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 Todd Durbin (USA), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), member Johan van Gaalen (South Africa), member on the claim presented by the club, Club H, from country C as Claimant/Counter-Respondent against the player, Player L, from country C and the club, Club W, from country B as Respondents/Counter-Claimants 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 Todd Durbin (USA), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), member Johan van Gaalen (South Africa), member on the claim presented by the club, Club H, from country C as Claimant/Counter-Respondent against the player, Player L, from country C and the club, Club W, from country B as Respondents/Counter-Claimants regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 July 2009, Player L, from country C (hereinafter: the player or also referred to as the Respondent/Counter-Claimant player), and Club H, from country C (hereinafter: the country C club or also referred to as the Claimant/Counter-Respondent), signed an employment contract valid as from 8 August 2009 until 30 June 2013 (hereinafter: the contract). 2. In accordance with art. 4.1. of the contract, the player is entitled to receive, inter alia, a monthly gross basic salary as follows: a. Currency of country H 23,000 (equivalent to EUR 3,167) for the season 2009/2010; b. Currency of country H 23,000 for the season 2010/2011; c. Currency of country H 23,000 for the season 2011/2012; d. Currency of country H 30,000 (equivalent to EUR 4,130) for the season 2012/2013. 3. Furthermore, according to art. 4.4. of the contract, for the services rendered under the agreement, “the Player shall invoice the Club for each month, and the Club shall pay the said invoices within 15 days from the date of delivering of the invoice by the Player”. 4. According to art. 14.4 of the contract, “in case of a dispute, it shall be presented for solution to the country C Football Federation Arbitral Tribunal”. 5. By a letter dated 28 May 2012, the player unilaterally terminated the contract stating that the country C club did not fulfil its contractual obligations. 6. On 31 May 2012, the player signed an employment contract with Club W, form country B (hereinafter: the country B club or also referred to as the Respondent/Counter-Claimant club), valid for the period from 1 July 2012 until 30 June 2015. 7. On 10 August 2012, following the rejection of the country C Football Federation to deliver the International Transfer Certificate (ITC) for the player, the Single Judge of the Players’ Status Committee decided to authorise the country B Football Association to provisionally register the player for the country B club. Country C Club’s claim: 8. On 12 September 2012, the country C club filed a claim with FIFA against the player and the country B club for unilateral termination of the employment contract by the player without just cause and inducement thereto respectively. In particular, the country C club requested from both the player and the country B club the payment of the amount of EUR 800,000 (as compensation) plus interests accrued as from 31 May 2012. 9. According to the country C club, the compensation is made up of the player’s market value as of the moment when the contract between both Respondents was signed. In this regard, the country C club makes reference of the case, CAS 2008/A/71519-1520. In addition, the country C club requests that the Respondents “are to reimburse the Claimant within 15 (fifteen) days the costs of this arbitration procedure”. 10. The country C club stated that the player claimed on 15 May 2012 outstanding payments in the amount of currency of country C 84,870 (salaries for the months of February 2012, March 2012 and April 2012), however, according to the financial account of the player on the contract termination date, i.e. 28 May 2012, the debt of the country C club amounted only to currency of country H 47,000, and therefore the player did not have valid reasons to terminate the said agreement. 11. The country C club added that if the player considered that any of his rights from the employment contract have been violated, then he had to institute a procedure before the national football organization which results from art. 12.1.b) of the Regulations of the Status of Players of the country C Football Federation. According to this article, a player may enter a new contract if the contract binding him with a club is cancelled or terminated by decision of a competent body of the country C Football Federation. Therefore, the club maintained that at the moment when the country B club commenced with the negotiation and signing of an employment contract with the player, the abovementioned contract was not officially terminated. Reply and counter-claim of the player and the country B club: 12. On 19 December 2012, the player and the country B club replied to the claim and lodged a counterclaim. The player asked the FIFA DRC to: • declare and adjudge that the country C club has not respected the contract; • declare and adjudge that the contract was validly terminated by the player with just cause; • declare and adjudge that no disciplinary or financial sanctions whatsoever shall be taken against him; • to condemn the country C club to pay to him currency of country C 56,652.04 “under a backlog of salary” and subject to an interest rate of 5 % per annum; • sentence the country C club to bear the full costs of the proceedings. The country B club asked the FIFA DRC to: • declare and adjudge that the country C club has not respected the contract; • declare and adjudge that the contract was validly terminated by the player with just cause; • declare and adjudge that no disciplinary or financial sanctions whatsoever shall be taken against Club W; • sentence the country C club to transfer to Club W the sum of EUR 20,000, as a compensation for the costs the club incurred in view of obtaining the ITC for the player; • sentence the country C club to transfer to Club W the sum of EUR 25,000 for the costs the club incurred for its defence before the FIFA Dispute Resolution Chamber; • sentence the country C club to bear the full costs of the proceedings. 13. The Respondents pointed out that the invoices of the player, which were due to be paid on 29 February 2012, 31 March 2012 and 30 April 2012, remained unpaid. Therefore, with a letter dated 15 May 2012 the player put the club in default of the payments relating to his remuneration in the amount of currency of country U 84,870 (Currency of country U 28,290 due on 29 February 2012, currency of country U 28,290 due on 31 March 2012, currency of country U 28,290 due on 30 April 2012) plus the statutory default interest of currency of country U 1,542.04, totalling the amount of currency of country U 86,412.04, and gave a deadline to make the payment until 21 May 2012. 14. The Respondents maintained that after they had sent the aforementioned letter, currency of country U 28,800 were paid. However, the amount of currency of country U 57,612 was still outstanding. Therefore the player decided to unilaterally terminate the employment contract by a letter dated 28 May 2012. In this regard, they added that the termination letter seemed to be an incentive for the country C club to speed up the payments to the player, since they did the following payments: - Currency of country U 10,500 on 28 May 2012; - Currency of country U 18,250 and currency of country H 500 on 4 June 2012. 15. In this context, the Respondents held that several press articles indicated that the country C club had financial problems. 16. As regards to the compensation claimed by the country C club, the Respondents stated that the player had validly terminated the contract with just cause and thus, also in accordance with art. 17 of the FIFA Regulations, the Claimant cannot demand from them the payment of any indemnity whatsoever. Reply of the country C club on the player’s and country B club’s counterclaim: 17. On 5 February 2013, the country C club explained in its reply to the counterclaim that on 14 January 2013 a Settlement Agreement was reached at the Arbitration Court of the country C Football Federation. In particular, the country C club was obliged to pay an amount of currency of country U 47,000 to the player and therefore the claims made by the player are completely unfounded. 18. The Settlement Agreement reached on 14 January 2013 at the Arbitration Court of the country C Football Federation and signed by the attorneys of the parties, Case number: A-138/12 states: “I. The Respondents, Club H, shall pay to the Applicant, Player L, currency of country C 47,000 by 31 January latest. II. The Respondents, Club H, shall pay the attorney representation costs amounting currency of country U 3,750 by 31 January 2013 latest. III. Player L declares that upon receipt of the funds stated in the Points I and II above he shall be fully settled for all his claims from the club under the Professional Playing Contract of 1 July 2009 made with the Respondents. The Parties are jointly stating that they are acquainted with the fact that Club H initiated a procedure against Club W and Player L before the FIFA Chamber for Solving of Disputes, claiming payment of damages caused to the club by the unilateral termination of the contract by the player without founded reasons, and that this Settlement Agreement shall not effect treating the said dispute before FIFA, since this Settlement Agreement solves only the unpaid and sued salaries (monthly payments) in the arbitration procedure A-138/12, until the player, Player L, trained and played in Club H.” 19. The country C club stated that the player did not have justified reason to terminate the contract and that on the contract termination date the club was fulfilling its obligations towards the player and had the intention to fulfil them in future. As on the contract termination date the amount due to the player was amounting to less than two monthly salaries, i.e. currency of country H 47,000, the facts of the case show that the country C club obviously had the intention of fulfilling the remaining financial obligations within the appropriate period of time. 20. The country C club held that it is evident that the player was aware of the club’s financial difficulties, which additionally indicates that the player did not have just cause to terminate the employment contract. In addition, the country C club states that the player had never previously informed it about his intention to terminate the contract if they did not fulfil its financial obligations within an appropriate period of time. 21. The country C club sustained that the player and the country B club consciously disregarded art. 13 of the contract, which stipulates that the country C club has the “exclusive right to contracting the player’s transfer to another club”, and maintained that the claim made by the player is completely unfounded. Replica of player on his counterclaim: 22. The player referred to his initial memorandum and added that it would seem that the country C club was never genuinely and truly interested in maintaining his services, but rather exclusively aimed to invoke the Settlement Agreement in relation to its unjustified claim for EUR 800,000. 23. The player maintained that since, at present, the country C club still has not entirely respected its financial obligations towards him, he does not wish to renounce to his initial claim. He would only agree to renounce to his claim if the country C club provide sufficient evidence that the requested sum had been paid. Duplica of the country C club on the player’s counterclaim: 24. The country C club replied repeating its previous position and without providing a proof of payment of the amount of currency of country C 47,000 due to the player according to the Settlement Agreement reached at the Arbitration Court of the country C Football Federation. 25. After the investigation phase in the present matter had been concluded, the country C club submitted an additional statement. Club H once again reiterated its claim and indicated that the player was transferred from Club W to the country C club, Club Z, in August 2013. In particular, Club H highlighted that according to the website “Transfermarkt”, the player was transferred for the amount of EUR 500,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the 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 12 September 2012. 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. 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 (hereinafter: Regulations; edition 2012) it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country C player, a country B club and a country C club. 3. Furthermore, the DRC analysed which edition of the 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 (editions 2012 and 2010) and considering that the present matter was submitted to FIFA on 12 September 2012, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. In this respect, the DRC firstly noted that the Claimant/Counter-Respondent and the Respondent/Counter-Claimant player signed an employment contract setting out a period of validity as from 8 August 2009 until 30 June 2013, in accordance with which the Claimant/Counter-Respondent would, inter alia, pay the Respondent/Counter-Claimant player a monthly salary of currency of country C 23,000, for the seasons 2009/2010, 2010/2011, 2011/2012 as well as a monthly salary of currency of country H 30,000, for the season 2012/2013. 5. The Chamber further noted that the Claimant/Counter-Respondent maintains that the Respondent/Counter-Claimant player is to be held liable for the early termination of the employment contract without just cause as well as that the Respondent/Counter-Claimant club is to be held jointly liable. The Claimant/Counter-Respondent based the aforementioned on the fact that, allegedly, according to the financial account of the Respondent/Counter-Claimant player on the contract termination date, i.e. 28 May 2012, the debt with regard to outstanding salaries was amounting to less than two monthly salaries, i.e. currency of country U 47,000, and therefore the Respondent/Counter-Claimant player did not have valid reasons to terminate said employment contract. 6. The DRC duly noted that, on account of the above, the Claimant/Counter-Respondent is seeking compensation in the amount of EUR 800,000 for breach of contract, plus interests accrued as from 31 May 2012 from the Respondents/Counter-Claimants. Moreover, the Chamber took into account that the Claimant/Counter-Respondent equally requests that the Respondents/Counter-Claimants shall bear the costs of the present proceeding. 7. In continuation, the Chamber noted that, on the other hand, the Respondents/Counter-Claimants entirely rejected the claim and stressed that the Claimant/Counter-Respondent is to be held liable for the early termination of the employment contract by having failed to pay the Respondent/Counter-Claimant player’s remuneration due on 29 February 2012 (currency of country U 28,290), 31 March 2012 (currency of country U 28,290) and 30 April 2012 (currency of country U 28,290). In this respect, the Respondent/Counter-Claimant player explained that with a letter dated 15 May 2012 he put the Claimant/Counter-Respondent in default giving a deadline until 21 May 2012 and that after allegedly not having received entirely the said monies, had terminated his contract with the Claimant/Counter-Respondent on 28 May 2012 invoking just cause. 8. Therefore, the Respondent/Counter-Claimant player rejected the Claimant/Counter-Respondent’s claim and lodged a counterclaim against the latter in the amount of EUR 56,652.04, “under a backlog of salary” plus 5% interest per annum. The Respondent/Counter-Claimant also requested the Claimant/Counter-Respondent to be sentenced to bear the full costs of the proceedings. 9. Furthermore, the DRC noted that the Respondent/Counter-Claimant club also rejected the claim and lodged a counter-claim against the Claimant/Counter-Respondent in the amount of EUR 20,000 for compensation of the costs incurred in view of obtaining the international transfer certificate (ITC) of the Respondent/Counter-Claimant player and EUR 25,000 for the costs of its defense in the present procedure. 10. In view of the contents of the parties’ claim, respectively counter-claims, the Chamber firstly noted that it remains undisputed that on 28 May 2012 the Respondent/Counter-Claimant player terminated the employment contract in writing after having put the Claimant/Counter-Respondent in default, on 15 May 2012, for the payment of three months’ salary in the amount of currency of country U 84,870. In this regard and considering the parties’ divergent positions, the Chamber deemed that the underlying issue in this dispute was to determine whether the employment contract had been unilaterally terminated by the Respondent/Counter-Claimant player with or without just cause. 11. In this respect, the members of the DRC duly noted that the Claimant/Counter-Respondent deemed that on the contract termination date, i.e. 28 May 2012, it was in the course of fulfilling its obligations towards the player and that the amount due to the player was already amounting less than two monthly salaries, i.e. currency of country U 47,000. 12. Having said that, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 13. In view of the above, the DRC concluded that the Claimant/Counter-Respondent had to prove that it had fulfilled all payments invoked as outstanding by the Respondent/Counter-Claimant player. In this respect, however, the DRC acknowledged that the Claimant/Counter-Respondent only provided an extract of the financial account of the player for the period between 1 January 2012 and 30 June 2012 in its original language and translated in English language. Equally, the DRC noted that from the original version of the extract of the financial account, it could not be established who issued the document. Therefore, from a strictly formal point of view, the document in question could, in principle, not be considered as appropriate evidence that the Claimant/Counter-Respondent had fulfilled its financial obligations towards the Counter-Claimant/Respondent player. What is more, the member deemed that the Claimant/Counter-Respondent could easily have submitted more substantial evidence in this regard, such as payment receipts that were issued in favour of the Respondent/Counter-Claimant player during the employment relationship. Therefore, the DRC considered that the Claimant/Counter-Respondent was not able to corroborate that it had indeed paid the contractually agreed salaries or that on the contract termination date only the amount of currency of country U 47’000 was due. 14. As a consequence of the foregoing, the Chamber established that three monthly salaries had been due and remained outstanding at the time of the termination of the contract by the Respondent/Counter-Claimant player. Taking also into consideration that the relevant payments, if any, were continuously made late, the Chamber therefore concurred that the employment contract was breached by the Claimant/Counter-Respondent and that the Respondent/Counter-Claimant player had just cause to unilaterally terminate the employment contract on 28 May 2012. 15. On account of the above, the Chamber decided that the Claimant/Counter-Respondent’s claim for compensation for breach of contract against the Respondent/Counter-Claimant player and the Respondent/Counter-Claimant club must be rejected. 16. With regard to the counterclaim of the Respondent/Counter-Claimant player for currency of country U 56,652.01, the DRC acknowledged that a Settlement Agreement was reached at the Arbitration Court of the country C Football Federation and signed by the representatives of the Claimant/Counter-Respondent and the Respondent/Counter-Claimant player respectively on 14 January 2013, i.e. after the claim was lodged with FIFA, by means of which the aforementioned parties settled the dispute concerning outstanding salaries. 17. However, the DRC took due note of the fact that the Respondent/Counter-Claimant player insisted on his counter-claim after signing the said Settlement Agreement in order to demand the payment of the amount in question since the Claimant/Counter-Respondent allegedly had still not entirely respected its financial obligations. In this regard, the DRC deemed it appropriate to emphasise that in view of the relevant Settlement Agreement concluded between the parties concerned before the Arbitration Court of the country C Football Federation regarding outstanding salaries, the outstanding amount was no longer claimable in front of the DRC. In this regard, the DRC also highlighted that FIFA’s competent bodies were not in a position to enforce the execution of said Settlement Agreement. 18. Having said that, the DRC emphasised that the Respondent/Counter-Claimant player had not claimed any compensation for breach of contract but only outstanding salaries. As a consequence, the members of the DRC decided that the counter-claim of the Respondent/Counter-Claimant player had to be rejected. 19. Furthermore, the DRC held that the Claimant/Counter-Respondent’s claim as well as the Respondent/Counter-Claimant player’s and club’s claim pertaining to legal costs have to be rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 20. Finally, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request relating to interest filed by the Claimant/Counter-Respondent or the Respondent/Counter-Claimant player is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Club H, is rejected. 2. The counterclaim of the Respondent/Counter-Claimant, Player L, is rejected. 3. The Counterclaim of the Respondent/Counter-Claimant, Club W, is rejected. ***** 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