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 25 April 2014, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member Ivan Gazidis (England), member Alejandro Marón (Argentina), member on the claim presented by the player, Player B, from country I as Claimant against the club, Club O, from country G 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 25 April 2014, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member Ivan Gazidis (England), member Alejandro Marón (Argentina), member on the claim presented by the player, Player B, from country I as Claimant against the club, Club O, from country G as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 20 January 2011, Player B, from country I (hereinafter: player or Claimant) and Club O, from country G (hereinafter: club or Respondent), signed an employment contract valid as from the date of signature until 31 December 2013 (hereinafter: superleague contract). 2. In accordance with the superleague contract, the player was entitled to receive inter alia the amount of EUR 58,460 in 15 instalments as follows: a. During the 2010-11 season: EUR 2,500 on 28 February 2011; EUR 2,500 on 30 April 2011; EUR 2,500 on 30 May 2011 b. During the 2011-12 and 2012-13 seasons: First instalment of EUR 2,500 on 30 September 2011; Further 11 unequal instalments until 30 November 2013 totalling EUR 48,460. 3. On 14 January 2011, the parties signed a “private agreement” (hereinafter: private agreement), which refers to a “standard contract” of three years duration until 31 December 2013. 4. Art. 9 of the private agreement states that it is considered a part of the player’s contract with the club, “to which it is annexed”. 5. According to art. 6 of the private agreement, “both parties agree that the club during the course of the contract has the right to summons the player under the conditions provided by law in order to proceed to the termination of their contract by paying the amounts due to the player until the day of the termination of the contract as well as the amount of his monthly salary as compensation.” 6. Furthermore, according to the private agreement, the player would receive from the club inter alia the following monies: a. For the first year the amount of EUR 113,000 as follows: EUR 25,000 according to the “professional contract of Superleague”; EUR 18,000 with the signature of the contract; EUR 70,000 in 5 equal instalments of EUR 14,000 each on 28 February, 30 April, 30 May, 30 September, and 30 November 2011. b. For the second year the amount of EUR 145,000 as follows: EUR 30,000 according to the “professional contract of Superleague”; EUR 115,000 in 5 equal instalments of EUR 23,000 each on 30 January, 30 March, 30 May, 30 September, and 30 November 2012. c. For the third year the amount of EUR 200,000 as follows: EUR 40,000 according to the “professional contract of Superleague”; EUR 160,000 in 5 equal instalments of EUR 32,000 each on 30 January, 30 March, 30 May, 30 September, and 30 November 2013. d. In addition the player would receive a bonus of EUR 10,000 in the event of the club’s qualification to the Europa League. 7. On 15 August 2011, the player lodged a claim against the club in front of FIFA maintaining that the club terminated the employment contract on 2 May 2011 without just cause and that, therefore, the club is to be held liable to pay the following monies: a. EUR 43,000 as outstanding salaries (instalments of 30 April and 30 May 2011 in accordance with both the superleague contract and the private agreement plus the EUR 10,000 Europa League bonus in accordance with the private agreement); b. 5% interest p.a. as of the relevant due dates of the outstanding amounts; c. EUR 423,960 as compensation for breach of contract (EUR 50,960 as from the 30 September 2011 instalment on the basis of the superleague contract and EUR 373,000 on the basis of the private agreement [remaining EUR 28,000 for the first year and the full contractual amounts for the second and third year]); d. 5% interest as of 30 May 2011 on the amount of compensation; e. EUR 100,000 for moral damages; f. EUR 20,000 for legal expenses 8. In addition, the player asks that sporting sanctions be imposed on the club. 9. The player explains that since early April 2011, the club started to demonstrate its wish to terminate the contract, since it seemed to be no longer interested in his services. 10. According to the player, the club started to falsely accuse him of wrong behaviour with the only intention to unilaterally terminate the contract at the player’s fault. 11. In this respect, the player presented a copy of an “extrajudicial statement” from the club, dated 29 April 2011, in which it refers to both the superleague contract and the private agreement and points out that the player’s behaviour had been in breach of his obligations by showing an unprofessional behaviour and being absent from training without permission. The player was invited to defend himself in a meeting with the club on 2 May 2011. 12. The player denies the contents of such statement and asserts that he always behaved professionally and never was absent. According to the player, at some point the club excluded him from the squad and he was not allowed to train with the team. 13. In addition, according to the player, the club ceased the payment of his remuneration as of April 2011. 14. The player asserts that during the meeting with the club on 2 May 2011, the club director never made any reference to his alleged misbehaviour, but instead told him that the club’s coach no longer wanted him to be part of the team. 15. The player added that the club’s minutes of this meeting are erroneous and invented with the purpose to protect the club’s interests. 16. On 3 May 2011, the player protested in writing against the contents of the club’s aforementioned notification dated 29 April 2011 and he referred to the meeting held with the club the day before. He further indicated that he wished to continue the employment relation with the club and asked the latter to clarify its position, pointing out that if the club effectively was no longer interested in his services, he would accept to discuss the financial basis of the contract termination. 17. In spite of having been invited to do so, the club has not responded to the player’s claim. 18. The player informed FIFA that after the termination of his contract with the club he signed the following new employment contracts: a. On 11 July 2011 with Club E, from country B, valid as from 11 July 2011 until 20 May 2012, earning the total amount of currency of country B 11,000; b. On 3 July 2012 with Club C, from country K, entitling him to receive the total amount of USD 88,000 until 31 May 2013. 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 15 August 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 is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country I player and a country G club. 3. Furthermore, 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 15 August 2011, the 2010 edition of said regulations (hereinafter: 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, 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. 5. The Chamber, first and foremost, acknowledged that the parties were contractually bound by a standard “superleague” contract as well as by an additional “private agreement” both valid as from January 2011 until 31 December 2013 (hereinafter together referred to as “contracts”). 6. The members of the Chamber then reviewed the claim of the Claimant, who maintains that the Respondent unilaterally terminated the contracts on 2 May 2011 invoking disciplinary reasons, which, apart from being refuted by him, according to the Claimant, do not constitute a just cause. Consequently, the Claimant asks to be awarded, inter alia, payment of outstanding remuneration as well as compensation for breach of contract based on the contracts. 7. Subsequently, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC concurred that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant. 8. Furthermore, as a consequence of the aforementioned consideration, the members of the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, the Chamber shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant. 9. On account of the above, the Chamber highlighted that the underlying issue in this dispute was to determine as to whether the contracts had been unilaterally terminated with or without just cause by the Respondent. The Chamber also underlined that, subsequently, if it were found that the contracts were terminated without just cause, it would be necessary to determine the consequences thereof. 10. Having said that, the Chamber turned its attention to the documentation presented by the Claimant in support of his claim, in particular, the “extrajudicial statement” dated 29 April 2011 and the minutes of the club’s board meeting held on 2 May 2011. 11. According to said minutes, the Claimant was deemed to have been absent from training since 25 April 2011 without justification or the club’s authorisation and he was deemed to have offended the coach, his team mates and the club. Therefore, on 2 May 2011, the Respondent decided to terminate the contracts at the player’s fault. 12. In addition, the members of the Chamber noted that the Claimant refuted the Respondent’s allegations as regards his conduct outlined in the aforementioned documentation. The Claimant, for his part, maintains that he always behaved professionally and never was absent. He further stresses that the club excluded him from the squad and that he was not allowed to train with the team. 13. At this point, the Chamber highlighted that there was no documentation on file corroborating the alleged conduct of the Claimant as described in the “extrajudicial statement” dated 29 April 2011 and the minutes of the club’s board meeting held on 2 May 2011. 14. However, even if such alleged behaviour would have been duly corroborated with documentary evidence, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 15. In view of the above, the Chamber was of the opinion that the Respondent did not have just cause to prematurely terminate the contracts with the Claimant on 2 May 2011, since there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine), in order to sanction the alleged misconduct, which is at the basis of the termination of the contracts by the Respondent. 16. Overall, on the basis of the documentation on file, the Chamber decided that the Respondent had terminated the contracts without just cause on 2 May 2011. 17. 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 contracts were terminated by the Respondent. 18. In this regard, the members of the Chamber recalled that the Claimant’s claim related to outstanding remuneration, as well as compensation for breach of contract, is based on both the superleague contract and the private agreement. The Chamber, however, concurred that the private agreement includes the amounts set out in the superleague contract. Consequently, the members of the Chamber agreed that only the amounts included in the private agreement shall be taken into consideration in respect of the financial aspect of the present matter. 19. Having said that, taking into consideration a) the Claimant’s financial claim based on the private agreement, b) the fact that such claim has remained uncontested by the Respondent, and c) that the contracts were terminated by the Respondent on 2 May 2011, the Chamber decided that, in virtue of the principle pacta sunt servanda the Respondent is liable to pay to the Claimant the amount of EUR 14,000 that fell due on 30 April 2011 in accordance with the private agreement. 20. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 14,000 as of the day following the day on which said instalment fell due. 21. Furthermore, in the absence of any documentary evidence demonstrating that the contractual condition related to Claimant’s entitlement to the Europa League bonus in accordance with the private agreement was fulfilled (cf. art. 12 par. 3 of the Procedural Rules), i.e. the club’s qualification to the Europa League, the Chamber decided to reject the Claimant’s claim relating to said Europa League bonus. 22. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the contracts by the Respondent without just cause on 2 May 2011. 23. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation from the Respondent for the termination of the contracts without just cause in addition to the aforementioned outstanding remuneration on the basis of the private agreement. 24. 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. 25. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contracts 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. The members of the Chamber recalled that according to art. 6 of the private agreement, “both parties agree that the club during the course of the contract has the right to summons the player under the conditions provided by law in order to proceed to the termination of their contract by paying the amounts due to the player until the day of the termination of the contract as well as the amount of his monthly salary as compensation.” 26. The members of the Chamber agreed that this clause is to the benefit of the club only, i.e. it is not reciprocal as it does not grant the same rights to the player, and that, therefore, said clause cannot be taken into consideration in the determination of the amount of compensation. 27. 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. 28. 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 contract 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. 29. Bearing in mind the consideration under point II./18. above, on the basis of the private agreement signed by the Claimant and the Respondent, which was to run for 2,5 years more, i.e. until 31 December 2013, after the breach of contract occurred, the Chamber concluded that the amount of EUR 387,000 (EUR 42,000 for 2011 and EUR 345,000 for 2012 and 2013) serves as the basis for the final determination of the amount of compensation for breach of contract. 30. 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. 31. It was duly noted that, on 11 July 2011, the Claimant signed an employment contract with the Club E, from country B, valid as from 11 July 2011 until 20 May 2012, in accordance with which he earned the total amount of currency of country B 11,000. Thereafter, on 3 July 2012, the Claimant signed on with Club C, from country K, entitling him to receive the total amount of USD 88,000 until 31 May 2013. It was further noted, also taking into consideration the information contained in the Transfer Matching System (TMS), that the Claimant had not found other employment subsequent to his contract with said Chinese team, in spite of a registration period having been open in summer 2013, on the occasion of which he could have further mitigated his damages. 32. However, the Chamber took into account that the Respondent had not replied to the claim or made any statements at all during the investigation into the present case. 33. 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 the amount of EUR 310,000 as compensation for breach of contract to the Claimant. 34. 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. 15 August 2011, until the date of effective payment. 35. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of EUR 100,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 36. In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses. 37. 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 partially accepted. 2. The Respondent, Club O, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount EUR 14,000 plus interest at the rate of 5% p.a. as of 1 May 2011 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 EUR 310,000 plus interest at the rate of 5% p.a. as of 15 August 2011 until the date of effective payment. 4. In the event that the amounts due to the Claimant 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 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: Jérôme Valcke Secretary General Encl. CAS directives