F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 30 July 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Theodoros Giannikos (Greece), member on the claim presented by the club, Club S, from country B as Claimant/Counter-Respondent against the player, Player S, from country P as Respondent 1/Counter-Claimant and the club, Club T, from country U as Respondent 2 regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 30 July 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Theodoros Giannikos (Greece), member on the claim presented by the club, Club S, from country B as Claimant/Counter-Respondent against the player, Player S, from country P as Respondent 1/Counter-Claimant and the club, Club T, from country U as Respondent 2 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 4 January 2012, Club S, from country B (hereinafter: the Claimant/Counter-Respondent), and Player S, from country P (hereinafter: the Respondent 1/Counter-Claimant), signed an employment contract (hereinafter: the contract), valid from the date of signature until 31 December 2013. 2. According to clause 3 of the contract, the Respondent 1/Counter-Claimant was entitled to receive a monthly salary in the amount of currency of country B 21,980 payable “by the fifteenth day of the month following the month for which the remuneration is due”. 3. In addition, clause 9 par. 1.7 and 1.8 of the contract established that the contract may be terminated “through the fault of the [Claimant/Counter-Respondent] for failure of the [Claimant/Counter-Respondent] to fulfill their financial obligations to the [Respondent 1/Counter-Claimant]. The contract shall be terminated by a resolution of the Arbitration Court of the country B Football Union. In this case the [Claimant/Counter-Respondent] shall not be entitled to financial compensation when the [Respondent 1/Counter-Claimant] moves to another club.” […] “As a failure to fulfill financial obligations it shall be considered non-payment of two consecutive monthly remunerations after the due date for payment. In case of a culpable breach of obligations under this contract by the [Claimant/Counter-Respondent]. The contract shall be terminated by a resolution of the Arbitration Court of the country B Football Union.” 4. On the same day, the parties also concluded an “Annex to labour contract” (hereinafter: the annex), valid for “2 (two) sportive seasons, namely 2011/2012 –spring half, season 2012/2013 –autumn half, season 2012/2013 –spring half and season 2013/2014 –autumn half”, which stipulated the following remuneration: a) EUR 20,000 as sign-on fee; b) EUR 10,000 as monthly salary payable from January 2012 to December 2013, at the “latest by the 15th day on the month following the month for which salary is paid”. 5. Clause 10.1 of the annex established that “the payments as per the labour contract, as well as all the taxes payable according to country B law, are deductible from the labour contract signed between the parties of the present annex and those payments do not represent an additional payment to the present annex”. 6. On 20 February 2014, the Claimant/Counter-Respondent lodged a claim against the Respondent 1/Counter-Claimant in front of FIFA for breach of contract without just cause requesting the payment of the total amount of EUR 80,000 as compensation, plus interest of 5% p.a. as from 16 December 2013, and the imposition of sporting sanctions on the Respondent 1/Counter-Claimant, plus legal fees and costs. Equally, the Claimant/Counter-Respondent requested that the Respondent 1/Counter-Claimant’s new club, Club T (hereinafter: Respondent 2), be considered jointly and severally liable to pay the requested amount. 7. In its claim, the Claimant/Counter-Respondent stated that, on 15 December 2013, the Respondent 1/Counter-Claimant did not collect his salary for the month of November 2013. Equally, the Claimant/Counter-Respondent noted that the Respondent 1/Counter-Claimant was absent at training on 16 and 17 December 2013. In this regard, the Claimant/Counter-Respondent claims that the Respondent 1/Counter-Claimant, without warning or explanation, abandoned the club on 15 December 2013, just before the upcoming match on 19 December 2013 against Club S. On 22 January 2014, the Claimant/Counter-Respondent became aware that the Respondent 1/Counter-Claimant had joined the country U team, Respondent 2. In this context, the Claimant/Counter-Respondent emphasized that the Respondent 1/Counter-Claimant never indicated any unfulfilled employment obligation and, therefore, he unilaterally terminated the contract without just cause 16 days before the expiry of the contract. 8. On 5 March 2014, before the Claimant/Counter-Respondent’s claim was forwarded to the Respondent 1/Counter-Claimant, the latter also lodged a claim against the Claimant/Counter-Respondent in front of FIFA for breach of contract without just cause requesting the payment of the following amounts, plus interest of 5% p.a.: a) currency of country B 43,960, corresponding to two outstanding salaries for the months of November and December 2013 as per the contract; b) EUR 5,000 “for damages due to the breach of the contract”; c) all costs of the proceedings and attorneys’ fee; d) sporting sanctions. 9. In this regard, the Respondent 1/Counter-Claimant alleges having contacted the Claimant/Counter-Respondent twice via e-mail after the expiry of the contract in order to request the outstanding salaries for November and December 2013 in the total amount of currency of country B 43,960, corresponding to approx. EUR 22,476.74 according to the Respondent 1/Counter-Claimant. The Claimant/Counter-Respondent was also informed that in case of non-compliance within two days, he would “exercise [his] rights in FIFA jurisdictional bodies”. In this respect, the Respondent 1/Counter-Claimant provided copies of two e-mails dated 22 and 29 January 2014, addressed to the Claimant/Counter-Respondent. However, no payment was made. Thus, the Respondent 1/Counter-Claimant deems that the Claimant/Counter-Respondent breached the contract by failing to remit his salaries. 10. In its response to the Respondent 1/Counter-Claimant’s claim, the Claimant/Counter-Respondent maintained its previous argumentation, rejected the argumentation of the Respondent 1/Counter-Claimant and insisted on the fact that the contract was not terminated upon its expiry on 31 December 2013, but unilaterally and prematurely by the Respondent 1/Counter-Claimant since he was absent as from 16 December 2013. Equally, it reiterated that the Respondent 1/Counter-Claimant failed to collect his salary for November 2013 on 15 December 2013 and instead, “on 15th December 2013 he made an announcement before the media that he was leaving the club and that all of his financial matters with the [Claimant/Counter-Respondent] were settled”. As a consequence, the Claimant/Counter-Respondent held that the Respondent 1/Counter-Claimant may not claim his entire remuneration for the month of December 2013 since he did not render his services as from 16 December 2013 and he was allegedly not reachable. 11. As to the outstanding remuneration, the Claimant/Counter-Respondent noted that the requested amount of EUR 22,476.74 is unproven and unjustified since the agreed monthly salary stipulated in the annex amounted to EUR 10,000 (cf. points I.2 and I.4 b). With regard to the two alleged e-mails the Respondent 1/Counter-Claimant sent on 22 and 29 January 2014 (cf. point I.9), the Claimant/Counter-Respondent stated that it had not received them and, therefore, it contested the validity of said communications. 12. Finally, the Claimant/Counter-Respondent referred to the Respondent 1/Counter- Claimant’s request for damages which it called unjustified and unproven since he “had not spent a single day in the country after the salary for November 2013 fell due”. 13. In his reaction to the Claimant/Counter-Respondent’s claim, the Respondent 1/Counter-Claimant rejected all the Claimant/Counter-Respondent´s allegations and reiterated the points put forth in his claim against the Claimant/Counter-Respondent. Specifically, he pointed out once more that he fulfilled the contract and that the Claimant/Counter-Respondent failed to pay his salaries for November and December 2013. In this context, the Respondent 1/Counter-Claimant noted that the Claimant/Counter-Respondent “(if wanted so) always was able to make such payment by bank transfer or even sending the money by post office”. Furthermore, he alleged that the Claimant/Counter-Respondent lodged a claim against him because he refused to extend his contract and because the Claimant/Counter-Respondent wanted to avoid the payment of his salaries. 14. In addition, the Respondent 1/Counter-Claimant admitted travelling to country P on 16 December 2013, however, he emphasized that the Claimant/Counter-Respondent scheduled his trip on this date. In this regard, he noted that “even after the new date of the match played on 19th December 2013 (the initial date of this match was before the 16th December 2013) [(note: cf. point I.7)], the [Claimant/Counter-Respondent] keeps the travel of the [Respondent 1/Counter-Claimant] and his family on the 16th December 2013, despite the requests of the [Respondent 1/Counter-Claimant] to the [Claimant/Counter-Respondent] change the date of his and his family travel to country P”. Thus, the Respondent 1/Counter-Claimant emphasized that his absence as from 16 December 2013 “was only because the [Claimant/Counter-Respondent] wanted so” and, thus, cannot be held against him. Equally, he pointed out that all the players of the club were allegedly “dismissed […] for vacations” after the game on 19 December 2013, thus, he was absent only for three days and not 16 days. Hence, such short absence cannot be considered a breach of contract without just cause. 15. Finally, the Respondent 1/Counter-Claimant contested the Claimant/Counter-Respondent’s request for EUR 80,000, plus interest, as well as the request for sporting sanctions and pointed out that the Claimant/Counter-Respondent calculated said amount “without reasonable and fair criteria”. In this context, he noted that in case he is condemned to compensate the Claimant/Counter-Respondent, he must only be held liable to pay 16 days, i.e. the amount of days he was absent from work. 16. In its position on the Claimant/Counter-Respondent’s claim, Respondent 2 rejected the Claimant/Counter-Respondent’s request for it to be jointly and severally liable for any payment in this proceeding. In this regard, Respondent 2 pointed out that the Respondent 1/Counter-Claimant’s contract with the Claimant/Counter-Respondent ended on 31 December 2013 and that it concluded the contract with him on 17 January 2014, i.e. after the previous contract had expired. In this context, Respondent 2 also noted that the International Transfer Certificate (ITC) procedure that took place on 25 February 2014 was completed without any problems. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The claim of the Claimant/Counter-Respondent against the Respondent 1/Counter-Claimant and the (counter) claim of the Respondent 1/Counter-Claimant against the Claimant/Counter-Respondent were submitted to FIFA on 20 February 2014 and 5 March 2014, respectively. Therefore, the Chamber concluded that the edition 2012 of the Procedural Rules was applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country B club, a country P player and an country U club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2012), and considering that the present claims were lodged on 20 February 2014 and 5 March 2014 respectively, the 2012 edition of said regulations is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents 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. In this respect, the DRC acknowledged that it is undisputed by the parties that, on 4 January 2012, Claimant/Counter-Respondent and the Respondent 1/Counter-Claimant had signed an employment contract valid as from the date of signature until 31 December 2013, in accordance with which the Respondent 1/Counter-Claimant was entitled to receive currency of country B 21,980, payable “by the fifteenth day of the month following the month for which the remuneration is due”. 6. Equally, the DRC took due note that it was also undisputed by the parties that, on the same day, the Claimant/Counter-Respondent and the Respondent 1/Counter-Claimant concluded the annex, which stipulated EUR 10,000 as monthly salary payable from January 2012 to December 2013, due at the “latest by the 15th day on the month following the month for which salary is paid”. 7. In continuation, the Chamber further noticed that it is also undisputed by the parties involved that the Respondent 1/Counter-Claimant was no longer in country B as from 16 December 2013. 8. The DRC further noted that, on the one hand, the Claimant/Counter-Respondent claims that the Respondent 1/Counter-Claimant failed to collect his salary for the month of November 2013 and was absent without authorization at training on 16 and 17 December 2013, thus, unilaterally and prematurely terminating the contract without just cause just before the upcoming match on 19 December 2013 against Club S. In this context, the Claimant/Counter-Respondent also pointed out that the Respondent 1/Counter-Claimant concluded a new employment contract with the Respondent 2 shortly after in January 2014. 9. Consequently, the Claimant/Counter-Respondent asked to be awarded compensation for breach of contract in the total amount of EUR 80,000, plus interest of 5% p.a. as from 16 December 2013, as well as the imposition of sporting sanctions on the Respondent 1/Counter-Claimant plus legal fees and costs, due to the Respondent 1/Counter-Claimant’s termination of the contract without just cause. Equally, the Claimant/Counter-Respondent requested that the Respondent 2 be considered jointly and severally liable to pay the requested amount. 10. The DRC further noted that, on the other hand, the Respondent 1/Counter-Claimant also lodged a claim against the Claimant/Counter-Respondent, alleging that the latter breached the contract without just cause by failing to pay two salaries corresponding to the months of November and December 2013. 11. Consequently, the Chamber took due note that the Respondent 1/Counter-Claimant asked to be awarded the total outstanding amount of currency of country B 43,960 plus interest of 5% p.a., as well as EUR 5,000 “for damages due to the breach of the contract”, the costs of the proceedings as well as his attorneys’ fee and the imposition of sporting sanctions on the Claimant/Counter-Respondent. 12. The DRC further acknowledged that, with regard to his absence as from 16 December 2013, the Respondent 1/Counter-Claimant explained that the Claimant/Counter-Respondent scheduled his trip to country P on this date. Taking into consideration the above-mentioned, the DRC noted that the Respondent 1/Counter-Claimant emphasised that, taking into account his departure on 16 December 2013 and the beginning of the vacation of the rest of the team on 19 December 2013, he was only absent for three days and not 16 and that such a short absence cannot be considered a breach of contract without just cause. 13. Finally, the Chamber noted that the Respondent 2 rejected the Claimant/Counter-Respondent’s request for it to be jointly and severally liable due to the fact that it concluded the contract with the Respondent 1/Counter-Claimant after the previous contract with the Claimant/Counter-Respondent had expired. 14. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant/Counter-Respondent and the (counter) claim of the Respondent 1/Counter-Claimant, as well as their respective allegations, was to determine whether the employment contract had been unilaterally terminated with or without just cause by any of the parties, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract was terminated by a party without just cause, it would be necessary to determine the financial and/or sporting consequences for the party that caused the unjust breach of the relevant employment contract. 15. In this respect, the DRC acknowledged that it is not contested by the Claimant/Counter-Respondent and the Respondent 1/Counter-Claimant that the Respondent 1/Counter-Claimant was absent as from 16 December 2013. 16. In continuation, the Chamber observed that, while the Claimant/Counter-Respondent deems that the Respondent 1/Counter-Claimant’s departure on 16 December 2013 was without authorization and without just cause, the Respondent 1/Counter-Claimant stated that the air ticket was arranged by the Claimant/Counter-Respondent and was, consequently, authorized. 17. In this context, and for the sake of good order, the DRC reminded the parties of the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 18. Bearing in mind the above, the Chamber firstly noted that, on the one hand, the Respondent 1/Counter-Claimant could not prove that the air ticket with which he left country B on 16 December 2013 had been, in fact, arranged by the Claimant/Counter-Respondent. Therefore, his argument in this regard could not be sustained. 19. On the other hand, the DRC observed that the Claimant/Counter-Respondent did not provide any written evidence of a warning sent to the Respondent 1/Counter-Claimant in order to request his return once it became aware that the Respondent 1/Counter-Claimant failed to collect his salary on 15 December 2013 and, subsequently, was also absent at training on 16 and 17 December 2013. In this regard, the DRC wished to emphasise that the Claimant/Counter-Respondent only claimed the alleged breach of the contract on the part of the Respondent 1/Counter-Claimant once it lodged the claim in front of FIFA on 20 February 2014. 20. Equally, and taking into consideration the Respondent 1/Counter-Claimant’s reminders dated 22 and 29 January 2014 (cf. point I.9 above) addressed to the Claimant/Counter-Respondent in order to obtain the outstanding salary payments, the Chamber further noted that the Claimant/Counter-Respondent also did not appear to have reacted in any way to said reminders, nor made any payment to the Respondent 1/Counter-Claimant. 21. Taking into consideration the aforementioned arguments and, in particular, the fact that the Claimant/Counter-Respondent failed to notify or request the return of the Respondent 1/Counter-Claimant to the club, the DRC deemed that the parties implicitly and tacitly agreed on the early termination of the contract. 22. At this point, the DRC also deemed appropriate to point out that the Respondent 1/Counter-Claimant’s absence amounted to 16 days only before the expiry of the contract and just before the year-end holidays. 23. As a consequence, the Chamber decided that the early termination of the contract on 16 December 2013 was tacitly agreed by the parties and, therefore, both the Claimant/Counter-Respondent’s and the Respondent 1/Counter-Claimant’s requests for compensation for breach of contract had to be rejected. 24. In view of the above-mentioned considerations, the DRC concluded that the present dispute gravitates around the payment of outstanding remuneration only. 25. In this regard, the DRC had to establish, first and foremost, whether the contract or the annex were to be taken into consideration in order to calculate the outstanding amount due to the Respondent 1/Counter-Claimant. In this respect, the Chamber referred to clause 10.1 of the annex (cf. point I.5 above), which stipulated that “the payments as per the labour contract, as well as all the taxes payable according to country B law, are deductible from the labour contract signed between the parties of the present annex and those payments do not represent an additional payment to the present annex”. 26. In view of the above-mentioned fact, in particular of the stipulation “[…] those payments do not represent an additional payment to the present annex”, the DRC established that the annex and the therein stipulated payments were to be taken into consideration when calculating the Respondent 1/Counter-Claimant’s outstanding payments. 27. Thus, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, and taking into consideration the monthly remuneration of EUR 10,000 stipulated in the annex, the Claimant/Counter-Respondent should be held liable to pay to the Respondent 1/Counter-Claimant outstanding remuneration in the total amount of EUR 15,000, consisting of the salary for the month of November 2013 as well as half a salary for the month of December 2013 that was outstanding at the time the Respondent 1/Counter-Claimant returned to country P on 16 December 2013, as well as 5% interest p.a. on said amount as from 5 March 2014 until the date of effective payment. 28. Equally, the Chamber held that the Respondent 1/Counter-Claimant’s claim pertaining to costs of the proceedings and attorney’s fees is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by deciding that the claim of the Claimant/Counter-Respondent is rejected and the (counter) claim of the Respondent 1/Counter-Claimant is partially accepted. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Club S, is rejected. 2. The counterclaim of the Respondent 1/Counter-Claimant, Player S, is partially accepted. 3. The Claimant/Counter-Respondent, Club S, is ordered to pay to the Respondent 1/Counter-Claimant, Player S, outstanding remuneration in the amount of EUR 15,000, plus 5% interest p.a. as of 5 March 2014 until the date of effective payment, within 30 days as from the date of notification of this decision. 4. In the event that the aforementioned amount plus interest is not paid by the Claimant/Counter-Respondent, Club S, 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 counterclaims lodged by the Respondent 1/Counter-Claimant, Player S, are rejected. 6. The Respondent 1/Counter-Claimant, Player S, is directed to inform the Claimant/Counter-Respondent, Club S, immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber Jérôme Valcke Secretary General Encl. CAS directives