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 as from the 25 June 2012 until 31 December 2014, i.e. for 2 years and a half. 2. According to paragraph 3 of the contract, the Respondent undertakes to pay the Claimant as from the month of August 2012, remuneration of 90’000, payable at the beginning of each month. 3. According to paragraph 8, “the player shall conduct himself on and off the field according to the highest standard of honesty, morality, fair play and sportsmanship and shall not do anything which is detrimental to the best interest of Club or league”. 4. Furthermore, 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”. 5. Additionally, 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)”. 6. Moreover, 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”. 7. On 12 October 2012, the Respondent terminated the contract with the Claimant in writing and with immediate effect, based on his allegedly inappropriate behaviour and after having received several reminders, which he allegedly disregarded. In particular, in its letter, the Respondent accuses the Claimant of “bringing an unauthorized woman in the Sports Camp”, violating the rules of the Respondent and the contract. 8. On 1 July 2013, the Claimant lodged a claim against the Respondent before FIFA for breach of contract requesting primarily, compensation in the amount of 24’300’000, based on an analogical application of paragraph 17 of the contract (cf. point I.5. above), in his favour, corresponding to tenfold the amount due to him in, i.e. 2’430’000 (cf. point I.9. below), plus 5% interest p.a. as from 12 October 2012. 9. In case the foregoing is not accepted by the DRC, the Claimant requests compensation in the total amount of 2’430’000 corresponding to his salaries from October 2012 to December 2014 (27 x 90’000), plus 5% interest p.a. as from 12 October 2012. 10. In his claim, the Claimant refutes all the allegations made by Club C in its termination letter and states that he fully respected all his obligations and performed to his very best. He was surprised to receive the Respondent’s termination letter without any prior warning. Furthermore, according to the Claimant, the allegedly “unauthorized women in the Sports Camp” was the wife of one of his friends, accompanied by the latter, who came to the Claimant’s hotel on 11 October 2012 for a visit. On the following day, the Respondent terminated the contract. (cf. point I.7. above). The Claimant underlines that he tried to explain the situation to the Respondent but its decision was definitive and therefore, he had no other option but to leave country D and try to find another club. 11. Furthermore the Claimant holds that it was not prohibited to receive guests in the “sports camp” and, moreover, the incident happened 5 days prior to the Claimant’s next match, in a hotel in country D and not in a training camp. For the sake of completeness, the Claimant referred to the decision no° XXXX of the DRC dated 19 February 2009, according to which bringing a woman to the training camp does not in any case constitute a valid reason for termination. Lastly the Claimant contests the club’s statement that he received “many reminders in the past”. 12. In its reply, the Respondent claims, first of all, that the behaviour of the Claimant was “severely objectionable and abusive to the value of country D culture and tradition”. He has allegedly been many times given warnings, but he continued to disobey and break the rules. 13. In addition, the Respondent provided a letter of its head coach addressed to the club’s President, dated 4 October 2012, by means of which he underlines the lack of discipline and professional behaviour of the Claimant, despite being warned. Moreover, he details the disastrous statistics of the Claimant’s presence at the training, and states that according to a record prepared by his assistant coach, the Claimant arrived late, failed to give collaboration and did not comply with the coach’s instructions. 14. Furthermore, the Respondent holds that he clearly disregarded to follow his obligations by bringing a woman (who was not his wife) in the training camp and in the team hotel. The Respondent considers that such attitude of the Claimant affected the club’s image of following high moral standards and the country D culture and, therefore, violated paragraph 8 of the contract (cf. point I.3. above). Moreover, the Respondent requires to approve all the visitors of the players and they must meet in the hotel lobby or in a designated area by the club. In addition the Respondent asserts that, the Claimant’s behaviour on 11 October 2012, affected the team and the negative result of the following match which took place on 13 October 2012. For all the above-mentioned reasons, the Respondent deems that the Claimant violated paragraph 8 of the contract, that it terminated the contract with just cause based on its paragraph 17 (cf. point I.5. above), and that the Claimant’s claim should be rejected. 15. Finally, the Claimant informed FIFA that he was employed by the club from country B, Club E, from 7 January 2014 to 30 April 2014, and earned a monthly salary of 3’000 per month. Before and after the period during which he was under contract with the club from country B, the Claimant was unemployed. 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 1 July 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 1 July 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. 5. 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. 6. In this respect, the Chamber acknowledged that it was undisputed by the parties that they had concluded an undated employment contract, valid as from 25 June 2012 until 31 December 2014 in accordance with which the Respondent would pay the Claimant the amount detailed in point I.2. above. 7. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent on 1 July 2013 seeking payment of the total amount of 24,300,000, or alternatively 2,430,000 plus interest, asserting that the Respondent had unilaterally terminated the employment contract on 12 October 2012 with immediate effect, without previous warning and without just cause. 8. In continuation, the Chamber observed that the Respondent for its part, does not deny that it terminated the employment contract on 12 October 2012, highlighting that the employment was terminated with just cause, claiming that it had valid reasons to do so, since the Claimant had violated “specific and essential terms of the employment contract”, as detailed in point I.7. above. Consequently, the Respondent holds that the Claimant’s claim has to be rejected. 9. In order to be able to establish, first and foremost, as to whether, the Respondent had terminated the employment contract with or without just cause, the members of the Chamber proceeded with a more detailed analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. The Chamber also underlined that, subsequently, if it were found that the employment was terminated without just cause by the Respondent, it would be necessary to determine the consequences for the early termination of the contractual relation. 10. Having said that, the Chamber recalled that, on 12 October 2012, the Respondent terminated the employment contract based on a disciplinary fault allegedly committed by the Claimant and that, thus, the Claimant is to be held responsible for the early termination of the employment contract. 11. In this regard, the Respondent highlighted that the Claimant was accused of having brought “an unauthorized woman in the Sports Camp”. In addition, the Respondent holds that the Claimant violated several times his contractual obligations and received many reminders (cf. points. I.12. and I.13. above). From his side, the Claimant holds that it was not prohibited to receive guests in the player’s hotel rooms and denies having received any reminders from the club. 12. The Chamber acknowledged that the Respondent submitted a written statement of the club’s coach with regard to the alleged misconduct of the player. Though the members of the DRC deemed that this document cannot be considered as objective and convincing evidence corroborating the Respondent’s allegations, on account of the fact that such documents were issued by a person closely linked to the Respondent. 13. Furthermore, the Chamber was eager to underline that the Respondent failed to present any proof of the existence of previous warnings addressed to the Claimant or of disciplinary proceedings opened against him, related to the previous accusations. 14. Regardless of the preceding consideration and referring to the allegations of the Respondent with respect to the conduct of the Claimant, the members of the Chamber were eager to emphasise that only a breach or misconduct which is of a certain severity would justify the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a 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 assure the employee’s fulfilment of his contractual duties (e.g., among others, a suspension or a fine), such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 15. In this context, the Chamber, in accordance with its jurisprudence, pointed out that a player’s one-time alleged bringing a woman into the training camp or the team hotel could not constitute, per se, a valid reason for the termination of a contractual relationship. In particular, the Chamber emphasised that, in connection with infringements of disciplinary standards such as the one in the matter at hand, the party concerned should only have the right to terminate the contractual relationship as ultima ratio, i.e. in case of repeated incidents of such kind. Under such circumstances, a player committing such disciplinary infractions would also have to be warned beforehand of the eventual consequences of his actions if they were to be repeated. In the present case, however, despite the Respondent’s allegations, no proof of such warnings was provided, as mentioned in point II. 13. Above. 16. Finally, as to the Respondent’s allegations that any visitors had to be previously announced and approved by the club, the Chamber noted that the Respondent failed to provide any proof of the existence of such obligation in the contract or the club’s regulations. 17. In view of all of the above, the Chamber was of the unanimous opinion that the Respondent did not have a valid reason to prematurely terminate the employment contract on 12 October 2012. Consequently, the Chamber decided that the Respondent had terminated the employment contract without just cause. 18. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the contract by the Respondent without just cause on 12 October 2012. 19. 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 termination of the contracts without just cause. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contracts contain 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. 21. 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. 22. 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. 23. 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. 24. 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. 12 October 2012 until 31 December 2014. The Chamber concluded that the amount of 2,430,000, corresponding to the Claimant’s salaries due from 12 October 2012 until 31 December 2014, serves as the basis for the final determination of the amount of compensation for breach of contract. 25. 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. 26. It was duly noted that, on 7 January 2014, the Claimant signed an employment contract with the club from country B, Club E, valid as from the date of the signature until 30 April 2014, in accordance with which he earned the total amount of 12,000 corresponding to approx. 151,000. It was further noted, also taking into consideration the information contained in the Transfer Matching System (TMS), that the Claimant had not found other employment before or after his contract with said club from country B. 27. Thus, bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 28. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of 2,279,000 as compensation for breach of contract to the Claimant. 29. 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. 1 July 2013, until the date of effective payment. 30. 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 2,279,000 plus 5% interest p.a. as from 1 July 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