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 Theodore Giannikos (Greece), member Joaquim Evangelista (Portugal), 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 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theodore Giannikos (Greece), member Joaquim Evangelista (Portugal), 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. On 11 October 2011, the player from country B, Player A (hereinafter: the Claimant), born on 6 April 1995, his mother and the club from country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the first contract), valid as of the date of signature until 31 May 2013. 2. On 12 October 2011, the Claimant, his agent and the Respondent signed an employment contract (hereinafter: the second contract), valid as of 1 August 2013 until 31 May 2016. 3. On 12 October 2011, the Claimant, his agent and the Respondent concluded an employment contract (hereinafter: the third contract), valid as of 1 August 2016 until 31 May 2018. 4. Pursuant to the first contract, the Claimant was entitled to receive a gross annual remuneration of USD 30,000 payable in ten equal instalments, all due on the first day of the month except the last instalments of each season which were due on 31 July 2012 and 31 May 2013 respectively. 5. Pursuant to the second contract, the Claimant was entitled to receive the following gross remuneration: - First season: USD 50,000; - Second season: USD 60,000; - Third season: USD 70,000. 6. Pursuant to the third contract, the Claimant was entitled to receive the following gross remuneration: - First season: USD 80,000; - Second season: USD 100,000. 7. In addition, the three contracts provided for various performance-related bonuses. 8. Moreover, art. 9 of the three contracts stipulates that “the validity of the Contract is subject to the specific approval of the Football Association from country D and the confirmation that the Player is eligible to play and the approval of Management of the First League of country D (ratification of the contract)” 9. Furthermore, art. 10 par. 2 of the three contracts provides that “when the termination of the Contract is not due to a just cause or a mutual agreement between the Parties concerned, [the Respondent] or the Player shall be entitled to receive from the other party in breach of the Contract a compensation for a net amount of : 1.000.000 $ only”. 10. On 18 December 2011, the Claimant requested the Respondent to pay his salary for December 2011 within two days. 11. On 21 December 2011, the Claimant informed the Respondent that in absence of response to his previous correspondence, he would take legal action before FIFA. 12. On 23 December 2011, the Respondent and the Claimant’s mother signed a document titled “Final Clearance” (hereinafter: the termination agreement), which, inter alia, states “the termination of the contract convened with the Second Party / [the player], football player in the company from date 13/12/2011” and that “this settlement is considered as a final quittance / settlement between both parties regarding the All contracts and each party is not allowed to claim for any financial or moral entitlements from the other party”. 13. On 24 January 2012, the Claimant lodged a claim before FIFA against the Respondent for breach of contract, requesting to be awarded with the following: - USD 84,000 corresponding to the residual value of the first contract plus the loss of a chance of receiving the match bonuses; - USD 1,000,000 as penalty stipulated in art. 9 par. 3 of the contract; - USD 360,000 as loss of a chance of maintaining the contractual relationship with the Respondent in accordance with the second and third contract; - USD 50,000 as moral damage. 14. In his claim, the Claimant explains that his mother was coerced to sign the termination agreement after the Respondent made clear that it did not want to maintain the contractual relationship and would not pay his outstanding remuneration. In this respect, the Claimant highlights that he refused to sign the document since the Respondent did not give him any reason thereof. In view of the foregoing, the Claimant concludes that the termination of the contract was abusive and persecutory and that therefore the Respondent should be liable for breach of contract. 15. In its response to the claim, the Respondent first of all refers to the content of art. 9 of the contract. In this respect, the Respondent explains that said article was inserted due to the Claimant’s minority and stresses its lack of potestative nature. Indeed, according to the Respondent, the validity of the contract did not depend on the will of either party but only on the approval of the country D sporting authorities. In view of the above, the Respondent concludes that since said authorities refused to give their approval due to the Claimant’s young age, the contract has to be considered null and void. 16. Subsidiarily, the Respondent explains that in spite of its invalidity, the parties decided to terminate the contract mutually on 23 December 2014. In this regard, the Respondent sustains that the Claimant’s consent was expressed through his mother who is his legal representative. Regarding the assertion of coercion, the Respondent outlines that the Claimant did not submit any documentary evidence and therefore failed to carry the burden of proof. 17. Finally, and should the contract be considered valid and the termination invalid, the Respondent asserts that the Claimant had no just cause. In support of its assertion, the Respondent highlights that only one salary, i.e. December 2011, was outstanding and that the deadline given by the Claimant, i.e. two days, was too short. 18. In his replica, the Claimant stresses that the Respondent did not submit any document evidencing that it took the administrative steps necessary to register him. In this respect, the Claimant asserts that the Respondent behaved with bad faith and abused of its dominant position. In addition, the Claimant maintains that the Respondent begun to execute the contract by paying him a monthly salary, which constitutes the Respondent’s recognition of the existence of the contract. Moreover, the Claimant questions why the Respondent would have signed the termination agreement if it had considered that the contract was invalid. 19. In support of his prior assertion of coercion, the Claimant explains that ten days elapsed between the presentation of the project of termination agreement on 13 December 2011 and its signature on 23 December 2011, which evidences that he did not want to sign it but his mother eventually did, because they realised that they were with no means and no future in country D. The Claimant also outlines that the Respondent’s lack of response to his correspondence demonstrates its will to destabilize him. 20. In spite of having been invited to do so, the Respondent did not submit any further comments. 21. On 5 September 2012, the Claimant and Club E concluded a “Convention de Formation” valid as of the date of signature until 30 June 2014, according to which the Claimant received a gross amount of EUR 4,007.23 (approx. USD 5,270 on 5 September 2012) until May 2013. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 24 January 2012. Consequently, the 2008 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 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 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 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 2 of the Regulations on the Status and Transfer of Players (editions 2010, 2012 and 2014), and considering that the present claim was lodged in front of FIFA on 24 January 2012, the 2010 edition of said Regulations (hereinafter: 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 DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as the documentation 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 members of the Chamber acknowledged that the Claimant, his mother and the Respondent had signed an employment contract on 11 October 2011, valid as of the date of signature until 31 May 2013. In addition, the members of the Chamber took note that on 12 October 2011, the Claimant, his agent and the Respondent signed two additional contracts, covering the periods as from 1 August 2013 until 31 May 2016 and as from 1 August 2016 until 31 May 2018, respectively. 6. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had breached the first contract by showing no interest in his services. 7. Thereafter, the members of the Chamber took note of the reply of the Respondent, which alleged that the first employment contract was null and void since the country D sporting authorities refused to approve and register it due to the Claimant’s young age. In addition, the DRC observed that the Respondent asserted that the Claimant, duly represented by his mother, waived his right to claim against it by means of the termination agreement signed on 23 December 2011. 8. In this context, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which is the sole responsibility of a club and on which a player has no influence. 9. Moreover, the members of the Chamber, while making reference to the principle “venire contra factum proprium non valet”, outlined that the Respondent would not have paid salaries to the Claimant and would not have deemed necessary to sign a termination agreement in December 2011 if it had considered that there was no valid contract binding the parties. 10. On account of the above, the Chamber came to the firm conclusion that the arguments of the Respondent cannot be upheld and that the contract signed by and between the Claimant and the Respondent on 11 October 2011 was a valid employment contract binding the parties until 31 May 2013. Regarding the two contracts signed on 12 October 2011, the Chamber observed that their respective signatures have as a consequence that the contractual relationship is extended to seven seasons while art. 18 par. 2 of the Regulations stipulates that players under the age of 18 may not sign a professional contract longer than three years. In light of the foregoing, the Chamber held that the two contracts were signed with the aim of circumventing art. 18 par. 2 of the Regulations and therefore, concluded that the referred contracts shall not be recognised in accordance with art. 18 par. 2 last sentence of the Regulations. Accordingly, the Chamber stressed that in the following considerations it would only refer to the contract concluded on 11 October 2011. 11. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine when the contractual relationship had been terminated and which party should be responsible for the early termination of the contract. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 12. In view of the above, the Chamber deemed it appropriate to shortly recall the timeline of events in the present matter according to the documentary evidence provided by either party as well as the respective allegations which have remained uncontested by the opposing party. 13. In doing so, the Chamber first of all noted that on 23 December 2011, the Respondent and the Claimant’s mother signed a termination agreement. In this respect, the Chamber observed that the termination agreement does not bear the Claimant’s signature in spite of the space provided for it on the document. In addition, the DRC referred to the fact that in general, one undoes a deed by fulfilling the same formalities as the ones used to do it and therefore, held that since the employment contract was signed by the Claimant, his mother and the Respondent, the termination agreement should have also borne the Claimant’s signature in order to validly put an end to the contractual relationship. Consequently, the members of the Chamber concluded that the signature of the termination agreement by the Claimant’s mother and the Respondent on 23 December 2011 had no effect on the existence and the validity of the contract concluded on 11 October 2011. 14. Nevertheless, and since it is uncontested that the Claimant left definitively country D in the days following the signature of the aforementioned termination agreement, the members of the Chamber concurred that the contractual relationship was terminated at the end of December 2011. 15. The Chamber then turned its attention to the question of which party was to be held liable for the early termination of the contractual relationship. In order to do so, the Chamber analysed the intention of the parties and, in particular, outlined that the Respondent’s signature contained in the termination agreement clearly manifested that the latter was no longer interested in the Claimant’s services. On the other hand, the Chamber emphasised that the Claimant put the Respondent in default of complying with its contractual obligations on 18 December 2011 and refused to sign the termination agreement, expressing in doing so his wish to maintain the contractual relationship. 16. In continuation, the DRC stressed that the Respondent’s intent to terminate the contractual relationship was also reflected in the non-payment of the Claimant’s salary for December 2011 as well as in the lack of reply to his default notice. 17. On account of all the above circumstances, the Chamber established that the Respondent had no longer been interested in the Claimant’s services. Such conduct constitutes, in the Chamber’s view, a clear breach of contract. Accordingly, the Chamber concurred that the Claimant had just cause to leave the country and therefore unilaterally terminate the contract. Consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 18. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract. 19. In continuation, 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 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. 20. 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 referred to art. 10 par. 2 of the contract which stipulates that “when the termination of the Contract is not due to a just cause or a mutual agreement between the Parties concerned, [the Respondent] of the Player shall be entitled to receive from the other party in breach of the Contract a compensation for a net amount of : 1.000.000 $ only”. 21. In this regard, the Chamber held that in spite of being a valid compensation clause, art. 10 par. 2 of the contract sets an amount to be paid in case of breach of contract by either of the parties which is clearly disproportionate considering the remaining period of the contract, i.e. one and a half year, and the Claimant’s annual salary, i.e. USD 30,000. Accordingly, and in virtue of its discretionary power, the Chamber decided to reduce the compensation to USD 45,730 which was to be considered a reasonable and justified amount of compensation for breach of contract in the matter at hand. 22. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of USD 50,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal basis or evidence that demonstrated the damage suffered or its quantity. In this context, the members of the Chamber referred to the general legal principle of the burden of proof, according to which a party deriving a right from an alleged fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules). Moreover, the members of the DRC recalled that it had already granted the Claimant compensation for the breach of the contract and, for that reason he could not claim any further compensation. On account of the aforementioned, the Chamber decided that the request for compensation related to moral damages shall be rejected. 23. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant. 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 the amount of USD 45,730. 3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further request filed 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