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 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodoros Giannikos (Greece), member on the claim presented by the player, Player A, from country B as Claimant/Counter-Respondent against the club, Club C, from country D as Respondent/Counter-Claimant and the club, Club E, from country B as Intervening Party 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 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodoros Giannikos (Greece), member on the claim presented by the player, Player A, from country B as Claimant/Counter-Respondent against the club, Club C, from country D as Respondent/Counter-Claimant and the club, Club E, from country B as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 5 January 2012, the player from country B, Player A (hereinafter: the Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter: the Respondent/Counter-Claimant), signed an employment contract (hereinafter: the contract), valid as of 8 January 2012 until 30 November 2014, i.e. 3 years, containing three appendixes. 2. According to art. 3. of appendix 2 of the contract, the Respondent/Counter-Claimant undertook to provide the Claimant/Counter-Respondent, inter alia, with the following: a) “Gross income will be 90,000 per month playing in the First League in country D. […] Net income shall be paid via bank on the 15th each month in arrears.” b) “[…] The [Respondent/Counter-Claimant] pays for the immigration-costs for [Claimant/Counter-Respondent]’s family, that means [two] flight tickets from country B to country D, one child and one grown up.” c) “Sign-on fee. The [Respondent/Counter-Claimant] will pay the [Claimant/Counter-Respondent] a sign-on fee of 1,216,000.” 3. In addition, the parties agreed upon the following clauses: “2.a) [of the contract] The [Claimant/Counter-Respondent] is obliged to participate in training sessions, at training camps and to carry out individual training according to the [Respondent/Counter-Claimant]’s regulations.” “Appendix 1. Expiration/termination of contract. C. […] The [Claimant/Counter-Respondent] may terminate the contract with one month notification if: 1. The [Respondent/Counter-Claimant] does not fulfil their salary obligations according to this contract and the delay in payment for one term exceeds one calendar month. 2. The [Respondent/Counter-Claimant] commits a material breach of its obligations according to this contract and any such breach is continued after the [Claimant/Counter-Respondent] has notified the [Respondent/Counter-Claimant] in writing of the breach.” 4. On 17 July 2013, the Claimant/Counter-Respondent unilaterally terminated the contract based on clause C of appendix 1 of the contract (cf. point I.3. above), due to the Respondent/Counter-Claimant’s alleged failure to pay his salaries of May 2013 and June 2013 –payable, as per the Claimant/Counter-Respondent, on 15 June 2013 and 15 July 2013– and in view of the alleged fact that he “was forced to work separately [of his] teammates, [although he] was hired to work in the first team of the club”. 5. On 19 August 2013, the Claimant/Counter-Respondent lodged a claim in front of FIFA for breach of contract against the Respondent/Counter-Claimant, requesting, after amending his claim, sporting sanctions and the payment of the total amount of 1,820,000 and EUR 4,883.21, plus interest of 5% p.a. as from the relevant due date until the date of effective payment, broken down as follows: a) 1,620,000, corresponding to outstanding salaries from June 2013 until November 2014, i.e. 18 months; b) 200,000, corresponding to a compensation for breach of contract; c) EUR 4,883.21, corresponding to the reimbursement of migration costs of the payer’s family. 6. In his claim, the Claimant/Counter-Respondent explains that the Respondent/Counter-Claimant stopped paying his salaries in June 2013. Consequently, the Claimant/Counter-Respondent notified the Respondent/Counter-Claimant via email on 19 June 2013 of its failure to pay his salary of May 2013, without receiving any reply. Subsequently, the Claimant/Counter-Respondent terminated the contract on 17 July 2013 (cf. point I.4. above). The Claimant/Counter-Respondent further argues that he tried to amicably settle the matter with the Respondent/Counter-Claimant on 29 July 2013, with no result. 7. In its response, the Respondent/Counter-Claimant claims that in April and May 2013 the Claimant/Counter-Respondent wanted to terminate the contract and informed the media in country B of said intention. 8. The Respondent/Counter-Claimant explains that prior to a match on 16 May 2013 the Claimant/Counter-Respondent reported ill, stopped training and stated to the press and the media that he wanted to return to country B. The Respondent/Counter-Claimant submitted different articles of newspapers, quoting the Claimant/Counter-Respondent as follows: - “I’m not going to play anymore” (27 May 2013); - “I am not going to play for [the Respondent/Counter-Claimant] anymore no matter what” (29 May 2013). 9. The Respondent/Counter-Claimant further affirms that, in spite of the expiration of his sick leave on 24 June 2013, the Claimant/Counter-Respondent only returned to country D on 27 June 2013 from country B and did not train with the rest of the team until 11 July 2013, while negotiating with the Respondent/Counter-Claimant about a salary deduction for “his illegal absence”. 10. Considering the above and, particularly, the Claimant/Counter-Respondent’s declared intention of terminating the contract unilaterally, the Respondent/Counter-Claimant claims that it was entitled to withhold the Claimant/Counter-Respondent’s salaries in June 2013 and July 2013. 11. Finally, the Respondent/Counter-Claimant lodged a counterclaim against the Claimant/Counter-Respondent for breach of art. 2.a) of the contract (cf. point I.3. above) during May and June 2013, requesting sporting sanctions and the payment of compensation in the total amount of 2,213,000, broken down as follows: a) 608,000, corresponding to 50% of the Claimant/Counter-Respondent’s sign-on fee; b) 1,530,000, corresponding to the residual value of the contract; c) 85,000, corresponding to legal and procedural fees. 12. In his reply to the counterclaim, the Claimant/Counter-Respondent rejects it in full, stating that the Respondent/Counter-Claimant breached the contract, and asserts that the Respondent/Counter-Claimant did not provide any evidence of its allegations but only speculative articles of newspapers, which should not be taken into consideration. 13. In this sense, the Claimant/Counter-Respondent explains that the Respondent/Counter-Claimant breached clause C of appendix 1 of the contract (cf. point I.3. above) in respect of his salary of May 2013, after warning the Respondent/Counter-Claimant of its non-payment on 19 June 2013 (cf. point I.6. above). 14. Despite of having been invited by FIFA to do so, the Respondent/Counter-Claimant did not provide its final comments on the present matter. Equally, the Claimant/Counter-Respondent’s new club from country B, Club E (hereinafter: the Intervening Party), did not provide any comments, in spite of having been invited by FIFA to do so. 15. Finally, the Claimant/Counter-Respondent informed FIFA that he signed the following new contracts: a) with the Intervening Party, a contract valid from 18 August 2013 until the end of the season 2013/2014, for a monthly remuneration of 400,000. b) with Club F, country B, a contract valid from 1 January 2014 until 31 May 2017, for a monthly remuneration of USD 2,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 19 August 2013. Consequently, the 2012 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 par. 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B, on one hand, and a club from country D, on the other. 3. Furthermore, the Chamber analysed which edition of the 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 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), and considering that the claim of the Claimant/Counter-Respondent was lodged on 19 August 2013, the 2012 edition of said 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, the Chamber entered into the substance of the matter. In this respect, 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. The members of the Chamber acknowledged that it was undisputed by the parties that the Claimant/Counter-Respondent and the Respondent/Counter-Claimant were contractually bound by means of the contract signed between them, valid as from 8 January 2012 until 30 November 2014. 6. In addition, the DRC noted that the parties did not dispute the fact that the Claimant/Counter-Respondent terminated the contract on 17 July 2013 (cf. point I.4 above). 7. Finally, the DRC also noted that the parties did not dispute the fact that the Respondent/Counter-Claimant did not pay the Claimant/Counter-Respondent’s salaries corresponding to May and June 2013. 8. The Chamber further noted that the Claimant/Counter-Respondent, on the one hand, lodged a claim against the Respondent/Counter-Claimant for breach of contract, arguing that he terminated the contract with just cause on 17 July 2013 based on the delay of salary payments by the Respondent/Counter-Claimant for more than a month. 9. The Chamber also noted that the Respondent/Counter-Claimant, on the other hand, lodged a counterclaim against the Claimant/Counter-Respondent for breach of contract, arguing that the Claimant/Counter-Respondent did not train in May and June 2013 and, particularly, would have had the intention of terminating the contract unilaterally. 10. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant/Counter-Respondent and the counterclaim of the Respondent/Counter-Claimant, was to determine whether the contract had been unilaterally terminated with or without just cause by the Claimant/Counter-Respondent on 17 July 2013. 11. In view of the above, the DRC took into consideration the content of art. 14 of the Regulations, which provides that “a contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause”. 12. The Chamber stressed that the definition of just cause and whether just cause exists shall be established in accordance with the merits of each particular case. 13. In this context, the Chamber took due note that the agreement of the parties to the contract was that “the [Claimant/Counter-Respondent could] terminate the contract with one month notification if the [Respondent/Counter-Claimant did] not fulfil their salary obligations according to this contract and the delay in payment for one term [exceeded] one calendar month” (cf. point I.3. above). 14. The members of the DRC recalled that the parties to the contract did not dispute the fact that the Respondent/Counter-Claimant failed to pay to the Claimant/Counter-Respondent two salaries (cf. point II.7. above) and confirmed upon the documentation that may be found on file that the Claimant/Counter-Respondent notified the Respondent/Counter-Claimant on 19 June 2013 of its failure to pay him his salary of May 2013, which fell due on 15 June 2013. 15. Subsequently, the Chamber established that the period between the due date of the salary of May 2013, i.e. 15 June 2013, and the termination notice sent by the Claimant/Counter-Respondent to the Respondent/Counter-Claimant on 17 July 2013 –which is to be found on file– exceeds one calendar month and, therefore, the Claimant/Counter-Respondent complied with clause C of appendix 1 of the contract (cf. point I.3. above), which sets forth a just cause for the Claimant/Counter-Respondent to terminate the contract. 16. At this point, the DRC turned its attention to the allegations raised by the Respondent/Counter-Claimant in its counterclaim and deemed it appropriate to refer the parties to art. 12 par. 3 of the Procedural Rules, which stipulates that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. 17. In this sense, the DRC observed that the Respondent/Counter-Claimant did not submit any proof to evidence the alleged leave and absence at training of the Claimant/Counter-Respondent in May and June 2013. 18. In respect of the alleged intention of the Claimant/Counter-Respondent of terminating the contract unilaterally, the Chamber noted that the only documentation provided by the Respondent/Counter-Claimant in support of said allegation were articles of newspapers. 19. In this regard, the DRC was eager to emphasize that the information contained in newspapers, not supported by any additional documentation whatsoever, is of mainly subjective perception and might be affected by diverse contextual factors; therefore, the credibility of such type of documentation is quite limited. 20. Hence, and still bearing in mind the wording of art. 12 par. 3 of the Procedural Rules, the members of the Chamber concluded that the allegations of the Respondent/Counter-Claimant cannot be upheld because they are not satisfactorily proved. 21. Likewise, the DRC was eager to emphasise that the Respondent/Counter-Claimant also failed to demonstrate the validity of its alleged entitlement to withhold the Claimant/Counter-Respondent’s salaries in June 2013 and July 2013 (cf. point I.10. above), which turned to be an express acknowledgement of the non-payment of the Claimant/Counter-Respondent’s salaries of May and June 2013. 22. In summary, the Chamber established that on 17 July 2013 the Claimant/Counter-Respondent terminated the contract with just cause based on the existence of two outstanding salaries and subsequent to having put the Respondent/Counter- Claimant in default, in compliance with an express termination clause foreseen by the parties in the contract as well as with the DRC’s well-established jurisprudence. 23. In view of the foregoing, the DRC concluded that, in accordance with art. 17 par. 1 of the Regulations and its long-standing jurisprudence, the Respondent/Counter-Claimant is liable for the termination of the contract on 17 July 2013 and, consequently, must pay an amount of compensation to the Claimant/Counter-Respondent. 24. In continuation, prior to establishing the consequences of the breach of contract by the Respondent/Counter-Claimant in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the Claimant/Counter-Respondent. 25. Indeed, the Claimant/Counter-Respondent alleges that there were outstanding salaries at the time he terminated the contract. The Chamber drew its attention to the fact that the Claimant/Counter-Respondent’s salaries fell due “on the 15th each month in arrears”. Thus, considering that he terminated the contract on 17 July 2013, his salaries of May and June 2013 were due at that time. Furthermore, the Chamber noted that the Respondent/Counter-Claimant expressly acknowledged that said salaries were not paid (cf. point I.10. and II.21. above). 26. Consequently, the Chamber took into account that, as of the contract's termination date, the Respondent/Counter-Claimant had not paid to the Claimant/Counter-Respondent the total amount of 180,000 in salaries. 27. In accordance with the principle pacta sunt servanda, the Chamber decided that the Claimant/Counter-Respondent is, therefore, entitled to outstanding remuneration in the total amount of 180,000 pursuant to art. 3. of appendix 2 of the contract, which corresponds to his monthly salaries of May and June 2013. 28. In addition, taking into account the Claimant/Counter-Respondent's request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the outstanding amount of 180,000, as of 16 June 2013 on the amount of 90,000 and as of 16 July 2013 on the amount of 90,000, in both cases until the date of effective payment. 29. Equally, as regards to the Claimant/Counter-Respondent's claim pertaining to migration costs, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract (cf. point I.2. above), the Chamber decided that the Respondent/Counter-Claimant must pay to the Claimant/Counter-Respondent the amount of USD 5,168 for two air tickets from country B to country D. 30. Also taking into account the Claimant/Counter-Respondent's request, the members of the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the amount of USD 5,168 as of 19 August 2013, which is the date on which the claim was lodged, until the date of effective payment. 31. Having stated the above, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated 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/Counter-Respondent 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. 32. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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. 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. 33. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 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. 34. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant/Counter-Respondent 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. 35. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant/Counter-Respondent under the terms of the employment contract as from its date of termination with just cause by the Claimant/Counter-Respondent, i.e. from 17 July 2013 until 30 November 2014, and concluded that the Claimant/Counter-Respondent would have received in total 1,530,000 as remuneration, had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of 1,530,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 36. In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent 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 Claimant/Counter-Respondent’s general obligation to mitigate his damages. 37. The Chamber recalled that, on 18 August 2013, the Claimant/Counter-Respondent signed an employment contract with the club from country B, Club E, valid until the end of the season 2013/2014, in accordance with which he was to receive a monthly salary of 400,000. Furthermore, on 13 January 2014, the Claimant/Counter-Respondent signed an employment contract with the club from country B, Club F, valid from 1 January 2014 until 31 May 2017, in accordance with which he is to receive a monthly salary of USD 2,000. These employment contracts enabled the Claimant/Counter-Respondent to earn an income of 154,150 between 17 July 2013 and 30 November 2014. 38. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant/Counter-Respondent’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant/Counter-Respondent’s claim and that the Respondent/Counter-Claimant must pay the amount of 1,375,850, as compensation for breach of contract in the case at hand, in addition to the outstanding remuneration mentioned in points II.27. and II. 28. above. 39. Taking into account the Claimant/Counter-Respondent’s request and considering that his claim was lodged on 19 August 2013, the Chamber concluded that the Respondent/Counter-Claimant must pay interest of 5% p.a. on the amount of 1,375,850 as from 19 August 2013 until the date of effective payment. 40. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant/Counter-Respondent is rejected and that the counterclaim of the Respondent/Counter-Claimant is also rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player A, is partially accepted. 2. The Respondent/Counter-Claimant, Club C, is ordered to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of s 180,000, plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 16 June 2013 on the amount of 90,000; b. 5% p.a. as of 16 July 2013 on the amount of 90,000. 3. The Respondent/Counter-Claimant is ordered to pay to the Claimant/Counter-Respondent the reimbursement of two flight tickets in the amount of USD 5,168, plus 5% interest p.a. as from 19 August 2013 until the date of effective payment, within 30 days as from the date of notification of this decision. 4. The Respondent/Counter-Claimant is ordered to pay to the Claimant/Counter-Respondent compensation for breach of contract in the amount of 1,375,850, plus 5% interest p.a. as from 19 August 2013 until the date of effective payment, within 30 days as from the date of notification of this decision. 5. In the event that the amounts due to the Claimant/Counter-Respondent in accordance with the above-mentioned numbers 2., 3. and 4., plus interests, are not paid by the Respondent/Counter-Claimant within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claims lodged by the Claimant/Counter-Respondent are rejected. 7. The counterclaim of the Respondent/Counter-Claimant is rejected. 8. 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