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 passed in Zurich, Switzerland, on 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, Player M, from country S as Claimant against the club, Club B, from country P 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 the Dispute Resolution Chamber passed in Zurich, Switzerland, on 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, Player M, from country S as Claimant against the club, Club B, from country P as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 15 January 2010, Player M, from country S (hereinafter: the Claimant) and Club B, from country P (hereinafter: the Respondent), concluded an employment contract (hereinafter: contract 1), valid from the date of signature until 30 June 2012. 2. According to clause 4 of contract 1, the Claimant was entitled to the following remuneration: - signing-on fee in the amount of EUR 20,000 payable until 20 January 2010; - monthly salary in the amount of EUR 8,000, payable until the 15th of the next month; - “additional awards for sports achievements as resulting from the Rules of Awards and Penalties (RNiK) passed by the Management Board. The Club will deliver to the Player the Rules of Awards and Penalties (RNiK) applicable in each season”. 3. Also on 15 January 2010, the Claimant and the Respondent concluded another employment contract (hereinafter: contract 2), valid from the date of signature until 30 June 2010, by means of which the Claimant was entitled inter alia to a “gross remuneration” in the amount of currency of country P 1,332.08. 4. On 1 July 2010, the Claimant and the Respondent concluded another employment contract (hereinafter: contract 3), valid from the date of signature until 30 June 2011, by means of which the Claimant was entitled inter alia to a “gross remuneration” in the amount of currency of country P 1,340. 5. On 8 January 2011, the Claimant lodged a claim before FIFA against the Respondent for breach of contract, requesting outstanding remuneration and compensation, plus 5% interest as from 15 May 2010, as follows: - EUR 57,500 regarding the period between 15 May 2010 and 31 December 2010, concerning contract 1 (EUR 1,500 regarding May 2010 and 7 x EUR 8,000 from June until December 2010); - Currency of country P 3,237.42 regarding the remuneration established in contract 2; - Currency of country P 16,080 corresponding to the total remuneration established in contract 3; - EUR 1,665 as bonuses; - EUR 144,000 as compensation for the remaining period of contract 1 (EUR 48,000 for the period between January 2011 and June 2011 and EUR 96,000 for the season 2011/2012). The Claimant further requested disciplinary measures to be imposed on the Respondent. 6. According to the Claimant, in accordance with contract 1, he was entitled to receive for the season 2009/2010 the amount of EUR 64,000 (composed of EUR 44,000 as monthly salaries regarding half of January 2010 and the period between February and June 2010, and EUR 20,000 as signing-on fee) and for the seasons 2010/2011 and 2011/2012, the amount of EUR 96,000 for each season. 7. Moreover, the Claimant held that he was entitled to receive a monthly remuneration of currency of country P 1,332.08, in accordance with contract 2, and a monthly remuneration of currency of country P 1,340, in accordance with contract 3. 8. In this respect, the Claimant explained that the Respondent paid the signing-on fee, related to contract 1. Moreover, the Claimant stated that the Respondent made several random payments related to the period between January and May 2010. 9. On 9 July 2010, the Claimant put the Respondent in default, requesting the payment of the outstanding remuneration for the months of February to June 2010 within 8 days. According to the Claimant, the Respondent failed to pay the relevant amounts within the given deadline, but he still waited for the payment and continued to fulfil his obligations under the contracts. 10. On 23 August 2010 and 23 October 2010, the Respondent made further partial payments in the respective amounts of currency of country P 80,000 and currency of country P 38,358. 11. On 29 November 2010, the Claimant again put the Respondent in default, requesting the payment of EUR 44,450, within 14 days, regarding part of the salary of May 2010 and the salaries for June to October 2010. However, his default notice remained unanswered by the Respondent. 12. On 17 December 2010, the Respondent sent a letter to the Claimant informing him that the new coach did not want the Claimant in the team and that the Respondent wanted to terminate the contract as soon as possible. 13. On 4 January 2011, after having allegedly tried to contact the Respondent via telephone to amicably settle the matter, without success, the Claimant terminated the contract in writing alleging just cause. In particular, the Claimant highlighted that more than 5 months of salary were outstanding by the time he terminated the contractual relationship with the Respondent. 14. Although having been invited to do so, the Respondent did not answer to the claim even though informed that in the absence of a reply, a decision would be taken on the basis of the documentation and information on file. 15. The Claimant informed FIFA that he concluded an employment contract with Club J, form country S, valid from 12 July 2011 until 30 June 2013. The employment contract established a monthly salary of EUR 1,500 as well as a signing-on fee of EUR 8,000 for each year. 16. In this respect, the Claimant explained that the total amount of EUR 25,419 should be deducted from the compensation requested, being EUR 919 for the nineteen days regarding the month of July 2011, EUR 16,500 for the period between 1 August 2011 and 30 June 2012 (11 x EUR 1,500) and EUR 8,000 regarding the signing-on fee. 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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 8 January 2011. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 2015), 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 country S player and a country P club. 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, and considering that the present claim was lodged on 8 January 2011, the 2010 edition of said regulations (hereinafter: 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. In this respect, the Chamber recalled that the parties had signed three different contracts, i.e. contract 1, valid from 15 January 2010 until 30 June 2012; contract 2, valid from 15 January 2010 until 30 June 2010; and contract 3, valid from 1 July 2010 until 30 June 2011, all establishing different amounts of remuneration. 6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the contractual relationship with just cause on 4 January 2011, after previously having put the club in default, since the Respondent allegedly failed to pay the Claimant’s remuneration. 7. In this regard, the Claimant held having received the signing-on fee in accordance with contract 1 and several partial payments regarding contract 1 and contract 2 and held that more than five monthly salaries were outstanding at the time he terminated the contractual relationship. Consequently, the Claimant asked to be awarded outstanding remuneration as well as the payment of compensation for breach of the contracts. 8. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced its right of defence and, thus, had accepted the allegations of the Claimant. 9. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents on file, in other words, upon the statements and documents presented by the Claimant. 10. The DRC took note that, according to the Claimant, the Respondent made random payments during the contractual period and constantly failed to pay the agreed remuneration on time, only paying after being put in default. In particular, the Chamber acknowledged that the Claimant put the Respondent in default on 29 November 2010, since part of the salary of May 2010 was outstanding as well as the monthly salaries from June until October 2010. 11. Moreover, the Chamber highlighted that the Respondent informed the Claimant, on 17 December 2010, that it wanted to terminate the contracts. 12. Considering the contracts signed between the parties and the claim of the Claimant, the DRC considered that on the date of the termination, i.e. 4 January 2011, more than 7 monthly salaries were outstanding for the period between May and December 2010. 13. On account of the aforementioned, the Chamber established that the Respondent, without any valid reason, regarding contract 1, failed to remit to the Claimant the aggregate amount of EUR 57,500, corresponding to part of the salary of May 2010 in the amount of EUR 1,500 and the monthly salaries in the amount of EUR 8,000 each for the period between June and December 2010. Moreover, the Respondent also failed to remit to the Claimant the total amount of currency of country P 3,237.42 regarding contract 2. Finally, the Chamber considered that the Respondent failed to pay the Claimant the amount of currency of country P 8,040 regarding contract 3, corresponding to the monthly salaries in the amount of currency of country P 1,340 each for the period between July and December 2010. Consequently, the Chamber concurred that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, despite having been put in default. 14. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant had just cause to unilaterally terminate the contractual relationship on 4 January 2011 and that the Respondent is to be held liable for the early termination of the contract with just cause by the Claimant. 15. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 57,500 and currency of country P 11,277.42. 16. Furthermore, taking into account the Claimant’s petition and the constant practice of the Dispute Resolution Chamber, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned amounts as from the respective due dates until the date of effective payment. 17. In continuation, 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 decided that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is also liable to pay compensation to the Claimant. 18. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent 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. 19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contracts 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. In this regard, the Chamber established that no such compensation clause was included in any of the employment contracts at the basis of the matter at stake. 20. 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. 21. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of contract 1 until 30 June 2012 and under the terms of contract 3 until 30 June 2011, taking into account that the Claimant´s remuneration until December 2010 is included in the calculation of the outstanding remuneration. 22. Consequently, the Chamber concluded that the amount of EUR 144,000 regarding contract 1 (i.e. remuneration as from January 2011 until 30 June 2012) and the amount of currency of country P 8,040 regarding contract 3 (i.e. remuneration as from January 2011 until 30 June 2011) serve as the basis for the determination of the amount of compensation for breach of contract. 23. 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. 24. Indeed, the Claimant found employment with Club J, from country S, valid from 12 July 2011 until 30 June 2013. In accordance with the pertinent employment contract, which has been made available by the Claimant, the Claimant was entitled to receive a monthly salary of EUR 1,500 as well as a signing-on fee of EUR 8,000 for each year. In particular, the Chamber took note that the Claimant explained that the total amount of EUR 25,419 should be deducted from the compensation requested, considering the period between July 2011 and 30 June 2012. 25. In this framework, the Chamber agreed with the Claimant that the value of the new employment contract concluded between him and Club J for the corresponding period of time amounted to EUR 25,419. 26. 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 EUR 118,581 and currency of country P 8,040 to the Claimant, which are to be considered reasonable and justified amounts of compensation for breach of contract in the present matter. 27. Furthermore, taking into account the constant practice of the Dispute Resolution Chamber, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned amounts as from the date of the claim until the date of effective payment. 28. Finally, the members of the DRC took note that the Claimant also requested the amount of EUR 16,080 as bonuses. In this respect, the members of the DRC first indicated that the different contracts did not establish any amount due to the Claimant as bonuses and therefore, the Chamber was unable to determine to what amount of bonuses the Claimant might have been entitled. Furthermore, the members, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the Claimant had not submitted any documentary evidence in this respect. 29. Therefore, the DRC decided to reject the Claimant’s claim for bonuses. 30. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ******* III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player M, is partially accepted. 2. The Respondent, Club B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 57,500 and currency of country P 11,277.42, plus 5% interest until the date of effective payment as follows: a. 5% p.a. as of 16 June 2010 on the amount of EUR 1,500; b. 5% p.a. as of 1 July 2010 on the amount of currency of country P 3,237.42; c. 5% p.a. as of 16 July 2010 on the amount of EUR 8,000; d. 5% p.a. as of 1 August 2010 on the amount of currency of country P 1,340; e. 5% p.a. as of 16 August 2010 on the amount of EUR 8,000; f. 5% p.a. as of 1 September 2010 on the amount of currency of country P 1,340; g. 5% p.a. as of 16 September 2010 on the amount of EUR 8,000; h. 5% p.a. as of 1 October 2010 on the amount of currency of country P 1,340; i. 5% p.a. as of 16 October 2010 on the amount of EUR 8,000; j. 5% p.a. as of 1 November 2010 on the amount of currency of country P 1,340; k. 5% p.a. as of 16 November 2010 on the amount of EUR 8,000; l. 5% p.a. as of 1 December 2011 on the amount of currency of country P 1,340; m. 5% p.a. as of 16 December 2010 on the amount of EUR 8,000; n. 5% p.a. as of 1 January 2011 on the amount of currency of country P 1,340; o. 5% p.a. as of 16 January 2011 on the amount of EUR 8,000. 3. The Respondent 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 EUR 118,581 and currency of country P 8,040, plus 5% interest p.a. on said amounts as from 8 January 2011 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. 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