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 16 October 2014, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Todd Durbin (USA), member Joaquim Evangelista (Portugal), member John Bramhall (England), member on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from 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 16 October 2014, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Todd Durbin (USA), member Joaquim Evangelista (Portugal), member John Bramhall (England), member on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 5 July 2012, the player from country B, Player A (hereinafter: the Claimant) and the club from country D, Club C (hereinafter: The Respondent) signed an employment contract valid as from the date of the signature until the 4 July 2015, i.e. 3 years. 2. According to art. 7.7 of the Contract “The Parties declare that they accept the exclusive jurisdiction of Football Federation from country D” and, according to art. 7.6, “The Parties undertake to settle by negotiations and agreements any disputes and disagreements, that may arise in the process of the present Contract obligations fulfillment. If they fail to come to agreement between the Footballer and the Club, the final decision is taken by the Club Board and may be appealed against according to the norms of Football Federation from country D Regulations”. 3. Also on 5 July 2012, the parties also signed three appendixes to the contract, which entitled the Claimant to receive inter alia the amounts of: a. “18’100” as monthly salary payable from 5 July 2012 until 4 July 2015 (Clause 3 of Annex 2) b. USD 500 as monthly accommodation allowance (Clause 4 of Annex 2); c. USD 19’000 net as monthly salary payable as from 5 July 2012 until 4 July 2015 (Clause 3.1 of Annex 3). 4. On 16 May 2013, the Claimant terminated the contract with the Respondent in writing and with immediate effect, after having received no reaction from the Respondent to his default notice of 8 May 2013, by means of which he requested the payment, until 15 May 2013, of his outstanding remuneration from January to April 2013, in the total amount of USD 76’000. 5. On the same date, the Claimant lodged a claim against the Respondent before FIFA for breach of contract, requesting the payment of the total amount of USD 682’000 with interest of 5% p.a., broken down as follow: a. USD 86’954.84 as outstanding salaries corresponding to salaries from January to April 2013 (4 x USD 19,000 = USD 76,000) and his pro rata salary from 1 to 16 May 2013 ((USD 2,225 + USD 19,000) : 31 days x 16 days = USD 10’954.84) as per annex 3, plus 5% interest p.a. as from each due date; b. USD 595’845.16 as compensation for breach of contract: USD 10’270.16 remaining salary for May 2013 (USD 2’225 + USD 19,000 – USD 10’954.84), USD 530’625 remaining salaries from 1 June 2013 to 4 July 2015 (25 x (USD 2’225 + USD 19’000)), USD 12’500 for the remaining accommodation allowances from 1 June 2013 to 4 July 2015 (25 x USD 500) and USD 42’450 for “sporting and moral damages” plus 5% interest p.a. as from 17 May 2013; c. Sporting sanctions on the Respondent. 6. According to the Claimant, he received regularly his salary as per annex 2 and 3 until 1 January 2013. As from this date, without a valid reason, the Respondent stopped to pay him his extra salary as established in annex 3 (cf. point I.3.c above). Therefore, after the unanswered reminder of 8 May 2013, the Claimant terminated the contract on 16 May 2013 (cf. point I. 4 above). 7. In its reply, the Respondent rejected the competence of FIFA to deal with the present matter based on art. 7.6 and 7.7 of the contract (cf. point I. 2 above). In this respect, the Respondent claims that the only judicial body competent to deal with a dispute arising from the contract signed between the parties is the national dispute resolution committee of the Football Federation of country D (hereinafter: the Football Federation from country D NDRC). The Respondent holds that the latter fulfills all the requirements of independence, equal representation, fairness and objectiveness in consideration of disputes of the art. 22. b of the FIFA Regulations on the Status and Transfer of Players. 8. In this respect, the Respondent provided FIFA with an extract of the Statutes of the Football Federation from country D and of the Disciplinary Code of the Football Federation from country D, as well as a complete version of the Regulations of the Football Federation from country D NDRC (edition 2012), which establish the following: a. with regard to the jurisdiction of the Dispute Resolution Chamber: According to art. 53, par. 2 of the Football Federation from country D Disciplinary Code and Article 1 of the Football Federation from country D DRC Regulations, the Football Federation from country D NDRC shall have an exclusive competence to consider disputes between clubs and football players and coaches related to the employment and contractual disputes arising out of the labour relations as well as disputes between clubs. b. with regard to the composition: According to art. 3 par. 1 of the Football Federation from country D NDRC Regulations, the Football Federation from country D NDRC is composed of a chairman and deputy chairman elected from a list and at least five persons proposed by the Executive Committee of the Football Federation from country D with the consent of the representatives of the clubs/leagues and footballers, three to ten representatives of the footballers, appointed by the Presidium of the Trade Union from country D “Football of country D” and the Association of Professional Footballers of country D, and three to ten representatives of the clubs/leagues appointed on the proposal of the General Meeting of members of the Premier League, the Association of Football Clubs of country D and the Central Council of the Professional Football League of country D from among the candidates proposed by the clubs. c. with regard to the possibility of an appeal: Concerning the possibility of an appeal against a decision taken by the Football Federation from country D NDRC, art. 53. par. 3 of Football Federation from country D Disciplinary Rules stipulates that the decisions of the Football Federation from country D NDRC may be appealed before CAS. 9. As to the substance of the case, the Respondent claims that the Claimant is not entitled to the claimed amount and terminated the contract without just cause. Indeed, the Respondent states that the Claimant has left the Respondent’s facilities on 14 May 2013 i.e. without previous warning, two days before the notification’s delivery. Furthermore the Respondent holds that the Claimant violated his contractual obligations several times and did not follow the Respondent’s doctor instructions for his post-injury rehabilitation period. In this regard, the Respondent provided a medical opinion and a “doctor’s note” dated 8 May 2013 and 15 May 2013 respectively, according to which the Claimant suffers from an Achilles tendon injury and needs about two weeks for rehabilitation and recovery without participating in active training sessions. 10. In his replica, the Claimant, first of all, holds that the Respondent’s position cannot be considered due to the fact that it arrived with a delay of four days. Additionally, the Claimant insists that FIFA is competent to deal with the present matter and denies the competence of the Football Federation from country D NDRC which does not meet the minimum procedural standards required by Art. 22 lit b of the RSTP. Moreover, the Claimant states it is impossible that he could give his agreement to submit any contractual dispute with the respondent to the Football Federation from country D NDRC for the reason that the creation of the latter was two months after the date of the signature of the contract, i.e. on 3 September 2012. Finally the Claimant holds that clauses 7.6 and 7.7 of the contract are null and void or, at least, cannot be considered for the reason that they are unclearly drafted and that he was forced to sign the contract since it is a mandatory Football Federation from country D standard form to participate in the Football Federation from country D competition. 11. As to the substance, the Claimant maintains its position and additionally states that he left the country D on 15 May 2013 and, therefore, respected the time limit of his final warning sent to the Respondent, dated 8 May 2013. Finally, the Claimant holds that all the conditions to terminate the contract with just cause are fulfilled: the importance of the outstanding amounts, the absence of the justification from the Respondent to retain monies and the fact that the Claimant gave the Respondent a notice prior to termination. 12. In its final position, the Respondent reaffirms its arguments and holds that the Football Federation from country D NDRC is the only competent body to consider the case. 13. Finally, the Claimant informed FIFA that he was unemployed from 16 May to 24 June 2013 and subsequently signed an employment contract with the club from country E, club F, valid from 24 June 2013 until 30 June 2016, according to which he was entitled to receive a monthly salary of USD 25’000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 16 May 2013. 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 2012) the DRC shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the DRC would, in principle, be competent to decide on the present litigation which involves a player from country B and a club from country D regarding an employment-related dispute. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 7.6 and art. 7.7 of the contract, alleging that the only competent body to deal with any dispute deriving from the relevant employment contract is the Football Federation from country D NDRC. 5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent. 6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract. 8. Therefore, while analysing whether it was competent to hear the present matter, the DRC considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause. 9. In this respect, the Chamber recalled that art. 7.6 of the contract stipulates that: “The Parties undertake to settle by negotiations and agreements any disputes and disagreements, that may arise in the process of the present Contract obligations fulfilment. If they fail to come to agreement between the Footballer and the Club, the final decision is taken by the Club Board and may be appealed against according to the norms of Football Federation from country D Regulations.” 10. Equally, the Chamber recalled that art. 7.7 of the contract stipulates that: “The parties declare that they accept the exclusive jurisdiction of Football Federation from country D.” 11. Having examined the relevant provisions, the Chamber came to the unanimous conclusion that the aforementioned two provisions do not constitute a clear jurisdiction clause in favour of one specific court or arbitration tribunal in country D, since they only refer to the “norms” and “jurisdiction” of the Football Federation from country D. 12. Furthermore, the Chamber wished to emphasise that the Regulations of the Football Federation from country D provided by the Respondent came into force in September 2012 only, whereas the contract at the centre of the present dispute was already signed on 5 July 2012. Therefore, the Chamber concluded that, on 5 July 2012, the parties to the contract could simply not have agreed to submit their potential disputes to the arbitration body of the Football Federation from country D which only started its activity in September 2012. 13. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 14. In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012) and, on the other hand, to the fact that the present claim was lodged on 16 May 2013. Therefore, the Dispute Resolution Chamber concluded that the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 15. 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. 16. First of all, the members of the Chamber acknowledged that, on 5 July 2012, the Claimant and the Respondent had concluded an employment contract valid as from 5 July 2012 until 4 July 2015, as well as three appendixes to it, in accordance with which the player was entitled to the amounts detailed in point I. 3. above. 17. The Chamber further observed that the Claimant unilaterally terminated the contract in writing on 16 May 2013 invoking just cause, and that on the same date, he lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of USD 682,000 with interest of 5% p.a., as detailed in point I. 5. above. 18. The DRC noted that, on the one hand, the Claimant holds that, in spite of his reminder dated 8 May 2013, the Respondent failed to pay his remuneration for the period from January to April 2013 in the amount of USD 76,000. Therefore, the player claimed that he had terminated the contract with just cause on 16 May 2013. 19. The Chamber further noted that, on the other hand, the Respondent does not contest the existence of outstanding salaries towards the Claimant, but deems that the Claimant terminated the contract without just cause, therefore, he is not entitled to the claimed amount. Furthermore, the Chamber observed that the Respondent states that the Claimant left the club on 14 May 2013 before the delivery of his default notice. In addition, the DRC noted that the Respondent underlined the allegedly bad behaviour of the Claimant and the fact that the latter did not follow the Respondent’s doctor instructions for his rehabilitation after an injury. 20. Having duly considered the submissions of both parties, the Chamber highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to terminate the contract on 16 May 2013. 21. In this context, the Chamber stressed that the Respondent did not contest that, at the time of the termination of the contract, i) the Claimant’s salaries for February to April 2013 had not been paid, and ii) that it had received the Claimant’s default notice letter dated 8 May 2013. In view of the foregoing, the Chamber established that on 16 May 2013, the following payments were outstanding: i) USD 19,000 for the salary of January 2013, ii) USD 19,000 for the salary of February 2013, iii) USD 19,000 for the salary of March 2013 iv) USD 19,000 for the salary of April 2013. Furthermore, the Chamber determined that the Respondent, on 8 May 2013, was put in default by the Claimant for the aforementioned salaries. 22. In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber was eager to point out that the Respondent had failed to present any relevant documentation in support of its position. In particular, the members of the Chamber observed that the Respondent was not able to provide the DRC with clear, precise and convincing evidence in support of the alleged misconduct of the Claimant neither of the payment of the salaries claimed by the Claimant as outstanding. 23. Having taken into consideration the foregoing, the Chamber considered that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time, i.e. 4 months. Therefore, the Chamber considered that the Respondent was found to be in breach of the employment contract and that the breach was of such seriousness that, in line with the Chamber’s long-standing and well-established jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 16 May 2013, having previously put the Respondent in default of the outstanding amounts. 24. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the breach of the employment contract without just cause by the Respondent. 25. Firstly, 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. the amount of USD 76,000, consisting of the monthly salaries of January to April 2013. 26. Secondly, and considering the Claimant’s claim for interest, the Chamber determined that the Respondent must pay 5% interest p.a. on the amount of USD 76,000 as from the respective due dates. 27. Furthermore, 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 remuneration on the basis of the relevant employment contract. 28. 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 player 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. 29. 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 which would be applicable in the situation where the player had a just cause to terminate the contract. 30. Bearing in mind the foregoing, 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 able 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. 31. The Chamber noted that, during the period as from 16 May 2013 until 24 June 2013, the Claimant had remained unemployed. Subsequently, the Chamber noted that on 24 June 2013, the Claimant had signed an employment contract with another club and that, from that date until July 2015, i.e. the original expire date of the employment contract concluded with the Respondent, according to his new contract, he was entitled to earn a total income of approximately USD 600,000. 32. In view of the above, the Chamber concluded that, for the period as from 16 May 2013 to 24 June 2013, during which the Claimant remained unemployed, the residual value of the contract signed with the Respondent was USD 27,518. 33. For the period as from 24 June 2013 until July 2015, the Chamber observed that the Claimant would have been entitled to receive the total amount of approximately USD 564,350 had he remained employed with the Respondent. This amount is lower than the one he is actually entitled to receive from the club he subsequently signed an employment contract with, mentioned in point II. 31. Above. Therefore, the Chamber concluded, in accordance with its well-established jurisprudence, that for said period of time, the Claimant was not entitled to receive any compensation, since he was not only able to mitigate his damages, but also to guarantee an even higher remuneration than the one he would have earned with the Respondent. 34. Based on the foregoing, the Chamber concluded that the Claimant is entitled to receive USD 27,518 as compensation for breach of contract from the Respondent. 35. In addition, taking into account the Claimant’s request as well as the constant practice of the DRC in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the claim, i.e. 16 May 2013 until the date of effective payment. 36. As a consequence, the DRC concluded that the Respondent is liable to pay the total amount of USD 103,518 to the Claimant, consisting of the amount of USD 76,000 corresponding to the Claimant’s outstanding remuneration and the amount of USD 27,518 corresponding to compensation for breach of contract. 37. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. II. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is partially accepted. 3. 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 76’000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 February 2013 on the amount of USD 19’000; b. 5% p.a. as of 1 March 2013 on the amount of USD 19’000; c. 5% p.a. as of 1 April 2013 on the amount of USD 19’000; d. 5% p.a. as of 1 May 2013 on the amount of USD 19’000. 4. 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 USD 27’518 plus 5% interest p.a. as of 16 May 2013 until the date of effective payment. 5. If the aforementioned sums plus interest are not paid within the above-mentioned time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 6. Any further claims lodged by the Claimant are rejected. 7. 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