F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 18 March 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player L, from country P as Claimant against the club, Club O, from country C as Respondent regarding an employment-related contractual dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 18 March 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player L, from country P as Claimant against the club, Club O, from country C as Respondent regarding an employment-related contractual dispute arisen between the parties I. Facts of the case 1. On 26 April 2009, Club O, from country C (hereinafter: the Respondent), and Player L, from country P (hereinafter: the Claimant), concluded an employment contract (hereinafter: the contract) valid from “the date that the ITC of the player is received by the country B Football Associaton and is registered to the Club” until 31 May 2010. 2. According to clause 3 of the contract, the global remuneration of the Claimant for his services was of EUR 18,000, payable in 9 monthly instalments of EUR 2,000 each, the first one being due on 1 September 2009 “and the next on the last day of each consecutive month until full payment”. 3. According to clause 2 of the contract, “it is agreed by both parties that the first 12 months of the [Claimant's] contract are considered as probation according to the Termination Law of 1967”. 4. Furthermore, clause 5 of the contract stipulated that the Respondent would provide the Claimant with an accommodation and that the expenses of electricity and water would be covered by the Respondent up to EUR 150 for every two months. 5. Equally, according to clause 12 of the contract, “the [Claimant] agrees to adhere to the Rules, Regulations and Bye-Laws of the country C Football Association and/or of the Dispute Resolution Committee of country C Football Association in case of any grievance and/or any dispute with the [Respondent]”. 6. By a letter dated 21 December 2009, the Respondent informed the Claimant that it would unilaterally terminate the contract in accordance with clause 2 of the contract. 7. On 9 March 2010, the Claimant submitted a claim against the Respondent in front of FIFA, requesting the payment of the total amount of EUR 12,200, plus 5% interest as from the date of the contract termination until full payment, as set out below: a. EUR 10,000 as compensation corresponding to the remaining salaries of the contract, i.e. from December 2009 until May 2010; b. EUR 1,750 corresponding to the accommodation costs from December 2009 until May 2010; c. EUR 450 corresponding to the electricity and water from December 2009 until May 2010. 8. The Respondent answered to the claim disputing the competence of the FIFA Dispute Resolution Chamber asserting that the only competent authority to deal with the case is the “Dispute Resolution Chamber of country C Football Association”, making reference to clause 12 of the contract. 9. Upon the request of FIFA, the country C Football Association provided a copy of the Regulations for the Registration and Transfer of Football Players of the country C Football Association (edition 2005; hereinafter: the country C Football Association Regulations). 10. The Respondent and the country C Football Association provided FIFA with a copy of the “Regulations for the registration and transfer of football players” (edition 2005; hereinafter: the Regulations of the country C Football Association), which establish the following: a. with regard to the jurisdiction of the Dispute Resolution Committee (hereinafter: the Committee): According to art. 22.11 of the Regulations of the country C Football Association, the Committee is competent to “adjudicate and/or resolve any financial or other disputes which may arise: a) between clubs and non-amateur players […]”. b. with regard to the composition: Art. 22.1 par. 1 of the Regulations of the country C Football Association establishes that the Committee consists of five members (Chairman, Vice-Chairman, three members). The Chairman, Vice-Chairman and one member are elected by the Executive Committee of the country C Football Associations, whereas two members are elected by the country C Football Players’ Association. c. with regard to the possibility of an appeal: Concerning the possibility of an appeal against a decision taken by the Committee, art. 22.10 stipulates that “any decision of the [Committee] may be appealed to the Disciplinary Authority of the [country C Football Association]. The Disciplinary Authority shall finally decide on the appeals referred thereto”. 11. With regard to the substance of the dispute, the Respondent pointed out that the Claimant failed to file a dispute against the Respondent within the time-limit established in the country C Football Association regulations, i.e. 30 days and that, therefore, “the termination of the said agreement has been declared as legal and valid”. Equally, the Respondent indicated that on 22 January 2010 “and immediately after the 30 days of termination has passed by” his International Transfer Certificate (ITC) was released to the country M Football Association. As a consequence, according to the Respondent, the Claimant was free to be transferred to any other club of his choice since he did not exercise his action against the termination within the prescribed period. 12. In his replica, the Claimant pointed out that FIFA is the competent body to resolve the case, since the FIFA Regulations on the Status and Transfer of Players are accepted worldwide by all members of FIFA. As to the allegations of the Respondent with regard to the substance of the matter, the Claimant asserted that none of the allegations were true. In particular, and with regard to clause 2 of the contract, the Claimant referred to the jurisprudence of the DRC and held that such clause is null and void since it only refers to the right of the Respondent to terminate the contract. Also, the Claimant held that a probation period is not admissible. 13. In its final comments, the Respondent reiterated its position and also pointed out that the Claimant failed to remit any documentation and/or proof “concerning his claim for rents”. Equally, the Resppondent also noted that the Claimant sustained no loss of income since he was allegedly employed immediately “as per the ITC submitted to the defence of the Club”. 14. With regard to his labour situation as from the termination of the contract until 31 May 2010, the Claimant stated that on 22 January 2010 he signed an employment contract with the country M club, Club H, valid “for the rest of the Season 2009/2010”. Said contract provided for a monthly gross salary of EUR 1,000 as well as an allowance of EUR 700. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter the DRC judge or the judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 9 March 2010. 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. 2 and par. 3 of the Procedural Rules). 2. With regard to the competence of the DRC judge, art. 3 par. 1 and 2 of the Procedural Rules states that the judge shall examine his jurisdiction in the light of articles 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2008). In accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the aforementioned Regulations, the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country P player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 12 of the employment contract, stating that any dispute arisen between the parties should be submitted to the Dispute Resolution Committee of the country C Football Association. 4. In this regard, the judge noted that the Claimant rejected such position and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 5. While analyzing whether he was competent to hear the present matter, first and foremost, the DRC judge deemed it of utmost importance to highlight that clause 12 of the contract does not consist in a choice of jurisdiction, but rather a choice of applicable law which does not specifically concern procedural matters. The judge therefore concluded that the contract does not contain any arbitration or jurisdiction clause. Hence, clause 12 of the contract clearly does not refer to the specific and exclusive jurisdiction of any national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 6. In view of all the above, the judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC judge 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. 7. Subsequently, the DRC judge 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 judge referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2010 and 2009) and, on the other hand, to the fact that the present claim was lodged on 9 March 2010. The DRC judge concluded that the 2009 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. 8. His competence and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. 9. In this respect, the DRC judge acknowledged that it was undisputed by the parties that, on 26 April 2009, they had signed an employment contract valid as from “the date that the ITC of the player is received by the country C Football Association and is registered to the Club” until 31 May 2010, in accordance with which the Claimant was entitled to receive the total amount of EUR 18,000 payable in 9 monthly instalments of EUR 2,000 each. 10. In continuation, the DRC judge took note that it is also undisputed by the parties involved that the employment relationship had been unilaterally terminated by the Respondent, in writing, on 21 December 2009, based on clause 2 of the contract. 11. The DRC judge further noted that, on the one hand, the Claimant claims that the Respondent has breached the contractual relationship, by terminating the contract unilaterally and without just cause on 21 December 2009. In addition, the judge took due note that the Claimant rejects the termination based on clause 2 of the contract, since he deems that the aforementioned clause is to be considered as void and null, due to the fact that a probation period of 12 months is inadmissible since it only refers to the right of the Respondent to terminate the contract. 12. Therefore, the Claimant asked to be rewarded with the payment of the total amount of EUR 12,200, plus 5% interest as from the date of the contract termination until full payment, made up of EUR 10,000 as compensation corresponding to the remaining salaries of the contract, as well as EUR 1,750 corresponding to the accommodation costs and EUR 450 corresponding to the electricity and water costs for the period from December 2009 until May 2010. 13. Subsequently, the judge noted that, on the other hand, the Respondent insists on its legitimate right to have terminated the contract with the Claimant based on its clause 2. The DRC judge further observed that the Respondent claims that such termination shall be considered as “legal and valid”, since it was not contested by the Claimant before the country C Football Association within the period of time allegedly established in their legislation. 14. Having established the aforementioned, the DRC judge deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Respondent, and which party was responsible for the early termination of the contractual relationship in question. The DRC judge also underlined that, subsequently, if it were found that the employment contract was terminated by the Respondent without just cause, it would be necessary to determine the financial and/or sporting consequences for the party that caused the unjust breach of the relevant employment contract. 15. In view of the above, the DRC judge firstly noted that the Respondent bases the termination of the employment contract on its clause 2. 16. In this respect, the DRC judge recalled the wording of art. 2 of the aforementioned contract, which stipulates that, “[…] the first 12 months of the player’s contract are considered as probation according to Termination Law of 1967”. 17. Subsequently, the judge deemed it appropriate to analyse the question of whether such clause inserted in an employment contract could be considered valid. In that regard, the DRC judge deemed that the application of the above-mentioned rule was arbitrary, since it led to an unacceptable result based on non-objective criteria, which entitled the Respondent to unilaterally terminate the contract during the first 12 months of the contract apparently without an explanation or any consequences for the club. The DRC judge emphasised that the lack of objective criteria by the application of the relevant rule led to an unjustified disadvantage of the Claimant’s financial rights. 18. In this regard, the DRC judge considered that the possibility granted to the Respondent to prematurely terminate the contract within its first year, without the need to indicate any reasons for it and only based on the fact that such period is to be considered as a probation period, appeared to be of a highly subjective nature, entailing that, de facto, it is left to the complete and utter discretion of the Respondent whether or not it was willing to continue the contractual relationship. 19. In view of the foregoing, the DRC judge was of the opinion that clause 2 of the contract invoked by the Respondent in order to put an end to the contract was clearly potestative and that, consequently, the respective argumentation of the Respondent could not be upheld by the judge. Therefore, the DRC judge concluded that the Respondent had no just cause to unilaterally terminate the contract with the Claimant on 21 December 2009. 20. Having established the above, the DRC judge turned his attention to the question of the consequences of the unilateral termination of the employment contract by the Respondent without just cause on 21 December 2009. 21. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive compensation from the Respondent for the termination of the employment contract without just cause. 22. The judge 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 DRC judge held that he first of all had to clarify as to whether the pertinent 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. The judge assured himself that no such compensation clause was included in the contract at the basis of the matter at stake. 24. As a consequence, DRC judge 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 judge 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 DRC judge emphasised beforehand that each request for compensation for contractual breach has to be assessed by the judge 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 DRC judge first turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the judge to be essential. The judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC judge to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 26. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the employment contract and concluded that the Claimant would have received in total EUR 12,000 as remuneration had the contract been executed until its expiry date, i.e. 6 x EUR 2,000 for the period from December 2009 until May 2010. 27. With regard to the Claimant’s claim relating to the accommodation costs as well as the electricity and water costs from December 2009 until May 2010, the DRC judge stressed that as per art. 12 par. 3 of the Procedural Rules “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. In this context, the DRC judge noted that the Claimant failed to provide any proof of such expenses, that they were most likely linked to a future and uncertain event and, therefore, were fully hypothetical. Consequently, the judge decided to reject such claim. 28. The DRC judge then took due note of the employment situation of the Claimant after the termination of the contract with the Respondent and of the relevant new employment contract that he had entered into. It was duly noted that, on 22 January 2010, the Claimant and the country M club, Club H signed an employment contract valid “for the rest of the Season 2009/2010”, in accordance with which the Claimant was to receive a monthly gross salary of EUR 1,000 as well as an allowance of EUR 700, totalling EUR 6,800 for the period of 22 January 2010 until 31 May 2010. 29. Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player 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. 30. In conclusion, the judge decided that the claim of the Claimant is partially accepted and that the Respondent is to be held liable to pay compensation for breach of contract in the amount of EUR 5,200 to the Claimant as well as 5% interest p.a. on said amounts as from 9 March 2010 until the date of effective payment. 31. The DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player L, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club O, is ordered to pay to the Claimant compensation for breach of contract in the amount of EUR 5,200 plus 5% interest p.a. as from 9 March 2010 until the date of effective payment, within 30 days as from the date of notification of this decision. 4. In the event that the amount due to the Claimant in accordance with the abovementioned number 3. plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claims lodged by the Claimant are rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge of every payment received. ***** Note relating to the motivated decision (legal remedy): According to 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 DRC judge Markus Kattner Deputy Secretary General Encl. CAS directives