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 18 December 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Piat (France), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent 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 18 December 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Piat (France), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. The player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an undated employment contract (hereinafter: the contract), valid from 1 July 2012 until 31 December 2014, i.e. for 2 and a half years. 2. According to paragraph 3 of the contract, the Respondent undertakes to pay the Claimant remuneration of 100,000 net, payable at the beginning of each month. 3. According to paragraph 16 “Termination of this contract is assured for both parties before the end of its term, however the parties must communicate to another upon written notice. The communication must be 15 days before the termination of the contract”. 4. Paragraph 17 stipulates that “if the player terminates this contract upon written notice without valid reasons, he must pay a penalty of 10 times of his salary and other expenses (if any)”. 5. Furthermore, according to paragraph 18 “if the club terminates this contract upon written notice to the player, the club will pay all entire obligations in the contract until the end of the period stated in this contract, unless there is a valid reason for the contract termination”. 6. The parties also signed an undated document named “Confidential Annex” (hereinafter: the annex) valid for the same period of time as the contract, which entitled the Claimant to receive in addition to the contractual salary: a. A housing allowance of 10,000, b. Roundtrip tickets for him plus 1 roundtrip ticket for his wife, c. 1 roundtrip ticket for him at the end of every season, d. 8,000 as bonus per scored goal, e. 5,000 as bonus per assist, f. 10,000 as bonus if the team is nominated as the week, g. 5,000 as appearance bonus as player of the week. 7. Furthermore, the annex, states that the “salary will be reviewed according to performance at the end of 2012 season”. 8. On 4 December 2012, the Respondent terminated the contract with the Claimant, in writing, with effect as from 21 December 2012, alleging that the Claimant’s performance “did not meet the expectations and standards of Club C”. 9. On 25 June 2013, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract requesting primarily, the amount of 35,270,000 in an analogical application of paragraph 17 of the contract (cf. point I.4. above) in his favour, corresponding to tenfold the amount allegedly due to him, i.e. 3,527,000 (cf. point I. 9 below), plus interest of 5 % per annum as from 21 December 2012. 10. In case the foregoing is not accepted by the DRC, the Claimant claims the payment of compensation in the total amount of 3,527,000 plus 5% interest per annum as from 21 December 2012, made up as follows: a. 2,300,000 (23 x 100,000, as salaries from February 2013 to December 2014), b. 240,000 (24 x 10,000, as housing allowance for January 2013 to December 2014), c. 660,000 as estimated cost of 2 return flight tickets, d. 327,000 as bonus estimation, calculated on a basis of one goal and one assist per month, assuming that the Claimant would be once named player of the week and once in the team of the week during the remaining contract duration. 11. In his claim, the Claimant maintains that, on 17 December 2012, he signed a document, issued by the Respondent, by means of which he confirmed having received the total amount of 410,000, corresponding to 220,000 as monthly salaries for December 2012 and January 2013, 148,000 for an air ticket and 42,000 as taxes. 12. The Claimant states that, on 21 December 2012, the Respondent unilaterally terminated the contract, without any prior warning. In this regard, the Claimant holds that bad performance does not constitute a just cause for the termination of an employment contract since it is a highly subjective reason. Therefore, the termination of the contract by the Respondent must be considered as a termination without just cause and the Respondent must pay the entire remaining value of the contract as per paragraph 18 of the contract (cf. point I.5.0 above). 13. Having had no alternative, the Claimant states that he left country D by the end of December 2012. 14. In its reply, the Respondent argues that it is entitled to terminate the contract if the Claimant does not meet the club’s performance standards as mentioned in the contract under the section “Soccer player obligations”, which stipulates “Club, hereby, retains Player as a skilled player to render, and Player agrees to render, skilled services as soccer player during the term of this Player Contract (…)”. The Respondent claims that the Claimant has been aligned in less than 50% of the 2nd leg of the 2012 championship, did not train with commitment and, because of his advanced age, his performance was not deemed sufficient. 15. Furthermore, the Respondent allegedly proposed to the Claimant a termination agreement based on his lack of efficiency but the Claimant refused it. In addition, according to the Respondent, he failed to attend the training and left the Respondent without notifying the coach or the manager. Finally, the Respondent states that it has fulfilled all its obligations towards the Claimant and underlines that no additional bonus is due to him, as he did not reach any objective to receive a bonus. 16. Finally, the Claimant informed FIFA, that, after the termination of the contract, he could not find new employment. 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 present matter was submitted to FIFA on 25 June 2013. 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 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 b) of the Regulations on the Status and Transfer of Players (editions 2012 and 2014; hereinafter: the Regulations), the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a player from country B and a club from country D. 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 (editions 2012 and 2014), and considering that the present claim was lodged on 25 June 2013, 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, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 5. First of all, the members of the Chamber acknowledged that it was undisputed by the parties that they had concluded an undated employment contract, as well as an annex to it both valid as from 1 July 2012 until 31 December 2014, in accordance with which the Respondent would pay the Claimant the amounts detailed in points I.2. and I.6. above. 6. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent on 25 June 2013 seeking payment of the total amount of 35,270,000, or alternatively 3,527,000 plus interest, asserting that the Respondent had unilaterally terminated the employment contract on 4 December 2012 with effect as from 21 December 2012, without previous warning and without just cause. 7. In continuation, the Chamber observed that the Respondent in its reply, claimed that it had terminated the contract with just cause on 21 December 2012, since the Claimant did not meet the club’s performance standards as mentioned in the contract and did not train with commitment (cf. point I.13. above). 8. In this context, the Chamber acknowledged that it had to examine whether the reasons put forward by the Respondent could justify the termination of the contract in the present matter. 9. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect the continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 10. Furthermore, the Chamber referred to its well-established jurisprudence according to which an alleged poor performance of a player could not justify a premature termination an employment contract by a club as the assessment of the performance of a player is a subjective perception which could not be measured on an objective scale and therefore, has to be considered as inadmissible grounds for premature termination of an employment contract. 11. In continuation, the Chamber referred to the content of art. 12 par. 3 of the Procedural rules, according to which “Any party claiming a right on the basis of an alleged fact shall carry the burden of proof. During the proceedings, the parties shall submit all relevant facts and evidence of which they are aware at the time, or of which they should have been aware if they had exercised due care”. 12. In this context, the Chamber noted that the Respondent also bases the premature termination of the contract on the Claimant’s alleged absence at training and his alleged unauthorized and not announced departure. However, the Respondent provided no evidence of the previous allegations and, thus, the termination based thereon cannot be considered as justified. 13. On account of the above, the Chamber decided that the Respondent had terminated the employment contract without just cause on 21 December 2012 and that, consequently, the Respondent is to be held liable for it. 14. Having established the above, the Chamber turned its attention to the question of the consequences of the Respondent’s breach of the contract without just cause. 15. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation from the Respondent for the breach of contract without just cause. 16. The members of the Chamber firstly recalled that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 17. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. The members of the Chamber recalled that according to paragraph 17 of the contract “if the player terminates this contract upon written notice without valid reasons, he must pay a penalty of 10 times of his salary and other expenses (if any)”. Furthermore, paragraph 18 stipulated the amount of compensation payable by the club to the player, in case of termination without just cause by the club, in the following manner “if the club terminates this contract upon written notice to the player, the club will pay all entire obligations in the contract until the end of the period stated in the contract, unless there is a valid reason for the contract termination”. Finally, the Chamber noted that the Claimant primarily requested the analogue application of paragraph 17 to the present case. 18. In view of the foregoing, and bearing in mind the Claimant’s request, the Chamber deemed that a clause establishing that compensation for breach of contract amounts to tenfold the Claimant’s salary plus other expenses is clearly disproportionate and cannot be applied, neither in its original wording nor analogically. 19. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasized beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 20. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 21. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from the date of termination, i.e. 21 December 2012 until 31 December 2014. The Chamber concluded that the amount of 2,540,000, corresponding to the Claimant’s salaries and accommodation expenses due from 21 December 2012 until 31 December 2014, serves as the basis for the final determination of the amount of compensation for breach of contract. 22. 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. 23. The Chamber noted that the Claimant had remained unemployed during the relevant period of time. Therefore, no deduction shall be made to the basic amount of compensation calculated in point II. 21. above. 24. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of 2,540,000 to the Claimant, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand. 25. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 25 June 2013, until the date of effective payment. 26. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, 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 2,540,000 plus 5% interest p.a. as from 25 June 2013 until the date of effective payment. 3. In the event that the amount due to the Claimant plus interest is not paid by the Respondent within the stated time limit, 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