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 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player T, from country P as Claimant against the club, Club B, from country T 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 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player T, from country P as Claimant against the club, Club B, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 10 June 2010, Player F, from country P (hereinafter: the Claimant) and Club B, from country T (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from 6 August 2010 until 30 May 2012. 2. In accordance with the contract, the Claimant was entitled to receive as remuneration, inter alia, the following: a. EUR 92,000 as “guaranteed money” for the season 2010/2011; b. EUR 92,000 as salary for the season 2010/2011 payable in 10 monthly installments of EUR 9,200 between August 2010 and May 2011; c. EUR 92,000 as “guaranteed money” for the season 2011/2012 to be paid in cash on 30 June 2011; d. EUR 92,000 as salary for the season 2011/2012 payable in 10 monthly installments of EUR 9,200 between August 2011 and May 2012; e. EUR 46,000 “per match payment” for the seasons 2010/2011 and 2011/2012 “(46.000 Euro / 34 = 1.353 Euro is per Match Payment)”. 3. According to clause 4.d of the contract, the Respondent was obliged to “comply with FIFA, UEFA and country T Football Federation statutes and regulations…”. 4. In addition, according to clause 5.c of the contract, the Claimant was obliged to “comply with FIFA, UEFA and country T Football Federation statutes and regulations…”. 5. Moreover, clause 9 of the contract stated that “The Dispute Resolution Board is exclusively authorized to resolve disputes arising out of this contract. The parties may only appeal to the country T Football Federation Arbitration Committee, within the due time, against the decisions of the Dispute Resolution Board”. 6. In this framework, on 2 June 2011, the Claimant lodged a claim against the Respondent in front of FIFA, requesting, inter alia, the total amount of EUR 283,744.10 as follows: a. EUR 33,450 as outstanding salaries plus 5% interest p.a.; b. EUR 20,294.10 as outstanding “match payments” plus 5% interest p.a.; c. EUR 230,000 as compensation for breach of contract. 7. In particular, the Claimant explained that for the season 2010/2011 he was entitled to the total amount EUR 204,294.10 comprising the “guaranteed money”, 10 months of salary and “match bonuses” as the Claimant supposedly participated in 15 matches with the Respondent, nevertheless, he only received the total amount of EUR 150,550 as follows: a. EUR 92,000 “cash payment”; b. EUR 9,200 in October; c. EUR 13,200 in November; d. EUR 13,200 in December; e. EUR 13,200 in February; f. EUR 7,500 in April; g. “5.000 currency of country T = 2.250 EUR” paid on an unspecified date. 8. In view of the foregoing, the Claimant asserts that due to the Respondent’s failure to fulfill its obligations, on 2 June 2011, he sent a letter to the Respondent whereby he unilaterally terminated the contract concluded between the parties invoking just cause. 9. In its reply to the claim, the Respondent firstly questioned the competence of FIFA to adjudicate on the present matter. It claimed that in country T there is “an autonomous association under the name of country T Football Association”, and that “the authority to resolve the disputes between the parties are exclusively conferred to country F Football Federation-UCK (Dispute Resolution Board) and the Arbitration Board of country T Football Federation…”. Moreover, the Respondent argues that in accordance with clause 9 of the contract, the player agreed that “country T Football Federation is exclusively authorized to solve the disputes between the player and the club”. 10. Consequently, the Respondent asserts that it lodged a claim against the Claimant in front of the “country T Football Federation Dispute Resolution Board” asking for the payment of “10,000 currency of country T” since the latter “breached the rules and regulations while terminating the contract signed between him and the club”. 11. The Respondent further stated that the Claimant terminated the contract in an “unjust and unlawful” manner. In this respect, the Respondent referred to article 28/1 of the “Professional Player’s Status and Transfer Regulations” of the currency of country T which, according to the latter, states that “the club shall receive a due date of 30 days in order to perform the payment. The contract is terminated, if the club does not transfer the payment within the afore-mentioned time frame” and claimed that “if the defendant player had given an opportunity for payment for 30 days via the notice in accordance with the procedures as it is written in the country T Football Federation Directives the plaintiff club would have paid his liens, which he deserves, within its period. Hence, a termination would not have occurred”. The Respondent further asserts that according to clause 5.c of the contract the Claimant was obliged to follow the statutes and regulations of the country T Football Federation. 12. In addition, the Respondent claims that the Claimant received his salaries for August, September, October, November and December 2010, the “guarantee fee” as well as EUR 16,537 for match payments, whereas he was entitled to EUR 20,294, thus, “this means that the player has to receive an additional payment of EUR 3,712”. As a consequence, the Respondent alleges that the outstanding remuneration it has towards the Claimant is of EUR 46,000 as the “remaining balance” and EUR 3,712 as outstanding match payments. 13. The Respondent further claims that the Claimant “does not have a reasonable fact to evidence that he is to receive a kind of compensation”. 14. On 4 March 2012, the club reverted to FIFA stating that “the case, which was continuing at the country T Football Federation, is canceled due to the alteration in the law and that it will continue at the general courts”. 15. Having been asked by FIFA to provide evidence that the present matter should be dealt with by the “general courts”, the Respondent referred again to the arguments of its reply and argued that “Because the case is currently being reviewed by the country T Football Federation, and they, in resolving this case, will highly likely decide that the player unjustly terminated the contract, we are awaiting country T Football Federation’s decision to determine the framework of the debt-receivable relationship between the player and the club”. 16. In his replica, the Claimant stressed the fact that in country T “there is no independent arbitration panel for the case, due to the fact that country T Football Federation Board of Directors appoints country T Football Federation arbitration board members” and adhered to the contents of his claim. 17. In its duplica, the Respondent alleged that the country T Football Federation had not yet rendered a decision on the case and requested that “In case FIFA’s jurisdiction is accepted then this subject matter termination should be judged as an unjust one, and again if FIFA is found to be the authority having jurisdiction, then we must be allowed time to present all of our available information and documents about the termination”. 18. Having been asked by FIFA to provide evidence that the present matter should be dealt with by the national arbitration bodies in country T, the Respondent stressed again that the only competent bodies to deal with the present matter are “country T Football Federation , country T Football Federation Arbitration Committee (country T Football Federation UCK) and country T Football Federation Arbitration Tribunal”. In this regard, the Respondent mentioned that “In the system applicable in country T, the football player and the club select the judge who will deal with their case merely by their own statements, leaving no room for doubt regarding objectivity”. 19. Upon request of FIFA, the Claimant indicated that he did not sign any contract with a new club and that “he was unemployment from June 2011 until May 2012”. 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 2 June 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 edition 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 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. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country P player and a country T club regarding an alleged breach of the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 9 of the contract, which, according to the Respondent, excludes the competence of the Dispute Resolution Chamber to adjudicate on the present matter. 5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players 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. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. Having said this, the DRC turned its attention to the principles of fair proceedings and equal representation of players and clubs and underlined that these principles are fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. 7. In this respect, the Chamber noted that, despite having been asked to do so by letter dated 31 March 2014, the Respondent failed to provide the DRC with any documentary evidence which could prove that the “Dispute Resolution Board” or the “Arbitration Committee” of the country T Football Federation meet the requirements established in art. 22 lit. b) of the Regulations on the Status and Transfer of Players. 8. On account of all the above, and referring to the principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber 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 on the Status and Transfer of Players, to consider the present matter as to the substance. 9. In continuation, the Chamber analysed which edition of the 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2012) and considering that the present claim was lodged on 2 June 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 10. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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. 11. First of all, the members of the Chamber acknowledged that, on 10 June 2010, the Claimant and the Respondent concluded an employment contract valid as from 6 August 2010 until 30 May 2012. As to the financial terms of the contract, the Chamber took note that it had been agreed upon between the parties that the Respondent would remunerate the Claimant as follows: a. EUR 92,000 as “guaranteed money” for the season 2010/2011; b. EUR 92,000 as salary for the season 2010/2011 payable in 10 monthly installments of EUR 9,200 between August 2010 and May 2011; c. EUR 92,000 as “guaranteed money” for the season 2011/2012 to be paid in cash on 30 June 2011; d. EUR 92,000 as salary for the season 2011/2012 payable in 10 monthly installments of EUR 9,200 between August 2011 and May 2012; e. EUR 46,000 “per match payment” for the seasons 2010/2011 and 2011/2012 “(46.000 Euro / 34 = 1.353 Euro is per Match Payment. 12. In continuation, the members of the Chamber noted that it was undisputed that, on 2 June 2011, the Claimant terminated the contract entered into by the parties on the basis of outstanding remuneration in the amount of “EUR 35,700” corresponding to outstanding salaries, as well as “EUR 20,294.10” relating to match payments. 13. Conversely, the Chamber noted that the Respondent admitted having a debt towards the Claimant of EUR 46,000 as outstanding salaries and EUR 3,712 as per match payments. However, the Respondent is of the opinion that the Claimant had no just cause to terminate the contract, since such was “unjust and unlawful”. In this regard, the Chamber acknowledged the position of the Respondent in which it alleged that, according to art. 28/1 of the country T Football Federation “Professional Player’s Status and Transfer Regulations”, the Claimant was compelled to give to the Respondent a 30 days’ notice of any outstanding payment and that “if the defendant player had given an opportunity for payment for 30 days via the notice in accordance with the procedures as it is written in the country T Football Federation Directives the plaintiff club would have paid his liens, which he deserves, within its period. Hence, a termination would not have occurred”. 14. On account of the above, 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 by the Claimant, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, it would be necessary to determine the consequences for the party that caused the breach of the relevant employment contract. 15. Having said this, the Chamber firstly noted that the Respondent’s defense, as to the substance, is merely based on alleged formalities relating to the question as to whether the Claimant duly put the Respondent in default of its contractual obligations in the context of art. 28/1 of the country T Football Federation “Professional Player’s Status and Transfer Regulations”. 16. At this point, the DRC wished to recall 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 carries the burden of proof. 17. With those considerations in mind, the DRC found that the Respondent had not submitted any evidence that could corroborate the actual content of art. 28/1 of the country T Football Federation “Professional Player’s Status and Transfer Regulations”. What is more, the members of the Chamber wished to point out that no such termination procedure was stipulated in the employment contract, reason for which the Chamber deemed that the aforementioned art. 28/1 was not directly applicable to the contractual relationship between the Claimant and the Respondent. 18. In addition to the above, the Chamber emphasized that the Respondent acknowledged that at the time the Claimant terminated the contract between the parties, a total of five outstanding salaries in the amount of EUR 46,000 were yet to be paid by the Respondent. 19. Furthermore and as to the claim of the Respondent that it had paid the Claimant the amount of EUR 16,637 in concept of match payments, the DRC pointed out, while recalling once again the principle of the burden of proof, that the Respondent failed to provide any documentary evidence that could corroborate said alleged payment. 20. On account of all of the above considerations, the Chamber decided to reject the arguments put forward by the Respondent in its defense and decided that it could be established not only that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time, but that the Claimant had just cause to unilaterally terminate the employment contract on 2 June 2011. Consequently, the Respondent is to be held liable for said early termination of the employment contract with just cause by the Claimant. 21. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 22. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. EUR 53,744.10 consisting of EUR 33,450 as outstanding salaries as well as EUR 20,294.10 for match payments. In this respect, the Chamber wished to point out that the Respondent had not provided any evidence that it had paid the difference between the amount of EUR 49,712, i.e. the debt recognised by the Respondent, and the amount of EUR 53,744.10, i.e. the amount that according to the Claimant was still outstanding. 23. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest on said amount at the rate of 5% p.a. as of the date of the claim, i.e. 2 June 2011. 24. In continuation, the Chamber resolved that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 25. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 26. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 27. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the contract, this would run for another twelve months. Consequently, the Chamber concluded that the remaining value of the contract as from its early termination by the Claimant until its regular expiry amounts to EUR 184,000, i.e. 10 x EUR 9,200 for the season 2011/2012 plus EUR 92,000 as the guaranteed payment for the season 2011/2012, an amount which shall serve as the basis for the final determination of the amount of compensation for breach of contract. 28. 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. 29. In this respect, the Chamber acknowledged that the Claimant remained unemployed as from May 2011 until June 2012 and thus, was not able to mitigate his damages. 30. In conclusion, taking into account all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the claim of the Claimant and, as a consequence, determined that the Respondent is liable to pay to the Claimant the total amount of EUR 184,000 as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount, as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 2 June 2011, until the date of effective payment. 31. As to the Claimant’s request of EUR 46,000 regarding the match payments for the season 2011/2012, the members of the Chamber stressed that the payment of such bonuses are linked to matches to be played in the future, i.e. after the termination of the relevant contract, and, therefore, are fully hypothetical. Consequently, the Chamber decided not to take these into account while assessing the residual value of the contract. 32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player F, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Bucaspor, 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 53,744.10 plus 5% interest p.a. on said amount as from 2 June 2011 until the date of effective payment. 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 in the amount of EUR 184,000 plus 5% interest p.a. on said amount as from 2 June 2011 until the date of effective payment. 5. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 3. and 4. 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. 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. 7. Any further claim lodged by the Claimant is rejected. ***** 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