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 the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 20 August 2014, by DRC judge, on the claim presented by the player, Player S, from country M as Claimant against the club, Club R, from country Z as Respondent regarding an employment-related dispute 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 the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 20 August 2014, by DRC judge, on the claim presented by the player, Player S, from country M as Claimant against the club, Club R, from country Z as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 13 February 2012, the player S from country M (hereinafter: the Claimant), and the club R from country Z (hereinafter: the Respondent), concluded an employment contract valid for the season 2011/2012 and the season 2012/2013. 2. In accordance with said contract, the Claimant would, inter alia, be entitled to the following amounts: - Currency of country Z (Coz) 2,22,222 per month as from 14 February 2012 to 13 May 2012; - Coz 3,33,333 per month as from 1 August 2012 to 31 May 2013. 3. Art II. lit. i) of the contract stipulates that “Your contract for season 2012-13 will be decided by the Club Management and be effective provided you have proved your ability in football during the season 2011-12.” 4. Furthermore, the last sentence of art. 8 lit. e) of the contract provides the following: “This contract may be terminated by [the Respondent] in the manner herein below indicated on happening of any of the following events: (…) e) If the player’s progress/performance is found not satisfactory by the coaches/[club] management.” 5. On 21 March 2013, the Claimant lodged a claim against the Respondent in front of FIFA, explaining that the Respondent had i) put an end to the contract on 3 May 2012, ii) had not paid him his salaries for the remainder of the contract, and iii) had not renewed his visa. 6. On account of the above, the Claimant requested to be awarded the following amounts: - EUR 46,330 corresponding to the salaries owed until 31 May 2013. - EUR 10,000 for damages; - EUR 4,500 for “the prejudice of having lost and now looking for another accommodation”; - EUR 5,000 for legal fees. 7. In reply to the claim lodged against it, the Respondent referred to art. II. lit. i) of the contract and stated that said article clearly established that the decision to retain the Claimant for the second season would be decided by the Respondent’s management based on the Claimant’s performances during the 2011/2012 season. The Respondent explained that during the 2011/2012 season, the Claimant did not play to the best of his ability, which was repeatedly pointed out to him by the Respondent’s coach in order to improve his performance. The Respondent stated that, at all times, it rendered full assistance to the Claimant, however, to no avail. 8. As a result, based on the highly unsatisfactory performance of the Claimant, the Respondent deemed that it rightly decided to terminate the contract by exercising art. 8 lit. e) of the contract. The Respondent pointed out that the Claimant accepted the termination and that, up until 13 May 2012, he had received all his salaries. 9. The Respondent added that the Claimant’s visa was requested until 31 May 2012 only, thus, choosing from the very beginning of the contract to restrict the contract to potentially one season. 10. Finally, the Respondent stated that the Claimant continuously used abusive language, mostly being racial slurs, however, it chose not to subject the Claimant to any disciplinary proceedings. 11. As a consequence, the Respondent held that the claim of the Claimant should be rejected. 12. Upon request of FIFA, the Claimant informed FIFA that he did not find employment with a new club between May 2012 and July 2013. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 21 March 2013. Consequently, the DRC judge concluded that the 2012 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 2012 and 2014 edition of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014) the DRC judge is competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a player S and an club R. 3. Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012 and 2014) and considering that the present claim was lodged in front of FIFA on 21 March 2013, the 2012 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. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. In this respect and first of all, the DRC judge acknowledged that on 13 February 2012, the Claimant and the Respondent had concluded an employment contract valid for the season 2011/2012 and the season 2012/2013. 6. Equally, the DRC judge duly noted that the Claimant lodged a claim against the Respondent in front of FIFA, explaining that the Respondent had put an end to the contract on 3 May 2012 and that by doing so it had terminated the contract without just cause. As a result, the Claimant requested to be awarded his salaries until the end of the 2012/2013 season, legal fees as well as further damages. 7. Moreover, the DRC judge took note that, for its part, the Respondent asserted that based on the highly unsatisfactory performance of the Claimant it rightly decided to terminate the contract by exercising art. II. lit. i) and art. 8 lit. e) of the contract. 8. In this respect, the DRC judge recalled the well-established jurisprudence of the Dispute Resolution Chamber in accordance with which, in principle, poor performance of a player does not constitute a valid reason to unilaterally terminate an employment contract, not even if such option is included in the relevant employment contract. The DRC judge in particular underlined that a player’s alleged poor performance is a purely unilateral and subjective evaluation by a club and lacks objective criteria while assessing a player’s performance. Therefore, the DRC judge determined that art. II. lit. i) and art. 8 lit. e) of the contract cannot be validly invoked nor form a legal basis to unilaterally terminate the employment contract with the Claimant. 9. Consequently, the DRC judge decided that the Respondent had terminated the contract with the Claimant without just cause on 3 May 2012 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact without just cause. 10. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 11. First of all, the DRC judge acknowledged that the Respondent had paid the Claimant all his salaries until the date of the termination of the contract. As a consequence, the DRC judge considered that no remuneration was outstanding by the time the Respondent terminated the employment contract with the Claimant. 12. In continuation, the DRC judge decided 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. 13. In this context, the DRC judge 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. 14. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 15. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge 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. 16. Taking into account the preceding consideration, at the time of the termination of the employment contract on 3 May 2012, the contract would run for another season, i.e. the complete 2012/2013 season. Consequently, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounted to Coz 3,333,333, i.e. 10 monthly salaries of Coz 3,33,333. Such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 17. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute the Claimant had not signed an employment contract with any other club. 18. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of Coz 3,333,333 to the Claimant as compensation for breach of contract without just case, which is considered by the DRC judge to be a reasonable and justified amount as compensation. 19. As to the Claimant’s further request for damages, the DRC judge decided to reject such request due to the lack of a contractual or legal basis. 20. Finally, as regards the claimed legal costs, the DRC judge referred to art. 18 par. 4 of the Procedural Rules as well as to the long-standing and well-established jurisprudence of the Dispute Resolution Chamber, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber or the DRC judge. Consequently, the DRC judge decided to reject the Claimant’s request relating to legal costs. 21. The DRC judge concluded his deliberations in the present matter by rejecting any further claim of the Claimant. ***** III. Decision of the DRC judge 1. The claim of the Claimant, player S, is partially accepted. 2. The Respondent, Club R, has to pay to the Claimant the amount of Coz 3,333,333 within 30 days as from the date of notification of this decision. 3. In the event that the aforementioned sum is 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. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent 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