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 John Bramhall (England), member Santiago Nebot (Spain), member Philippe Diallo (France), member Mohamed Mecherara (Algeria), member on the claim presented by the player, Player S, from country B as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute 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 John Bramhall (England), member Santiago Nebot (Spain), member Philippe Diallo (France), member Mohamed Mecherara (Algeria), member on the claim presented by the player, Player S, from country B as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case Facts relating to the preliminary issue on the competence of the DRC: 1. On 19 May 2011, Player S, form country B (hereinafter: player or Claimant), and Club A, from country C (hereinafter: club or Respondent) signed an employment contract, which stipulates in its art. 14 that “The country C Football Association rules and regulations apply as far as jurisdiction for the adjudication for any dispute resolution between the parties and both parties agree that they will respect the rules of FIFA and UEFA.” 2. On 20 May 2011, the parties signed a supplementary agreement. 3. The club contested the competence of FIFA to deal with the present matter referring to the aforementioned art. 14 of the employment contract. 4. The player, for his part, insisted that FIFA’s Dispute Resolution Chamber deals with the present matter. Facts relating to the substance of the matter: 5. The employment contract signed between the parties on 19 May 2011 was valid as of 1 July 2011 until 30 May 2013, in accordance with which the player was entitled to receive the amount of EUR 25,000 for the 2011-12 season payable as follows: EUR 5,000 within 15 days of signature of the employment contract, EUR 2,000 on 31 August 2011, EUR 2,000 on the 30th day of each following month until the end of the 2011-12 season and until full payment of the total amount. Furthermore, for the 2012-13 season, the player was entitled to receive the total amount of EUR 30,000. 6. The supplementary agreement signed between the parties on 20 May 2011 stipulates that the player was entitled to receive inter alia the additional amount of EUR 25,000 for the 2011-12 season in instalments of EUR 2,500 each as of 31 August 2011. Moreover, for the 2012-13 season, the player was entitled to receive the additional amount of EUR 30,000. 7. According to art. 4 of the employment contract “The employer reserves the right to terminate unilaterally the present contract at any time during the first month of employment of the player without any obligation to pay to the player any compensation saving his accrued salaries up to the day of the said termination if his found by the technical and coaching staff of the employer not in a suitable physical condition to offer his services for the needs of the employer.” 8. The section referred to as “validation” of the employment contract stipulates that the contract is valid only if the player has no contractual obligations towards another club and if the result of the medical exam and fitness level is satisfactory. Item c) under this section stipulates that the parties agree that the contract is null and void if “any of the above occurs”. 9. By fax dated 18 July 2011, the club terminated the employment contract referring to art. 4 of the employment contract as well as to item c) under the “validation” section of the employment contract. 10. On 14 September 2011, the player lodged a claim in front of FIFA against the club maintaining that the club had terminated the employment contract and the supplementary agreement without just cause and, therefore, he asked to be awarded payment of the following monies: a. EUR 4,500 (unpaid salary until 18 August 2011); b. EUR 40,000 (remainder for the 2011-12 season under both contracts); c. EUR 60,000 (remainder for the 2012-13 season under both contracts); d. Interest on these amounts and legal fees. 11. The player explained that he started training on 1 July 2011 and that, on 20 July 2011, he left with the team to country P for training purposes. According to the player, as from 23 July until 31 July 2011, the team played various friendly matches against country P clubs. 12. The player submitted that, on 18 August 2011, he received the club’s termination notice, dated 18 July 2011, by fax. In this regard, he held that the club illegally put the date of 18 July in an attempt to terminate the contract without any financial consequences in accordance with art. 4 and item c) of the “validation” section of the employment contract. 13. According to the player, on 26 August 2011, he replied to the club by rejecting the termination of the employment contract and pointing out that he had only received such notice on 18 August 2011. 14. As to the substance of the matter, the club held that the player’s claim is barred by the statute of limitations in accordance with the regulations for the status and transfer of players of the country C Football Association, in accordance with which a party allegedly has 30 days to dispute the legality of a termination of an employment contract while pointing out that the player failed to do so. 15. Furthermore, the club submitted that it terminated the employment contract on 18 July 2011 on the basis of its article 4, in accordance with which the parties mutually agreed that the club had the unilateral right to terminate the contract within the first month as of the commencement of the employment relation. 16. In addition, the club pointed out that the player has rendered no services whatsoever to the club. 17. Therefore, the club asked that the player’s claim be dismissed and that the club terminated the employment contract with just cause and within the spirit and the contents of the employment contract. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 September 2011. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are 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 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 would, in principle, be competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country B player and a country C club. 3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 14 of the employment contract. In this context, the Chamber further took note that the supplementary agreement does not contain any clause related to jurisdiction. 4. The Claimant, for his part, rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 5. The members of the Chamber then turned their attention to said art. 14 of the employment contract, which reads as follows: “The country C Football Association rules and regulations apply as far as jurisdiction for the adjudication for any dispute resolution between the parties and both parties agree that they will respect the rules of FIFA and UEFA.” Hence, the DRC outlined that the content of the relevant article is rather vague and that said clause does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012). 6. For this reason, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter on the basis of art. 14 of the employment contract has to be rejected. 7. On account of the above, the Dispute Resolution Chamber established that it is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 8. The Chamber then reverted to the argument of the Respondent, according to whom the present matter is barred by the statute of limitations on the basis of the regulations for the status and transfer of players issued by the country C Football Association. In this regard, the members of the Chamber referred to art. 25 par. 5 of the FIFA Regulations on the Status and Transfer of Players (edition 2012), according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute. The present claim having been lodged in front of the DRC on 14 September 2011 and the event giving rise to the dispute, that is, the unilateral termination of the contract by the Respondent, having occurred in summer 2011, the members of the Chamber had to reject the respective argument of the Respondent and confirmed that the present petition was lodged in front of the DRC within said two years’ period of time. The matter is, thus, not barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition 2012). 9. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2012), and considering that the present claim was lodged on 14 September 2011, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 10. 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 all the above-mentioned facts as well as the arguments and the 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. 11. In this respect, the Chamber acknowledged that, on 19 May 2011, the Claimant and the Respondent signed an employment contract valid as from 1 July 2011 until 30 May 2013. In addition, the parties signed a supplementary agreement on 20 May 2011. The Claimant, on the one hand, maintains that the Respondent terminated the employment contract and supplementary agreement without just cause on 18 August 2011 and therefore asks to be awarded, inter alia, payment of compensation for breach of contract. The Respondent, on the other hand, rejects such claim and holds that it duly terminated the employment contract and supplementary agreement on 18 July 2011 in accordance with art. 4 of the employment contract. 12. In order to be able to establish, first and foremost, as to whether, as claimed by the Claimant and contested by the Respondent, the club terminated the employment contract without just cause, the Chamber turned its attention to art. 4 of the employment contract, which was invoked by the Respondent in its defence. 13. As stated above, according to art. 4 of the employment contract “The employer reserves the right to terminate unilaterally the present contract at any time during the first month of employment of the player without any obligation to pay to the player any compensation saving his accrued salaries up to the day of the said termination if his found by the technical and coaching staff of the employer not in a suitable physical condition to offer his services for the needs of the employer.” 14. In this respect, the Chamber held that it could not accept said article as being valid, as it provides for a unilateral termination right without any compensation to the benefit of the club only. In addition to the unilateral character of art. 4, the application of said article appears to be linked to the player’s physical condition, which, in accordance with the Chamber’s constant jurisprudence, in itself cannot be considered a valid reason to terminate an employment contract. Therefore, the Chamber decided that the Respondent could not legitimately terminate the contractual relation with the Claimant by making use of art. 4 of the employment contract. Consequently, the Chamber rejected the Respondent’s argument in this respect. 15. Having said that, the members of the Chamber noted that the parties further have diverging opinions with respect to the date of termination of the employment contract and the supplementary agreement by the Respondent. Indeed, the Claimant holds that he received the notice of termination, dated 18 July 2011, by fax on 18 August 2011 only, whereas the Respondent maintains having terminated the employment relation on 18 July 2011. 16. In this respect, the Chamber took note that the Respondent’s notice of termination, which was submitted by the Claimant, includes the mention “delivered by hand” without any signature of the Claimant and shows a fax transmission line which indicates “18. Aug. 2011 15:50 Club A Football Club No. 7676 P.1”. 17. On account of the above, the Chamber concluded that, whereas the notice of termination bears the date of 18 July 2011, it was only sent to the Claimant by the Respondent by fax on 18 August 2011. It was further taken into account that the Respondent, for its part, had not presented any evidence in support of its position that the contractual relation was terminated on 18 July 2011. Thus, irrespective of the fact that said art. 4 cannot be considered valid, as examined above, and bearing in mind that the employment contract entered into force on 1 July 2011, the members of the Chamber highlighted that the Respondent had not respected the one month time limit included in said art. 4 of the employment contract. 18. Taking into consideration all of the above, the Chamber decided that the Respondent terminated the employment contract and the supplementary agreement without just cause on 18 August 2011. 19. In continuation, prior to establishing the consequences of the breach of contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the Respondent. 20. Indeed, in his statement of claim, the Claimant alleges that his salary until 18 August 2011 in the amount of EUR 4,500 was to be considered outstanding. Bearing in mind, as stated above, that the contract was terminated by the Respondent on 18 August 2011 and that in accordance with both the employment contract and the supplementary agreement the Claimant’s first salary was due to be paid on 31 August 2011, the Chamber established that, on 18 August 2011, no salary had yet fallen due in accordance with the employment contract and the supplementary agreement. 21. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the employment contract and the supplementary agreement by the Respondent without just cause on 18 August 2011. 22. 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. 23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the contracts at the basis of the present dispute contain 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 contracts at the basis of the matter at stake. 24. 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. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 25. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contracts 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, if any, in the calculation of the amount of compensation. 26. On the basis of the contracts signed by the Claimant and the Respondent, which were to run for two seasons more, i.e. until 30 May 2013, after the breach of contract occurred, as well as the claim of the Claimant, which includes the total amount of EUR 44,500 for the 2011-12 season, the Chamber concluded that the amount of EUR 104,500 (EUR 44,500 for the 2011-12 season and EUR 60,000 for the 2012-13 season) serves as the basis for the final determination of the amount of compensation for breach of contract. 27. 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. 28. The Chamber noted that the Claimant had remained unemployed during the relevant period of time. However, and regarding the matter at hand, the Chamber deemed it fit to point out that after the early termination of the contract on 18 August 2011, the Claimant had opportunities to find a new club and thus to mitigate his loss to some extent for at least part of the remaining period of time until 30 May 2013, due to the opening of registration periods. On the other hand, the members of the Chamber took into account the relatively old age of the player, who was born in 1980. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 90,000 to the Claimant, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand. 30. 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. 14 September 2011, until the date of effective payment. 31. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 32. 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 S, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club A, 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 90,000 plus 5% interest p.a. applicable as from 14 September 2011 until the date of effective payment. 4. If the above-mentioned amount plus interest is not paid by the Respondent to the Claimant within the aforementioned time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further request filed by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent directly and immediately 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 article 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