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 H, from country F as Claimant against the club, Club P, from country R 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 H, from country F as Claimant against the club, Club P, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case Facts relating to the preliminary issue of competence: 1. On 8 January 2010, Player H, from country F (hereinafter referred to as player or Claimant), lodged a claim against the Club P, from country R (hereinafter referred to as club or Respondent) in front of FIFA for breach of contract in relation to the employment contract signed by and between the player and the club on 10 September 2009. 2. The last paragraph of the employment contract reads that “the parties agree to adhere to the FIFA rules as well as international law and applicable treaties.” 3. In its reply to the player’s claim, the club held that the Dispute Resolution Chamber (DRC) has no jurisdiction to decide upon the matter at hand. 4. Upon FIFA’s request to be provided with information and documentation in relation to the establishment of a national deciding body within the country R Football Federation, the club provided FIFA with the 2009 edition of the Statutes of the country R Football Federation and the country R Football Federation Regulations on the Status and Transfer of Football Players. 5. In his comments in connection with the question of the jurisdiction of the DRC, the player held that based on the DRC’s jurisprudence as well as the jurisprudence of the Court of Arbitration for Sport, the DRC is competent to decide on the matter at hand. Facts relating to the substance of the matter: 6. On 10 September 2009, the player and the club signed an employment contract entering into force on 10 September 2009 and coming to an end on 10 July 2011 (hereinafter referred to as the contract). 7. According to art. 1 par. 1 of the contract, and for the period of time starting as of 10 September 2009 until 10 July 2010, the player was entitled to receive/be provided with: - EUR 70,000 net, of which EUR 10,000 were due on 16 September 2009, and the remaining amount of EUR 60,000 payable in 10 equal monthly instalments of EUR 6,000 each, to be paid on the 10th day of the month following the relevant month, starting as from September 2009; - fully furnished two-rooms apartment; - two round trip flight tickets per season; - bonuses for winning official games of the country R First League, in conformity with the club’s internal regulations. 8. The last provision of art. 1 par. 1 stipulates that the club has the option until 10 May 2010 to extend the duration of the agreement for one additional year. 9. According to art. 1 par. 2 of the contract, and for the period of time starting as of 10 July 2010 until 10 July 2011, the player was to receive EUR 80,000, payable in 12 equal monthly instalments of EUR 6,666 each. 10. On 29 September 2009, the player sent a default notice to the club, reminding it, inter alia, that it neither had paid him the signing-on fee in the amount of EUR 10,000, which was due on 16 September 2009, nor provided him with the furnished apartment. 11. On 22 October 2009, the player sent another default notice to the club, pointing out that it still neither had paid his signing-on fee nor provided him with the furnished apartment. In addition, the player reminded the club that his salary in the amount of EUR 6,000, which had fallen due on 10 October 2009, remained unpaid. 12. On 24 December 2009, the player sent a third default notice to the club, asking it to provide him with a furnished apartment and to proceed with the payment of EUR 28,000 within ten days following its receipt. 13. On 8 January 2010, the player lodged a claim against the club in front of FIFA for breach of contract without just cause and requested the imposition of sporting sanctions against the club as well as the payment of the total amount of EUR 156,889, composed as follows: - EUR 10,000, corresponding to the signing-on fee, which fell due on 16 September 2009; - EUR 24,000, corresponding to four outstanding monthly salaries (as of September 2009 until December 2009); - EUR 3,111 is to be deducted from the amount of outstanding remuneration, which the player acknowledged the club paid on 21 October 2009; - EUR 116,000 as compensation for breach of contract, composed of the remaining salaries of the sporting season 2009/2010 and the player’s entire remuneration for the sporting season 2010/11; - EUR 10,000 ex aequo et bono as compensation for damages allegedly suffered by the player. 14. The player deemed that he terminated the employment contract by the act of lodging his claim in front of FIFA. 15. During the proceedings, the player presented a letter dated 4 February 2010 issued by the club, which inter alia reads: “Further to the fact that you did not come at the team meeting of the Club P, established for 11.01.2010, and you did not come for the preparation and training schedule established by the technical management of the Club, without giving any reasonable explanation in this sense; You must urgently come, until 08.02.2010, at the headquarters of the Club P, (…), otherwise we shall order your sanctioning according to the provisions of the Football Club Club P, and those of the Discipline Rules of the country R Football Federation.” 16. Likewise, the player presented a letter dated 12 February 2010 from the club informing him that as a result of his absence at the team’s meeting scheduled on 11 January 2010, the club initiated disciplinary proceedings against him. 17. Additionally, the player presented a decision made by the club’s board of directors dated 24 March 2010, by means of which the club decided to ban the player from participating in any trainings and official/friendly matches of the club for three months. 18. In its reply as to the substance of the claim, the club confirmed having signed the employment contract submitted by the player in support of his claim. However, the club specified that as the club did not decide to extend the duration of the contract until 10 July 2011, the contractual relationship between the parties was only to last 10 months, i.e. until 10 July 2010. In view of the above, the club held that the player’s claim in relation to the remuneration stipulated for the additional allegedly optional year of the contract, i.e. EUR 80,000, cannot not be included in the player’s claim for compensation for breach of contract. 19. In continuation, the club acknowledged that even though it had the intention to do so, it has not always been able to comply with its financial obligations, notably because of the financial crisis, a global phenomenon that cannot be imputed to the club. 20. However, the club held that it only owed the player the amount EUR 12,399 for the period of time comprised between September and December 2009, which amount was paid by the club to the player during the proceedings in the present matter. 21. In this respect, the club stated that for the period of time between September to December 2009, the player, who was to receive EUR 34,000, received the amount of EUR 4,111. 22. In continuation, the club explained that the player’s low performance, his lack of interest in his preparation and his inappropriate behaviour towards the coach inter alia resulted in the fact that the player was imposed a disciplinary sanction based on the country R Football Federation Regulations. The disciplinary sanction consisted of the imposition upon the player of a fine of 25% of his “financial rights” and was decided by the club’s board of directors on 29 December 2009. 23. The club also indicated that it tried to solve the problems it had with the player, notably by informing him that he would receive all his dues in January 2010, the delay in paying him being due to the financial crisis. Nevertheless, the player, who had left for winter holidays, did not return to the club and lodged a claim against it before FIFA. 24. Finally, the club insisted that in view of the present circumstances, it is the player who breached the contract. In this respect, the club held that the club’s delays in the payments did not justify a unilateral termination of contract by the player. In this regard, the club underlined that, in fact, the agreement was neither mutually nor unilaterally terminated, as the player never explicitly stated, be it beforehand or in his claim, that he was putting an end to the contract. In view of the above, the club held that it is the one suffering a prejudice resulting from the situation, since it was still willing to execute the contract and pay the player, as it also requested his return to the club. 25. In conclusion, the club rejected the player’s claim. Likewise, it held that no compensation for breach of contract would be due to the player, as it was the player who never returned to the club in spite of the club’s request. The club also referred to country R law, which it deemed to be applicable to the matter at hand, and excluded on this basis the hypothesis of a payment of compensation for breach of contract. 26. In his replica, the player stressed that the club never mentioned that the delays in the payments were due to the player’s alleged bad performance and/or because of the economic crisis. Also, the player denied that the club informed him that it would pay the player his outstanding remuneration in January 2010. 27. Furthermore, the player emphasized that the club’s decision dated 29 December 2009 was not only passed about two months after the date of his reported misbehaviour, but also after he had already served the club with his final default notice dated 24 December 2009. Consequently, the player deemed that the financial sanction imposed upon him not only is an artifice aiming at diminishing the amount the club owed to the player, but also consists of an exaggerated sanction, as it almost corresponds to three monthly salaries. Also, the player stressed that the club’s decision was taken in violation of his rights, as the player could not defend himself. 28. Finally, the player pointed out that the club sanctioned him for an absence on 11 January 2010, i.e. after the player had already lodged his claim against the club before FIFA on 8 January 2010. 29. With regard to the amount claimed as compensation for breach of contract, the player rejected the club’s opinion in relation to the duration of the contract and pointed out that based on art. 1 par. 1 of the contract, it is valid until July 2011, and it cannot be accepted that the extension of its duration would only depend on the club’s unilateral will. 30. In spite having been invited by FIFA to do so, the club has not submitted its final position. 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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 8 January 2010. 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. 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 R club. 3. However, the DRC acknowledged that the Respondent contested the competence of the DRC to deal with the matter at hand. In this respect, the Respondent stated that any dispute arisen between the parties should be submitted to the deciding bodies of the country R Football Federation and of the country R Professional Football League. 4. The Chamber equally noted that the Claimant, for his part, 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 Chamber deemed it of utmost importance to highlight that the employment contract does not contain any arbitration or jurisdiction clause. Indeed, the last paragraph of the employment contract (cf. point I./2. above), clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 6. In view of the above, the Chamber established that the Respondent’s objection to 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 on the Status and Transfer of Players, to consider the present matter as to the substance. 7. Subsequently, the Chamber analysed which Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012) and considering that the present claim was lodged on 8 January 2010, the 2009 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. 8. 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. 9. First of all, the members of the Chamber acknowledged that, on 10 September 2009, the Claimant and the Respondent concluded an employment contract entering into force on 10 September 2009 and coming to an end on 10 July 2011. 10. The Chamber further observed that, on 8 January 2010, the Claimant lodged a claim in front of FIFA against the Respondent, seeking payment of outstanding remuneration relating to the signing-on fee and his monthly remuneration for the months of September 2009 up to and including December 2009, after having put the Respondent in default on several occasions. 11. Also, the Claimant stressed that he considers the employment contract with the club as terminated as a result of his act of lodging a claim against the Respondent before FIFA. 12. Consequently, apart from payment of the aforementioned outstanding remuneration, the Claimant seeks payment of compensation for breach of contract in the amount of EUR 116,000 as well as EUR 10,000 for damages. 13. In continuation, the Chamber observed that the Respondent, who considered that the player’s alleged low performance, inappropriate behaviour towards the coach and his absence from the club’s meeting scheduled on 11 January 2010 constitute a breach of contract, asserted that even though it was willing to comply with its financial obligations, it was not able to do so as a result of the financial crisis, a global phenomenon that it deems cannot be imputed to the club. 14. Additionally, the Chamber duly noted that the Respondent, whose additional argument was that it only owed the amount of EUR 12,399 to the Claimant, had paid the amount of EUR 12,399 during the proceedings, receipt of which was confirmed by the Claimant. 15. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, it would have to decide on the consequences thereof. 16. The members of the Chamber first turned their attention to the issue of outstanding remuneration. At the time when the Claimant lodged his claim against the Respondent, the Respondent had failed to pay three monthly salaries in the amount of EUR 6,000 each, i.e. the salaries that had fallen due on 10 October, 10 November and 10 December 2009, as well as the signing-on fee, totalling the amount of EUR 28,000, whereas the Claimant acknowledged having received the amount of EUR 3,111 on 21 October 2009. The Chamber further noted that the additional amount of EUR 12,399 was paid by the Respondent to the Claimant after the proceedings in the present matter had already started, that is after the Claimant lodged his claim in front of FIFA. 17. In continuation, the Chamber reverted to the Respondent’s position and firstly held that the allegation of financial difficulties resulting from a financial crisis is no valid reason not to comply with its financial obligations and cannot be held against the Claimant. What is more, in this regard, the DRC recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Notwithstanding the previous consideration, the Chamber noted that no documentation in this context had been presented by the Claimant. 18. The Chamber then addressed the Respondent’s argument relating to the fine that was imposed on the Claimant, on 29 December 2009, amounting to 25% of the latter’s remuneration. In this respect, the Chamber concurred that the fine imposed on the Claimant by the Respondent shall be disregarded, since a fine of 1/4th of the Claimant’s remuneration must be considered disproportionate. In addition, the Chamber highlighted that the Respondent had imposed such fine on the Claimant after the latter had already put the club in default on three occasions. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanctions in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. 19. Consequently, the Chamber concurred that the arguments put forward by the Respondent in connection with the Claimant’s outstanding remuneration had to be rejected and concluded that the Respondent had no just cause not to pay the Claimant’s salary and signing-on fee. 20. As a consequence of the aforementioned considerations, the Chamber established that the amount of EUR 24,889 remained unpaid by the Respondent at the time when the Claimant lodged his claim in front of FIFA. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial obligations towards the Claimant. 21. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant had just cause to unilaterally terminate the contract on 8 January 2010 by lodging his claim in front of FIFA and that the Respondent is to be held liable for the early termination of the contract with just cause by the player. 22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount which has remained outstanding under the contract at the moment of the Claimant’s termination of the contract, i.e. the aforementioned EUR 24,889. However, the Chamber recalled that during the proceedings at hand, the Respondent paid to the Claimant the amount of EUR 12,399, receipt of which was confirmed by the Claimant. As a result thereof, such amount shall be deducted from the amount of outstanding remuneration due to the Claimant by the Respondent, which, consequently, amounts to EUR 12,490. 23. Having established the aforementioned, the Chamber focused its attention on the consequences of the early termination of the contract with just cause by the Claimant. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to the previously established amount of outstanding remuneration based on the contract. 24. In continuation, the Chamber focussed 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 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 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. 26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the amount of compensation due to the Claimant in the case at hand. In this respect, the Chamber reverted to the contractual terms and noted that the contractual relationship between the parties was clearly set to last until 10 July 2011, i.e. for two sporting seasons. As a result thereof, the Chamber concluded that the Respondent’s argument that the parties’ relationship was to last until 10 July 2010 only could not be followed. The Chamber therefore concluded that, bearing in mind that the contract was terminated by the Claimant on 8 January 2010, the amount of EUR 122,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 27. 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. In this regard, the Chamber noted that, on 2 February 2011, the Claimant signed a new employment contract with Club M, from country C, valid as from 1 February 2011 until 31 October 2011, and according to which he was entitled to a global salary of EUR 22,000 over the relevant period of time to be taken into account. 28. Consequently, on account of all of the above-mentioned considerations as well as the Claimant’s obligation to mitigate damages, the Chamber decided that the Respondent must pay the amount of EUR 100,000 to the Claimant as compensation for breach of contract. 29. For all the above reasons, the DRC decided to partially accept the claim of the Claimant and decided that the Respondent is liable to pay to the Claimant the amount of EUR 12,490 as outstanding remuneration as well as the amount of EUR 100,000 as compensation for breach of contract. 30. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player H, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club P, 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 12,490. 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 amounting to EUR 100,000. 5. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers III./3. and III./4. are not paid by the Respondent 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 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 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: Markus Kattner Deputy Secretary General Encl: CAS Directives