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 January 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Eirik Monsen (Norway), member Zola Majavu (South Africa), member on the matter between the club, Club A, Country B as 1 st Claimant / 2nd Respondent and the player, Player C, Country D as 2 nd Claimant / 1st 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 January 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Eirik Monsen (Norway), member Zola Majavu (South Africa), member on the matter between the club, Club A, Country B as 1 st Claimant / 2nd Respondent and the player, Player C, Country D as 2 nd Claimant / 1st Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 23 July 2012, the player from country D, Player C (hereinafter: the 2 nd Claimant / 1st Respondent or the player) and the club from country B, Club A (hereinafter: the 1 st Claimant / 2nd Respondent or the club) concluded an employment contract (hereinafter: the contract) valid as of the date of signature until 31 May 2014. 2. According to the contract, the 2 nd Claimant / 1st Respondent was entitled to receive an annual remuneration of EUR 264,930 gross, i.e. EUR 220,000 net, payable in eleven equal instalments as from 31 July until 31 May of the following year on the last day of each month. 3. Moreover, article 8 of the contract stipulates that “the Player undertakes to devote his time towards fulfilling the obligations arising from this agreement as well as the obligations that arise from his position as a member of the football team of the Club”. 4. Article 10 of the contract further states that “the Club reserves fully its rights at any time to proceed to unilateral immediate termination of the contract in case the Player is not having a normal, healthy and athletic life that is reasonably expected from a professional player […] or in case the Player consumes alcohol in a way that such consumption may affect the Players physical or mental condition, skills and abilities as a professional player […]. In such case, the Player will have no right to claim any compensation or damages whatsoever”. 5. In addition, Article 6 of the contract provides that “the player acknowledges and accepts that he is fully bound by all Internal regulations, directions and instructions of the Club […]. The Player acknowledges receipt of the Internal Regulations of the club that are valid throughout the duration of the agreement and until there are amended or modified”. 6. In this regard, article 6 of said internal regulations states, inter alia, that “any injuries or health problems will be reported immediately, firstly to the team doctor and then to the trainer and to the responsible person for the team. The team doctor is solely responsible for regulating the player’s medical appointment. […] In case of the above regulations are breached then the board of directors reserves the right to impose any financial and/or administrative penalties according to its discretion”. 7. Furthermore, article 8 of the aforementioned internal regulations stipulates that ”Players must take care of their off field lifestyle. For this reason there is a curfew during the night at reasonable hours and time depending on the Teams’ commitment. The designated timetable is fixed to be curfew after the 24.00 for all players and for ill or injured players maximum until 23.00. […] Any violation of the above mentioned is punishable with financial and/or administrative penalties left to that board of directors discretion”. 8. On 4 August 2013, the 2 nd Claimant / 1st Respondent provided the 1 st Claimant / 2 nd Respondent with a medical certificate delivered by a hospital located in country B, granting him a sickness leave until 11 August 2013 due to a psychological disorder. 9. After several exchanges of correspondence between the 2 nd Claimant / 1st Respondent and the 1 st Claimant / 2nd Respondent, a Disciplinary Committee meeting was scheduled to be held on 12 August 2013. In this respect, the 1 st Claimant / 2nd Respondent reproached the 2 nd Claimant / 1st Respondent for having gone out late on several occasions and, in particular, until 5 a.m. on 27 July 2013, which constitutes, according to the 1 st Claimant / 2nd Respondent, a non-sportsmanlike behaviour violating art. 6 and 10 of the contract as well as art. 8 of the internal regulations. In support of its assertion, the 1 st Claimant / 2 nd Respondent attached two statements made by employees of a night club. The 1 st Claimant / 2nd Respondent also put forward that the 2 nd Claimant / 1st Respondent did not attend previous disciplinary meetings, and therefore prevented them from taking place, in spite of having been duly notified by hand and e-mail. In this respect, the 1 st Claimant / 2nd Respondent specified that the 2 nd Claimant / 1st Respondent refused to receive phone calls as well as notifications and insulted members of its staff who were in charge of the notification process. Finally, the 1 st Claimant / 2nd Respondent raised the fact that the 2 nd Claimant / 1st Respondent breached art. 6 of the internal regulations since he did not consult the club’s doctor before going to a hospital in country B. Moreover, the 1 st Claimant / 2nd Respondent produced a medical report drafted by its doctor questioning the alleged 2 nd Claimant / 1st Respondent’s psychological disorder. 10. On 11 August 2013, the 2 nd Claimant / 1st Respondent’s representative submitted a new medical certificate delivered by a hospital located in Country B, granting a sickness leave until 13 August 2013, as well as the 2 nd Claimant / 1 st Respondent’s written position as to the disciplinary procedure since he was medically unable to attend the meeting. In this regard, the 2 nd Claimant / 1st Respondent first of all acknowledged having been to the night club but sustained that he had just a drink and left much earlier than 5 a.m., which did not constitute a behaviour sanctioned by art. 10 of the contract. In continuation, the 2 nd Claimant / 1st Respondent explained that he had received no notification before 4 August 2013 and therefore could not have insulted the staff members. Finally, the 2 nd Claimant / 1st Respondent stated, as he did in a previous correspondence, that he went to a hospital in country B because he was in a city of country B when he felt faint and that tried to contact the 1 st Claimant / 2nd Respondent’s doctor from there, however to no avail. 11. On 12 August 2013, the Disciplinary Committee decided to terminate the contract. In support of its decision, the Committee pointed out that the 2 nd Claimant / 1st Respondent “showed a blatant and repeated disrespect to his contractual obligations namely clauses 6, 8 and 10 of [the contract] and Articles 4, 6, 8 and 9 of the Club’s internal Regulation as well as his attitude and behavior towards the club internal regulation and club officers”. The grounds of the decision were notified to the 2 nd Claimant / 1st Respondent on 20 August 2013. 12. On 9 September 2013 and 18 December 2013, the 2 nd Claimant / 1st Respondent sent correspondence to the 1 st Claimant / 2nd Respondent challenging the decision and requesting compensation for the unilateral termination of the contract without just cause, which was rejected by the 1 st Claimant / 2nd Respondent. 13. On 3 February 2014, the 1 st Claimant / 2nd Respondent lodged a claim in front of FIFA against the 2 nd Claimant / 1st Respondent, requesting to be awarded the following amounts: - EUR 285,155, plus 5% interest as of 12 August 2013, broken down as follows: o EUR 264,930 as residual value of the contract; o EUR 19,225 as non-amortised agent fees; - EUR 50,000 as moral damages; - EUR 10,000 as legal costs. 14. In its claim, the 1 st Claimant / 2nd Respondent reiterates the arguments exposed prior to the Disciplinary Committee meeting. In addition, the 1 st Claimant / 2nd Respondent insists that it has always behaved with good will by accepting on various occasions to postpone the disciplinary meeting. On the contrary, the 1 st Claimant / 2nd Respondent stresses that the 2 nd Claimant / 1st Respondent has showed bad faith and defiance, in particular when he went to a hospital located in country B. Finally, the 1 st Claimant / 2nd Respondent asserts that the 2 nd Claimant / 1st Respondent’s behaviour was aimed at being released from his contractual obligations. 15. On 30 April 2014, the 2 nd Claimant / 1st Respondent lodged a claim in front of FIFA against the 1 st Claimant / 2nd Respondent for breach of contract, requesting to be awarded the following amounts: - EUR 200,000 corresponding to the residual value of the contract; - EUR 18,180 corresponding to ten instalments of EUR 1,818 paid as house allowances; - EUR 20,000 corresponding to the bonus granted for the title at the end of the 2012-2013 season; - EUR 120,000 as physical, moral and professional damages. - EUR 10,000 as attorney fees; - A penalty of EUR 250 per day of delay until the date of effective payment. 16. In his claim, the 2 nd Claimant / 1st Respondent first of all outlines that the 1 st Claimant / 2nd Respondent’s attitude towards him changed after he refused a reduction of wage in spring 2013. 17. In continuation, the 2 nd Claimant / 1st Respondent analyses the reasons put forward by the 1 st Claimant / 2nd Respondent in order to justify the termination of the contract. In this regard, the 2 nd Claimant / 1st Respondent points out that the decisive reason is actually the violation of art. 10 of the contract and asserts that he has never fallen under one of the situations referred to in said article. In particular, the 2 nd Claimant / 1st Respondent highlights that it cannot be deemed that on 27 July 2013, he consumed alcohol “in a way that may affect his physical or mental condition, skill and abilities” since he just had one drink in a restaurant/club and behaved correctly. As to this event, the 2 nd Claimant / 1st Respondent also stresses that the 1 st Claimant / 2nd Respondent would not have waited for one week, i.e. until 4 August 2013, before initiating a disciplinary procedure if it had considered the behaviour sufficiently serious as to justify a termination of the contract. 18. The 2 nd Claimant / 1st Respondent further acknowledged having refused the notifications by hand but justified them by his will to safeguard his rights of defence. However, the 2 nd Claimant / 1st Respondent asserts that he requested the 1 st Claimant / 2nd Respondent to send the notifications by means of registered mail. 19. Moreover, the 2 nd Claimant / 1st Respondent rejected the 1 st Claimant / 2nd Respondent’s assertions that he would have refused to take phone calls and would have insulted 1 st Claimant / 2nd Respondent’s members. 20. Finally, the 2 nd Claimant / 1st Respondent argues that on 2 and 3 August 2014, the 1 st Claimant / 2nd Respondent’s management gave the instruction to refuse him the access to the medical and training facilities of the club. 21. In light of the foregoing, the 2 nd Claimant / 1st Respondent concludes that the 1 st Claimant / 2nd Respondent terminated the contract without just cause. 22. In its comments on the 2 nd Claimant / 1st Respondent’s claim, apart from reiterating its previous argumentation, the 1 st Claimant / 2nd Respondent sustains that the 2 nd Claimant / 1st Respondent had undertaken negotiations with the Club E which is the reason why he was trying to be released from his contractual obligations towards the 1 st Claimant / 2nd Respondent. 23. In its reply to the 1 st Claimant / 2nd Respondent’s claim, the 2 nd Claimant / 1st Respondent first of all questions the legality of imposing a curfew. The 2 nd Claimant / 1st Respondent further stresses on the exemplary nature of his behaviour all along his career and sustains that the 1 st Claimant / 2nd Respondent did not submit relevant evidence that he breached it on 27 July 2013. 24. In continuation, the 2 nd Claimant / 1st Respondent rejects the assertions of defiance and explains that when he felt faint he was in the occupied territory, which is the only reason why he went to a hospital located in this territory. 25. Finally, the 2 nd Claimant / 1st Respondent asserts that should the DRC award him compensation, it should take into consideration the net residual value of the contract and not the gross one. 26. Upon request, the 2 nd Claimant / 1st Respondent informed FIFA that he had not signed any new employment contract after the termination of his contract with the 1 st Claimant / 2nd Respondent. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 3 February 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country D and a club from country B. 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 2012 and 2014), and considering that the claim of the 1st Claimant / 2nd Respondent was lodged on 3 February 2014 and the claim of the 2 nd Claimant / 1st Respondent, on 30 April 2014, 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 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 Chamber acknowledged that, on 23 July 2012, the 1 st Claimant / 2nd Respondent and the 2 nd Claimant / 1st Respondent had concluded an employment contract valid until 31 May 2014. 6. The Chamber further observed that the 2 nd Claimant / 1st Respondent lodged a claim in front of FIFA against the 1st Claimant / 2nd Respondent, asserting that the club had not fulfilled its contractual obligations towards him. More specifically, the 2 nd Claimant / 1st Respondent indicates that on 12 August 2013, the 1 st Claimant / 2nd Respondent terminated the contractual relationship on the basis of his alleged misbehaviour by means of a disciplinary decision taken by its Disciplinary Committee. 7. In continuation, the Chamber took note that the 1 st Claimant / 2nd Respondent insists that it terminated the contract on the basis of valid reasons, since the 2 nd Claimant / 1st Respondent “showed a blatant and repeated disrespect to his contractual obligations” and that it should therefore be entitled to receive compensation. In particular, the 1 st Claimant / 2nd Respondent explains that on 27 July 2013, the 2 nd Claimant / 1st Respondent went out and had drinks till 5 a.m. in spite of his obligations imposed as per the contract and the internal regulations. In addition, the 1st Claimant / 2nd Respondent holds that the 2nd Respondent / 1st Claimant disrespected several members of its staff and did not resort to its medical staff in violation of his contractual obligations. 8. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the respective claims of both parties, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the 1 st Claimant / 2nd Respondent, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 9. In view of the above, the Chamber subsequently went on to deliberate as to whether the 2 nd Claimant / 1st Respondent’s alleged serious misconduct, which is invoked by the 1 st Claimant / 2nd Respondent, can be considered as a just cause for the 1 st Claimant/ 2nd Respondent to prematurely terminate the employment relationship. 10. In this context, the Chamber was eager to recall that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfillment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 11. In continuation, the members of the DRC turned their attention to the reasons put forward by the 1 st Claimant / 2nd Respondent in order to justify the termination, i.e. the alleged 2 nd Claimant / 1st Respondent’s misconduct. In doing so, the DRC observed that the 1 st Claimant / 2nd Respondent submitted, in support of its assertions, various witness statements made by officials of its own organisation as well as by alleged bouncers of a night club. In this regard, the Chamber deemed it fit to outline that the positions occupied by the witnesses put in doubt the impartiality of their statements and therefore, after making reference to art. 12 par. 3 and par. 6 of the Procedural rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and the evidence shall be considered with free discretion respectively, concluded that the 1 st Claimant / 2nd Respondent did not satisfactorily carry the burden of proof regarding the player’s misconduct. 12. In addition, and should these facts be satisfactorily evidenced, quod non, the Chamber wished to underline that the 1st Claimant / 2nd Respondent neither asserts that the 2nd Claimant / 1st Respondent has already been sanctioned in the past for such a behaviour nor submits evidence in this regard. Consequently, the Chamber was of the firm opinion that the Respondent did, in any case, not have just cause to prematurely terminate the employment contract with the Claimant, since such alleged breach could not have been legitimately considered as being severe enough to justify the termination of the contract, and that there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine) in order to sanction the 2 nd Claimant / 1st Respondent if he had actually misbehaved. 13. On account of the above, the Chamber decided that the 1 st Claimant / 2nd Respondent had no just cause to unilaterally terminate the employment relationship between the 2 nd Claimant / 1st Respondent and the 1 st Claimant / 2 nd Respondent and, therefore, concluded that the 1 st Claimant / 2nd Respondent had terminated the employment contract without just cause on 12 August 2013 and that, consequently, the 1 st Claimant / 2 nd Respondent is to be held liable for the early termination of the employment contact without just cause. 14. Consequently, the Chamber decided to accept the 2 nd Claimant / 1st Respondent’s claim with regards to the 1 st Claimant / 2nd Respondent’s breach of contract without just cause and, thus, rejected the 1 st Claimant / 2nd Respondent’s claim. 15. Having established that the 1 st Claimant / 2nd Respondent is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract. 16. At this stage, the DRC reverted to the 2nd Claimant / 1st Respondent claim, which includes EUR 20,000 as outstanding bonus granted for the title at the end of the 2012-2013 season and pointed out that the latter failed to provide any documentary evidence that he was actually entitled to this bonus. As a result, and after making reference one more time to the content of art. 12 par. 3 of the Procedural Rules, the members of Chamber decided to reject the 2 nd Claimant / 1st Respondent’s claim in this regard. Accordingly, the Chamber held that no outstanding amount was due to the 2 nd Claimant / 1st Respondent. 17. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 18. 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. 19. As 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 20. Bearing in mind the foregoing as well as the claim of the 2 nd Claimant / 1st Respondent, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 31 May 2014. In this respect, the members of the Chamber stressed that the 2nd Claimant / 1st Respondent’s claim for housing allowances did not rest upon any contractual basis and thus concluded that the amount of EUR 200,000 shall serve as the basis for the final determination of the amount of compensation for breach of contract 21. 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 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. In this regard, the Chamber noted that the 2nd Claimant / 1st Respondent did not sign an employment contract with another club during the relevant period of time 22. In view of all of the above, the Chamber decided that the 1st Claimant / 2nd Respondent must pay the amount of EUR 200,000 to the 2 nd Claimant / 1st Respondent as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation. 23. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of EUR 50,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 24. Furthermore, the Chamber held that the 2 nd Claimant / 1 st Respondent’s claim pertaining to legal expenses is rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 25. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the 2 nd Claimant / 1st Respondent is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of 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 has to pay to the 2nd Claimant / 1st Respondent, within 30 days as from the date of notification of this decision the amount of EUR 200,000. 4. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further claim lodged by the 2nd Claimant / 1st Respondent is rejected 6. The 2nd Claimant / 1st Respondent is directed to inform the 1st Claimant / 2nd 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