F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – debiti scaduti – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – overdue payables – 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) – debiti scaduti – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) – overdue payables – 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 12 July 2012, 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 as from the date of signature until 30 December 2013. 2. According to art. 7.1 of the contract, the Claimant was entitled to receive a monthly salary amounting to USD 60,000 net, payable “per month on 12 of each month in the period of this contract […]”. 3. According to art. 9.5 of the contract, “[the Respondent] is in charge of booking air ticket for [the Claimant]. If [the Claimant] buys the air ticket by himself, [the Respondent] shall pay [the Claimant] agreement of price of air ticket signed by and between [the Respondent] and Airline company”. 4. Furthermore, art. 15 of the contract stipulates that “if [the Claimant] violates the club rules and regulations and discipline, absenteeism, absent training and competition or violation of disciplinary penalties affect the race track, or out, home leave is not affected by time and rejoin the training, competitions, clubs and other conditions of work a parties deemed necessary, without any conditions will have the right to unilaterally terminate the contract [the Respondent] does not assume any liability, [the Claimant] has no right to any form of appeal and compensation requirements, such as by [the Respondent] to terminate the contract […]”. 5. In accordance with art. 20 of the contract, “if [the Claimant] is to be transferred to another Club in the period under contract with [the Respondent], the transfer fee belong to the [Respondent]”. 6. Finally, art. 24 of the contract establishes that “in 10 working days after the end of 2012 season […] [the Respondent] have right terminate this contract with [the Claimant] without any compensation. [The Respondent] also will not pay to [the Claimant] the rest salary”. 7. On 5 November 2013, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract, requesting the payment of the total amount of USD 840,000, plus interest, broken down as follows: a) USD 60,000 corresponding to the outstanding salary due in November 2012; b) USD 60,000 corresponding to the outstanding salary due in December 2012; c) USD 12,000 corresponding to 6 days of outstanding salary due in January 2013 (USD 60,000 : 30 x 6); d) USD 708,000 corresponding to the residual value of the contract, i.e. 11 months [February-December 2013] and 24 days [from January 2013], USD 60,000 x 11.24 as per the Claimant. 8. In his claim, the Claimant explains that the amount of USD 132,000 was allegedly outstanding at the end of the 2012 season (cf. points I.7. a), b) and c) above). In view of the lack of payment, the Claimant decided not to resume training with the Respondent after the end of the 2012 season. On 8 October 2013, the Claimant allegedly sent a letter to the Respondent in order to try to reach an amicable settlement. This letter, however, remained unanswered, as per the Claimant. 9. In its reply, the Respondent rejected the Claimant’s allegations and explained that he allegedly travelled back to his native country B at the end of the 2012 season, where he “passed his willing to serve to Club E through our team translator to our club. And the player asked for releasing his ITC from country D back to country B”. As a consequence, and referring to art. 24 of the contract (cf. point I.6. above), the Respondent terminated the contract with the Claimant on 2 December 2012. In its termination letter, the Respondent states that “according to the report of coaches’ decision, your ability isn’t fit for the request of training and playing matches for our team […] And also finish all the economic relation between our club and you”. Equally, taking into account the Claimant’s absence after the holiday break, the Respondent pointed out that it had a just cause to terminate the contract based on art. 15 of the contract (cf. point I.4. above). Finally, the Respondent, referring to art. 20 of the contract (cf. point I.5. above), stated that it is entitled to receive the relevant transfer compensation that would have arisen from the transfer of the Claimant to the Club E Association. Thus, the Respondent deems not to have any obligation to pay compensation to the Claimant since their contractual relationship ended at the end of the 2012 season. 10. In his replica, the Claimant confirmed having travelled to country B for holidays at the end of the 2012 season. In this context, he explained that he was willing to return to country D and resume training after the holiday break but, ultimately, remained in country B due to the alleged existence of outstanding salary payments and to the fact that the Respondent failed to provide him with a return ticket to country D. Equally, the Claimant stated never having received the Respondent’s communication regarding the termination of the contract on 2 December 2012 and insists that he terminated the contract with the club with just cause at the end of the 2012 season. With regard to the Respondent’s request for the payment of a transfer compensation in accordance with art. 20 of the contract, the Claimant claims that the Respondent should not be entitled to it, since it alleges having terminated his contract on 2 December 2012 already, whereas his ITC was only issued by the Football Association of country D on 25 January 2013, i.e. after the Respondent had considered their contract as terminated. 11. In spite of having been invited to do so, the Respondent failed to present its final comments on the present affair. 12. The Claimant informed FIFA that he concluded the following new employment contracts: a) Club E (country B), from 3 January 2013 until 2 January 2014 for a monthly salary of USD 15,000. As per the player, this contract was terminated on 15 June 2013; b) Club F (country G), from 10 October 2013 until 30 June 2015, for a monthly salary of 1,082,000. As per the player, this contract was terminated on 15 December 2014. 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 5 November 2013. 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 5 November 2013, 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 12 July 2012, they signed an employment contract valid until 30 December 2013, 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 failed to pay his remuneration for November and December 2012, consequent to which he decided not to resume training with the club after the his year-end holidays in December 2012 and to sign a new employment contract with the club from country B, Club E, on 3 January 2013. Thus, the Claimant claims from the Respondent the payment of the total amount of USD 840,000, as outstanding remuneration and compensation, the breakdown of which is detailed in point I.7. above. 7. The Chamber also took note of the argumentation of the Respondent, which claims to have terminated the contract with the Claimant in writing on 2 December 2012, due to his allegedly poor performance (cf. point I.9. above). The Respondent also claims that, since the Claimant did not return to the club at the end of his 2012 year-end holidays, it had another just cause to terminate the contract with 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. In this context, the DRC first noted that, while the Respondent claims to have terminated the contract with the Claimant in writing on 2 December 2012, the Claimant denies having ever received such letter from the Respondent and deems to have terminated the contract unilaterally by not returning from his holidays at the end of 2012. The Chamber then noted that the Respondent had provided a copy of the termination letter of 2 December 2012. Furthermore, the DRC noted that, even though the Claimant contests having received such letter, the latter was uploaded in the Transfer Matching System (TMS) by Club E, in the context of the Claimant’s transfer to the club from country B in January 2013. The transfer is described in TMS as “engage out of contract free of payment” and the termination letter of 2 December 2012 is uploaded as “proof of last contract end date”. 10. In view of the foregoing and based on the documentation at its disposal, the Chamber deemed that the Respondent put an end to the contractual relationship on 2 December 2012. 11. Having established the foregoing, the Chamber subsequently went on to deliberate as to whether the reasons given by the Respondent for the unilateral termination on 2 December 2012, i.e. the Claimant’s alleged insufficient performance and his failure to return from his 2012 year-end holidays, could be considered as a just cause for it to prematurely terminate their employment relationship. 12. In accordance with its longstanding and well-established jurisprudence, the Chamber was keen to emphasize that the poor performance of a player – indicated in the Respondent’s letter of 2 December 2012 as the reason for termination – does not constitute a just cause for a club to prematurely terminate the employment relationship, as this judgement is mainly and unmeasurable. Thus, due to the subjective and arbitrary nature of such grounds for dismissal, the Chamber concluded that this argument of the Respondent could not be sustained in order to justify the unilateral termination of the contract on 2 December 2012. 13. In addition to that, the DRC was keen to point out that the Claimant’s nonreturn from his year-end holidays happened nearly a month after the Respondent had terminated the contract on 2 December 2012. Therefore, it could not possibly be retroactively considered as a just cause for the unilateral termination of the contract by the Respondent. 14. Consequently, the DRC concluded that the contract was terminated without just cause by the Respondent on 2 December 2012. Consequently, the Respondent is to be held liable for the payment of an amount of money to the Claimant as compensation for such unilateral breach without just cause. 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. 2 December 2012. 16. At this point and for the sake of good order, the DRC deemed it appropriate to remind the parties 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 it remained uncontested by the Respondent that, as from November 2012, no contractual amounts had been paid to the Claimant. 18. Taking into consideration the Claimant’s claim as well as the wording of art. 7.1 of the contract (cf. point I.2. above), the Chamber concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the employment contract concluded with the Claimant and, consequently, is to be held liable to pay him the total amount of USD 60,000, as outstanding salary for November 2012, as the only unpaid salary due until the date of termination. 19. The DRC further established that an interest rate of 5% p.a. applies over the aforementioned amount, as from 5 November 2012, i.e. the date of claim. 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. The DRC referred to art. 15 of the contract (cf. point I.4. above). In this regard, the DRC concluded that such clause – describing a possibility of unilateral termination of the contract by the Respondent to the financial disadvantage of the Claimant, in total disagreement with the longstanding jurisprudence of the DRC – cannot be taken into consideration for the determination of the amount of compensation payable by the Respondent to the Claimant. In any case, the DRC was keen on pointing out that none of the situations described in art. 15 of the contract appear to apply to the case at hand. 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-by-case 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 2 December 2012 until 30 December 2013, corresponding to 13 months à USD 60,000, amounted to USD 780,000. 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 new employment contracts with the club from country B, Club E, on 3 January 2013, and with the club from country G, Club F, on 10 October 2013, according to which he was entitled to receive the amounts detailed in point I.12. above. 27. Consequently, the Chamber established that the total value of the new employment contracts concluded between the Claimant and Club E and, subsequently, Club F, for the period of 3 January 2013 until 30 December 2013, amounted to approximately USD 95,000, 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 USD 685,000 to the Claimant, plus 5% interest p.a. as of 5 November 2013, 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 USD 60,000 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 USD 60,000 as outstanding remuneration, plus 5% interest p.a. as from 5 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 USD 685,000 as compensation for breach of contract, plus 5% interest p.a. as from 5 November 2013 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