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 A, from country B as Claimant against the club, Club M, from country U 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 A, from country B as Claimant against the club, Club M, from country U as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 15 June 2010, the player from country B, Player A (hereinafter: player or Claimant) signed an employment contract with the country U club, Club M (hereinafter: club or Respondent) valid as of 1 July 2010 until 30 June 2013 (hereinafter: contract). 2. According to art. 4 of the contract, the player was paid wages which consist of “official salary … in accordance to the manning table of the football team in currency of country U”. In addition, the player was entitled to receive from the club “different payments, premiums, fringe benefits and other remunerations”. 3. In addition, on 15 June 2010, the player and the club signed an “Agreement about disciplinary sanctions and bonuses” (hereinafter: agreement). 4. In accordance with articles 2.1 to 2.3 of the agreement, the player was entitled to receive, as of 1 July 2010 until 30 June 2013, inter alia a yearly salary of EUR 60,000 for the period starting on 1 July 2010 until 30 June 2011; a further EUR 84,000 for the period starting on 1 July 2011 until 30 June 2012; and EUR 120,000 for the final period starting on 1 July 2012 until 30 June 2013. 5. On 7 November 2011, the player lodged a claim against the club in front of FIFA asking that it be established that the club terminated the contract without just cause and that he be awarded the total amount of EUR 264,000 corresponding to the remuneration for the full duration of the contract. 6. The player claims that he was brought to the club’s pre-season training camp shortly after having entered into the contract, where, upon arrival, he was expelled from training without any explanation. 7. Apart from the contract and the agreement, the player submitted a press release allegedly published on the Club M website dated 17 June 2010 stating “we signed the contract with Player A according to the scheme 3+2 (…)”. 8. In support of his claim, the player submitted a faxed letter from the club addressed to his former club, dated 13 July 2010. In this letter, the club informs the player’s former club that the state of the player’s health, according to previous medical examinations, was not satisfactory, and urges the former club to sign a cancellation proposal dated 3 July 2010. 9. The player further submitted said proposal made by the club, signed only by the club on 3 July 2010, for the cancellation of inter alia the contract and the agreement binding the club and the player. 10. In spite of having been invited to do so, the club has not responded to the player’s claim. 11. The player informed FIFA that he signed a new employment contract, on 1 December 2010, with the club, Club Z (Country B) valid until 31 January 2014, in accordance with which the player was to receive the annual amount of currency of country B 25,000 payable as follows: i. “first instalment in amount of 12,500 currency of country B immediately after signing of the contract, and second instalment in the amount of 12,500 currency of country B on completion of the autumn part of the 2011/12 competitive season”. The second instalment is payable only if the player regularly participates in training and in 70% of the official matches; ii. “Financial and all other conditions for the remaining period of the contract duration are identical to the conditions for the first year of duration.” 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 7 November 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 a player from country B and a co U 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 7 November 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 members of the Chamber acknowledged that the Claimant and the Respondent signed an employment contract and an “Agreement about disciplinary sanctions and bonuses” valid as from 1 July 2010 until 30 June 2013. 6. The Chamber then reviewed the claim of the Claimant, who maintains that the Respondent terminated the employment contract and the agreement without just cause and, consequently, the Claimant asks to be awarded compensation for breach of contract in the amount of EUR 264,000 corresponding to the total value of the employment contract and the agreement. 7. According to the Claimant, the Respondent expelled him from training shortly after the contract and agreement had been signed. 8. The Chamber further noted from the documentation presented by the Claimant that the Respondent had proposed the player’s former club to enter into a tripartite cancellation agreement with the purpose to cancel the effects of the transfer contract as well as of the employment contract and of the agreement relating to transfer and employment of the Claimant, respectively. It was further taken into account that according to the Respondent’s correspondence dated 13 July 2010 addressed to the player’s former club, the Respondent wished to cancel said contracts due to the player’s alleged unsatisfactory state of health. 9. In continuation, the members of the Chamber highlighted that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant. 10. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant. 11. Having said this, on account of the aforementioned considerations, the members of the Chamber concurred that the Respondent, shortly after having entered into the employment contract and the agreement with the Claimant, obviously was no longer interested in the player’s services, due to his alleged unsatisfactory state of health. As a result, although the employment contract and the agreement were fully valid and enforceable, the execution thereof had actually never started at the club’s fault. 12. For the sake of completeness, bearing in mind the contents of the Respondent’s aforementioned correspondence dated 13 July 2010, the Chamber wished to emphasize that on the basis of art. 18 par. 4 of the Regulations and the Chamber’s respective jurisprudence, a club wishing to employ a player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract with a player. 13. In addition, the Chamber highlighted that an injury or health condition of a player can be no valid reason to terminate an employment contract. 14. All of the above led the Chamber to conclude that the Respondent was liable for the failure to execute the terms, i.e. the breach, of the employment contract and the agreement without just cause shortly after the signature thereof. 15. Having established that the Respondent is to be held liable for the breach of the employment contract and the agreement without just cause, the Chamber focussed its attention on the consequences thereof. In this regard, the members of the Chamber determined that the Respondent was liable to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 16. The Chamber then turned its attention to the calculation of the amount of compensation to be paid by the Respondent for the non-execution, i.e. the breach, of the employment contract and the agreement. In doing so, 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. 17. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract and/or agreement 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 employment contract or agreement at the basis of the matter at stake. 18. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract and the agreement and concluded that the Claimant would have received the total remuneration of EUR 264,000 had the contract and the agreement been executed as from the starting date until the date of expiry, i.e. as from 1 July 2010 until 30 June 2013. This amount serves as the basis for the final determination of the amount of compensation. 19. 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 Dispute Resolution Chamber, 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. 20. On 1 December 2010, the Claimant signed an employment contract with the club, Club Z (country B) valid until 31 January 2014, in accordance with which the player was to receive remuneration to the approximate amount of EUR 32,000 for the period of time between 1 December 2010 and 30 June 2013. Consequently, the Claimant had been able to mitigate damages with the amount of EUR 32,000. 21. In continuation, the Chamber also considered it important to point out that, although the employment contract and agreement were fully valid and enforceable, the execution of the contract and the agreement actually never started, an element which equally should be taken into consideration in the calculation of the amount of compensation. 22. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, in particular, the circumstance that the execution of the employment contract and the agreement had never started, the Chamber decided that the Respondent must pay the amount of EUR 80,000 as compensation for breach of contract to the Claimant. 23. The DRC then turned its attention to the question of the possible imposition of sporting sanctions on the Respondent in accordance with art. 17 par. 4 of the Regulations. According to the said provision, sporting sanctions shall be imposed on any club found to be in breach of contract during the protected period, in addition to the obligation to pay compensation. This sanction shall be a ban from registering any new players, either nationally or internationally, for two registration periods. 24. In this context, the members of the Chamber stated that as elaborated above, the Respondent had been found in breach of contract. Furthermore, the Chamber pointed out that the breach, consisting of the Respondent’s failure to execute the contractual terms shortly after the signature of the relevant contracts, undoubtedly occurred during the protected period. 25. Indeed, item 7. of the “Definitions” section of the Regulations stipulates inter alia that the protected period comprises “three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. 26. The Respondent having clearly acted in breach of contract without just cause within the protected period, the Chamber decided that by virtue of art. 17 par. 4 of the Regulations, the Respondent shall be sanctioned with a ban on registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 27. The Dispute Resolution Chamber concluded its deliberations in the present matter by rejecting any further request filed by the Claimant. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club M, has to pay compensation for breach of contract in the amount of EUR 80,000 to the Claimant within 30 days of notification of the present decision. 3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further claim filed by the Claimant is rejected. 5. The Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 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: Markus Kattner Deputy Secretary General Encl. CAS directives