F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 13 August 2015, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Jon Newman (USA), 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 (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 13 August 2015, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Jon Newman (USA), 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 19 June 2013, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid from 15 June 2013 until 15 November 2014. 2. According to art. 3.2 of the contract, the Claimant was entitled to receive from the Respondent the total amount of EUR 600,000, payable as follows: a) EUR 180,000 net as sign-on fee; b) EUR 28,000 net as monthly salary; “the payment of the salary will be effected from 15th June 2013 till 15th November 2013 (5 months)” and “from February till November (10 months)” 2014. 3. Equally, art. 4.6 of the contract stipulated that the Respondent “shall provide [the Claimant] for 2 economy round way tickets (Country B-Country D) every season”. 4. On 23 December 2013, the Claimant contacted the Repondent in writing, requesting the payment of the total amount of EUR 28,000, corresponding to “the last month of 2013”, i.e the salary due in November 2013 and informing it that, in case of noncompliance, he would “initiate proceedings in DRC FIFA and […] will require termination of the contract and payment your obligations for the entire contract (308.000 Euro) as compensation for breach contract plus interest”. Furthermore, the Claimant requested the Respondent to communicate his return date to country D, as well as to provide him with a flight ticket in accordance with the contract and with a new visa to enter country D, as his previous one expired on 4 December 2013. Finally, the Claimant asked the Respondent to inform him in case it does not wish to continue their cooperation. 5. On 14 January 2014, in view of the Respondent’s alleged silence, the Claimant sent it a second letter, requesting that a proposal be made within the next seven days, in order to solve the matter amicably. Once again, the Claimant states that, in case of noncompliance, he would start proceedings in front of FIFA. According to the Claimant, this letter also remained unanswered. 6. On 24 January 2014, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract, claiming the total amount of EUR 308,000 plus 5% interest “from the date of due payment”, as set out below: a) EUR 28,000 corresponding to the outstanding salary of “the last month of 2013”; b) EUR 280,000 corresponding to the residual value of the contract from February 2014 until November 2014, i.e. 10 months. 7. Equally, the Claimant requested the imposition of sporting sanctions on the Respondent. 8. In his claim, the Claimant alleged that the Respondent, “in the last days of the season 2013”, had verbally informed him that it was no longer interested in his services and that he was, consequently, authorized to search for a new club. Furthermore, the Claimant states the Respondent failed to pay his salary for the month of November 2013, in spite of his reminders. The Respondent also failed to provide him with a return flight ticket to country D and with the relevant entry visa. The Claimant allegedly sent the Respondent a third reminder on 22 January 2014, which equally remained unanswered. In view of the foregoing, the Claimant deems that the Respondent’s “behaviour made impossible to continue the contractual relationship and communicated his breach of contract for just cause”. 9. In its reply to the Claimant’s claim, the Respondent stated that it still has a valid contract with the player, which it denies to have breached. Consequently, the Respondent informed the Claimant that he would be welcome to return to country D and negotiate a transfer to another club or to find an amicable solution to the matter. In this context, the Respondent explained that it was willing to organize the relevant entry visa for the Claimant. 10. Further to that, the Respondent rejected the Claimant’s allegations and explained that it had been communicating with his agent in order to find him a new club. In this regard, the Respondent provided a copy of a document dated 28 May 2013, signed by the Claimant and his agents, authorizing the latter “to investigate a possible transfer and signing a labour agreement with clubs in country D”. Equally, the Respondent stated that the Claimant allegedly refused to train with the team due to medical issues. As a consequence, the Respondent claims to have scheduled a check-up in a hospital in order to detect any possible injury or health problem which the Claimant could have. However, the Claimant was allegedly declared healthy and fit to play. The Respondent claims that, after the check-up, the Claimant no longer participated in the team’s training sessions. Due to his alleged lack of commitment, the Respondent did not call him up for the upcoming matches and informed him verbally that he was allowed to look for a new club. Finally, with regard to the outstanding salary due in November 2013, the Respondent pointed out that the relevant delay in payment was due to the New Year of country D. In this respect, the club mentioned having made the relevant payment on 10 February 2014 and attached, in this respect, a copy of an electronic receipt dated 10 February 2014 amounting to 232,114.40, i.e. approx. EUR 27,877. 11. In his replica, the Claimant rejected the Respondent’s statements and emphasised that the club’s proposal to now provide him with an entry visa is “irrelevant as [it arrives] late, after that all the complaints by the player have occurred. None of these arguments have been proposed by the Club before the player filed the appeal before the FIFA DRC”. With regard to the authorization given to his agents in order to find a club in country D (cf. point I.10. above), the Claimant emphasised that this document had no impact on the present matter since it was issued before the contract with the Respondent was signed. Finally, the Claimant stated not having received the alleged payment from the club in February 2014 and, in this respect, he provided a copy of his bank extract. 12. In its final comments, the Respondent reiterated its position and pointed out that the Claimant had already found a new club and that it did not put any obstacles to his departure. 13. The Claimant informed FIFA that, on 19 February 2014 he signed a new employment contract with the club from country F, Club E, valid from 1 February 2014 until 31 December 2014, for a monthly salary USD 10,909. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 24 January 2014. Therefore, the Chamber concluded that the edition 2012 of the Procedural Rules was 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 b) of the Regulations on the Status and Transfer of Players (edition 2015; hereinafter: the Regulations), the Dispute Resolution Chamber shall adjudicate on an employment-related dispute with an international dimension, between a player from country B and a club from 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 par. 2 of the Regulations (editions 2012, 2014 and 2015), and considering that the present claim was lodged on 24 January 2014, the 2012 edition of said regulations is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, 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. 5. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 19 June 2013, they signed an employment contract valid as from 15 June 2013 until 15 November 2014, as per which the Claimant was entitled to receive the remuneration and benefits detailed in points I.2. and I.3. above. 6. Subsequently, the Chamber took note of the argumentation put forward by the Claimant, according to which the Respondent had allegedly expressed its lack of interest in his services and authorized him to search for a new club. The Claimant further states that the Respondent had failed to pay his last salary due for the year 2013, i.e. November 2013, and to provide him with a return flight ticket to country D as well as with the relevant entry visa before the start of the 2014 season. The Claimant claims to have sent the Respondent three reminders (cf. points I.4., I.5. and I.8. above), in which he requested the respect of his contractual rights. As the aforementioned reminders remained unanswered by the Respondent, the Claimant lodged a claim in front of FIFA, requesting the payment of the total amount of EUR 308,000, as outstanding remuneration and compensation, the breakdown of which is detailed in point I.6. above. 7. The Chamber also took note of the argumentation of the Respondent, which deems that the contract concluded between the parties was not terminated and, thus, remained valid. The Respondent states that the Claimant refused to train with the team, due to alleged but actually inexistent health issues. Due to the Claimant’s lack of commitment, the Respondent decided not to call him up for the upcoming matches and informed him verbally that he should search for a new club. As the Claimant found a new club right after his departure, the Respondent deems that no harm was caused and, consequently, no amounts are due to him. 8. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of both parties, was to determine whether the employment contract had been unilaterally terminated with or without just cause by one of the parties, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, it would be necessary to determine the consequences for the party that caused the breach of the relevant employment contract. 9. In view of the above, the Chamber first deemed necessary to establish the exact date of termination of the contract, in view of the parties’ diverging statements in this regard and of the lack of a written termination document issued by any of them. In this context, the DRC first noted that, while the Respondent claims that the contract was still in force, the Claimant deems that the contract was discontinued due to the Respondent’s disrespect of its terms. 10. In this context, the Chamber noted that the Claimant sent the Respondent two reminders, dated 23 December 2013 and 14 January 2014 (cf. point I.4. and I.5. above), by means of which he requested to be provided with a return flight ticket to country D, his relevant entry visa and the payment of one outstanding salary. Furthermore, he asked the Respondent to inform him whether they would like to end their cooperation. These reminders, however, remained unanswered and no evidence to the contrary was provided by the Respondent. In addition, as alleged by the Claimant (cf. point I.8. above) and confirmed by the Respondent (cf. point I.10. above), the Claimant had in fact been authorized by the Respondent to search for a new club. The Chamber further noted that it remained uncontested by the Respondent that the Claimant was not provided with a return flight ticket or with an entry visa in order to resume his activities with the club. 11. In view of the foregoing elements, the Chamber could conclude that the Respondent’s acts clearly conveyed the message that it was no longer interested in the services of the Claimant, as it uncontestedly did not provide him with the means or the essential documentation in order to resume the execution of the contract after the 2013 year-end holidays and did not even reply to the Claimant’s reminders in this regard. In the absence of a termination letter, the Chamber established that the contract was considered as terminated by the Claimant on 24 January 2014, i.e. the date on which he lodged his claim in front of FIFA. 12. Having established the foregoing, the Chamber subsequently went on to deliberate as to whether the Claimant had had a just cause to consider the contract as terminated on 24 January 2014. In this respect, the Chamber referred to the considerations made in points II.10. and II.11. above and deemed that, from the Respondent’s behaviour, the Claimant could reasonably and logically conclude that the club was no longer interested in maintaining his services and wished to discontinue their employment relationship. In this respect, the Chamber noted that the Respondent not only failed to perform the actions allowing the Claimant to return to country D and resume the contract, but it even confirmed that the Claimant had been authorized to seek new employment. 13. For the sake of completeness of its analysis, the Chamber also sought to establish whether the Respondent had had any valid reasons to reject the continuation of its employment relationship with the Claimant. In this respect, while referring to the general legal principle of burden of proof and, specifically, to the wording of art. 12 par. 3 of the Procedural Rules, the Chamber noted that the Respondent did not provide any evidence at all of the Claimant’s alleged refusal to train due to a fabricated injury or of his lack of commitment to the team (cf. point I.10. above). 14. Consequently, the DRC concluded that the contract was terminated with just cause by the Claimant on 24 January 2014, due to an unjustified breach on the part of the Respondent. Consequently, the Respondent is to be held liable for the payment of an amount of money to the Claimant as compensation for such unjustified breach. 15. However, prior to establishing the amount of compensation for breach of contract due to the Claimant by the Respondent, the DRC proceeded with the calculation of any outstanding monies payable to the Claimant under the terms of the employment contract until the date of termination, i.e. 24 January 2014. 16. At this point and for the sake of good order, the DRC deemed it appropriate to remind the parties, once again, of the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. Bearing in mind the aforementioned principle, the DRC noted that in the present case the Respondent bore the burden of proof regarding the payment of the Claimant’s remuneration. 17. In this regard, the DRC noted that the Claimant claims that his salary for November 2013 remained unpaid by the Respondent. With a view to proving that the aforementioned salary was in fact paid, the Respondent provided a copy of an electronic receipt dated 10 February 2014 – i.e. in any case, after the termination of the contract – in the amount of approximately EUR 27,877 on behalf of the Claimant (cf. point I.10. above). The DRC, however, also noted that such receipt does not bear the signature of the Claimant. Moreover, the Claimant denies having ever received such amount from the Respondent and submits a copy of his bank statement, from which it can be noted that the amount in question was indeed not credited. 18. In view of the foregoing, the Chamber concluded that the Respondent had been unable to prove that the Claimant’s salary of November 2013 was in fact paid and, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the employment contract. Consequently, the Respondent is to be held liable to pay the Claimant the total amount of EUR 28,000, as outstanding salary for November 2013. 19. The DRC further established that an interest rate of 5% p.a. applies over the aforementioned amount, as from 16 November 2013 (cf. point I.2.b. above). 20. In continuation, the DRC focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, 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 player 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. 21. In application of the relevant provision, the DRC 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. 22. As a consequence, 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 DRC recalled that said provision provides for a non-exhaustive 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. In this regard, the DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-bycase basis taking into account all specific circumstances of the respective matter. 23. In order to estimate the amount of compensation due to the Claimant in the present case, the Chamber first turned its attention to the remuneration and other benefits due to him under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 24. In view of the foregoing, the DRC concluded that the residual value of the contract, to be calculated taking into account the period ranging from 24 January 2014 until 15 November 2014, corresponding to 10 months à EUR 28,000, amounted to EUR 280,000. This amount should serve as the basis for the final determination of the amount of compensation for breach of contract. 25. In continuation, the DRC 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. 26. Indeed, the Claimant signed a new employment contract with the club from country F, Club E, on 1 February 2014, according to which he was entitled to receive the amounts detailed in point I.13. above. 27. Consequently, the Chamber established that the total value of the new employment contract concluded between the Claimant and Club E for the period of 1 February 2014 until 15 November 2014, amounted to approximately EUR 75,000, after conversion. 28. 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 EUR 205,000 to the Claimant, plus 5% interest p.a. as of 24 January 2014, i.e. the date of the claim, which was considered to be a reasonable and justified amount of compensation for breach of contract in the present matter, in addition to the amount of EUR 28,000 due as outstanding remuneration. 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed 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, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 28,000 as outstanding remuneration, plus 5% interest p.a. as from 16 November 2013 until the date of effective payment. 3. The Respondent is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 205,000 as compensation for breach of contract, plus 5% interest p.a. as from 24 January 2014 until the date of effective payment. 4. Any further claims of the Claimant are rejected. 5. In the event that the amounts due to the Claimant plus interest are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 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 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