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 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohamed Al-Saikhan (Saudi Arabia), member Zola Majavu (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 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 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohamed Al-Saikhan (Saudi Arabia), member Zola Majavu (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 between the parties I. Facts of the case 1. On 4 September 2012, the Player of Country B, Player A (hereinafter: player or Claimant), and the Club of Country D, Club C (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract) valid as of 4 September 2012 until 31 May 2014. 2. According to Art. 3 of the contract, the club undertakes to pay to the player, inter alia, the following amounts, payable in Currency of Country D: - 30,000 on 25 September 2012; - 3,000 as monthly salary for the season 2012/13; - 30,000 on 25 September 2013; - 3,000 as monthly salary for the season 2013/14; - 4,117 “per match salary for every 1. League of Country D match he takes part in the first 11 players”; - 3,087.75 “per match salary for every 1. League of Country D match he joins the match later”. 3. On 18 January 2013, the player received notification via the Football Federation of Country D that the club terminated his contract due to his alleged low performance. 4. On 19 December 2014, the player lodged a claim with FIFA against the club for breach of contract without just cause and requested to be awarded payment of 90,116.24 as outstanding remuneration plus 5% interest as of 18 January 2013, as follows: - The “down payment” due on 25 September 2012 30,000 - Salary of September 2012 3,000 - Salary of October 2012 3,000 - Salary of November 2012 3,000 - Salary of December 2012 3,000 - Salary of January 2013 (until termination) 1,800 - Match bonuses (9x 4,117 plus 3x 3,087.75) 46,316.25 Total 90,116.24 Furthermore, the player requested to be awarded the amount of 283,167 as compensation plus 5% interest as of 31 May 2014, as follows: - Salary of January 2013 (after the termination) 1,200 - Salaries of February 2013 until 31 May 2014 42,000 - The “down payment” due on 25 September 2013 30,000 - Match bonuses (51 x 4,117) 209,967 Total 283,167 In addition, the player requested to be awarded an amount covering legal expenses. 5. The player stated that he fulfilled his contractual obligations and that the club failed to pay his remuneration and terminated the contract between the parties without a valid reason. 6. Despite having been invited to do so, the club has not responded to the player’s claim. 7. According to the Transfer Matching System (TMS), the player signed an employment contract valid as from 15 April 2013 until 15 October 2013 with the Club of Country E, Club F, including a monthly salary of USD 8,000. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 19 December 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: 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 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 19 December 2014, the 2014 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. Subsequently, with regard to the fact that the employment contract at the basis of the present dispute was concluded on 4 September 2012 and that the Claimant had lodged his claim on 19 December 2014, the DRC considered that it should examine if the present claim, or any part of it, could possibly be timebarred. 5. In continuation, the members of the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case. 6. In this respect, the Chamber referred to the claim of the Claimant, according to which the latter requested, inter alia, outstanding salaries and match bonuses for the period as from September until November 2012. 7. On account of the foregoing and considering that the contract did not specify due dates for the payment of the various remuneration, except for the “down payment”, the DRC departed from the presumption that remuneration fell due at the end of each month during which the relevant services were provided by the Claimant. 8. Bearing in mind the foregoing, the DRC recalled that the Claimant requested, inter alia, the payment of outstanding remuneration for the months of September to November 2012 in the total amount of 72,965.25, consisting of the amount of 30,000 due on 25 September 2012 and salaries plus match bonuses for September to November 2012, which, thus, fell due at the end of these months, respectively. 9. As a consequence, given that the present claim was submitted to FIFA on 19 December 2014, the DRC concluded that the aforementioned time limit of two years had elapsed with regard to the said remuneration totalling 72,965.25. Therefore, the members of the DRC determined that such specific request of the Claimant was time-barred and, consequently, inadmissible. The Chamber concluded its reasoning by stating that the Claimant’s other requests were made within the stated 2 years’ time limit and, therefore, will be further analysed as to their substance. 10. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 11. First of all, the members of the Chamber acknowledged that, on 4 September 2012, the Claimant and the Respondent had concluded an employment contract valid as from 4 September 2012 until 31 May 2014. 12. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining inter alia that the club terminated the employment contract without just cause on 18 January 2013. Consequently, the Claimant asks to be awarded payment of outstanding receivables as well as compensation for breach of the employment contract without just cause. 13. Subsequently, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the Chamber was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant. 14. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation on file. 15. First and foremost, the Chamber took into account the Respondent’s notice dated 18 January 2013, sent via the Football Federation of Country D, addressed to the Claimant, which established that the contractual relation between the parties was terminated by the club due to the player’s alleged low performance. 16. Having established that the Respondent terminated the employment contract on 18 January 2013, the Chamber turned its attention to the question as to whether the contract had been terminated by the Respondent with or without just cause. 17. In the light of the reason at the basis of the termination of the contract by the Respondent in the matter at hand, the Chamber wished to emphasise that in accordance with this Chamber’s longstanding jurisprudence, alleged low performance of a player cannot be considered a valid reason to unilaterally terminate an employment contract. 18. In this context, and in the absence of any other reason for the termination of the contract by the Respondent, the Chamber concluded that the Respondent had no just cause to unilaterally terminate the contract on 18 January 2013 and, therefore, decided that the Respondent is to be held liable for the early termination of the employment contract without just cause. 19. In continuation, prior to establishing the consequences of the termination of the employment contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment when the Respondent terminated the employment relation. 20. In this regard, the members of the Chamber took into account that at the date of termination of the contract, i.e. 18 January 2013, the Claimant’s salary of December 2012 in the amount of 3,000 and 3 bonuses in the amount of 4,117 each for matches played in December 2012 had undisputably fallen due and remained unpaid by the Respondent without valid reason. 21. Consequently, on account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of 15,351 in connection with the remuneration due to the Claimant in accordance with the employment contract until its early termination. 22. 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 15,351 as of 18 January 2013. 23. Having established the above, the Chamber turned its attention to the question of the consequences of the termination of the employment contract by the Respondent without just cause on 18 January 2013. 24. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent. 25. 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. 26. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract agreement contains 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. 27. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 28. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 29. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from the date of termination without just cause by the Respondent, i.e. 18 January 2013, until the original date of expiry, i.e. 31 May 2014, and concluded that the Claimant would have received remuneration in the total amount of 81,000 had the contract been executed until its ordinary expiry date. Consequently, the Chamber concluded that the amount of 81,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 30. In this respect, as regards the Claimant’s claim relating to the estimated loss of 209,967 for bonuses relating to the second half of the 2012/2013 season and the 2013/2014 season, the members of the Chamber stressed that the payment and the amount of such bonuses are linked to matches to be played in the future, i.e. after the termination of the relevant contract, and, therefore, are fully hypothetical. Consequently, the Chamber did not take into consideration these bonuses while assessing the residual value of the contract. In this regard, the members, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the Claimant had not submitted any convincing documentary evidence in this respect. 31. 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. 32. In this respect, the Chamber recalled that the Claimant had found new employment with the Club of Country E, Club F, as from 15 April 2013 until 15 October 2013. In accordance with the employment contract signed between the Claimant and Club F, the Claimant was entitled to a monthly salary of USD 8,000 and therefore received the total amount of USD 48,000, corresponding to approximately 85,750. In this context, the DRC concluded that the Claimant mitigated his damages in full for the period between 15 April 2013 and 15 October 2013 and that, therefore, no compensation for breach of contract should be awarded for this specific period of time, even though the Respondent has terminated the contract without just cause 33. Nevertheless, the Chamber noted that the Claimant remained unemployed during the period of time as of the termination of the contract until 14 April 2013 as well as between 16 October 2013 and 31 May 2014, and that he therefore had not been able to mitigate his damages during these specific periods of time. 34. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of 33,000 to the Claimant as compensation for breach of contract. 35. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 19 December 2014, until the date of effective payment. 36. In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses. 37. The members of the Chamber concluded their deliberations by rejecting any further claim of 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, outstanding remuneration in the amount of 15,351 plus 5% interest p.a. as from 18 January 2013 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 this decision, compensation for breach of contract in the amount of 33,000 plus 5% interest p.a. as from 19 December 2014 until the date of effective payment. 4. In the event that the amounts due to the Claimant are not paid by the Respondent within the stated time limits, 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 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 article 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