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 23 July 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member John Bramhall (England), 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 23 July 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member John Bramhall (England), 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 16 August 2013, the player from country B, Player A (hereinafter: the player or Claimant), and the club from country D, Club C (hereinafter: the club or Respondent), entered into an employment contract and an additional contract, both valid from the date of signature until 31 May 2015. 2. According to the contracts, the club undertook to pay the player: - USD 15,000 per month during the 2013/2014 season; - USD 20,000 per month during the 2014/2015 season. 3. On 2 September 2014, the player lodged a claim against the club in front of FIFA, arguing that the total value of the contracts was USD 420,000 (12 x USD 15,000 + 12 x USD 20,000) and that he is “entitled, as follows”: - USD 158,000 for the 2013/2014 season, being the yearly salary minus the amount of USD 22,000 received; - USD 200,000 for the 2014/2015 season, which according to the player is the difference between the salary at the club and his new salary with the club from country E, Club F; - Compensation due to the club’s severe breach of both contracts. 4. As a result, the player requested the DRC to “i) ratify the player’s release from the club and ii) to instruct the club to pay the player USD 500,000 as breach of contract and additional compensation.” 5. In his claim, the player explained that on 25 December 2013 he was requested by the club to leave country D so the club could renew his visa and he could return for the 2nd part of the season. The player explained that from December to February there were no matches played in country D. 6. According to the player, while waiting for his visa in country B, the club told him that the visa procedure was delayed. On 20 February 2014, the club obtained the visa and subsequently he returned to country D on 22 February 2014. 7. Upon return in country D, the player was allegedly told by the club that it “doesn’t want him anymore” and that he should join the club’s 2nd team. According to the player, he trained with the club’s 2nd team between February and March 2014, asking the club many times for his salary, without receiving a proper answer. 8. On 20 March 2014, the player left the club alleging that he did not have money for his basic needs, receiving only one payment of USD 22,000 (in January 2014). 9. Thereafter, the following timeline occurred: - On 5 May 2014, the player put the club in default for the total amount of USD 400,000, giving the club a deadline of 7 days to pay the outstanding amount. - On 19 May 2014, the club replied that due to the difficult political and financial situation in country D it encountered financial difficulties, asking for the player’s understanding whilst proposing to sign a settlement agreement. - On 20 May 2014, the player requested the club to send a draft settlement agreement within 7 days. - On 4 June 2014, the club informed the player that “taking into account that [the player] was discharged for being absent from duty at 07.02.2014 we believe that there are no grounds to discuss the possibility of compensation for Labour Contract termination without just cause. However [the player] did not receive his salary (…) so the club is obliged to pay the amount of USD 60,000 to [the player]. Mentioned amount will be paid before the end of July 2014 and after that, as we believe, any claims arising from the labour relationship (…) will be exhausted.” - On 5 June 2014, the player rebutted the content of the club’s letter stating that he was only absent because the club had told him that they do not consider him to be part of the team anymore. Also, he was not paid his salaries, he did not receive “basic professional needs” and he was told to leave country D in order to renew his visa. 10. On 10 July 2014, the parties signed a “termination and settlement agreement” in accordance with which the club would pay the player the amount of USD 100,000 in three instalments (25 July, 25 August and 25 September 2014). 11. Furthermore, art. 7 and 8 of said agreement stipulate that: “It is hereby agreed that in case the Club shall not fulfil any and/or all of the terms of this Termination Agreement, the Player shall be entitled to address FIFA’s judicial bodies in order to seek all legal remedies available to him, and the Employment Contract and Additional Contract shall still be valid. After the fulfillment of any and all terms of this Termination Agreement, The Parties will irrevocably waive any claim, action and/or demand whatsoever they may currently have and/or may have in the future against each other and/or against any of their subsidiaries, shareholders, directors, officers and/or employees, as the case may be, with regard to the Employment Contract and the Additional Contract.” 12. On 7 August 2014, the player asked the club whether it “was going to pay or not.” 13. In its reply to the claim, the club outlined that due to the difficult financial and political situation in country D “from November 2013 till now, the Player didn’t receive his salary in time. Although, the Player was noticed that before the end of 2013 the Club overtake arrears before the Player.” 14. Further, the club contested that it told the player to go to country B to get a new visa, since the law in country D does not provide that a player needs to obtain a special permit when a contract of employment is already in force. According to the club, it was the player himself who decided to travel to country B to “get a new passport” and such procedure took more than 2 months. The club alleged that during this period, it did not pay the player due to the restrictions imposed by the National Bank of country D which could not transfer money abroad. When the player returned to country D, he received the amount of USD 22,000. 15. The club further held that: - On 5 January 2014, it started its preparation in capital of country D and country G and the player was absent on both occasions. The player did not practice for two months, reason for which the coach did not count on him for the 2nd part of the season. In this respect, the club submitted a “formal note” dated 5 January 2014 in the translated version only in which 3 officials of the club note the absence of the player. - On 7 February 2014, the player was dismissed for being absent and he refused to sign the discharge order. 16. In conclusion, the club held that the player was absent without reason and did not perform his duties for more than 4 months. Under said circumstances, the club believes that there are no legal grounds to pay the player more than USD 100,000 and asks to “dismiss the claim”. 17. The player informed FIFA that he signed a new contract with Club F, valid as from 31 July 2014 until 31 May 2015, in accordance with which he would receive a gross monthly salary of 12,363. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the 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 2 September 2014. Consequently, the 2014 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. 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 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 2 of the Regulations on the Status and Transfer of Players and reiterating that the present claim was lodged in front of FIFA on 2 September 2014, the 2014 edition of said regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as 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 matter at hand. 5. First of all, the members of the Chamber acknowledged that it is undisputed between the player and the club that they concluded an employment contract valid for the period as from 16 August 2013 until 31 May 2015. Equally, it is undisputed between the parties that on 10 July 2014 they signed a termination agreement, the preamble of which stipulates inter alia that: “the Club has breached the Employment Contract and the Additional Contract, and among other, didn’t pay the Player his salaries and other benefits according to the Employment Contract and the Additional Contract (…) the Parties wish to terminate the contractual relationship based on the Employment Contract and Additional Contract (…).” 6. The Chamber further acknowledged that in accordance with the aforementioned termination agreement, the club agreed to pay the player the amount of USD 100,000 in three instalments on 25 July 2014, 25 August 2014 and 25 September 2014. Equally, by means of art. 7 of the termination agreement, the player and club agreed that “in case the Club shall not fulfil any and/or all of the terms of this Termination Agreement, the Player shall be entitled to address FIFA’s judicial bodies in order to seek all legal remedies available to him, and the Employment Contract and Additional Contract shall still be valid.” 7. In continuation, the DRC observed that the player lodged a claim against the club on 2 September 2014 outlining that the club had first breached the employment contract and, subsequently, did also not comply with the payment plan contained in the termination agreement. 8. Finally, the Chamber noted that in its reply the club referred to the alleged absence of the player in January 2014 and to the player’s dismissal in February 2014. The club alleged that the player was absent without a valid reason, that he did not comply with his contractual obligations for 4 months and that there is therefore no reason to pay the player more than USD 100,000. 9. With due consideration to the above, the Chamber noted that the player is now requesting to be awarded compensation on the basis of the employment contract, whereas the club is requesting that the player is awarded the amount of USD 100,000 only, i.e. the amount agreed upon as the compensation payable to the player in accordance with the termination agreement. 10. In this framework, the Chamber finds that it first needs to address the question whether there is a legal basis for the player to return to the employment contract and request compensation on the basis of said contract. In this regard, the Chamber wishes to reiterate that art. 7 of the termination agreement states that “in case the club shall not fulfil any and/or all of the terms of this Termination Agreement, the Player shall be entitled to address FIFA’s judicial bodies in order to seek all legal remedies available to him, and the Employment Contract and Additional Contract shall still be valid.” 11. Having analysed the relevant provision, the Chamber deems that the only logical interpretation of art. 7 of the termination agreement is that should the club not pay the amounts due to the player in accordance with the termination agreement, the player can return to the employment contract and request compensation on the basis of said employment contract. In the Chamber’s view, its interpretation is further supported by art. 8 of the termination agreement which stipulates that only after the fulfilment of the terms of the termination agreement, the parties would waive any claim towards each other on the basis of the employment contract. 12. Having established that the player can revert to the employment contract, the Chamber underlined that the club held in its reply that the player i) had been absent from the club in January 2014, and ii) had been dismissed on 7 February 2014. However, the Chamber wished to point out that in the preamble of the termination agreement, the club explicitly acknowledged that it had “breached the Employment Contract and the Additional Contract, and among other, didn’t pay the player his salaries and other benefits (…)”. As such, it is clear for the Chamber that the club explicitly recognised that it did not act in compliance with the employment contract and that it had failed to pay the player his remuneration. 13. In this context, the members of the Chamber deem that, in principle, they do not need to enter into the arguments raised by the club in relation to the incidents allegedly occurred in January and February 2014, since the club had explicitly recognised its wrongdoing in the termination agreement. However, for the sake of good order, the Chamber wishes to stress that at the time the player was allegedly absent from the club, the latter was already in serious default of its payment obligations, not having remitted the player his salaries for approximately 5 months. In this respect, the Chamber refers to the well-established jurisprudence of the DRC which establishes that a party cannot request the performance of the contract, when it itself is in serious default of its own contractual obligations. Therefore, the Chamber finds that the club’s apparent decision to dismiss the player on 7 February 2014 must be considered as a premature termination of the employment contract without just cause. 14. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the club. 15. First of all, the members of the Chamber concurred that the club must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the club is liable to pay to the player the remuneration that was outstanding at the time of the termination i.e. the amount of USD 68,000, consisting of the 5 monthly salaries of September, October, November, December 2013 and January 2014, minus the amount of USD 22,000 paid in January 2014. 16. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 17. 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. 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 club to the player 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 player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 31 May 2015, taking into account that the player?s remuneration until and including January 2014 is included in the calculation of the outstanding remuneration (cf. no. II./15. above). Consequently, the Chamber concluded that the amount of USD 295,000 serves as the basis for the determination of the amount of compensation for breach of contract, consisting of 5 salary payments of USD 15,000 regarding the 2013/2014 season (February to June) and 11 salary payments of USD 20,000 regarding the 2014/2015 season (July to May). 21. In continuation, the Chamber remarked that following the early termination of the contract, the player had found new employment with Club F. In accordance with the pertinent employment contract, which has been made available by the player, he was entitled to receive a total salary of 136,000 between 31 July 2014 and 31 May 2015 which corresponds to approximately USD 36,000. 22. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 23. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the club must pay the amount of USD 259,000 to the player as compensation for breach of contract without just cause. 24. In conclusion, for all the above reasons, the Chamber decided to partially accept the player?s claim and determined that the club must pay to the player the amount of USD 68,000 as outstanding remuneration as well as the amount of USD 259,000 as compensation for breach of contract. 25. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player 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 outstanding remuneration in the amount of USD 68,000 within 30 days as from the date of notification of this decision. 3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 259,000 within 30 days as from the date of notification of this decision. 4. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and 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 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 Deputy Secretary General Encl. CAS directives