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 Ivan Gazidis (England), member on the claim presented by the player, Player P, from country A as Claimant against the club, Club S, from country E 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 Ivan Gazidis (England), member on the claim presented by the player, Player P, from country A as Claimant against the club, Club S, from country E as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 17 December 2007, Player P, from country A (hereinafter: the Claimant), and Club S, from country E (hereinafter: the Respondent), signed an employment contract (hereinafter: the employment contract) that was valid from 14 December 2007 until 31 December 2008 or the final match of the national competition (whichever occurs first). 2. The annexe to the contract stipulates that the Claimant will receive: an annual bonus of USD 40,000, the first USD 20,000 to be paid upon• signing the contract, and the remaining USD 20,000 to be paid in two equal instalments on 14 March 2008 and 14 April 2008. a monthly salary of USD 10,000 as from February 2008• 3. Clause 4 of the contract states that the Claimant submits, voluntarily, the contract to the jurisdiction and competence of the country E Football Federation to settle any dispute arising from the execution or interpretation of the contract. 4. Clause 13 of the contract states that every 120 days, the technical staff will evaluate the player and the continuation and validity of the contract will depend on this. The evaluation will take into consideration the number of games played in the national championship, sporting performance, conduct and fitness in both games and training. In the event that the evaluation of performance and fitness is negative, the Respondent can terminate the contract automatically without a mediation procedure, and without being able to present a claim. The clause also prevents the Claimant, in this situation, from pursuing a civil or labour procedure, judicial or extrajudicial procedure, or from submitting a claim to the country E Football Federation or FIFA. 5. On 23 July 2008, the Respondent sent the player a letter confirming that they were terminating the employment contract on the basis of Clause 13 of the contract. 6. The Claimant signed an employment contract with Club F, from country P on 26 August 2008, for the 2008/2009 sporting season. Under the new contract the Claimant would receive an amount of EUR 3,950 per month, plus a Christmas bonus of EUR 3,950. 7. On 29 August and 3 November 2008, the representative of the Claimant submitted a claim to FIFA for breach of contract. 8. According to the Claimant: On 10 July 2008 the coach of the Respondent informed the Claimant that• he was no longer required. On 13 July 2008 the board of the Respondent apparently contacted the• Claimant in order to reach an agreement for the termination of the contract, and proposed to the Claimant that the Respondent would pay the amounts matured by that date, i.e. two bonus instalments of USD 10,000 each added to 1 ½ matured monthly salary (USD 15,000). Furthermore, the Respondent would pay another 1 ½ salary (USD 15,000) giving a total of USD 50,000. The parties did not reach an agreement and on 23 July 2008 the• Respondent terminated the contract. The Respondent neglected to pay salaries and instalments of the signing• on fee. 9. The Claimant therefore requested USD 20,000 as unpaid instalments of the signing fee, USD 17,666 as unpaid salaries for June and part of July 2008 plus USD 52,334 from the remainder of the contract, which corresponds to the total amount of USD 90,000 plus 5% interest as from the date of each payment. The Claimant also requested disciplinary sanctions. 10. On 23 December 2008 the Respondent responded stating: That FIFA was not competent to decide on the matter since the relevant• national dispute resolution chamber (NDRC) of the country E Football Federation was installed in July 2008. The agreement was terminated in accordance with Clause 13 of the• contract. Clause 4 of the contract requires a dispute to be submitted to the NDRC of• the country E Football Federation. 11. The Respondent also states that the Claimant’s calculation is, in any case, incorrect and that the Claimant is owed only USD 5,000 for the second half of June 2008, USD 5,000 for the first half of July 2008, and USD 2,333 for 16-22 July 2008. This, minus a “debt” of USD 328 and USD 4,520 in tax leaves a total of USD 7,485. 12. The Respondent states that it does not owe the Claimant the remaining USD 20,000 since the full amount was an “annual bonus” and conditional on the Claimant completing the full term of his contract. Since he only provided his services from February until July 2008, he is not entitled to the second half of the bonus. 13. On 7 May 2009 FIFA requested that the Respondent provided the relevant documents demonstrating that the NDRC of the country E Football Federation should be considered the competent body to decide on the matter. 14. On 21 May 2009 the country E Football Federation sent a letter stating that: The NDRC is an autonomous body with full independence in the taking of• its decisions. It was created following the requirements of FIFA. The constitution of the NDRC is in accordance with the requirements of• FIFA, and uses equal representatives of clubs and players along with an impartial chair. It was created in May 2008 and its regulations were sent to FIFA on 27• June 2008. The NDRC acts in an absolutely impartial manner.• 15. On 22 August 2011 the country E Football Federation presented a copy of the “Reglamento de la Cámara de Mediación y Resolución de Disputas de la Federación de pays E de Fútbol” dated 14 May 2008 (hereinafter: country E Football Federation NDRC Regulations). 16. On 2 July 2012 the Claimant provided his response, stating that: The NDRC Regulations were only approved in May 2008, and sent to FIFA• in June 2008, which is after the employment contract had been concluded between the Claimant and the Respondent. At the time the employment contract was signed, even FIFA had not yet• established the minimum guidelines for an NDRC. Clause 4 of the employment contract is manifestly favourable to the• Respondent and was unilaterally imposed by the Respondent and should be considered null and void. Even if Clause 4 is valid, the choice of forum did not exist at the time the• contract was concluded and is therefore ineffective. FIFA’s jurisprudence requires an explicit and clear reference to the national regulations that provide such a competence. It is a requirement that the Claimants’ representatives are appointed by a• players’ association affiliated to FIFPro or, where no such association exists, on the basis of a selection process agreed by FIFA or FIFPro. However, the Asociación de Futbolistas del pays E had been suspended by FIFPro. According to a news item published on the FIFPro website on 18 August• 2011, FIFPro considers that the Asociación de Futbolistas del pays E “operates in absolute complicity with the directors of the Federation…” Furthermore, the publication states that “FIFPro will report to FIFA that the NDRC of country E does not comply with FIFA’s requirements…” 17. On 5 December 2013, the Court of Arbitration for Sport (CAS), based inter alia on the fact that the independence of the chairman of the “Special Arbitral Tribunal“ and the “Mediation and Dispute Resolution Chamber” is not guaranteed, confirmed that the national bodies of the country E Football Federation do not fulfill the minimum requirements as set by the FIFA Regulations. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 29 August 2008. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 3 of the Procedural Rules). 2. In this respect, the Chamber first wished to clarify that contrary to the information contained in FIFA’s letter dated 23 April 2014 by means of which the parties were informed of the composition of the Chamber, the members Mr M and Mr Y refrained from participating in the deliberations in the case at hand, due to the fact that the member M has the same nationality as a party involved in the present proceedings. In order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr Y refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in the presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players. 3. 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 4. As a consequence, the Dispute Resolution Chamber would, in principle, be the competent body to decide on the present litigation involving an country A player and an country E club regarding an apparent breach of an employment contract concluded between the parties. The Chamber did, however, acknowledge that the matter of competence was contested by one of the parties, and recognised that it would have to return to the issue for further deliberation at a later stage of the considerations. Subsequently, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players would be applicable as to the substance of the matter, should the Chamber eventually conclude that it was the competent body. In this respect, the Chamber noted that the present claim was lodged on 29 August 2008 and therefore deemed that the 2008 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) which came into force on 1 January 2008, is applicable to the matter at hand as to the substance. 5. Turning its attention to the mater of jurisdiction once more, the Chamber noted that, on the one hand, the Respondent declared that the agreement signed between the parties contained a clause in which it is clearly stipulated that disputes arising from the agreement should be dealt with under the jurisdiction of the country E Football Federation. On the other hand, the Chamber acknowledged that the Claimant contested the competence of the deciding bodies of the country E Football Federation and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 6. Taking into account the above, the Chamber acknowledged the existence of a clause in the employment contract referring the parties to the country E Football Federaiton for the settlement of disputes. However, the Chamber emphasised that the country E Football Federation NDRC Regulations entered into force in May 2008, whereas the employment contract was signed on 17 December 2007. Therefore the Chamber first of all concluded that, on 17 December 2007, the parties to the contract could simply not have agreed to submit their potential disputes to the relevant arbitration body of the country E Football Federation, which started its activity only in May 2008. In this respect, the Chamber pointed out that the arbitration clause in question did also not specify a particular deciding body of the country E Football Federation under which such disputes must be submitted. 7. In continuation, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which were issued on 1 January 2008. 8. In this respect, the Chamber turned its attention to the principle of equal representation of players and clubs and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations, in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a fouryear renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this regard, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”. 9. In view of the above, the Chamber went on to examine the documentation presented by the country E Football Federation. In this respect, the Chamber noted that art. 3 a) of the country E Football Federation NDRC Regulations stipulated that the president of the NDRC would be appointed by the country E Football Federation. 10. In view of this, the members of the Chamber were of the unanimous opinion that the NDRC of the country E Football Federation did not fulfill one of the conditions stipulated in art. 22 lit. b) of the Regulations - and illustrated in art. 3 par. 1 of the FIFA NDRC Regulations -, being that the national arbitration tribunal needs to respect the principle of equal representation between players and clubs. In this respect, in accordance with previous decisions of the DRC, the Chamber emphasised that having the president or chairman of an NDRC appointed by the federation did not satisfy the aforementioned requirement of equal representation. On this point, the Chamber highlighted the decision of the CAS on 5 December 2013 in which CAS confirmed that the NDRC of the country E Football Federation did not satisfy the requirements stipulated in art. 22 lit. b) of the Regulations. 11. On account of all the above, the Chamber therefore established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the substance. 12. Its competence having y been established, the Chamber next turned its attention to the breach of contract. In this respect, the Chamber highlighted that it was uncontested that the Respondent was responsible for terminating the contract, on 23 July 2008, and that the fundamental issue was whether the Respondent had just cause. 13. In this respect, the Chamber observed that the Respondent argued that it had terminated the contract in accordance with clause 13 of the employment contract. The Chamber, analysing the clause in question, observed that it stipulated that the club’s technical staff would evaluate the player every 120 days, and could terminate the contract without mediation should the evaluation be negative. In particular the Chamber observed that the apparent criteria for this evaluation included the number of games played in the national championship, sporting performance, conduct and fitness in both games and training. 14. In this respect, the Chamber held that it could not accept said clause as being valid since it was potestative, as it provides for a unilateral termination right, without any compensation, to the benefit of the club only. In addition to the unilateral character of clause 13, the application of said article appears to be linked to the player’s physical fitness and performance, which, in accordance with the Chamber’s constant jurisprudence, cannot be considered a valid reason to terminate an employment contract. Furthermore, the Chamber deemed that the clause provided no objective criteria for exercising the right to terminate the employment contract. Therefore, the Chamber decided that the Respondent could not legitimately terminate the contractual relation with the Claimant by making use of clause 13 of the employment contract. Consequently, the Chamber rejected the Respondent’s argument in this respect, and concluded that the Respondent had terminated the employment contract without just cause. 15. In continuation, and 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 contract was terminated by the Respondent. 16. In this respect, the Chamber noted that the Respondent admits that it owes the player for the second half of June 2008. Furthermore, the Chamber emphasised that it did not provide any evidence to demonstrate that it paid the first half of June 2008. The Chamber referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In view of this, the Chamber deemed that the full amount for June 2008 – USD 10,000 – remained outstanding. 17. Furthermore, the Chamber highlighted that the Respondent admitted owing 22 days of July 2008, however since the contract was terminated on 23 July 2008, the Chamber concluded that in fact 23 days of July 2008 were outstanding, an amount of USD 7,419. 18. The Chamber continued by considering the two instalments of USD 10,000 which were due on 14 March 2008 and 14 April 2008 respectively. In this regard, the Chamber acknowledged that the Respondent had not contested the fact that this instalment had not been paid to the Claimant. However, the Chamber noted that the Respondent had argued that the instalments were part of an “annual bonus” and the full amount was being paid dependent on the player completing a full year. On this point, the Chamber noted first of all that the contract did not specify that these instalments were due only if the player remained for the second half of the contract. Furthermore, the Chamber emphasised that the payments had fallen due on 14 March and 14 April 2008 respectively, while the employment contract was still in existence, and while the Respondent was continuing to pay the Claimant’s salary in return for his footballing services. The Chamber deemed that such payments were due on the dates stipulated in the contract and following a failure to pay the amounts on time, could not then retrospectively be made subject to an assessment of the player several months later in July 2008. Therefore, the Chamber concluded that the two instalments of USD 10,000 are to be considered outstanding payments due to the Claimant. 19. Finally, the Chamber rejected the argument of the Respondent that deductions for a “debt” and for tax should be made to the above outstanding payments. In this respect, the Chamber emphasised that no evidence for making such deductions had been provided by the Respondent, and thus, citing the principle of the burden of proof once more, the deductions would not be included in the overall calculation. Therefore, the Chamber calculated that the total amount of outstanding remuneration is USD 37,419 plus 5% interest p.a. as of the date each payment was contractually due. 20. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the employment contract by the Respondent without just cause on 23 July 2008. 21. 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. 22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment 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. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake, and in any case, such a clause was never invoked by either of the parties. 23. Subsequently, the Chamber considered the amount that was due to the player in accordance with the employment contract, for the remainder of the contractual term, as from the date of termination by the Respondent, i.e. from 24 July 2008 until 31 December 2008. In this respect, the Chamber calculated that amount to be USD 52,581. 24. 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. 25. In this respect, the Chamber noted that the Claimant signed an employment contract with Club F, from country P on 26 August 2008, for the 2008/2009 sporting season. Under the contract the player would receive an amount of EUR 3,950 per month, plus a Christmas bonus of EUR 3,950. 26. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided that the Respondent must pay the Claimant the amount of USD 25,500 which was to be considered a reasonable and justified amount of compensation for breach of contract without just cause in the matter at hand. Furthermore, the Chamber deemed that 5% interest p.a. as from the date of the claim must also be imposed. 27. The Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player P, is partially accepted. 2. The Respondent, Club S, has to pay to the Claimant outstanding remuneration in the amount of USD 37,419, plus 5% interest p.a. as of the date each payment fell due, within 30 days as from the date of notification of this decision. 1 3. The Respondent, Club M, is ordered to pay to the Claimant the amount of USD 25,500 plus 5% interest p.a. as from 29 August 2008 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 point 2. plus interest are 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 remittances are 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