F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), member on the claim presented by the player, Player A, Country B, as Claimant against 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 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), member on the claim presented by the player, Player A, Country B, as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 6 January 2011, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country E, Club F, concluded an employment contract (hereinafter: the Club F contract), valid as of 1 January 2011 until 31 December 2014. 2. According to the Club F contract, the Claimant was entitled to receive a monthly gross salary of 45,000 payable on the 30th of the month. 3. On 15 July 2013, Club F and the Club of Country D Club C (hereinafter: the Respondent), concluded an agreement for the loan of the Claimant as of 22 July 2013 until 30 June 2014. Said loan agreement specifies that “the loan is free of charge” and that “during the loan period [the Respondent] will take care of all cost of salaries and ‘Club F’ will be free from all obligation toward the ‘player’ during the loan period”. 4. On 23 July 2013 the Claimant and the Respondent concluded an employment contract (hereinafter: the contract), valid as of 24 July 2013 until 30 June 2014. 5. Pursuant to the contract, the Claimant was entitled to a monthly gross salary of 880,000. The contract states that “the current minimum salary shall be paid not later than the 10th day of the month following the relevant month, and the income subject to the Law of EKHO shall be paid not later than the 25th day of the month following the relevant month”. 6. In addition, annex 1 of the contract provides for the following match bonuses: “- 52.000 (gross) for Match played (only championship) in line up, 35.000 (gross) as substitute - 35.000 (gross) for each goal/assist signed (championship)”. 7. Moreover, art. IV of the contract states that “[the Respondent] is obliged to: a. ensure to [the Claimant] all professional, personal and physical conditions being necessary for the performance of this present contract and the successful preparedness; b. perform his payment obligations in due time, without delays”. 8. Art. IX.7 of the contract stipulates that “provided [the Respondent] might fail to perform his payment obligation within 60 days from the due date defined in this Contract, [the Claimant] is entitled to request the competent authority to initiate sports disciplinary proceedings on the day following the unsuccessful expiration of [the Claimant]’s written notice to [the Respondent] relating to a delayed payment performance within a 15 days period. In case this procedure has no result, [the Claimant] is entitled to terminate this agreement of employment with immediate effect”. 9. On 11 October 2013, the Claimant put the Respondent in default of paying within a week, half of his salary for August 2013, his salary for September 2013 as well as several match bonuses. 10. On 29 October 2013, the Claimant put again the Respondent in default, outlining that the latter had failed to pay him an amount of 1,999,855. 11. On 6 December 2013, the Claimant terminated the contract in writing, stressing on his outstanding remuneration as well as on the Respondent’s failure to comply with its obligations of providing him with medical support. 12. On 10 January 2014, the Claimant lodged a claim in front of FIFA against the Respondent. In particular, the Claimant requested FIFA to confirm that he had just cause to terminate the contract, to impose sporting sanctions on the Respondent and to order the latter club to bear the procedural costs and to pay him the following net amounts: - 3,881,855, plus 5% interest as of 11 October 2013 as outstanding remuneration; - 5,700,000, plus 5% interest as of the date of notification of the decision, as reparation of his financial damage; - EUR 100,000, plus 5% interest as of the date of notification of the decision, as reparation of his sporting and moral damage; - EUR 20,000 as reimbursement of his legal expenses. 13. In his claim, the Claimant underlines that the Respondent did not comply with art. IV.b of the contract since it has only paid him an amount of 640,145 out of 4,522,000, i.e. 4,400,000 as salaries and 122,000 as bonuses, that he was entitled to receive as per the contract. 14. In continuation, the Claimant stresses that the Respondent failed to comply with its obligation of medical support as per art. IV.a of the contract after he suffered a knee injury on 12 September 2013. According to the Claimant, in spite of the seriousness of the injury, he had to wait until 7 October 2013, i.e. almost one month, before undergoing a surgery and the Respondent did not provide him with any post-operatory follow-up. 15. After the closure of the investigation, the Respondent informed FIFA that it had never been provided with the Claimant’s claim and therefore requested to be provided with it. Nevertheless, the Football Federation of Country D submitted evidence confirming that it remitted the Claimant’s claim to the Respondent correctly and on time. 16. Upon request, the Claimant informed FIFA that he did not enter into an employment contract with a new club between 6 December 2013 and 31 December 2014. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 10 January 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D. 3. Furthermore, the Chamber analysed which regulations 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 (edition 2015), and considering that the present claim was lodged on 10 January 2014, the 2012 edition of said regulations (hereinafter: 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, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, 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. In this respect, the Chamber acknowledged that the parties had signed an employment contract, valid as of 24 July 2013 until 30 June 2014 and that the Claimant had unilaterally terminated said contract with the Respondent on 6 December 2013, i.e. before the ordinary expiry of the employment contract, after having put the latter in default on 11 and 29 October 2013. 6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 6 December 2013, after previously having put the club in default. In particular, the Claimant alleges that the club failed to pay him several monthly salaries as well as match bonuses and to provide him with medical support. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 7. Subsequently, the DRC observed that the Respondent, for its part, in spite of having been invited to do so, failed to present its response to the claim of the Claimant within the relevant time-limit. In fact, the submission of the Respondent was only received after the investigation-phase of the matter had already been concluded. As a result, the DRC decided not to take into account the submission of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant. 8. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute was to determine whether the contract had been terminated by the Claimant on 6 December 2013 with or without just cause. The DRC also underlined that, subsequently, it would be necessary to determine the financial consequences for the party that is to be held liable for the early termination of the pertinent employment contract. 9. In order to do so, the Chamber, first and foremost, recalled the content of art. IX.7 of the contract, which concerns the termination of the contract and stipulates that “provided [the Respondent] might fail to perform his payment obligation within 60 days from the due date defined in this Contract, [the Claimant] is entitled to request the competent authority to initiate sports disciplinary proceedings on the day following the unsuccessful expiration of [the Claimant]’s written notice to [the Respondent] relating to a delayed payment performance within a 15 days period. In case this procedure has no result, [the Claimant] is entitled to terminate this agreement of employment with immediate effect”. In this respect, the members of Chamber observed that the clause does not determine a clear procedure to terminate the contract. In particular, the members of the Chamber outlined that the clause neither refers to a specific body to which the Claimant should have addressed the dispute prior to the termination. In view of the above, the DRC decided that the content of said clause should be disregarded and that the rightfulness of the termination should be assessed considering its long-standing and well-established jurisprudence. 10. Having stated the foregoing, the Chamber pointed out that it is uncontested that until the date of termination of the contract, i.e. 6 December 2013, the Respondent had only paid an amount of 640,145 to the Claimant whereas an amount of 2,640,000 was due as salaries. Equally, the DCR outlined that it remained unchallenged that the Respondent failed to pay the Claimant an amount of 122,000 as match bonuses. 11. In addition, the members of the Chamber insisted that the Respondent did not contest the Claimant’s assertion according to which it failed to provide him with medical support in spite of having the obligation to do so as per the contract. 12. On account of the aforementioned, in particular considering that the Respondent failed to provide the Claimant with medical support as well as to pay him more than two monthly salaries and several match bonuses, the Chamber established that the Respondent had repeatedly been in breach of its contractual obligations towards the Claimant. Consequently, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 6 December 2013 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 13. Having established that the 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. 14. At this stage, the DRC made reference to its previous considerations (cf. II.11) and recalled that at the time of the termination, an amount of 2,121,855 was outstanding, i.e. 122,000 as outstanding match bonuses and 1,999,855 as outstanding salaries. The Chamber however considered that even though the Claimant’s salary for November 2013, i.e. 880,000, had not formally fallen due on the date of termination, the Claimant had rendered his services to the Respondent for the entire month of November 2013 and therefore decided to award it to the Claimant as outstanding remuneration. 15. Consequently, in accordance with the principle of pacta sunt servanda and taking into account the fact that the employment contract was terminated on 6 December 2013, the Chamber decided that the Respondent is liable to pay the Claimant the amount of 3,001,855. 16. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of 3,001,855 as of 7 December 2013. 17. In continuation, the Chamber focused its attention on the calculation of the amount of compensation payable to the Claimant by the Respondent 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 as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of 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 a 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 non-exhaustive 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 Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 30 June 2014, taking into account that the Claimant ?s remuneration until November 2013 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of 6,160,000, i.e. remuneration as from December 2013 until June 2014, serves as the basis for the 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 enabled 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. 22. The Chamber noted that it appears from the documentation on file that the Claimant was not reinstated into the club, Club F, and did not sign any contract with a new club within the relevant period. Thus, the Claimant had apparently not been able to mitigate damages. In this context, the Chamber declared that there is no remuneration to be taken into account in order to mitigate the amount of compensation for breach of contract. 23. In this respect and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of 6,160,000 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 24. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral and sporting damages in the amount of EUR 100,000. 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. 25. Moreover, the Chamber rejected the Claimant’s claim related to his legal expenses in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 26. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** 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 this decision, outstanding remuneration in the amount of 3,001,855 plus 5% interest p.a. on said amount as from 7 December 2013 until the date of effective payment. 3. In the event that the amount foreseen in point 2. plus interest is not paid within the stated time limit by the Respondent, the matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 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 amounting to 6,160,000. 5. In the event that the amount set forth in point 4 is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is 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: Markus Kattner Acting Secretary General Encl. CAS directives