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 Jon Newman (USA), member Mario Gallavotti (Italy), member on the claim presented by the player, Player A, country B & country C as Claimant against the club, Club D, country E 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 Jon Newman (USA), member Mario Gallavotti (Italy), member on the claim presented by the player, Player A, country B & country C as Claimant against the club, Club D, country E as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 10 February 2011, the player from country B, Player A (hereinafter; the Claimant) and the club from country E, Club D (hereinafter; the Respondent) concluded an employment contract (hereinafter; the contract) valid as of 24 February 2011 until 30 June 2014. 2. According to clause 5.1 of the contract, the Claimant was entitled to receive from the Respondent a monthly salary of EUR 7,100 “for each month during which this [contract] stays in force”. 3. On 21 June 2012, the parties concluded an “Annex No. 1 to [the contract]” (hereinafter: the annex), whereby it was agreed as follows: “The parties agree that existing wording of [clause 5.1 of the contract] shall be deleted and shall be replaced by a new wording as follows: 1. On the basis of this agreement, the player shall receive the base remuneration as follows: in the tournament season 2012/2013, i.e. from 1 July 2012 to 30 June 2013 in the amount of [EUR 6,100] gross for each month”. 4. Moreover, art. 2 par. 2 of the annex stipulated that “Other provisions of the contract remains unchanged”. 5. On 16 July 2013, the Claimant lodged a claim against the Respondent in front of FIFA requesting the total amount of EUR 91,300 plus 5% interest as of the due dates as follows: a. EUR 6,100 as outstanding salary of June 2013; b. EUR 85,200 as “compensation after termination (from 01/07/13 – 30/06/14)” 6. In particular, the Claimant explained that on 30 June 2013, the Respondent unilaterally terminated the employment contract concluded between the parties as, according to the Respondent, the contract “was invalid”. In this respect, the Claimant enclosed a letter from the Respondent which reads as follows: “We kindly inform you that [the contract] should be considered invalid with effect from 1 July 2013. Starting from 1 July 2013 contract does not specify a basic remuneration for its implementation and according to Art. 5 section 1 point 2) Resolutions 11/12 of the Football Association of country E Management Board: ‘Under pain of invalidity, a contract (…) specifies the basic player’s remuneration for the whole period which contract stays in force’. Therefore, it should be deemed that from 1 July 2013, you are no longer the Club D football player and due to this fact you should leave the Club D training camp and cease performance of the contractual obligations”. 7. On 5 July 2013, the Claimant replied to the Respondent’s letter asking them for “the withdrawal of the unilateral termination” by no later than 8 July 2013, however, according to the Claimant, to no avail. 8. Furthermore, the Claimant rejected the argumentation of the Respondent to terminate the contract since in art. 2 par. 2 of the annex, it is specified that the “other provisions of the contract will not be changed”. Therefore, the Claimant stressed that it is clear that the contract was valid until 30 June 2014, that the Respondent terminated the latter without just cause and that thus it must be held liable for the consequences thereof. 9. In its reply to the claim, the Respondent firstly questioned the competence of FIFA to adjudicate on the present matter since it “shall be finally settled by the Dispute Resolution Chamber of the Football Association of country E because the Football Association of country E have an adequate procedures and authorities (i.e. DRC of the Football Association from country E and Football Arbitration Court of the Football Association from country E)”. In this regard, the Respondent stressed that the above-mentioned bodies “fulfilled the criteria of a fair trial set out in Article 22 point b) of the FIFA Regulation on the Status and Transfer of Players and FIFA Circular No. 1010…” 10. Along these lines, the Respondent requested FIFA “to transfer the case of [the Claimant] to Football Association of country E DRC…”. In this regard, the Respondent explained that it had lodged, on 30 June 2013, in front of the DRC of the Football Association from country E “an application for declaring the contract invalidity”. Therefore, according to the Respondent, “the case (…) shall be firstly examined by DRC of the Football Association from country E because the decision of the DRC of the Football Association from country E on validity or invalidity of the contract has a preliminary ruling importance for the FIFA DRC proceeding”. 11. As to the substance of the matter, the Respondent stressed that, in view of the content of the annex, “the parties agreed that the remuneration shall be determined solely for the [season 2012/2013]. Therefore, the contract does not specify the basic remuneration of the Claimant in the [season 2013/2014]”. The Respondent held that at the end of the season 2012/2013, the parties entered into negotiations “concerning the determination of basic remuneration of the Claimant [for the season] 2013/2014, however [the Claimant] did not accept the proposals of the [Respondent]”. 12. In continuation, the Respondent argued that in accordance with art. 5 section 1 point 2) Resolutions 11/12 of the Football Association of country E Management Board: “In order to be valid, a contract (…) specifies the basic Claimant’s remuneration for the entire period of its validity”. Therefore, according to the Respondent, the contract must be considered invalid. In this regard, the Respondent stressed that “the fact that the contract defines solely the Claimant’s remuneration due (…) until 30 June 2013, it should be assumed that the contract is valid only to that day…”. 13. The Respondent further asserted that, contrary to the Claimant’s statement, on 19 July 2013, it replied to his letter of 5 July 2013 inter alia as follows: “…We would like to emphasise that letter dated 30 June 2013 was not a unilateral termination of the contract, and it was only information about [the Claimant’s] current situation (…) [The Respondent] file to the Dispute Resolution Chamber of Football Association of country E (DRC of the Football Association from country E) an application for declaring a contract invalidity (…) [The Respondent] release [the Claimant] from the performance of contractual obligations for the period of duration the legal proceedings before Football Association of country E DRC (…) However, in the event that despite this fact [the Claimant] would like to perform the contractual obligations, [the Respondent] declares that until final decision of appropriate authorities all obligations of [the Respondent] (…) shall be respected and performed by [the Respondent]…”. 14. In this regard, the Respondent sustained that contrary to the Claimant’s arguments, the letter of 30 June 2013 “shall not be consider, in any case, as a statement of termination of the contract”. 15. Having been requested by FIFA to provide documentary evidence that there exists an independent arbitration tribunal on national level, the Respondent informed FIFA that on 17 December 2013, the DRC of the Football Association from country E rendered a decision whereby the contract was declared “invalid with effect from 1 July 2013…”. Therefore, according to the Respondent, “the proceeding conducted by FIFA DRC should be discontinued”. Moreover, the Respondent provided a partial copy of the DRC of the Football Association from country E Statutes. 16. In his replica, the Claimant rejected the competence of the DRC of the Football Association from country E since it was “not contracted the jurisdiction of the [DRC of the Football Association from country E] in the event of a dispute…” Therefore, according to the Claimant, any decision of the latter national body “is unacceptable and cannot produce any legal effect”. In this respect, the Claimant explained that despite having been invited to participate in the proceedings before the DRC of the Football Association from country E, he refused to do so. In this context, the Claimant provided a letter dated 12 September 2013 addressed to the DRC of the Football Association from country E objecting to the competence of the DRC of the Football Association from country E. 17. The Claimant further denied having been notified of the decision rendered by the DRC of the Football Association from country E on 17 December 2013 and in this respect, he argued that it “does not make any sense that on the contract which has been already unilaterally terminated by the Respondent on 30 June 2013, [the DRC of the Football Association from country E] decides again on the termination…”. 18. As to the alleged invalidity of the contract, the Claimant highlighted that in accordance with the clear wording of art. 2 par. 2 of the annex “all other provisions of the contract remain in force without any changes”. Therefore, it is clear that he had a valid contract with the Respondent for the season 2013/2014. 19. Furthermore, the Claimant stressed that, contrary to the statements of the Respondent, the latter party did terminate the contract on 30 June 2013, as it informed him that the contract was “invalid” and instructed him to “cease performance of the contractual obligations”. 20. Finally, the Claimant argued, while enclosing a letter from the Union of Footballers from country E, that i) the DRC of the Football Association from country E “cannot decide on compensation for damages, i.e. compensation for termination of a contract without just cause” and that ii) n the DRC decision “10- 02610” involving a club from country E, the DRC decided that it was competent “despite the fact that the Respondent from country E parallel initiated the proceedings against the Claimant before the [DRC of the Football Association from country E]”. 21. In its duplica, the Respondent reiterated that the DRC of the Football Association from country E had already rendered a decision, declaring the contract concluded between the parties invalid. Moreover, the Respondent reaffirmed that the DRC of the Football Association from country E “guarantees fair proceedings”. 22. Finally, the Respondent reiterated the arguments of its reply as to the substance. 23. Upon request, the Claimant informed FIFA that, on 16 July 2013, he entered into a new employment contract with the club from country B, Club F valid until 30 June 2015, whereby he was entitled to a monthly remuneration of 735. Moreover, the Claimant stressed that on 23 July 2013, he and Club F concluded an “Amendment to the Contract” in accordance with which, he was entitled to the following: a. “A monthly allowance” of 1,550; b. “a contractual instalment” of 10,000; c. “Costs of accommodation and subsistence allowance” of 650. 24. On account of the above, the Claimant sustained that “from the period of 16 July 2013 until 30 June 2014, the Claimant received from Club F (…) the total amount of 43,752.5 which amounts [to] EUR 22,370”. 25. In addition, the Claimant informed FIFA that the Respondent paid his salary of June 2013 in the amount of EUR 6,100. Therefore, the Claimant stressed that “the amount of EUR 28,470 should be deducted from the total receivables of the [Claimant]”. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 16 July 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 2008 and 2012 edition 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 shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber considered that it would, in principle, be competent to decide on the present litigation involving a player from country B and a club from country E regarding an alleged breach of the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies as, according to the Respondent, the present matter shall be adjudicated by the decision-making bodies of the Football Association of country E. In this regard, the Chamber took note that, according to the Respondent, the decision-making bodies of the Football Association of country E comply with the requirements of art. 22 lit. b) of the Regulations. 5. Along these lines, the members of the DRC observed that, on 30 June 2013, the Respondent filed “an application for declaring the contract invalidity” in front of the DRC of the Football Association from country E and that, on 17 December 2013, said national body issued a decision declaring the contract concluded between the parties invalid. 6. Furthermore, the Chamber noted that, on his part, the Claimant rejected the competence of the DRC of the Football Association from country E as it was “not contracted the jurisdiction of the [DRC of the Football Association from country E] in the event of a dispute…” and insisted that FIFA has jurisdiction to adjudicate on the present matter. 7. With the above considerations in mind, the Chamber wished to recall that in accordance with art. 22 lit. b) 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. 8. 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 can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal derives from a clear reference in the employment contract. 9. 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 actually contained a clear and exclusive arbitration clause in favour of the DRC of the Football Association from country E. 10. With the above-mentioned considerations in mind and after a thorough analysis of the contract at the basis of the present dispute, the members of the Chamber concluded that said contract did not contain an arbitration clause in favour of the DRC of the Football Association from country E or any other national body. Therefore, the members of the Chamber came to the unanimous conclusion that, in the present matter, one of the indispensable requirements in order to determine that another body than the DRC is competent to deal with an international employment-related dispute is not met. 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 thus 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 entertain the Claimant’s claim as to the substance. In this regard and as a consequence of the above, the DRC wished to emphasise that it is not bound by the decision issued by the DRC of the Football Association from country E. 12. Having established the above, the Chamber analysed which edition of the 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 on the Status and Transfer of Players (edition 2015) and considering that the present claim was lodged on 16 July 2013, the 2012 edition of said Regulations is applicable to the present matter as to the substance. 13. The competence of the Chamber and the applicable regulations having been established and entering into the substance of the matter, the Chamber continued its acknowledgment of the above-mentioned facts as well as of the documentation contained in the file. 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 substance of the matter at hand. 14. First of all, the DRC acknowledged that on 10 February 2011, the parties concluded an employment contract valid as of 24 February 2011 until 30 June 2014 and according to which, the Claimant was entitled to receive a monthly salary of EUR 7,100. 15. Furthermore, the members of the Chamber took note that on 21 June 2012, the parties entered into an annex to the contract whereby it was agreed “…that existing wording of [clause 5.1 of the contract] shall be deleted and shall be replaced by a new wording as follows: 1. On the basis of this agreement the player shall receive the base remuneration as follows: in the tournament season 2012/2013, i.e. from 1 July 2012 to 30 June 2013 in the amount of [EUR 6,100] gross for each month”. Moreover, the Chamber observed that art. 2 par. 2 of the annex stipulated that “Other provisions of the contract remains unchanged”. 16. Having said this, the Chamber focused its attention on the position of the Respondent, which argues that the contract should be considered, as of 1 July 2013, invalid since it does not provide a salary payable to the Claimant. In this regard, the Chamber took note of the Respondent’s argument that according to art. 5 section 1 point 2) Resolutions 11/12 of the Football Association of country E Management Board, “In order to be valid, a contract (…) specifies the basic Claimant’s remuneration for the entire period of its validity”. 17. On account of the above, the DRC acknowledged that according to the Respondent, it should be considered that the employment contract between the parties was invalid as of 1 July 2013 and that therefore no compensation should be payable to the Claimant. 18. Moreover, the members of the Chamber noted that the Respondent stressed that its letter dated 30 June 2013 “shall not be consider, in any case, as a statement of termination of the contract”. 19. In continuation, the Chamber observed that, on his part, the Claimant rejected the position of the Respondent based on art. 2 par. 2 of the annex which stipulates that “Other provisions of the contract remains unchanged”. Hence, according to the Claimant, contrary to what the Respondent argues, the contract was indeed valid until 30 June 2014. Moreover, the Claimant asserted that the Respondent’s letter of 30 June 2013 is a clear termination of the employment contract as the latter party informed him that the contract was “invalid” and requested him to “cease performance of the contractual obligations”. 20. In view of the foregoing considerations, the Chamber deemed that the issues on which it would have to pronounce itself in the present matter, considering the position of the parties, are as follows: i. Was the employment contract concluded between the parties valid for the season 2013/2014?; ii. In the affirmative, did the Respondent actually terminate the employment contract on 30 June 2013?; iii.As a third point and in case of affirmative answers to the first two issues, the DRC would have to examine whether the employment contract had been unilaterally terminated with or without just cause by the Respondent. 21. First of all, and as to the validity of the employment contract after 30 June 2013, the members of the Chamber focused their attention on the annex. In this regard, the DRC noted that it is explicitly stated therein that the only amended clause of the contract is clause 5.1. 22. Along these lines, the Chamber wished to highlight the content of art. 2 par. 2 of the annex which provides that “Other provisions of the contract remains unchanged”. Indeed, in the Chamber’s view, the aforementioned article is clear and leaves no room for interpretation when it established that, with the exception of clause 5.1, all other provisions contained in the employment contract, including its period of validity, were not to be changed. 23. In view of the above, the DRC unanimously decided that the duration of the contract was not amended by the annex and the contract was thus valid until 30 June 2014. In fact, the Chamber stressed that by means of the signing of the annex, the only element of the contract that was amended was the Claimant’s salary for the 2012/2013 season, all other provisions remaining unchanged. As such, the singing of the contract in conjunction with the subsequent signing of the annex should not be construed in the way that there is no salary payable to the Claimant in the season 2013/2014, but rather that the salary of the Claimant in the aforementioned period of time returned to its original amount, i.e. EUR 7,100. 24. After having been established that the employment contract concluded between the parties was valid until 30 June 2014 and that it did provide for a salary payable to the Claimant for the season 2013/2014, the members of the Chamber went to analyse the Respondent’s letter of 30 June 2013 in order to establish whether it was indeed, as claimed by the Claimant, a unilateral termination of the employment contract by the Respondent. In this respect, the Chamber recalled that according to the Respondent “the said letter shall not be consider, in any case, as a statement of termination of the contract”. Moreover, the Chamber took note that in its letter dated 19 July 2013, the Respondent informed the Claimant that “We would like to emphasise that letter dated 30 June 2013 was not a unilateral termination of the contract, and it was only information about [the Claimant’s] current situation”. 25. In this regard and after a thorough analysis of the relevant letter, the members of the Chamber unanimously decided that by means thereof, the Respondent actually terminated the employment contract between the parties. Indeed, in the Chamber’s view, the Respondent’s statement “…it should be deemed that from 1 July 2013, you are no longer [a Respondent’s] player and due to this fact you should leave [the Respondent’s] training camp and cease performance of the contractual obligations” clearly indicates that the Respondent decided to unilaterally terminate the employment contract in view of its alleged invalidity. In this respect, the members of the Chamber could not find any other bona fide interpretation that the Claimant could have given to the content of the aforementioned letter. 26. Furthermore and as to whether the employment contract had been terminated by the Respondent with or without just cause, the Chamber underlined that the only reason given by the Respondent to terminate the employment contract was its alleged invalidity which, for the reasons explained above, cannot be upheld. 27. On account of all the above, the members of the Chamber came to the unanimous conclusion that on 30 June 2013, the Respondent had terminated the employment contract without just cause and shall therefore be held liable for the consequences thereof. 28. In relation to the above, 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. 29. 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 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. 30. 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. 31. Having recalled the aforementioned, 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 player after the early termination occurred. In this respect, the Chamber pointed out that at the time of its termination, the employment contract would run for another twelve months. Taking into account the foregoing, the Chamber decided that the amount of EUR 85,200 shall serve as the basis for the final determination of the amount of compensation for breach of contract. 32. In continuation, the Chamber recalled that the player had entered into a new employment contract with the club from country B, Club F valid as of 16 July 2013 until 30 June 2015 and according to which he was entitled to receive a total remuneration of “43,752.5 which amounts [to] EUR 22,370” for the period between 16 July 2013 and 30 June 2014. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, the above-mentioned amounts shall be taken into account in the calculation of the amount of compensation for breach of contract. 33. In view of all of the above, the Chamber decided that the Respondent must pay the amount of EUR 62,830 to the Claimant as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount. Moreover, in accordance with both the long-standing jurisprudence of the DRC and the claim of the Claimant, the members of the Chamber decided to grant 5% interest on said amount as of 16 July 2013 until the date of effective payment. 34. Finally, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club D, is ordered 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 EUR 62,830 plus 5% interest p.a. as of 16 July 2013 until the date of effective payment. 4. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 3. is 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. 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 remittance is 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