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 Damir Vrbanovic (Croatia), member on the matter between the club, Club A, Country B as 1st Claimant / 2nd Respondent and the player, Player C, Country D as 2nd Claimant / 1st Respondent and the club Club E, Country F as 1st Co-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 Damir Vrbanovic (Croatia), member on the matter between the club, Club A, Country B as 1st Claimant / 2nd Respondent and the player, Player C, Country D as 2nd Claimant / 1st Respondent and the club Club E, Country F as 1st Co-Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 23 July 2012, the Club of Country B, Club A and the Player C (hereinafter: the player) concluded an employment contract (hereinafter: the first contract) valid as of 24 July 2012 until 23 July 2015. 2. According to the first contract, the player was entitled to receive from Club A as follows: a. For the season 2012/2013 i. USD 54,166 as monthly salary payable at the end of each month; ii. USD 650,000 as advance payment payable on 1 August 2012 and “deemed as earn pro-rata” b. For the season 2013/2014 i. USD 60,416 as monthly salary payable at the end of each month; ii. USD 725,000 as advance payment payable on 1 August 2013 and “deemed as earn pro-rata” c. For the season 2014/2015 i. USD 66,666 as monthly salary payable at the end of each month; ii. USD 800,000 as advance payment payable on 1 August 2014 and “deemed as earn pro-rata” 3. Moreover, clause 7 of the first contract stipulated that “The party terminating the contract with no just cause shall pay the other party a penalty equivalent to 50% of the remainder of the contract….” 4. On 24 July 2012, the parties concluded another contract (hereinafter: the second contract) with the same period of validity and which provided the same amounts payable to the player however not containing clause 7 of the first contract. 5. On 6 September 2013, Club A lodged a claim based on the second contract against the player and the Club of Country F, Club E as the player’s new club, requesting the following amounts: a. USD 2,651,666.67 as unamortized transfer fee; b. USD 3,147,498.80 as the remaining value of the contract; c. “the compensation corresponding to the specificity of sport equivalent to 6 months’ salary in accordance with the player’s new contract”; d. Sporting sanctions on both respondents; e. 5% interest p.a. on said amounts. 6. In particular, Club A firstly explained that in order to sign a contract with the player it had to pay the amount of USD 3,700,000 to his former club, Club G. 7. In continuation, Club A stressed that on 21 April 2013, after playing its penultimate match of the season against Club H, it was forced to send the player a letter informing him about “his inadequate behavior” during the first months of the year. In this respect, Club A argued that after sending the letter and many “verbal warnings”, it sanctioned the player with “the suspension of his registration to play in the championship until the end of the season”. Club A alleged that the player’s sanction was legal and limited to “one match”. 8. According to Club A, on 27 April 2013, the player replied informing it about the “mistreatment” he was suffering, rejecting the sanction imposed on him and requesting his re-registration with the team. 9. On 30 April 2013, Club A replied to the player’s letter establishing that “we can only add that the decision taken by the Coach is merely a sporting decision which is absolutely within the law and the regulations” and that “The player is training and is a part of the first team, being paid accordingly and he might be registered again on July”. 10. On 31 May 2013, the player sent a communication to Club A whereby he terminated the contract alleging just cause in view of his deregistration. 11. Furthermore, Club A stressed that on 28 June 2013, the player concluded a new employment contract with Club E, despite Club A having sent two warning letters to said Club of Country F in order to prevent it from signing a contract with the player. In this regard, Club A enclosed two letters dated 17 June 2013 and 23 July 2013. 12. Moreover, Club A stressed that the salary of the player was always paid in a timely manner and he was never prevented from entering the club’s premises. 13. Therefore, in Club A’s view, the player terminated the contract without just cause and thus, must be held liable for the consequences with Club E as jointly and severally liable. 14. On 27 September 2013, the player lodged a separate claim based on the first contract against Club A requesting the total amount of USD 5,641,415 as follows: a. USD 54,166 as outstanding salary of May 2013; b. USD 3,104,166 as compensation for breach of contract; c. USD 1,552,083 “in accordance with clause 7 of the [first] contract”; d. USD 931,000 as “damages to the personality of the player”. 15. In particular, the player explained that Club A excluded him from the main squad and deregistered him from the team alleging “sporting reasons”. The player stressed that this meant being unable to play official matches for Club A. 16. In this respect, the player argued that the facts presented by Club A are inaccurate and do not reflect what actually happened. The player stressed, while enclosing a letter addressed to Club A, that he first put Club A in default for his deregistration since 11 March 2013. Therefore, it is false that Club A deregistered him only for the last match of the season. 17. Furthermore, the player argued that on 20 March 2013, Club A replied to his above-mentioned letter by stating that “you are still a member of [the team] with all the duties and rights but to play official games because of the number of foreign players to be registered in the Football Federation of Country B. This is nothing but a sporting issue that a club has to choose for technical reasons (…) Then in July you might even come back to be registered”. Therefore, the player sustained that the decision to deregister him was due to sporting reasons and not disciplinary as Club A claims. The player further explained that his letter of 27 April 2013 was in response thereto (cf. point 8 above). 18. On account of the above, the player pointed out that his deregistration occurred as of March 2013 and that, as confirmed by Club A, it would last at least until July. According to the player, this constitutes a clear breach of the contract by Club A. 19. In continuation, the player stressed that he did not give Club A any reason in order for it to justify his exclusion from the team. In this respect, the player rejected his supposed misbehavior and stressed that Club A did not present any evidence in this regard. Moreover, the player denied having received the “verbal warnings” that Club A claimed to have issued. 20. On its part, Club E replied to the claim by stressing that Club A did not provide any evidence that can corroborate any of its claims. Namely, Club A did not provide i) the transfer agreement supposedly concluded with Club G and ii) any documentation that can prove the misbehavior of the player. Moreover, Club E denied having received Club A’s letter dated 17 June 2013. 21. Furthermore, Club E stressed that the deregistration of the player to participate in the Competition of Country B, fact that is undisputed, is a clear breach of the employment contract with the player and thus, the latter had a just cause to terminate it. 22. Finally, Club E rejected having induced the player in any way to terminate his contract. In this respect, Club E sustained that its contract with the player was concluded on 28 June 2013 only and thus, “almost 1 month after the termination of the contract” between the player and Club A. 23. In its reply to the player’s claim, Club A argued that the inducement of the new club is assumed and that Club E did not provide any evidence on the contrary. Moreover, Club A stressed again that on 17 June 2013, it sent a letter to Club E informing the latter about the situation with the player. 24. As to the player’s position, Club A stressed that the player participated with the team in a total of 9 matches where he only scored 2 goals, therefore the “offensive production does not correspond to what was paid for the player”. In addition, Club A argued that the player’s deregistration was made upon request of the team’s coach in order to allow the player to “better adapt to the team without the pressure of having to perform at the highest level”. 25. Moreover, Club A emphasized again that the player was always paid in time and treated with the utmost respect by everyone in the club. Finally, Club A reiterated the arguments of its claim. 26. In its duplica, Club E reiterated the arguments of its reply. 27. In his last position, the player reiterated the arguments of his claim. 28. After having been requested by FIFA, the player informed FIFA that he had concluded the following new contracts: a. On 28 June 2013 with Club E which was terminated in December 2013, whereby he was entitled to a monthly salary of 21,000; b. On 4 January 2014 with the club, Club I valid until 31 December 2015, whereby he is entitled to a monthly remuneration of USD 10,000. 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 stake. In this respect, it took note that the present matter was submitted to FIFA on 6 September 2013 by Club A and on 27 September 2013 by the player. Consequently, the 2012 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 Club of Country B, a Player of Country D and a Club of Country F. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 15 May 2015 by means of which the parties were informed of the composition of the Chamber, the Member J (club’s representative) and the Member K (player’s representative) refrained from participating in the deliberations in the case at hand, due to the fact that the aforementioned members have the same nationality as the player and Club E respectively, thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 relevant claims were lodged on 6 and 27 September 2013, the 2012 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 members of the DRC acknowledged that on 23 and 24 July 2012, Club A and the player concluded the first and the second contract respectively, both valid until 23 July 2015 and according to which the player was entitled to receive from Club A as follows: a. For the season 2012/2013, USD 54,166 as monthly salary payable at the end of each month plus USD 650,000 as advance payment; b. For the season 2013/2014, USD 60,416 as monthly salary payable at the end of each month plus USD 725,000 as advance payment; c. For the season 2014/2015, USD 66,666 as monthly salary payable at the end of each month plus USD 800,000 as advance payment. 6. In continuation, the DRC noted that on 31 May 2013, the player terminated the contractual relation between the parties alleging just cause in view of his deregistration with Club A, which prevented him from participating in official matches with the team. 7. Having said this, the Chamber proceeded to take note of Club A’s position which argues that on 21 April 2013, it addressed a letter to the player warning him of his “inadequate behavior” during the first months of the year thereafter sanctioning him with “the suspension of his registration to play in the championship until the end of the season”. In this respect, the Chamber observed that, according to Club A, the aforementioned sanction was legal and limited to “one match”. What is more, according to Club A, the player’s salaries were always paid in a timely manner and he was never prevented from entering its premises. Hence, the Chamber acknowledged that Club A is of the opinion that the player terminated the contract without just cause and must therefore be held liable of the consequences thereof. 8. Furthermore, the Chamber turned its attention to the player’s claim who stresses that it is untrue that his deregistration was only for the last match of the season since such decision was taken by Club A in March 2013. In this respect, the Chamber observed the letters of 11 March 2013 and 27 April 2013 whereby the player requested Club A to register him. Thus, the player claims that, by deregistering him, Club A breached the employment contract and therefore he had a just cause to terminate it. 9. In view of the foregoing considerations, the Chamber deemed that the underlying issue in the dispute at hand, considering the claims of Club A and the player, was to determine whether the relevant employment contract had been unilaterally terminated with or without just cause by the player, 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. 10. First of all, the members of the Chamber wished that highlight that it is undisputed that the player was deregistered and therefore was prevented from playing any official matches with the team. In this respect, the Chamber observed that there are conflicting positions on when the player’s deregistration actually took place and for what period of time. 11. Along these lines, the members observed that whereas Club A argues that the player’s deregistration was only for one match, the player ascertains that such occurred as early as March 2013, after which he first sent a default letter, on 11 March 2013, to Club A objecting to it. In this regard, the members of the Chamber underlined that Club A did not contest having received the player’s letter dated 11 March 2013. What is more, the Chamber noticed that Club A replied on 20 March 2013 in the following terms: “you are still a member of [the team] with all the duties and rights but to play official games because of the number of foreign players to be registered in the Football Federation of Country B. This is nothing but a sporting issue that a club has to choose for technical reasons (…) Then in July you might even come back to be registered”. 12. On account of the above, the members of the Chamber came to the unanimous conclusion that it can be established with certainty that the player’s deregistration occurred as of March 2013 and not only for “one match” as Club A claimed. Moreover, in accordance with Club A’s own statement, the player’s deregistration would last at least until July, i.e. the player was prevented from participating in any official matches with the team for at least 5 months. What is more, the player was merely informed that in July 2013, he might be re-registered. 13. 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. 14. 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. 15. Furthermore and for the sake of completeness only, the Chamber wished to underline the evident contradictory positions of Club A in its different submissions during the proceeding; in its claim it firstly argued that the player’s deregistration had occurred due to disciplinary reasons whereas in its reply to the player’s claim it brought arguments related to the player’s sporting performance such as i) “the offensive production [of the player did] not correspond to what was paid for the player” and ii) that the player’s deregistration occurred upon a decision of Club A’s coach in order to allow the player to “better adapt to the team without pressure of having to perform at the highest level”. 16. On account of the above circumstances, the Chamber established that the conduct of Club A clearly constituted a breach of the employment contract. Accordingly, the Chamber concurred that the player had just cause to unilaterally terminate the employment contract on 31 May 2013. Consequently, Club A is to be held liable for the early termination of the employment contract with just cause by the player. 17. 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 player. 18. First of all, the members of the Chamber concurred that Club A 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 Club A is liable to pay to the player the amount of USD 54,166 for May 2013. 19. In addition, taking into consideration the player’s claim and the Chamber’s long-standing jurisprudence, the members of the DRC decided to award interest on said amount at the rate of 5% p.a. as of the due date. 20. 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, in casu, the first contract. 21. 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. 22. Having said this and while considering 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 reasoned that the first contract, which as previously set out serves as the basis of the player’s claim, appears to contain a clause regarding compensation to be awarded in case of breach of contract by any party, namely clause 7. What is more, the DRC emphasised that the player himself requested the application of said compensation clause. 23. At this point, the Chamber was eager to highlight that compensation clauses may be freely entered into by the contractual parties and may be considered acceptable, in the event that the pertinent written clause meets certain criteria such as proportionality, reasonableness and reciprocity. In this respect, the Chamber highlighted that in order to determine as to whether a compensation clause is to be considered acceptable, the specific circumstances of the relevant case brought before it shall also be taken into consideration. 24. With the above-mentioned considerations in mind, the members of the Chamber focused their attention on clause 7 of the first contract which reads “The party terminating the contract with no just cause shall pay the other party a penalty equivalent to 50% of the remainder of the contract….” and came to the conclusion that i) the clause is reasonable and reciprocal as it grants both contractual parties the possibility to request for its application in case of the termination of the contract without just cause by the counterparty. In this regard and for the sake of clarity, the DRC was of the opinion that evidently the relevant clause is also applicable a contrario sensu, i.e. in case a party terminates the contract with just cause in view of its breach by the counterparty and ii) it is proportional as it provides as compensation 50% of the residual value of the contract at the moment of the termination. 25. On account of all of the above, the Chamber decided that said compensation clause is valid and applicable in the present matter. Therefore, the Chamber emphasised that any compensation due to the player should be calculated solely on the basis of the relevant clause. 26. Having established the above-mentioned, the members of the Chamber proceeded to the calculation of the payable compensation and pointed out that at the time of the termination of the contract, the remaining value of the latter amounted to USD 3,104,150 comprised of USD 54,166 as per the player’s salary of June 2013, USD 724,992 as per the player’s salaries for the season 2013/2014, USD 725,000 as per the advance payment due on 1 August 2013, USD 799,992 as per the player’s salaries for the season 2014/2015 and USD 800,000 as per the advance payment due on 1 August 2014. 27. Having said this, the members of Chamber applied 50% to the aforementioned sum in accordance with the compensation clause and decided that the total amount payable by Club A to the player as compensation for breach of contract amounts to USD 1,552,075 plus 5% interest p.a. over said amount as from the date of the claim, i.e. 27 September 2013, until the date of effective payment. 28. Furthermore and as to the player’s request of USD 931,000 for “damages to the personality of the player”, the members of the Chamber referred to art. 12 art. 3 of the Procedural Rules and concluded that the player had not substantiated his claim in this regard and thus, decided to reject this part of the player’s claim. 29. Finally, the Chamber concluded its deliberations by establishing that any further claim lodged by the player is rejected and that the claim of Club A is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim lodged by the 1st Claimant / 2nd Respondent, Club A, is rejected. 2. The claim of the 2nd Claimant / 1st Respondent, Player C, is partially accepted. 3. The 1st Claimant / 2nd Respondent is ordered to pay to the 2nd Claimant / 1st Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 54,166 plus 5% interest p.a. as of 1 June 2013 until the date of effective payment. 4. The 1st Claimant / 2nd Respondent is ordered to pay to the 2nd Claimant / 1st Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 1,552,075 plus 5% interest p.a. as of 27 September 2013 until the date of effective payment. 5. In the event that the amounts due to the 2nd Claimant / 1st Respondent in accordance with the above-mentioned numbers 3. and 4. are not paid by the 1st Claimant / 2nd 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. 6. Any further claim lodged by the 2nd Claimant / 1st Respondent is rejected. 7. The 2nd Claimant / 1st Respondent is directed to inform the 1st Claimant / 2nd 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