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 1 January 2011, player A from country B (hereinafter: the Claimant), and club C from country D (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 30 June 2011. 2. The contract established the following remuneration: Schedule I. a) A gross monthly salary of $5000; a sum of $750 of the salary shall be withheld monthly to meet personal income tax liability where the Player is a Player from outside jurisdiction (a foreign player) (…) j) Any other conditions: The club shall reimburse the player up to a maximum of 1500 for his return air ticket for season 2011 (based on actual claiming/show proof receipt) 3. Moreover, clause j) of the Schedule of the contract contained the following condition: j) (…) Payment of player’s gross monthly salary will only commence upon his clearance of the medical screening and passing of the required League X fitness test. 4. Furthermore, clause 26 of the contract established the following: Any dispute and/or difference that may arise between the Player notwithstanding his membership with the Club, if any, and the Club (…), such dispute/difference or decision as the case may be shall forthwith be referred in writing to the CEO, League X/Chief, Competitions, who shall in his absolute discretion either refer it to The Players Status Committee, the Football Association of country D or refer it to an Arbitrator of the CEO, League X/Chief, Competitions, who shall in his absolute discretion, either refer it to The Players Status Committee, Football Association of country D or refer it to a Board of three (3) arbitrators appointed by the CEO, League X/Chief Competitions, in his absolute discretion, and such decision of the Players Status Committee or the Arbitrator or the Board of Arbitrators as the case may be shall be final and conclusive and binding on the parties. 5. Additionally, the Claimant and the Respondent signed an addendum to the contract, dated 1 January 2011, which stipulated the following: Clause 2: Notwithstanding anything contained in the Players’ Contract, the Player agrees that the Club shall have the right to terminate the contract without compensation if any of the following conditions are not met and as stated below: 1. Approval of the Football Association of country D for the Player to play for the Club in the League X Tournament being granted. 2. The Player taking and passing the mandatory Football Association of country D/League X medical screening. 3. The Player taking and passing the mandatory Football Association of country D/League X Test before the Player’s registration deadline. 6. On 11 March 2013, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause, claiming an aggregate amount of USD 33,600, plus interest as of 17 March 2011, detailed as follows: -USD 15,000 corresponding to the salaries payable during the months of January, February and March 2011; -USD 15,000 corresponding to the salaries that the player would have earned from April 2011 until June 2011 if the contract would have been fulfilled until its original termination date; -USD 3,600 corresponding to the return flight tickets to country B. 7. According to the Claimant, he was diagnosed with “some type of health problem”. In this respect, he submitted medical correspondence from the Hospital in country D, dated 16 February 2011, which indicates that he had a heart murmur as well as that a cardiologist determined that he had to avoid high intensity training. 8. According to the Claimant, however, this “would not prevent him from playing professional football”. In this respect, the Claimant submitted medical correspondence from a doctor from country D dated 19 June 2012, indicating that the Claimant’s cardiac condition is “fit to start with progressive physical training until reaching high performance”. 9. Subsequently, on 13 March 2011, the Respondent’s coach informed the Claimant’s agent via email that the contract was not valid because the Claimant did not pass the medical screening. 10. On 17 March 2011, the Claimant returned to country B, according to him, due to the termination on that date of the contract without just cause, and to the expiration of his visa, which was allegedly valid until 18 March 2011. 11. In this regard, the Claimant argued in his claim that the clauses conditioning the validity of the contract to the player’s medical condition are invalid and contradict art. 18 par. 4 of the Regulations on the Status and Transfer of Players. 12. In its reply, the Respondent contested FIFA’s competence to decide the present matter by stating that clause 26 of the contract granted jurisdiction to the CEO of League X / Chief, Competitions. In addition, the Respondent claimed that the claim was time-barred, since it was lodged more than two years after the termination of the contract and that the Claimant never contacted the Respondent to make any claim for compensation during that time. 13. Although invited to provide documentary evidence to prove that the CEO of League X / Chief, Competitions would be competent to decide on the present matter, the Respondent failed to do so. 14. As to the substance of the case, the Respondent considered that the Claimant’s inability to pass the medical screening would have been enough to entitle the Respondent to terminate the contract. 15. In this regard, the Respondent highlighted that the Football Association of country D informed it on 10 March 2011 that it will not allow the registration of the Claimant to play for the Respondent in the 2011 season following the results of the medical report. In addition, the Respondent considered that, regardless of this and before it could formally meet the Claimant to discuss over the decision of the Football Association of country D, the Claimant, “vanished and could not be found or contacted, thus clearly evidencing his intention not to perform the Player Contract on his part”. Thus, in the opinion of the Respondent, it was assumed that the contract was “repudiated and terminated by the player’s conduct”. 16. In his replica, and regarding the competence, the Claimant considered that the panel of 3 arbitrators to be proposed by the CEO of League X / Chief, Competitions does not comply with the principle of equal representation of players and clubs and that the players are not properly represented. 17. As to the substance of the case, the Claimant considered that the Regulations on the Status and Transfer of Players state that the validity of a contract may not be made subject to a successful medical examination. The Claimant also declared that he did not “disappeared” in order to not perform his duties, but that the situation was in fact the opposite as the Respondent was refusing to pay for his salary. The Claimant also stated that, due to the Respondent’s denial to renovate his working permit, he was facing the risk of being arrested for illegally staying in country D, a fact that forced him to immediately return to country B. 18. The Respondent submitted its final comments and confirmed its previous position. In relation to the competence, the Respondent declared that the Claimant should not be prevented from filing a complaint with FIFA, but that before doing so, he is obliged to first seek to have his complaint heard and resolved in accordance with clause 26 of the contract, and that allowing the Claimant to disregard this clause “would indeed set an undesirable precedent for the administration of professional football in country D.” 19. Moreover, the Respondent argued that the Claimant’s working permit was not renovated because he failed to pass the mandatory fitness tests as set by the Football Association of country D, and that the visa is issued by the Ministry of Manpower and not by the Respondent. 20. On 2 December 2014, the Claimant stated that he did not sign a new employment contract with any other club until the original termination date of the contract, and that he was unemployed at the date of this statement. 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 11 March 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 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2014) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a player and a club that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves an 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 clause 26 of the contract alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the CEO, League X/Chief, Competitions. 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 emphasized that in accordance with art. 22 lit. b) of the 2014 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 Dispute Resolution Chamber 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 clause 26 of the contract stipulated the following: “Any dispute and/or difference that may arise between the Player notwithstanding his membership with the Club, if any, and the Club (…), such dispute/difference or decision as the case may be shall forthwith be referred in writing to the CEO, League X/Chief, Competitions, who shall in his absolute discretion either refer it to The Players Status Committee, the Football Association of country D or refer it to an Arbitrator of the CEO, League X/Chief, Competitions, who shall in his absolute discretion, either refer it to The Players Status Committee, Football Association of country D or refer it to a Board of three (3) arbitrators appointed by the CEO, League X/Chief Competitions, in his absolute discretion, and such decision of the Players Status Committee or the Arbitrator or the Board of Arbitrators as the case may be shall be final and conclusive and binding on the parties”. 10. Having examined the relevant provision, the Chamber came to the unanimous conclusion that clause 26 of the contract does not constitute a clear jurisdiction clause in favour of one specific court of arbitration tribunal in country D, since it only appears to allow a discretionary power to the CEO, League X/Chief, Competitions, to refer the dispute to different organs belonging either to the Football Association of country D or to the League X. 11. 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 Dispute Resolution Chamber 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. 12. 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 2012 and 2014), and considering that the present matter was submitted to FIFA on 11 March 2013, the 2012 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 13. 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. 14. The Chamber then reverted to the argument of the Respondent, according to whom the present matter is time-barred, since the claim was lodged more than two years after the termination of the contract. In this regard, the members of the Chamber referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to said Regulations if more than two years have elapsed since the event giving rise to the dispute. In view of this, the Chamber stated that it first had to analyse when the contract was considered to be terminated and by which party. 15. In view of the foregoing, the members of the DRC took note that on 1 January 2011, an employment contract was concluded between the parties for the period from 1 January 2011 until 30 June 2011. 16. In this respect, the members of the DRC took note that the Claimant considered that the Respondent had terminated the employment contract without just cause on 17 March 2011 when the Claimant had to return to his country urgently. 17. On the other hand, the Chamber acknowledged that the Respondent claimed that it would have had a just cause for the unilateral termination of the employment contract as the Claimant had not passed the medical test. Furthermore, the Chamber noted that the Respondent argued that the player had disappeared before it had decided on whether to terminate the contract or not. 18. In this respect, the members of the DRC turned their attention to the submissions of both parties regarding the medical examination carried out between 14 and 16 February 2011, resulting in a medical report dated 16 February 2011, which indicated that the Claimant had a “heart murmur” and that, consequently, he should avoid high intensity training. Furthermore, the Chamber observed that the Respondent indicated that a second medical report was drawn up which declared the Claimant “unfit for competitive soccer”. 19. Equally, the Chamber took due note of the documentation submitted by the Claimant from which it can be established that his agent was informed by the head coach of the Respondent via email on 13 March 2011 that due to the Claimant’s failure to pass the medical examination, the contract is not valid. In this respect, the members of the Chamber stressed that the aforementioned email and its content were not disputed by the Respondent. 20. In this context, taking into account the chronology of events, the members of the Chamber considered that the Respondent had terminated the contract on 13 March 2011. 21. Having established the foregoing and considering that the Claimant had lodged his claim in front of FIFA on 11 March 2013, the members of the Chamber concluded that no more than two years had elapsed since the event giving rise to the dispute, i.e. the termination of the contract by the Respondent on 13 March 2011. However, the Chamber found that it cannot enter into any claim for salaries that fell due prior to 11 March 2011. 22. After having established that the Respondent had terminated the contract on the basis of the outcome of the medical examination carried out between 14 and 16 February 2011, which declared the player “unfit for professional soccer”, the Chamber referred to art. 18 par. 4 of the Regulations which establishes that “the validity of a contract may not be made subject to a positive medical examination and/or the granting of a work permit”. 23. The Chamber recalled the undisputed sequence of the facts in the present matter: on 1 January 2011, the parties concluded an employment contract, and the medical examination was carried out between 14 and 16 February 2011. 24. The members of the Chamber stated that it was uncontested that the medical examination was carried out after the parties had signed the relevant employment contract. 25. The DRC then recalled the content of the email dated 13 March 2011, sent by the head coach of the Respondent to the agent of the Claimant, according to which the Respondent considered that, “as stated clearly in the contract”, the contract was not valid since the Claimant did not pass the medical examination, in clear contradiction to the aforementioned art. 18 par. 4 of the Regulations. 26. In this context, the members stated that the contents of art. 18 par. 4 of the Regulations was of mandatory nature and could not be contractually amended or circumvented. The Chamber therefore stated that the reason of the Respondent to consider the contract invalid had no legal grounds. 27. In view of the aforementioned, the Chamber unanimously agreed that the Respondent terminated the contract without just cause on 13 March 2011 and that, consequently, the Respondent is to be held liable for the early termination of the employment contract without just cause. 28. 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. 29. First of all, and as related in points II. 14 and II. 21, the Chamber recalled that the salaries that fell due prior to 11 March 2011 should be considered as time-barred. 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. 30. 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. 31. 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. 32. 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 13 March 2011, the contract would run for another 4 months, in which a total of four instalments were still to be paid. Consequently, taking into account the financial terms of the contract, particularly that the expressly parties agreed upon a gross monthly salary of $5,000, a sum of which $750 shall be deducted to meet personal income tax liability for foreign players, i.e. a net monthly salary of $4,250, 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 17,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 33. 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. In this regard, the members of the Chamber noted that the Claimant had not signed any new employment contract within the period of time between the termination of the contract and its original date of expiry and, thus, had not been able to mitigate damages. In this context, the Chamber found it reasonable that the Claimant had not been able to find new employment within the relevant period of 4 months only. 34. The Chamber then turned its attention to the Claimant’s claim for reimbursement of flight tickets in the amount of USD 3,600. In this respect, the Chamber took note that, in accordance with clause j) of the Schedule of the contract, “the club shall reimburse the player up to a maximum of 1500 for his return air ticket for season 2011 (based on actual claiming/show proof receipt)”. The Chamber further noted that the Claimant had provided sufficient documentation in support of his claim for reimbursement of the flight tickets. 35. Consequently, the Chamber held that the Respondent shall reimburse the cost of said tickets to the Claimant. However, considering the maximum amount specified in the contract, the Chamber decided that the Respondent has to reimburse the amount of 1,500 to the Claimant. 36. In view of all of the above, the Chamber decided that the Respondent must pay the amounts of USD 17,000 and 1,500 to the Claimant as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation 37. 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, insofar as it is admissible. 2. The Respondent, Club C, 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 amounts of USD 17,000 and 1,500. 3. In the event that the aforementioned sums are not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of the date of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. is to be made and to notify the Dispute Resolution Chamber of every payment received. 6. According to art. 61 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