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 K, from country T as Claimant against the club, Club P, 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 (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 K, from country T as Claimant against the club, Club P, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 1 June 2008, Player K, from country T (hereinafter: the player or the Claimant), and Club P, from country C (hereinafter: the club or the Respondent), concluded an employment contract (hereinafter: the contract) valid as from 1 August 2008 until 31 May 2009. 2. In accordance with art. 3 of the contract, the Claimant was entitled to a total remuneration of EUR 50,000 net, payable as follows: - 10 monthly salary payments of EUR 4,000 each, which should be payable no later than the last day of every month, starting on 31 August 2008 and ending on 31 May 2009; - EUR 10,000 payable “on or before 15 July 2008”. 3. Furthermore, art. 7 of the contract establishes that: “If the payment of the Player’s remuneration hereunder is late by 90 (ninety) days or more for any reason, then this shall be treated as a unilateral breach of contract without just cause as specified under the FIFA Regulations and the Player shall have the right to receive compensation from the Club and to terminate this Agreement and to be employed by any other football club with immediate effect.” 4. On 30 April 2009, the Claimant lodged a claim against the Respondent in front of FIFA contending that he lawfully terminated the contract on 10 April 2009, due to the Respondent’s failure to pay him EUR 12,000 corresponding to the salaries from January to March 2009. 5. As a result, the Claimant requested the payment of: a) EUR 12,000 as outstanding remuneration; b) EUR 8,000 as compensation for breach of contract and, c) legal expenses. 6. In its reply to the claim, the Respondent argued that the contract was terminated due to the unprofessional behaviour of the Claimant as he could not provide his services during a match that was deemed “critical” by the club (and took place on 21 March, 2009) since he had been detained for driving under the influence of alcohol on 19 March 2009. In this respect, the Respondent provided a copy of a police report dated 3 September 2009, which indicated that the Claimant was charged for driving under the influence of alcohol on 19 March 2009. Furthermore, the Respondent claimed that this attitude was in contravention of its “Internal Rules”, which provided that: - art. 6: “All Players must behave properly both during training and also during their personal lives. In the event of any fighting during training or any misbehaviour outside the field which is reported by the police authorities the club will immediately terminate the contract of employment and/or fine the player with a fine not exceeding one month salary.” - art. 11: “In the event that a player wishes to go out in the night after 12 o’clock he can do so only after having the prior express permission of the coach. Failure to obtain such permission will result to a penalty not exceeding 50% of the player’s monthly salary. Consecutive infringements of this clause might result in the club terminating the contract of employment of the player.” 7. Taking into account the misbehaviour of the Claimant, and the aforementioned provisions, the Respondent alleged that it imposed fines on the Claimant as follows: - For the violation of art. 6 of the Internal Rules: EUR 4,000 - For the violation of art. 11 of the Internal Rules: EUR 2,000 8. Furthermore, the Respondent claimed that the Claimant breached the contract as only in the event that his salary was not paid for 90 days, he would have the right to terminate the contract. However, according to the Respondent, this did not happen as the Claimant terminated the contract on 10 April 2009. Additionally, the Respondent claimed that by considering the fines imposed on the Claimant, the salary was actually delayed for only 26 days. 9. In his replica, the Claimant claimed that as to his driving under influence, the police did not proceed with the criminal prosecution. Furthermore, the Claimant argued that he never signed the “Internal Rules” and that these were sent from the e-mail of an unknown sender. Finally, the Claimant asserted that the Respondent did not have the right to deduct any amount from his salary by concept of a fine. 10. Although having been invited to provide its final position in the present matter, the Respondent did not provide any final comments. 11. Upon request of FIFA regarding the Claimant’s contractual situation between April and 31 May 2009, the Claimant stated that he did not enter into any contractual relationship from April to 31 May 2009. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 30 April 2009. Consequently, the DRC judge concluded that 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 of the 2008 and 2012 editions of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a country T player and a country C club. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate on the present dispute which value does not exceed currency of country H 100,000. 4. Furthermore, 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2008, 2009, 2010 and 2012) and considering that the present claim was lodged in front of FIFA on 30 April 2009, the 2008 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. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts of the case as well as the documentation contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 6. In this respect, the DRC judge acknowledged that the parties to the dispute had signed an employment contract on 1 June 2008 valid as from 1 August 2008 until 31 May 2009, in accordance with which the Claimant was entitled to receive the total amount of EUR 50,000. 7. Turning to the claim of the Claimant, the DRC judge observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of EUR 20,000, asserting that the Respondent had not complied with its contractual obligations towards him and, therefore, he had terminated the contract in writing on 10 April 2009. Equally, the DRC judge acknowledged that the Claimant requested legal expenses. 8. Likewise, the DRC judge observed that the Respondent held that the Claimant was fined twice for his misbehavior in the total amount of EUR 6,000 and that it was therefore the Claimant who breached the contract, since the latter could only terminate the contract in the event that his salary was not paid for 90 days. Furthermore, the Respondent asserted that the contract was terminated due to the Claimant’s alleged unprofessional behaviour as he could not provide his services during a match that was deemed “critical” by the Respondent. 9. In relation to the statements made by the Respondent, the DRC judge recalled the basic principle of the 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. 10. In this context, the DRC judge observed that the Respondent did not provide any documentation that supported its allegations that the Claimant had been fined with the total amount of EUR 6,000. In particular, the DRC judge emphasised that the Respondent had not provided the relevant fines allegedly imposed on the Claimant. 11. Consequently, the DRC judge considered that the Respondent had not substantiated its defence, as it did not present the necessary documentary evidence which could adduce that the Claimant was indeed fined and, as a consequence, the DRC judge decided not to take into consideration these allegations of the Claimant. 12. On account of the above, the DRC judge decided that it could be established that the Respondent had failed to pay the Claimant his salaries for January, February and March 2009. 13. Furthermore, the DRC judge wished to clarify that the Respondent’s argument that the contract was terminated due to the Claimant’s misbehaviour was not supported by any documentary evidence. In fact, the DRC judge noted that it was the Claimant who had terminated the contract on 10 April 2009 and not the Respondent. 14. As a result and considering that at the time of the termination the Respondent had failed to remunerate the Claimant for a substantial period of time, the DRC judge determined that the Claimant had just cause to unilaterally terminate the employment contract on 10 April 2009 and that, consequently, the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant. 5. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 16. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge 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 12,000. 17. In continuation, the DRC judge 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. 18. In this context, the DRC judge 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. 19. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 20. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge 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 DRC judge took into account that at the time of the termination of the employment contract, the contract would run for another two months. Consequently, the DRC judge concluded that the remaining value of the contract as from its early termination until the regular expiry of the contract amounts to EUR 8,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 21. In continuation, the DRC judge recalled that the Claimant had not found any new employment with another club in the period between April 2009 and 31 May 2009. 22. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR 8,000 to the Claimant as compensation for breach of contract. 23. As a consequence, the DRC judge decided that the Respondent is liable to pay the total amount of EUR 20,000 to the Claimant, consisting of the amount of EUR 12,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract and the amount of EUR 8,000 corresponding to compensation for breach of contract. 24. Furthermore, the DRC judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules. 25. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player K, is partially accepted. 2. The Respondent, Club P, has to pay to the Claimant outstanding remuneration in the amount of EUR 12,000, within 30 days as from the date of notification of this decision. 3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 8,000, within 30 days as from the date of notification of this decision. 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, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and 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 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 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 DRC judge: Jérôme Valcke Secretary General Encl. CAS directives