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 28 March 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theodore Giannikos (Greece), member Mario Gallavotti (Italy), member Jon Newman (USA), member Eirik Monsen (Norway), member on the claim presented by the player, Player B, from country F 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 28 March 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theodore Giannikos (Greece), member Mario Gallavotti (Italy), member Jon Newman (USA), member Eirik Monsen (Norway), member on the claim presented by the player, Player B, from country F 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 8 of August 2009, Player B, from country F (hereinafter: the player or Claimant) and Club A (hereinafter: the club or Respondent), concluded an employment contract (hereinafter: the contract) valid as from the date the ITC is received until 31 May 2012. 2. In accordance with the contract, the player was entitled to receive for the season 2011/2012 the amount of EUR 35,000 payable in ten equal installments of EUR 3,500 each, the first payable on 30 August 2011. Equally, the contract established that the club undertakes to provide the player with accommodation. 3. On 16 May 2012, the player and the club signed a second employment contract (hereinafter: the second contract) valid as from 1 July 2012 until 31 May 2014. During each season the player would receive a total amount of EUR 15,000 payable in ten equal installments of EUR 1,500 each the first payable on 30 August 2012, respectively on 30 August 2013. 4. Clause 17 states: “ Both parties to the present agreement recognize, accept and agree that any dispute that might arise between the parties according to the present agreement will be resolved only by the relevant adjudicatory bodies and or dispute resolution bodies of the country C Football Association and or by Courts established within the jurisdiction of the Republic of country C and by no other national or international body or association or arbitrary body or court”. 5. On 16 May 2012, the player and the club signed an image right contract (hereinafter: the image right contract) valid for the season 2012/2013 and 2013/2014. According to the image rights contract the club shall pay to the player additionally to his agreed salary as per the second contract dated 16 May 2012, the following amounts for his image right: a) For the first employment period season 2012/2013: EUR 25,000 payable in ten equal installments of EUR 2,500 each the first payable on 30 August 2012. b) For the second employment period season 2013/2014: EUR 35,000 payable in ten equal installments of EUR 3,500 each the first payable on 30 August 2013. 6. Clause 7 states: “Both parties to the present agreement recognize, accept and agree that any dispute that might arise between the parties according to the present agreement will be resolved only by the relevant adjudicatory bodies and or dispute resolution bodies of the country C Football Association and or by Courts established within the jurisdiction of the Republic of country C and by no other national or international body or association or arbitrary body or court”. 7. Clause 3 provides as other benefits: a vehicle and accommodation. 8. On 20 February 2013, the player lodged a claim before FIFA against the club indicating that the club had not paid him the salaries for the season 2011/2012 for the total amount of EUR 35,000 in accordance with the contract. 9. Moreover, the player provided a copy of a letter dated 10 July 2012 by means of which the club notified him that the Committee of the club had decided that he did not fit to the plans of the team management for the season 2012/2013 and he was requested by the club to not attend the trainings and he was free to negotiate his loan transfer to a third club. 10. As a result, the player terminated the employment contract in writing on 29 August 2012 due to the club’s breach of essential terms of both contracts dated 16 May 2012. Moreover, the player underlined that the amount of EUR 35,000 based on the contract dated 8 August 2009 was still outstanding. 11. In view of all of the above, the player claims the outstanding amount of EUR 35,000 for the period 2011/2012, the amount of EUR 210 for accommodation during 20 July 2012 until 26 July 2012, compensation for the loss of income in the amount of EUR 90,000, total value of both contracts dated 16 May 2012, as well as interest and legal fees. 12. On 10 April 2013, the club informed FIFA that it had signed an employment contract on 16 May 2012 as well as an image rights contract on 16 May 2012. Moreover the club referred to the preamble of the aforementioned employment contract which stipulates that: “This agreement is VALID if and only: b) After medical and health examinations (including x-rays, blood test etc) by the employer’s physicians and found no problems and in good physical condition. c) The parties agree that if any of the above occurs then the present contract is null and void and it does not create any obligations for either party and or they are not liable to pay any damages to each other” 13. It is the opinion of the club that since the player had failed to reach the expected level of fitness required by the coach, the contracts became null and void. Moreover, the club alleges that it has fulfilled all its obligations towards the player and that no money is owed to him. 14. Finally, the club contested the competence of FIFA explaining that the national sports bodies in country C are competent. Alternatively, FIFA would only have jurisdiction over the employment related dispute, but not to any dispute regarding the image rights agreement. 15. Although having been asked by FIFA, the club did not provide any documents in connection with the alleged competence of the national body. 16. The player insisted that FIFA is competent and upon request informed that he has not been able to sign any new employment contract with any other club. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 20 February 2013. Consequently, the Chamber concluded that the Procedural Rules (edition 2012) are applicable to the matter at hand. 2. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber 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 F player and a country C club. 3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA explaining that the national sports arbitration bodies of country C are competent. Alternatively, FIFA would only have jurisdiction over the employment related dispute, but not over any dispute regarding the image rights agreement. 4. In this regard, the Chamber noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 5. While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contracts at the basis of the present dispute actually contained a clear jurisdiction clause towards another decision-making body. 6. In this respect, the Chamber deemed it of utmost importance to highlight that the contract signed between parties on 8 August 2009 does not contain any jurisdiction clause at all. 7. Furthermore, the members of the Chamber observed that clause 17 of the second contract dated 16 May 2012 does not contain a clear reference granting jurisdiction to any national dispute resolution chamber of country C. In particular, such clause does not refer to a specific national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 8. In view of the aforementioned, the competence of Chamber is confirmed with regard to the contract and second contract and the claim is admissible in this part. 9. Furthermore, the Chamber took due note that the parties also signed a third contract on 16 May 2012, bearing the title “image rights” contract and that the Respondent contested the competence of FIFA. 10. First, of the Chamber observed that clause 7 of the third contract dated 16 May 2012 does not refer to a specific national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 11. Furthermore, the Chamber emphasised that the third contract is valid for the same period of time as the second contract. It provides for remuneration to be paid to the player in the same modality as the second contract i.e. ten monthly instalments due at the end of each month and also establishes the obligation of the club to provide the player with a car and accommodation. 12. In this respect, the Chamber referred to its jurisprudence according to which when an agreement bearing the title “image rights agreement” also includes typical elements of an employment contract, this agreement is considered as part of the employment contract. In view of all of the above, in the present case, the Chamber considers the third contract as part of the employment contract and the claim is also admissible in this regard. 13. Finally, and for the sake of completeness, the members of the Chamber also underlined that the Respondent did not provide any documentary evidence to support its allegations in relation to the competence question. 14. Subsequently, 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. 15. In this respect, the Chamber 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, 2009 and 2008) and, on the other hand, to the fact that the present claim was lodged on 20 February 2013. The Dispute Resolution Chamber concluded that the 2012 version of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 16. The competence of the Chamber and the applicable regulations having been established, 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. 17. In this respect, the Chamber recalled that the Claimant and the Respondent, on 8 of August 2009, signed an employment contract valid until 31 May 2012, in accordance with which the Claimant was entitled to receive for the season 2011/2012 the amount of EUR 35,000. Furthermore, the Chamber noted that the parties extended the contractual relation until 31 May 2014 by signing the second and third contract on 16 May 2012. In this respect, the Chamber recalled that the Claimant was entitled to receive during each season a total amount of EUR 15,000 payable in ten equal instalments of EUR 1,500 each the first payable on 30 August 2012, respectively on 30 August 2013, based on the second contract. And based on the third contract for the season 2012/2013 the amount EUR 25,000 payable in ten equal instalments of EUR 2,500 each the first payable on 30 August 2012 and for the season 2013/2014 the amount of EUR 35,000 payable in ten equal instalments of EUR 3,500 the first payable on 30 August 2013. 18. The members of the DRC then turned to the claim of the player, who maintained that the Respondent failed to pay him for the season 2011/2012 the total amount of EUR 35,000 in accordance with the contract and that the club notified him that he did not fit to the plans of the team management for the season 2012/2013 and failed to fulfil essential terms of both contracts dated 16 May 2012.Consequently, the Claimant asked that the Respondent be instructed to pay the outstanding amount of EUR 35,000 for the period 2011/2012, the amount of EUR 210 for accommodation during 20 July 2012 until 26 July 2012, compensation for the loss of income in the amount of EUR 90,000, total value of both contracts dated 16 May 2012, as well as interest and legal fees. 19. On the other hand, the Chamber noted that the Respondent, for its part, referred to the preamble of the contract dated 16 May 2012 and is of the opinion that since the player had failed to reach the expected level of fitness required by the coach, the contracts became null and void. Moreover, the club alleges that it has fulfilled all its obligations towards the player and that no money is owed to him. 20. In continuation, the Chamber took due note that on 29 August 2012, the player terminated the contract in writing, invoking the existence of outstanding remuneration for the season 2011/2012 and the fact that on 10 July 2012 he was informed by club that he was free to leave the club. 21. Moreover, the Chamber emphasizes, while considering the Respondent’s answer to the claim that as a general rule, an alleged underperformance or health condition of a player can be no valid reason to cease the payment of a player’s remuneration and even less so to terminate an employment contract. 22. As regard to the Respondent’s allegation that it has fulfilled all its obligations towards the player and that no money is owed to him, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 23. According to this, the Chamber noted that the Respondent did not substantiate its defence, as it did not present any evidence at all to support its allegations. 24. In view of the above, the Chamber concluded that the Respondent has failed to fulfil its contractual obligation since the beginning of the season 2011/2012, consequently, and due to the Respondent’s persistent and unjustified non-compliance of its contractual obligations the Chamber unanimously concluded that the Claimant had a just cause to terminate the contract on 29 August 2012 and the Respondent is to be held liable for the premature termination of the contractual relation. 25. Having established that the Respondent is to be held liable for the early termination of the employment relation with just cause by the Claimant, the Chamber focussed 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 an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract. 26. Taking into account all the documentation on file the DRC concluded that although the Claimant had fulfilled his contractual obligations until the early termination, the Respondent had failed to remit to the Claimant the remuneration in the amount of EUR 35,000. Consequently, the DRC decided that the Respondent, in virtue of the general legal principle of “pacta sunt servanda”, is liable to pay the total amount of EUR 35,000 plus 5% as from 20 February 2013 to the Claimant. 27. 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 determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in accordance with art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 28. The members of the Chamber then 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 in the calculation of the amount of compensation. 29. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the guaranteed remuneration payable to the player under the terms of the second and third contract as from its date of early termination i.e. 29 August 2012, until 31 May 2014, and concluded that the Claimant would have received in total the amount of EUR 90,000 as remuneration had the contracts been executed until its expiry date. 30. Moreover, the members of the Chamber noted that the Claimant had not signed any new employment contract within the period of time between the early termination of the contract and its original date of expiry. 31. 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 to the Claimant the amount of EUR 90,000 as compensation for breach of contract in the case at hand. 32. 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. 20 February 2013, until the date of effective payment. 33. 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. 34. 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 B, 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, outstanding remuneration in the amount of EUR 35,000 plus 5% interest p.a. as from 20 February 2013 until the date of effective payment. 4. 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 90,000 plus 5% interest p.a. as from 20 February 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 3. and 4. 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. 6. Any further claim lodged by the Claimant is rejected. 7. 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 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