012. Therefore, the DRC concluded that the 2010 edition of the Regulations on the Status and Transfer of Players (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 members of the Chamber entered into the substance of the matter. They started by acknowledging that, according to the Claimant, the parties to the dispute had signed, on 19 December 2011, an employment contract valid as from the day of signing and throughout the following three years. 5. The members of the Chamber noted however that the Respondent categorically rejected that such document provided by the Claimant constituted a valid employment contract. 6. In this respect, the Dispute Resolution Chamber deemed it important to highlight that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the “essentialia negotii” of an employment contract, such as the parties to the contract, their role, the duration of the employment relationship as well as the remuneration. 7. After a thorough study of the document presented by the Claimant, which bears the signatures of both parties involved in the dispute, the Chamber concluded that all such essential elements are included, in particular, the contract establishes the parties, a term of validity, remuneration for the Claimant and even a specified a monthly amount for the Claimant in order to cover accommodation expenses. 8. Consequently, the Chamber concluded that the parties had signed a valid and binding employment contract, since the document provided by the Claimant contains all the “essentialia negotii” to be considered a valid employment contract. 9. In continuation, the Chamber turned its attention to the additional position of the Respondent, according to which the employment contract had no legal effects since it had been signed on behalf of the Respondent by a non-authorized person. 10. In this regard, the members of the Chamber decided that such argumentation cannot be upheld due to the fact that in accordance with the principle of good faith, “bona fide”, to be respected by the parties during the conclusion of contracts, the Claimant was in good faith to believe that the person signing the relevant contract on behalf of the Respondent was legally authorized to sign it, regardless of whether that person was in fact the Respondent’s “Vice-President” or not. In this respect, the Chamber wished to point out that the agreement was drafted on the Respondent’s letterhead, was stamped by the Respondent and that the person signing the agreement on behalf of the Respondent had done so as the club’s “Vice-President”. Equally, and in accordance with the principle of the burden of proof, the DRC outlined that the Respondent did not provide documentary evidence demonstrating that the Claimant was aware of the situation outlined by the Respondent at the moment of signing the pertinent contract. Hence, the Respondent’s argument in this respect cannot be upheld. 11. Having established that a valid and legally binding employment contract had been in force between the Claimant and the Respondent, the Chamber went on to analyse as to whether such contract had been breached and, in the affirmative, which party is to be held liable for the breach of contract. 12. To this end, the Chamber was eager to emphasize that, given that the Respondent did not contest that it had not performed any of its obligations under the employment contract and that, in fact, it merely disputed the legal validity of such contract, the conclusion that a valid and legally binding employment contract had been entered into unavoidably leads to the decision that such contract was breached by the Respondent. Moreover, the Chamber took into account that, according to the Claimant, he began to train with the team and continued to do so for several consecutive days until the day in which the Respondent informed him that his services were not needed anymore. 13. On account of the above circumstances, the Chamber established that the Respondent had obviously no longer been interested in the Claimant’s services. The Chamber concluded that such conduct clearly constitutes a breach of contract and, accordingly, decided that the Respondent is to be held liable for the early termination of the employment contract without just cause. 14. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract. 15. First of all, the Chamber reverted to the Claimant’s financial claim, which includes outstanding remuneration relating to flight tickets in accordance with the employment contract. The members of the Chamber recalled that the contract provides for two return flight tickets for the route country M – country U “per championship” and took note that the Claimant provided an invoice for three flight tickets country M - country U, two of which amounted together to the total amount of USD 2,800. 16. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim and the fact that the employment contract stipulated the entitlement of the Claimant to two flight tickets in the aforementioned conditions, the DRC decided that the Respondent is liable to pay to the Claimant the amount of USD 2,800 relating to the payment due to him for his flight ticket, plus 5% interest. 17. Subsequently, the Chamber turned its attention to the Claimant’s request for the concept of an alleged outstanding signing fee. In this regard, the members of the Chamber, first and foremost, established that the amount of USD 350,000 stipulated in the contract cannot be clearly considered as a signing fee due to the Claimant. The Chamber, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the Claimant had not submitted any convincing documentary evidence that could demonstrate that the aforementioned amount was agreed by the parties as a signing fee. Consequently, the members of the Chamber agreed that such claim is to be rejected due to a lack of legal basis. 18. 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, and depending on whether the contractual breach falls within the protected period. 19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 20. 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 until and including December 2014 and concluded that the Claimant would have received in total USD 649,440 as salaries plus accommodation allowances, had the contract been executed until its expiry date. 21. 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 Claimant’s general obligation to mitigate his damages. 22. The Chamber noted that, on 8 March 2012, the Claimant had signed an employment contract with another club and that, from that date and until 30 June 2014, he had had and still has, almost uninterruptedly, professional labour relationships with three different clubs enabling him to earn an income of approximately USD 228,560 during said period of time. 23. Furthermore, in the context of the Claimant’s obligation to mitigate damages, the Chamber highlighted that the Claimant still has six more months between the end of his current employment contract until the day in which the contract with the Respondent would have terminated, i.e. December 2014, allowing him to find other employment as from June 2014 at the latest and thus mitigate his damages. Consequently, the members of the Chamber agreed that the amount of USD 117,000, which represents the income which the Claimant would have earned with the Respondent as from June 2014 until December 2014, shall be taken into account in the calculation of the amount of compensation for breach of contract payable by the Respondent to the Claimant in the present matter. 24. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 300,000 to the Claimant as compensation for breach of contract, which it considered to be a fair and justified amount of compensation. 25. 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 the present decision, i.e. 12 December 2013 until the date of effective payment. 26. 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 V, is partially accepted. 2. The Respondent, Club S, 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 2,800 plus 5% interest p.a. on said amount as of 21 November 2012 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 for breach of contract in the amount of USD 300,000 plus 5% interest p.a. on said amount as of 12 December 2013 until the date of effective payment. 4. If the aforementioned sums plus interests 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. 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 remittances are 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