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 30 August 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player B, from country A as Claimant / Counter-Respondent against the club, Club S, from country V as Respondent / Counter-Claimant 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 30 August 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player B, from country A as Claimant / Counter-Respondent against the club, Club S, from country V as Respondent / Counter-Claimant regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 September 2009, Player B, from country A (hereinafter: the player), and Club S, from country V (hereinafter: the club), signed an employment contract valid as from 1 September 2009 until 30 August 2011. 2. In accordance with the contract, the player was entitled to receive, inter alia, a net salary of USD 7,000 per month. 3. Art. 2.2 of the contract stipulates: “Where applicable, if the International Transfer Certificate is not received by the beginning day of the contract period as mentioned in 1. The date of actual receipt of the ITC will constitute the date of commencement of this Contract unless mutually agreed in writing by the parties thereto.” 4. Art. 7.3.1.1(d) of the contract stipulates that the club can unilaterally terminate the contract without reimbursement if the player “cannot meet skill requirements in stage 1 or trauma time up to 1 months that be treated by [the club] but cannot play again, [the club] has a right to terminate this contract before ended time to find new one”. 5. Art. 7.3.2.1 of the contract stipulates: “Except any cases stated in items 7.1,7.2,7.3, if the Club want to terminate the contract before ended time but informed to [the player]. In written advance of 15 days before the intended date of termination and have duty to pay to [the player] 02 (two) months salaries as stated of Appendix 1 and support to him tickets, transportation (…)”. 6. According to art. 18 of appendix 3 of the contract, if the player is absent from work for more than 3 days, he shall be fined with USD 1,000 for each day of absence; if the player is absent for more than 4 days “[the player] has a duty to reimburse to [the club] all paid transfer fees and salary, accommodation and other related fees that [the club] has paid to him and he also had to pay more to an amount equivalent with 05 month salaries.” 7. On 21 December 2009, the player lodged a claim against the club in front of FIFA requesting: - USD 147,000 in unpaid salaries; and - Exemplary damages equal to three months compensation. 8. In his claim, the player indicated that he fulfilled his obligations under the contract and was paid for the months of September, October and November 2009. However, according to the player, on 1 December 2009, a meeting was held in which the club informed the player that: - he was not of the quality expected by the club’s coach; - the payments to him under the contract would cease as from 30 November 2009; - the club no longer wanted him to perform his obligations under the contract; and - the contract would be terminated in accordance with Art. 7.3.1.1 (d) of the contract. 9. On 2 and 3 December 2009, the club presented two proposals “for the full and final settlement of the early termination of the contract” offering the amount of USD 14,000 and USD 28,000 respectively, however, both proposals were declined by the player. On 4 December 2009, the player sent a letter to the club advising it that he requested the payment of USD 42,000 in order to settle the matter amicably. 10. On 7 December 2009, the club informed the player’s representative, amongst others, that: - the contract was only valid upon the issuance of the ITC, which had still not been received. “Until now ITC still not come to country V Football Federation and I did not received any reply from country V Football Federation about ITC of the case of Player B”; - the country V authorities were still considering the work permit of the player; - the player was not the “level/quality” expected; - “after our talked (I and him) he suddenly/immediatle stop training 5 days until NOW, without asking permitions from coaches. All his actions is violated our regulations and the rule of club. (…) he can not stop working (training) without permitions from coaches while we (club) still pay him salary (….) I thought that he must keeping training, but he is undisplined to stop training.” 11. Also on 7 December 2009, the player informed the club in writing that he still considered the contract to be valid and requested the club to take all steps to ensure that his work permit and the ITC were issued as well as to confirm its intention to honour the contract. According to the player, on the evening of 7 December 2009, the player met with a representative of the club who advised him that they would not respond to any further letters and that they no longer considered the player to be employed by the club. The player explained that, thereafter, the club made several threats to the player via SMS. 12. Finally, the player stated that, on 14 December 2009, after the club had showed no intention of honouring the contract, he returned to country A, which was communicated to the club on the same day. 13. In reply to the claim lodged against it, the club stated that: a. In accordance with art. 2.1 and 2.2 of the contract, it was not bound by the terms of the contract until the ITC was delivered to the country V Football Federation i.e. 9 December 2009. According to the club, such provision is not contrary to art. 18 par. 4 of the Regulations. b. However, should the contract be effective as from 1 September 2009, the club outlined that it paid the player for the months of September, October and November 2009. At the end of November 2009, the club chose to negotiate a mutual termination with the player due to financial reasons. In this respect, “during the 4-days of holidays from 29 November to 2 December 2009”, the club met several times with the player and offered a compensation of 2 months’ salary (USD 14,000), which was later increased to 4 month’s salary (USD 28,000). Nevertheless, the player insisted that he would only agree to terminate the contract upon the payment of 6 months’ salary (USD 42,000). The club indicated that, while negotiating the termination of the contract with the player, it always performed its contractual obligations properly. c. According to the club, the understanding of the club that the contract was continuously in effect is evidenced by its e-mail dated 7 December 2009, which confirmed that the contract was not terminated and in which it reminded the player that his absence from training without permission was a violation of the club’s Internal Rules. Therefore, the club deems that it was the player who left the club without permission. In relation to the communication of the player dated 7 December 2009, the club asserts that it was under no obligation to confirm in writing its intention to “resume” the contract as requested by the player, because the contract had never been terminated. d. On 25 December 2009 and 1 January 2010, the club sent a letter and an e-mail to the player, requesting him to return to the club before 8 January 2010, otherwise it would start legal proceedings against the player. e. The club deems that the player has been in breach of his contract by permanently being absent from work without permission. The player refused to return to work after the 4-day holiday notwithstanding the fact that the club never declared that it would terminate the contract nor did it prevent the player from performing the contract. According to the club, the player had been absent from the club since 3 December 2009 without any permission. 14. In conclusion, the club requested to reject the player’s claim and lodged a counterclaim, requesting to hold the player liable for a fine with the rate of USD 1,000 per day for the days he is absent from the club without permission. 15. In his replica, the player stated that an employment contract cannot be made conditional upon the issuance of an ITC. The player further referred to the events outlined in par. 8 above, which, according to him, remained uncontested. Therefore, the player considered that it was clear that the club terminated the contract without just cause. What is more, the club was given the opportunity on 7 December 2009 to confirm its intention to enter into negotiations with the player, however, instead the club informed the player during a meeting later that day that it would i) not respond to the letter dated 7 December 2009, ii) it would not engage in any further correspondence with the player or his representative and iii) it would no longer consider him as an employee of the club. 16. In addition, the player states that between 1 December and 14 December 2009, “the club told the player that it would impede his ability to obtain further employment by refusing to issue an ITC. At the time, the player was unaware that Football Federation country A had never sent the ITC to the club”. Furthermore, the club was disrespectful and threatening towards the player and the club acted in bad faith when it sent the communications to the player on 25 December 2009 (Christmas day) and 1 January 2010, respectively. The player only read the communications on 4 January 2010 and since the request to return was set on 8 January 2010, a date within the holiday period, it is clear that the club “had no real intention that the player return”. The player holds that if the club had genuine intentions to honour the contract, it would have replied to the player’s communication of 7 December 2009. 17. Equally, the player denied having breached the contract due to his absence from the training sessions after the 4-days holiday, since the contract had already been terminated at that time, and asserted that “the “negotiations” commenced by the club were an attempt to intimidate the player into accepting less than he was due”. The player held that it is clear that the club terminated his contract on the basis of his sporting ability, that he did not breach the contract and that there is no reason to fine him; the club confirmed its intention not to resume the contract by not responding to the letter of the player dated 7 December 2009. 18. Finally, the player stated that he should be compensated in full since he was 33 years old when the club terminated the contract and since then, despite several trails, he was not able to sign a new contract. 19. In its duplica, the club stressed that it is clear that, by offering USD 14,000 and later on USD 28,000, whilst always fulfilling its contractual obligations, the club’s intention was to seek an agreement with the player on the contract termination, rather than to unilaterally terminate the contract. If the club wished to terminate the contract according to art. 7.3.1.1., as alleged by the player, it would have simply given the player a 15-days’ notice. Alternatively, it would have made use of art. 7.3.2.1. of the contract. 20. Furthermore, the club emphasised that the player himself understood that the club only proposed to terminate the contract, rather than that it was unilaterally terminating the contract. In fact, the player exercised his right to negotiate by bargaining for a higher compensation; it was clearly a mutual process instead of a unilateral process. 21. Moreover, the club held that its letter dated 25 December 2009 gave the player ample time to return before 8 January 2010. 22. Equally, the fact that the club mentioned in its e-mail that the coach complained about the player’s performance, does not mean that the club based its proposal for the termination of the contract on this fact. 23. Finally, the club stressed that by failing to return after the 4-days holidays, the player breached the contract and, in this respect, referred to the labour code of Vietnam which states that after 5 days of absence of work, the employer is entitled to terminate the contract unilaterally. 24. As to the club’s text message to the player, the former indicated that it just warned the latter of his undisciplined attitude. The club outlined that requesting a player to attend training is acceptable in order to maintain discipline in the team; the text message was certainly no threat, as wrongly interpreted by the player. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 21 December 2009. 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 editions 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 is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country V club. 3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 (editions 2009, 2010 and 2012), and considering that the claim was lodged on 21 December 2009, the 2009 edition of the aforementioned regulations (hereinafter: the 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, 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. 5. First of all, the members of the Chamber acknowledged that, on 1 September 2009, the player and the club had concluded an employment contract valid as from 1 September 2009 until 30 August 2011. As to the financial terms of said employment contract, the Chamber took note that it had been agreed upon between the parties that the club would remunerate the player with a monthly salary of USD 7,000. 6. The Chamber further observed that the player lodged a claim in front of FIFA against the club seeking payment of the amount of USD 147,000 as well as “exemplary damages”. In this respect, the player asserted that the club had failed to register him with the country V Football Federation and had, subsequently, in a meeting held on 1 December 2009, shown no interest in the continuation of the employment relationship. 7. Furthermore, the Chamber observed that the club rejected the claim of the player, first of all arguing that in accordance with art. 2.2 of the contract, it was not bound to the contract until the ITC of the player had been delivered to the country V Football Federation. In this respect, the club outlined that the player’s ITC was only received on 9 December 2009. Moreover, the club indicated that, in the beginning of December 2009, it merely wanted to negotiate the termination of the contract by mutual consent, while, until that time, it had fully complied with its contractual obligations towards the player. 8. In addition, the club stressed that it was in fact the player who was in breach of the contract, being absent from work since 3 December 2009 without authorization. As a consequence, the club lodged a counter-claim against the player requesting to hold the player liable for a fine of USD 1,000 per day of absence. 9. Having taken into consideration the previous considerations, the members of the DRC first recalled that art. 2.2 of the contract stipulates that: “Where applicable, if the International Transfer Certificate is not received by the beginning day of the contract period as mentioned in 1. The date of actual receipt of the ITC will constitute the date of commencement of this Contract unless mutually agreed in writing by the parties thereto”. 10. Furthermore, the Chamber acknowledged that it was undisputed between the parties that following the conclusion of the contract on 1 September 2009, the player had not been properly registered with the country V Football Federation so as to be able to participate in matches for the club, since the player’s ITC was only received by the country V Football Federation on 9 December 2009. 11. In this respect, the Chamber outlined that there was no indication that the club requested the ITC of the player correctly from the start of the employment relationship, nor that the player was informed by the club about the ongoing situation in relation to his ITC. 12. Nevertheless, the Chamber observed that the player received his salaries during the first three months of the contract, after which the club proposed to the player to terminate the employment contract prematurely. At the same time, the player had stopped going to practice requesting the club to clarify his situation, i.e. he had asked the club to obtain his ITC and his work permit. 13. In this context and with reference to the club’s statement that, in accordance with art. 2.2 of the employment contract, it was not bound to said employment contract until it received the player’s ITC, the Chamber considered it relevant to recall its well-established jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence. Bearing in mind that according to Annexe 3 of the Regulations an ITC request depends on the new club’s application to the new association to register a professional, the club is actually in the position to prevent the occurrence of the condition precedent of receipt of an ITC by willfully choosing not to proceed with the application for an ITC request. By analogy, the same applies to the finalization of documents or procedures related to the transfer of a player, e.g. the signature of a transfer agreement or the payment of a transfer compensation. For these reasons, the members of the Chamber decided to reject the club’s argumentation in this regard. 14. In continuation, the members of the Chamber considered it important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to be given the possibility to compete with his fellow team mates in the team’s official matches. In this respect, the Chamber emphasized that the “non-registration” of a player, even for a limited time period, effectively bars, in an absolute manner, the potential access of a player to competition and, as such, is violating one of his fundamental rights as a football player. 15. Therefore, the Chamber established that the “non-registration” of a player constitutes, in principle, a breach of contract since it de facto prevents a player from being eligible to play for his club. 16. On account of the above, the Chamber established that the club had not complied with its obligation as to enable the player to be registered and as such it violated the contract with the player. As a result, the Chamber deemed that the player, who had asked for a clarification in relation to his status, was therefore in a position to stop rendering his services to the club. The Chamber, in particular, pointed out that when the player asked for a clarification about his status, the club, instead of providing him with the relevant information about the ITC and the work permit, proposed the early termination of the contract. Also, the Chamber found it important to point out that the club had never informed the player that his ITC was eventually received on 9 December 2009. In view of the all foregoing, the Chamber, taking into account the very specific circumstances of the present matter, decided that the player had just cause to terminate the employment contract and that, consequently, the club is to be held liable for the early termination of the employment contact with just cause by the player. 17. As a consequence of the above-mentioned considerations, the Chamber decided to reject the counter-claim lodged by the club. 18. Furthermore, and bearing in mind the foregoing considerations the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract. 19. 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. 20. 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. 21. Subsequently, and in order to evaluate the compensation to be paid by the club, the members of the Chamber took into account the remuneration due to the player in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the player after the early termination occurred. 22. On account of the above, the Chamber pointed out that, at the time of the termination of the contractual relationship, the contract would run for another 21 months, in which the player would be entitled to 21 instalments of USD 7,000 for the period as from December 2009 until August 2011. Consequently, the Chamber concluded that the remaining value of the contract as from its early termination by the player until the regular expiry of the contract amounted to USD 147,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 23. In continuation, the Chamber remarked that following the early termination of the contract at the basis of the present dispute the player had not been able to find new employment with another club. 24. In view of all of the above, the Chamber decided that the club must pay the amount of USD 147,000 to the player as compensation for breach of contract. 25. Furthermore, and in relation to the player’s request for “exemplary damages”, which was not specified by the player, the Chamber agreed that such claim is to be rejected due to a lack of legal basis. 26. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player B, is partially accepted. 2. The claim of the Respondent / Counter-Claimant, Club S, is rejected. 3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, the amount of USD 147,000 within 30 days as from the date of notification of this decision. 4. In the event that the aforementioned sum is not paid by the Respondent / Counter-Claimant 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. 5. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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 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