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 7 February 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member John Bramhall (England), member Santiago Nebot (Spain), member on the claim presented by the player, Player N, from country B as Claimant against the club, Club A, 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 passed in Zurich, Switzerland, on 7 February 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member John Bramhall (England), member Santiago Nebot (Spain), member on the claim presented by the player, Player N, from country B as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 June 2012, Player N, from country B (hereinafter: the Claimant), and Club A, from country C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) starting “from the day of receiving a valid International Transfer Certificate (ITC) from the proper Football Federation or any other Association he may be registered to and his employment ends on 31 May 2015”. 2. According to the contract, the Claimant was entitled to receive EUR 20,000 per season, payable in 10 monthly instalments of EUR 2,000 each. 3. On 2 June 2012, the parties signed a supplementary agreement according to which the Claimant would receive: - EUR 30,000 for the 2012/2013 season, payable in 10 equal monthly instalments of “EUR 3,200” each; - EUR 35,000 for the season 2013/2014, payable in 10 equal monthly instalments of EUR 3,500 each; - EUR 40,000 for the season 2014/2015, payable in 10 equal monthly instalments of EUR 4,000 each; - one return family ticket country C – country B per year; - a car and accommodation. 4. On 26 February 2013, the Claimant lodged a complaint in front of FIFA against the Respondent, indicating that he had signed the contract in March 2012, started training with the team in July 2012, but that on 8 August 2012 the Respondent’s president informed his representative over the phone that it was no longer counting on the Claimant’s services. 5. On 15 August 2012, the Claimant was not allowed to join the first team and was sent to the Respondent’s youth team. Equally, the Claimant was not registered with the club for the 2012/2013 season, his car was taken away from him on 29 September 2012 and the Respondent did not pay the salaries due in August and September 2012. Finally, in mid-October, the landlord asked the Claimant to leave his flat since the Respondent had failed to pay the rent. In respect of the rent, the Claimant provided a “rental agreement” which indicated that the rent for the accommodation amounted to EUR 500 per month. 6. On 20 and 24 October 2012, the Claimant sent a fax to the Respondent asking the latter to fulfil its contractual obligations, however, no reply was received. On 2 November 2012, after negotiations with the Respondent had failed, the Claimant sent another fax to the Respondent requesting it to pay the amount of EUR 17,350 until 8 November 2012 at the latest. Since no payment was received, the Claimant terminated the contract on 9 November 2012. 7. On account of the above, the Claimant requested FIFA to confirm that he terminated the contract with just cause and to order the Respondent to pay him the total amount of EUR 184,850, calculated as follows: Outstanding remuneration: EUR 19,350: - EUR 15,000 corresponding to the salaries of August to October 2012; - EUR 2,000 corresponding to the rent of July to October 2012; - EUR 2,000 corresponding to “tickets costs/change for two adults”; - EUR 350 corresponding to the rent of a car and taxi costs. Compensation for breach of contract: EUR 165,500: - EUR 15,500 corresponding to 31 rent payments of EUR 500; - EUR 35,000 corresponding to the salaries from November 2012 to May 2013; - EUR 55,000 corresponding to the salaries from August 2013 to May 2014; - EUR 60,000 corresponding to the salaries from August 2014 to May 2015. 8. Equally, the Claimant requested interest over the above-mentioned amounts. 9. Although having been invited by FIFA to provide its position to the claim of the Claimant by no later than 19 March 2013, the Respondent only replied to the claim on 15 April 2013 after the investigation-phase had already been concluded. 10. On 31 January 2014, the Claimant informed FIFA that he had signed a new contract with Club V, country B, valid as from 1 June 2013 until 30 November 2013, in accordance with which he would receive a monthly salary of currency of country B 1,200. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 26 February 2013. Consequently, 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. 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 is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country B player and a country C club. 3. Furthermore, 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, the Chamber 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 on 26 February 2013, the 2012 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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 1 June 2012, the Claimant and the Respondent had concluded an employment contract starting “from the day of receiving a valid International Transfer Certificate (ITC) from the proper Football Federation he may be registered to and his employment ends on 31 May 2015.” Equally, the Chamber noted that the parties had signed a supplementary agreement on 2 June 2012. 6. As to the financial terms of the contract and the agreement, the Chamber took note that it had been agreed upon between the parties that the Respondent would remunerate the Claimant with the total amount of EUR 50,000 for the 2012/2013 season, the amount of EUR 55,000 for the 2013/2014 season and the amount of EUR 60,000 for the 2014/2015 season. Equally, the Claimant was entitled to accommodation, a car and one return ticket country C – country B for his family per year. 7. The Chamber further observed that the Claimant lodged a claim in front of FIFA seeking payment from the Respondent of the amount of EUR 184,850 corresponding to his alleged outstanding remuneration in the amount of EUR 19,350 as well as the amount of EUR 165,500 as compensation for breach of contract, asserting that the Respondent had not fulfilled its contractual obligations towards him. More specifically, the Claimant indicated that the Respondent had i) not paid him his salaries for the months of August, September and October 2012, ii) had not paid his rent for the period as from July 2012 until October 2012, and iii) had informed him that his services were no longer need. 8. Equally, the members of the Chamber noted that, following three default letters sent to the Respondent dated 20, 24 October 2012 and 2 November 2012 in which the Claimant requested the Respondent to pay him his outstanding salaries and which remained unanswered, the Claimant sent another letter to the Respondent on 9 November 2012 by means of which he informed the Respondent that he terminated the contract. 9. Subsequently, the DRC observed that the Respondent, for its part, in spite of having been invited to do so, failed to present its response to the claim of the Claimant within the relevant time-limit. In fact, the reply of the Respondent was only received after the investigation-phase of the matter had already been concluded. As a result, the Chamber decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant. 10. Having taken into consideration all the previous considerations, 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 longstanding and well-established jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 9 November 2012, having previously put the Respondent in default of payment of the outstanding amounts. 11. For the sake of completeness, and considering that the employment contract indicated that it would start “from the day of receiving a valid International Transfer Certificate (ITC) from the proper Football Federation or any other Association he may be registered to”, the DRC considered it relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence. In this regard, the DRC pointed out that it is the responsibility of the club to ensure that the player is properly registered with it in order to be able to provide his services. Since the club is supposedly interested in acquiring the rights of the player and in benefiting from his services, it is also expected that it acts accordingly in view of obtaining the player’s ITC and his subsequent registration. 12. On account of all the above, the Chamber established that the Claimant had terminated the employment contract with just cause on 9 November 2012 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 13. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 14. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per 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 EUR 19,000, consisting of the three monthly salaries of August, September and October 2012, the rent as from July 2012 to October 2012 and two flight tickets. Furthermore and considering the Claimant’s claim for interest, the Respondent must pay 5% interest on the amount of EUR 19,000 as from 26 February 2013. 15. Furthermore, and as to the Claimant’s request for the payment of EUR 350 for the rent of a car and taxi costs, the Chamber referred to the principle of the burden of proof as stipulated in art. 12 par. 3 of the Procedural Rules, and stressed that the Claimant had not submitted any documentary evidence in this respect. Therefore, the Chamber decided to reject this part of the Claimant’s claim. 16. In continuation, the Chamber 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. 17. In this context, the Chamber 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. 18. 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. 19. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber 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 Chamber pointed out that at the time of the termination of the employment contract, the contract would run for another 29 months in which another 25 monthly salaries were to be paid. Consequently, the Chamber concluded that the remaining value of the contract as from its early termination by the Claimant until the regular expiry of the contract amounts to EUR 150,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 20. In continuation, the Chamber remarked that the Claimant had found new employment with Club V, from country B , as from 1 June 2013 until 30 November 2013. In accordance with the employment contract signed between the Claimant and Club V, the Claimant was entitled to a monthly salary of currency of country B 1,200, corresponding to approximately EUR 366. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 21. What is more, the Chamber pointed out that for the period of time as from December 2013 until May 2015, the Claimant had not yet concluded any employment contract. The Chamber considered that this period of time shall also be taken into consideration when calculating the amount of compensation for breach of contract, since the Claimant could have had and will have the opportunity to conclude a new employment contract during said period of time in order to mitigate his damages. 22. In view of all of the above, the Chamber decided that the Respondent must pay the amount of EUR 117,000 to the Claimant, which is considered by the Chamber to be reasonable and justified amount as compensation for breach of contract. 23. 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 on which the claim was lodged, i.e. 26 February 2013, until the date of effective payment. 24. As a consequence, the DRC concluded that the Respondent is liable to pay the total amount of EUR 136,000 to the Claimant, consisting of the amount of EUR 19,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract by the Claimant and the amount of EUR 117,000 corresponding to compensation for breach of contract. 25. 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 N, is partially accepted. 2. The Respondent, Club A, 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 19,000, plus 5% interest p.a. on said amount as from 26 February 2013 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 EUR 117,000 plus 5% interest p.a. on said amount as from 26 February 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. 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: Jérôme Valcke Secretary General Encl. CAS directives