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 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Rinaldo Martorelli (Country E), member Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), 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 the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Rinaldo Martorelli (Country E), member Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), 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 26 June 2013, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as of 1 July 2013 until 30 June 2015. 2. According to the contract, the Claimant was entitled to receive from the Respondent inter alia a monthly salary of USD 83,333 payable “at the end of Georgian month” and a “payment” of USD 500,000 payable on 1 July 2014. 3. On 28 November 2014, the Claimant lodged a claim against the Respondent in front of FIFA requesting as follows: a. USD 166,666 as outstanding salaries of September and October 2014; b. USD 500,000 as the outstanding payment due on 1 July 2014; c. USD 666,664 as the remaining value of the contract; d. USD 100,000 as moral damage; e. 5% interest on all the amounts “as of the date on which [it] was generated”. 4. In particular, the Claimant explained that without any notice or warning, the Respondent deregistered him, preventing him therefore from participating in any official matches with the team. The Claimant pointed out that just before the FIFA World Cup in Country E, he was injured reason for which the Respondent substituted him with another player. Furthermore, the player stressed that the Respondent always made late payments. 5. Moreover, the Claimant enclosed an undated letter, with a DHL delivery notification dated 12 October 2014, addressed to the Respondent, whereby he stated as follows: “I was supposed to play in all competitions (…) To be able to participate in competitions that take place in Country D must be enrolled in the respective Federation and within the corresponding quota of foreigners (…) the quota of foreign that I had were filled with another foreigner, therefore the contract has been unfulfilled. This undoubtedly constitutes a unilateral breach of the contract without justified cause by the club (…) and as the expressed contract has been terminated in a unilaterally way, as this date I become detached from your club…” 6. On account of the above, the Claimant argued that his deregistration constitutes a clear breach of the employment contract by the Respondent and the latter must therefore be held liable for its consequences. 7. In its reply to the claim, the Respondent stressed that the Claimant was “called” to join his national team for the FIFA World Cup in Country E, where he sustained an injury. The Respondent ascertained that “after the injury [the Claimant] did not return to [the Respondent] even if after the end of the [World Cup]”. In this respect, the Respondent asserted that it booked a flight for the player and his agent. 8. Furthermore, the Respondent argued that on “29 September 2014”, the Claimant joined once again his national team “but this time [he] did not return and sent another letter asking for his payment”. 9. The Respondent stressed that it replied to the Claimant’s letter described in point I./5 above by e-mail, informing him as follows “Reference is made to your letter sent (…) on 13 Oct 2014. In this regard, we would prefer to have a meeting with you in person here in City in Country D after you are finished with your National Team’s preparation for the FIFA Days to discuss all matters in relation to your employment contract”. The Respondent further argued that it sent three more e-mails asking the player to return, however to no avail. In this respect, the Respondent enclosed four e-mails dated 15 October, 23 November, 27 November and 3 December 2014. 10. As to the Claimant’s unpaid salaries, the Respondent sustained that the Claimant “did not show up” and that is the reason of their non-payment. Furthermore, the Respondent stressed that the player claimed for “two-month unpaid salaries” and that “in accordance with art. 14 of the [FIFA Regulations] of which shall be for over three months of unpaid salaries so that a player can terminate his employment contract (…) thus, the termination is unjustified (…) [the Claimant] mentioned in his claim that he was not paid the amount of USD 500,000. The [FIFA Regulations] allows players to terminate employment contracts for monthly salaries not for down payments”. 11. As to the Claimant’s deregistration, the Respondent explained that the injury of the Claimant prior to the World Cup was “extremely bad and he need long time for recovery”. Therefore, the Respondent pointed out that in accordance with “Article (43/3) of the Football Federation of Country D”, Clubs of Country D “[are not required] to notify the players prior and/or after the replacement”. In this regard, the Respondent argued that it “preferred to replace the player, who was injured, to another fit player…” 12. The above-mentioned art. 43/3 reads as follows: “Considering the provisions of paragraph 2 of these regulations, premiere division clubs are allowed to register two new additional non-Country D players during registration periods without being obliged to provide the Committee with a financial settlement sheet for players who clubs wish to replace according to the following criteria…” Moreover, said article 43/3 also provides, inter alia, that clubs who wish to replace players must “undertake” to pay the replaced player’s monthly salaries “till the date of the contract expiry” and that “replaced players may not be re-listed except during the following registration period of their replacement”. 13. In addition, the Respondent claimed that another reason for the Claimant’s replacement was that he “did not appear to [the Respondent] at all. He preferred to be away for unknown period of time without having a permission…” 14. In his replica, the Claimant stressed that it is false that he did not return to the Respondent after the World Cup. In this regard, he argued that he did use the flight ticket provided by the Respondent, however he could only attend to trainings as his deregistration had already taken place. According to the Claimant, his call-up by the Football Federation of Country B to attend some friendly matches proves that, at that moment, he was with the Respondent. What is more, the Respondent’s statement “but this time the player did not return…” implies that he did return after the World Cup. 15. Furthermore, the Claimant ascertained that the only purpose of the Respondent’s e-mails was to simulate an alleged breach of the contract by him. The player emphasized in this respect that by the time the e-mails were sent, it was clear that the Respondent had already deregistered him. 16. As to art. 43/3, the Claimant pointed out that it compels the Respondent to cover his salaries for the entire duration of the contract, which the latter failed to do. 17. Finally, the Claimant reiterated the arguments of his reply. 18. Despite having been asked to do so, the Respondent did not submit any further comments. 19. Upon FIFA’s request, the Claimant informed FIFA that he concluded a new employment contract with the Club of Country F, Club G valid as of 1 January 2015 until 31 May 2016 and according to which, he is entitled to a monthly salary 10,000. Moreover, the Claimant explained that as of March 2015, he has been receiving from Club G the amount of USD 2,000 “in view of his low salary and his sporting performance”. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 28 November 2014. Consequently, the 2014 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 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 Player of Country B and a Club of Country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the claim was lodged in front of FIFA on 28 November 2014, the 2014 edition of the aforementioned 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts 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. First of all, the Chamber acknowledged that, on 26 June 2013, the parties entered into a valid employment contract in accordance with which the Respondent undertook to pay the Claimant inter alia a monthly salary of USD 83,333 payable at the end of each month plus a payment of USD 500,000 payable on 1 July 2014. 6. In continuation, the Chamber noted that on 12 October 2014, the Claimant terminated the contract alleging just cause since the Respondent deregistered him, thus preventing him from playing any official matches with the team. In this respect, the members of the Chamber took note that the Claimant argued that his deregistration constitutes a clear breach of the employment contract by the Respondent. What is more, the Chamber observed that the Claimant sustained not having received his salaries of September and October 2014, plus the payment payable on 1 July 2014. 7. Conversely, the Chamber took note of the Respondent’s argumentation in accordance with which the Claimant did not return “even if after the end of the [World Cup]” and that, according to the Respondent, on 29 September 2014, the Claimant joined his national team “but this time did not return to the club”. In this respect, the Chamber duly noted the e-mails sent by the Respondent to the Claimant on 15 October, 23 November, 27 November and 3 December 2014. 8. Furthermore, the members of the Chamber acknowledged that the Respondent did not dispute not having paid the Claimant his salary of September 2014 and the payment due on 1 July 2014, and that the reason of their non-payment was due to the fact that the Claimant “did not show up”. 9. As to the player’s deregistration, the Chamber took note of the Respondent’s argument that in accordance with art. 43/3 of the Football Federation of Country D Regulations, Clubs of Country D “[are not required] to notify the players prior and/or after the replacement”. In this regard, the Respondent argued that it “preferred to replace the player, who was injured, to another fit player…” 10. Having established the aforementioned, the Chamber deemed that the underlying issue in the dispute at hand, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, it would be necessary to determine the consequences for the party that caused the breach of the relevant employment contract. 11. In this regard, first and foremost, the members of the Chamber highlighted that it is undisputed that the Respondent deregistered the Claimant since it “preferred to replace the player, who was injured, to another fit player…” The Chamber further noted that the Respondent based the Claimant’s deregistration on art. 43/3 of the Football Federation of Country D Regulations, which, according to the Respondent, establishes that Clubs of Country D “[are not required] to notify the players prior and/or after the replacement”. 12. With the above-mentioned considerations in mind, the members of the Chamber considered important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to be given the possibility to compete with his fellow team mates in the team’s official matches. In this respect, the Chamber emphasized that the deregistration of a player effectively bars, in an absolute manner, the potential access of a player to competition and, as such, is violating one of his fundamental rights as a football player. 13. Therefore, the Chamber established that the deregistration of a player constitutes, in principle, a breach of contract since it de facto prevents a player from being eligible to play for his club. In this respect, the Chamber wished to underline that the fact that the player had allegedly sustained an injury cannot be considered as a justification to deregister him. 14. In addition, it is undisputed that, at the moment of the termination of the contract by the Claimant, the Respondent had failed to remit the Claimant’s salary of September 2014 and the payment of USD 500,000 payable on 1 July 2014. In this respect, the Respondent’s argument that the Claimant “did not show up” cannot be upheld. The Chamber outlined that the Respondent’s allegation that the player had not returned to the club after the 2014 FIFA World Cup had not been supported by any evidence. In fact, the Chamber observed that the Respondent indicated that at the end of September 2014, the player had once again joined his national team, therewith contradicting its own statement that the player had not returned after the 2014 FIFA World Cup. As such, the Chamber concluded that the Respondent had not been able to prove its justification for the non-payment of the two aforementioned amounts, which concerned a significant amount of remuneration. 15. On account of the above circumstances, the Chamber established that the Respondent had obviously no longer been interested in the Claimant’s services and had breached the contract by i) failing to remit the Claimant his salary of September 2014 and the payment of 1 July 2014 without any valid reason and ii) by deregistering him from the team. In the Chamber’s view, such conduct constitutes a clear breach of contract. Accordingly, the Chamber concurred that the Claimant had a just cause to unilaterally terminate the employment contract on 12 October 2014. Consequently, the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant. 16. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 17. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per the employment contract in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. USD 583,333 consisting of USD 500,000 as per the payment due on 1 July 2014, as well as USD 83,333 as per his salary of September 2014. 18. In addition, taking into consideration the Claimant’s claim and the Chamber’s long-standing jurisprudence, the members of the DRC decided to award interest on said amounts at the rate of 5% p.a. as of the due dates of each amount. 19. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 20. In this context, the Chamber outlined that, in accordance with said provision, 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. 21. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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. 22. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the contract, this would run for another nine months. Consequently, the Chamber concluded that the remaining value of the contract as from its early termination by the Claimant until its regular expiry amounts to USD 749,997, an amount which shall serve as the basis for the final determination of the amount of compensation for breach of contract. 23. In continuation, the Chamber recalled that the Claimant had entered into a new employment with the Club of Country F, Club G valid as of 1 January 2015 until 31 May 2016 and according to which, he is entitled to a monthly salary 10,000, which corresponds to approximately USD 800. Moreover, the members of the Chamber took note that the Claimant had been receiving from the aforementioned Club of Country F the amount of USD 2,000 as of March 2015. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant to mitigate his damages, the above-mentioned amounts shall be taken into account in the calculation of the amount of compensation for breach of contract. 24. In view of all of the above, the Chamber decided that the Respondent must pay the amount of USD 737,197 to the Claimant as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount, as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 28 November 2014, until the date of effective payment. 25. Furthermore and as to the Claimant’s request of USD 100,000 as moral damage, the members of the Chamber referred to art. 12 art. 3 of the Procedural Rules and concluded that the Claimant had not substantiated his claim in this regard and thus decided to reject this part of the Claimant’s claim. 26. Finally, the Chamber concluded its deliberations 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 A, is partially accepted. 2. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 583,333 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. on the amount of USD 500,000 as of 2 July 2014; b. 5% p.a. on the amount of USD 83,333 as of 1 October 2014 3. The Respondent is ordered 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 USD 737,197 plus 5% interest p.a. as of 28 November 2014 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 remittances are 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