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 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodore Giannikos (Greece), member on the matter between the player, Player A, Country B as Claimant and 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 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodore Giannikos (Greece), member on the matter between the player, Player A, Country B as Claimant and the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 22 July 2010, the Player A (hereinafter: the Claimant), born on 9 October 1989, transferred on loan from the Club of Country B, Club E, to the Club of Country D, Club C (hereinafter: the Respondent). Within this framework, the Claimant concluded an employment contract (hereinafter: the contract) with the Respondent, valid as from the date of signature until 31 December 2011. 2. According to clause 8.1 of the contract, the Claimant was entitled to a monthly remuneration in the amount of USD 8,000. In addition, the Claimant was entitled to a monthly housing assistance allowance amounting to USD 300. 3. In addition, clause 9.2 of the contract stipulated the following: “In case of termination or rescission of the work contract before the end of validity, payment by the contract party of all amounts due to the athlete will be made on the day of rescission or no later than the following day. The athlete must supply the contracting party with his labour card on the day of the rescission for the require entries.” 4. On 7 April 2011, the Respondent and Club E signed a termination agreement in order to terminate the loan agreement and the employment agreement between the Claimant and the Respondent with immediate effect. According to clause 4 of the termination agreement, the Claimant was entitled to receive “his salaries regarding to the period from 1 January 2011 to 7 April 2011 according to the employment contract”. 5. On 24 April 2012, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause during the protected period. In particular, the Claimant requested the payment of all the sums he would have earned until the expiration of the contractual term, as well as compensation for image and moral damages, in the amount of USD 147,600 plus 5% interest per year “since the moment the due amount became outstanding”. The total claimed amount can be detailed as follows: -USD 96,000, corresponding to the salaries between January 2011 and December 2011; -USD 3,600, corresponding to the housing allowance between January 2011 and December 2011; -USD 48,000 for image and moral damages. 6. In addition, the Claimant requested the payment of an undetermined amount for legal expenses, as well as sporting sanctions to be imposed on the Respondent. 7. According to the Claimant, and following a medical examination that took place on 19 January 2011, the Respondent communicated him on 1 February 2011 that he had “serious cardiac problems”, meaning that “it is very dangerous for him to play football” and that “tomorrow the [Claimant] goes back to Country B”. 8. Consequently, the Claimant considered the contract terminated without just cause. Thereafter, the Respondent and Club E signed a termination agreement on 7 April 2011 which, according to the Claimant, he never signed. 9. In this context, the Claimant referred to art. 18 par. 4 of the Regulations on the Status and Transfer of Players and argued that the validity of an employment contract cannot be made subject to the results of a medical examination. 10. In its reply to the claim, the Respondent stated that it complied with its contractual obligations until it received the results of the medical tests. In this regard, the Respondent stated that it “could not risk the [Claimant’s] health and allow him to play, especially considering the [Respondent’s] great responsibility for the [Claimant] on loan”. 11. In addition, the Respondent underlined that it had fully remunerated the Claimant for the period between 1 January 2011 and 7 April 2011. The Respondent insisted that there was a termination agreement concluded by all the involved parties upon request of the Claimant, and that the Claimant only brought a claim before FIFA more than a year after the signature of this termination agreement. The Respondent stated that even in the consideration that the contract was unilaterally terminated, there was a just cause in any case, due to the Claimant’s dangerous cardiac deviations, and that the contract was concluded within a cooperation framework with Club E. 12. Finally, the Respondent pointed out that the Claimant renewed his contractual relationship with Club E as from 8 April “2012”, and that consequently he did not suffer any financial or other losses. According to the Respondent, the Claimant tacitly accepted the terms of the termination agreement by playing for Club E, and quoted DRC jurisprudence, according to which “the parties have tacitly complied with the terms of the private contract and through this action, have implied that their real intentions were stipulated in this agreement”. The Respondent also rejected the claimed amounts in relation to housing allowances, since the Claimant was not living in City of Country D. 13. On 23 July 2010, the Claimant and Club E signed an employment contract valid as from the date of signature until 9 September 2014, according to which the Claimant is entitled to receive a monthly salary of 7,000. In addition, this contract included an Addendum on Wage Adjustment, according to which the Claimant is entitled to receive a monthly salary of 12,000, from 1 February 2012 until 9 September 2014. 14. Finally, and according to the information available on the Transfer Matching System (TMS), the Claimant’s International Transfer Certificate (ITC) was returned to the Football Federation of Country B on 8 April 2011. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 24 April 2012. Consequently, the 2008 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 2008, 2012 and 2014 editions 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 and 2 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 of Country B and a Club of Country D. 3. The competence of the Chamber having been established, 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, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010, 2012 and 2014), and considering that the present matter was submitted to FIFA on 24 April 2012, the 2010 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand. 5. First of all, the Chamber stated that it first had to analyse when the contract was considered to be terminated and by which party. 6. In this respect, the members of the DRC took note that on 22 July 2010, an employment contract was concluded between the parties for the period from 22 July 2010 until 31 December 2011, following a transfer on loan from Club E to the Respondent. 7. Moreover, the members of the DRC understood that the Claimant considered that the Respondent terminated the employment contract without just cause on 1 February 2011, when the Respondent notified Club E that, due to “serious cardiac problems”, “tomorrow the [Claimant] goes back to Country B”. 8. On the other hand, the Chamber acknowledged that the Respondent argued that a termination agreement was signed by the Respondent, Club E and the Claimant on 7 April 2011 and that, even if the contract was considered to be terminated unilaterally, it had a just cause for the unilateral termination of the employment contract due to the Claimant’s alleged cardiac deviations. 9. In this respect, the Chamber turned its attention to the Respondent’s argument that a termination agreement was signed by the Respondent, Club E and the Claimant on 7 April 2011. In this regard, the Chamber observed that said agreement was only signed by the Respondent and Club E. 10. Subsequently, the members of the DRC turned their attention to the submissions of both parties regarding the medical examination carried out on 19 January 2011, which apparently indicated that the Claimant had “serious cardiac problems” and that, consequently, he should avoid playing football. 11. Equally, the Chamber took due note of the documentation submitted by the Claimant from which it can be established that Club E was informed by the Respondent on 1 February 2011 that, due to the Claimant’s alleged health problems, he should return to Country B. In this respect, the members of the Chamber stressed that the aforementioned correspondence and its content were not disputed by the Respondent. 12. In this context, the members of the Chamber considered that the Respondent terminated the contract on 1 February 2011 when it informed Club E that the Claimant should return to Country B due to his alleged health problems. 13. Having established that the Respondent terminated the employment contract on 1 February 2011, the Chamber turned its attention to the question as to whether the contract had been terminated by the Respondent with or without just cause. 14. First and foremost, in the light of the main reason at the basis of the termination of the contract in the matter at hand, i.e. the player’s medical condition, the Chamber wished to emphasise that on the basis of the Chamber’s respective jurisprudence, a club wishing to employ a player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract with a player. 15. The Chamber further took into consideration that an injury or health condition of a player can be no valid reason to cease the payment of a player’s remuneration and even less so to terminate an employment contract. In this regard, the Chamber highlighted that it is the club’s responsibility to secure the continuation of payment of remuneration in such cases, possibly by means of adequate insurance. 16. In view of the aforementioned, the Chamber stated that the unilateral termination of the employment contract on 1 February 2011 by the Respondent constitutes a breach of contract without just cause. 17. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the respondent. 18. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the 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 termination, i.e. the amount of USD 8,300, consisting of one salary for the month of January 2011. For the sake of completeness, the Chamber pointed out that the Respondent stated that it had fully remunerated the Claimant between “1 January 2011 and 7 April 2011”. In this respect, the members of the Chamber referred to art. 12 par. 3 of the Procedural Rules which establishes the principle of the burden of the proof, and stressed that no evidence was provided by the Respondent in this respect. 19. Consequently, the members of the Chamber unanimously agreed to award the Claimant with the payment of USD 8,300 by the Respondent, corresponding to outstanding remuneration, as established in the contract, plus 5% interest p.a. as from 1 February 2011, as requested by the Claimant. 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. 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. 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 clause 9.2 of the contract stipulated that “in case of termination or rescission of the work contract before the end of validity, payment by the contract party of all amounts due to the athlete will be made on the day of rescission or no later than the following day”. 23. In view of the foregoing, and in order to calculate 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. In addition, the Chamber deemed necessary to consider the professional situation of the Claimant after the early termination occurred. 24. Subsequently, 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 employment contract on 1 February 2011, the contract would run for another 11 months, in which a total of eleven instalments were still to be paid. Consequently, taking into account the financial terms of the contract, particularly that the expressly parties agreed upon a monthly salary of USD 8,300, the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to USD 91,300 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 25. The Chamber then took due note of the employment situation of the Claimant after the termination of the contract at the basis of the case at stake. Bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract. 26. In view of the foregoing, the Chamber took note that, on 8 April 2011, the Claimant returned to Club E, and that this information is supported by the information available on the TMS, according to which the ITC of the Claimant was returned to the Football Federation of Country B on 8 April 2011. 27. Under these circumstances, the members of the Chamber recalled the contract concluded by Club E that the Claimant signed with said club on 23 July 2010, which was still valid until 9 September 2014 upon termination of the loan period with the Respondent, and which entitled the Claimant to a monthly salary in the amount of 7,000, equivalent to USD 4,000. 28. Therefore, the members of the Chamber concluded that Claimant would have earned nine instalments of USD 4,000 during the period comprised between April 2011 until 31 December 2011, for a total amount of USD 36,000. 29. Consequently, the Chamber determined that, in the calculation of the compensation due to the Claimant, the amount of USD 36,000 should be deducted from the amount of USD 91,300. 30. As a result, the Chamber decided that the Respondent should pay to the Claimant the amount of USD 55,300, plus 5% interest p.a. as of the date of the claim, i.e. 24 April 2012, until the effective date of payment, as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation. 31. Finally, the Chamber took note that the Claimant requested the payment of USD 48,000 by the Respondent, corresponding to alleged image and moral damages. 32. In this regard, the members of the Chamber observed that there was no contractual basis for said claim, and that therefore, it should be rejected. 33. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the Claimant. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of USD 8,300, plus 5% interest p.a. on said amount as from 1 February 2011 until the date of effective payment. 3. The Respondent has to pay to the Claimant within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 55,300, plus 5% interest p.a. on said amount as from 24 April 2012 until the date of effective payment. 4. In the event that the amount plus interest due to the Claimant is not paid within the stated time limit, 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 under points 2. and 3. above 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 (CAS) Avenue de Beaumont 2 CH-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 Enclosed: CAS directives