F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 24 April 2015, in the following composition: Geoff Thompson (England), Chairman Leonardo Grosso (Italy), member Theo van Seggelen (Netherlands), member Philippe Diallo (France), member Todd Durbin (USA), member on the matter between the player, Player A, country B as Claimant and the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 24 April 2015, in the following composition: Geoff Thompson (England), Chairman Leonardo Grosso (Italy), member Theo van Seggelen (Netherlands), member Philippe Diallo (France), member Todd Durbin (USA), member on the matter between the player, Player A, country B as Claimant and the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 25 January 2014, the player from country B, Player A (hereinafter: the Claimant), concluded a “Professional contract” (hereinafter: the contract) with the club from country D, Club C (hereinafter: the Respondent), valid as from 1 February 2014 until 31 January 2015. 2. In accordance with the contract, the Claimant was entitled to the following remunerations and rights: III. Obligations of the Club: The club is obliged to: Provide the player with the following remunerations: Monthly fixed remuneration in the amount of EUR 5.000 (in words: Five Thousand Euros) (…) Create favorable conditions for training, realization of daily regime of the player, regeneration and rehabilitation and to provide quality medical and therapeutic service. (…) Provide the Player with an accommodation paid for by the Club in an approximate value of EUR 500 (in words: Five Hundred Euros). Provide the Player with meals paid for by the Player in value up to EUR 10 (in words: ten Euros) per day. 3. In addition, the contract included, inter alia, the following clauses: V. 9) The contracting parties declare that they shall submit to the decision of the competent body of the Football Association of country D in the event of a dispute over whether there are any reasons of termination or not or whether the notice of termination or its refusal respectively are valid. VI. Final Provisions 1) The contracting parties undertake that they shall exercise mutual rights and obligations in accordance with regulations of the Football Association of country D, UEFA and FIFA. The contracting parties accept the regulations and rules of these organizations and consider them binding and submit to them as well as the decisions of bodies of the Football Association of country D, UEFA and FIFA that will apply to them. 4. On 29 July 2014, the Claimant lodged a claim against the Respondent for breach of contract without just cause. 5. In his claim, the Claimant requested the payment of the following amounts, plus default interest of 5% p.a. on each due amount: - EUR 20,000 as outstanding salaries for the months of February, March, April and May 2014; - EUR 40,000 as compensation, corresponding to the remaining salary until the agreed period for the end of the contract in January 2015; - EUR 5,500 as compensation, corresponding to accommodation costs during the period comprised between March 2014 and January 2015; - EUR 3,360 as compensation, corresponding to daily meals during the period between March 2014 and January 2015. 6. In addition, the Claimant requested the Dispute Resolution Chamber to order the Respondent to pay damages in the amount of EUR 11,300, a sum that is composed of EUR 300 for surgical costs and EUR 11,000 for post-surgical rehabilitation. Furthermore, the Claimant requested the payment of EUR 10,000 for moral damages. 7. Moreover, the Claimant requested the Dispute Resolution Chamber to impose sporting sanctions to the Respondent on the basis that he was under 23 years of age when he signed his contract. 8. According to the Claimant, on 28 January 2014, he was called to undertake a medical examination conducted by the medical staff of the Respondent. 9. As acknowledged by the Claimant, on 5 February 2014, while participating in his third friendly match playing with the Respondent, he suffered a severe knee injury. 10. On 15 February 2014, and according to the Claimant, the Respondent’s medical staff determined that he could not participate in any sporting activity until the end of the year 2014. 11. On 24 February 2014, the Claimant apparently sent a fax and an email to the Respondent, where he expressed his concerns on the Respondent’s lack of contact and information regarding his medical treatment. 12. On 4 March 2014, the Claimant apparently contacted the Respondent via email, and informed it that he had to go to country B to receive surgical and postsurgical treatment. 13. On that same date, and according to the Claimant, the Respondent agreed with his repatriation. In this regard, the Claimant explained that he underwent a knee operation in city E, country B, on 12 March 2014. 14. On 13 May 2014, and according to the Claimant, the Respondent notified him via email that the contract was deemed not valid, thereby referring to alleged the failure to pass the medical examination. 15. According to the Claimant, the Respondent had an obligation to provide him with medical treatment, but instead of complying with this, the Respondent was seeking for a mutual termination of the contract. The Claimant stated that the Respondent’s negligence to provide medical treatment endangered his professional career, and that he had to assume the surgery costs. 16. In its reply to the claim, the Respondent stated that the contract in question has never been concluded, and never came into force and effect, as it lacked “a second functionary (statutory representative) signature, company’s stamp and player agent’s signature”. According to the Respondent, the Claimant has never been registered with the Football Association of country D and the transfer was never inserted into the FIFA Transfer Matching System (TMS). 17. Subsequently, the Respondent denied FIFA’s competence since, in its own view, there is an independent arbitration body at the level of the Football Association of country D. In this regard, the Respondent provided a translated version of the Rules of Arbitration management of the Football Association of country D (hereinafter: NDRC regulations). In particular, the Respondent underlined that each party can choose one arbitrator to deal on behalf of their party. 18. After being requested by FIFA to provide further details on the competence, the Respondent provided a full copy of the NDRC regulations. 19. Moreover, the Respondent denied the validity of the contract and considered that “even assuming that the contract in question is valid”, the rules of competence are included in art. V par. 9 and art VI par. 1 of the contract. The Respondent declared that the Claimant himself recognized that the contract was invalid by signing a contract with a new club. 20. In addition, the Respondent declared that the Claimant misled it in relation to his health, as he insisted to undergo the medical examination only after the contract was signed. 21. In relation to the competence, the Claimant stated that the jurisdiction clauses contained in the contract do not make clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players, and that in any case, article V par. 9 and article VI par. 1 of the contract do not grant exclusive competence to the Arbitration Body of the Football Association of country D. 22. In addition, the Claimant considered that the contract does not fall within the jurisdiction of the Football Association of country D since it was not registered with it. 23. Moreover, and due to the allegedly unclear language used in the contract, the Claimant requested the application of the “in dubio pro operario” principle of law. 24. Finally, the Claimant stated that the Arbitration Body of the Football Association of country D does not meet “minimum procedural standards for independent arbitration tribunals laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players”. Particularly, the Claimant questioned the system of nomination of the representatives of the players, as art. 1.2 of the NDRC regulations states that the members of the Arbitration Board are appointed by members of the clubs or by registered players. More specifically, the player considered that he was not registered at the Football Association of country D, and that he therefore “would not be able to influence the selection of the Tribunal.” 25. Concerning the allegations regarding his health, the Claimant considered that the Respondent was unable to substantiate them by evidence. In particular, the Claimant highlighted that the medical report dated 28 January 2014 unambiguously stated that he was “currently without any health problems”, consequently revealing a contradiction in the Respondent’s submission. 26. In its final comments, the Respondent confirmed its views on the validity of the contract and on the competence. In particular, the Respondent insisted on the conformity of the Arbitration Body of the Football Association of country D with the FIFA regulations. The Respondent also insisted that it was misled by the Claimant and his agent in relation to the Claimant’s health. The Respondent stated that, even if the DRC considers the contract as valid, the Claimant did not complete the initial examination, which means that the contract did not come into force. 27. Finally, the Claimant informed FIFA that, on 9 July 2014, he concluded a new employment contract with the club from country B Club F, valid until 30 November 2015, which entitled the Claimant to a monthly remuneration of EUR 757 until his full recovery. In addition, the aforementioned contract established that the Claimant would be entitled to the amount of EUR 2,073 per month after his recovery. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 29 July 2014. 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 2012, 2014 and 2015 editions of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a player and a club that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves a player from country B and a club from country D regarding an employment-related dispute. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of arts. V par. 9 and VI par. 1 of the contract, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the Arbitration Body of the Football Association of country D (hereinafter: NDRC of country D). 5. In this regard, the Chamber acknowledged that the Claimant insisted on the fact that FIFA has jurisdiction to deal with the present matter. 6. Taking into account the above, the Chamber emphasised 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. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. While analysing whether it was competent to decide on the present matter, the Chamber first referred to the fact that the Claimant had never been registered with the Football Association of country D. The Chamber held that, as a consequence of the fact that the Claimant had never been registered with the Football Association of country D, the Claimant had evidently also never fallen under the jurisdiction of the Football Association of country D. The foregoing fact was, in the Chamber’s view, the first basis on which it could be established that the NDRC of country D is not competent to adjudicate on the matter between the Claimant and Respondent. 8. In addition, the Chamber also deemed it vital to outline that another basic condition that needs to be met in order to establish that another organ than the DRC is competence to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court 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 also analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause. 10. In this respect, the Chamber recalled that clause VI. of the employment contract stipulated that: “1) The contracting parties undertake that they shall exercise mutual rights and obligations in accordance with regulations of the Football Association of country D, UEFA and FIFA. The contracting parties accept the regulations and rules of these organizations and consider them binding and submit to them as well as the decisions of bodies of the Football Association of country D, UEFA and FIFA that will apply to them.” 11. Having examined the relevant provision, the Chamber came to the unanimous conclusion that clause VI. of the employment contract does not constitute a clear jurisdiction clause in favour of one specific court of arbitration tribunal in the country D, since it also referred to “the decisions of bodies of the Football Association of country D, UEFA and FIFA”. 12. As a result, and taking into consideration all of the above circumstances, the Dispute Resolution Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 13. The competence of the Chamber having been established, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 (editions 2012, 2014 and 2015), and considering that the present matter was submitted to FIFA on 29 July 2014, the 2012 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 14. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand. 15. In particular, the Chamber took note that on 25 January 2014, an employment contract was concluded between the parties for the period from 1 February 2014 until 31 January 2015. 16. In this respect, the Chamber analysed the argument provided by the Respondent, according to which the contract never came into force and effect, as it lacked “a second functionary (statutory representative) signature”. 17. In this regard, the DRC decided that such argumentation cannot be upheld due to the fact that in accordance with the principle of good faith or “bona fide”, to be respected by the parties during the conclusion of contract, the Claimant was in good faith authorized to believe that the person signing the relevant agreement on behalf of the Respondent was legally authorized to sign it on behalf of the Respondent. Equally and in accordance with the principle of burden of proof, the Chamber outlined that the Respondent never provided documentary evidence demonstrating that the Claimant was aware of the situation outlined by the Respondent at the moment of signing the pertinent agreement. 18. Furthermore, the DRC also considered the Respondent’s argument, by means of which it considered that the contract was not valid because it has never been registered with the Football Association of country D and the transfer was never inserted on the TMS. 19. In this regard, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence. In this regard, the DRC pointed out that it is the responsibility of the engaging club to ensure that the player is properly registered with his new club in order to be able to provide it with his services. Since the Respondent is supposedly interested in acquiring the rights of the Claimant and in benefiting from his services, it is also expected from it that it acts accordingly in view of obtaining the player’s ITC and his subsequent registration. 20. In view of the foregoing, the members of the Chamber unanimously agreed that the contract was properly concluded and formalized between the parties. 21. Thereafter, the members of the Chamber examined the argument of the Claimant, according to which the Respondent terminated the contract without just cause on 13 May 2014, when it sent a notification to the Claimant by email, informing him that it deemed the contract to be invalid, thereby referring to the medical examination. 22. In this respect, the DRC stressed that the aforementioned notification and its contents were not disputed by the Respondent. Consequently, the members of the Chamber unanimously agreed to establish that the Respondent terminated the employment contract on 13 May 2014. 23. Having established the foregoing, the Chamber turned its attention to the question as to whether the contract had been terminated by the Respondent with or without just cause. 24. In this context, the Chamber considered it to be of utmost relevance to highlight the chronology of the events leading to the termination of the contract, as follows: 25. On 25 January 2014, the Claimant concluded a contract with the Respondent. 26. On 28 January 2014, the Claimant passed a medical test conducted by the medical staff working for the Respondent. According to the relevant medical report submitted by the Respondent: “Subjectively: [the Claimant is] currently without any health problems, but according to the [Claimant] he had low back pain 2 months ago”. 27. On 1 February 2014, the contract concluded between the Claimant and the Respondent entered into force. 28. On 5 February 2014, the Claimant, while participating in a friendly match with the Respondent, suffered a severe knee injury. 29. On 13 May 2014, the Respondent notified the Claimant about the termination of the contract, referring to the alleged failure to pass the medical examination. 30. At this point, the Chamber was eager to point out that it was undisputed that the medical examination conducted by the Respondent did not reveal any health condition of the Claimant and that he only got injured after the contract had been signed by the parties 31. Taking into account the undisputed chronology of the events, the members of the Chamber unanimously concluded that the Respondent terminated the contract on the basis of the Claimant’s medical condition. 32. First and foremost, in the light of the main reason at the basis of the termination of the contract in the matter at hand, i.e. the Claimant’s medical condition, the Chamber wished to emphasise that on the basis of art. 18 par. 4 of the Regulations and the Chamber’s respective jurisprudence, a club wishing to employ a player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract with a player. 33. The members of the Chamber noted from the file that the Claimant had been medically checked prior to the signature of the contract by and between the parties, following which he had been medically cleared. 34. For the sake of good order, the Chamber also considered the Respondent’s argument, according to which the Claimant misled it about its medical condition prior to the signature of the contract. 35. On account of the aforementioned chronology of the events, the members of the Chamber underlined that the Claimant, as undisputed by the Respondent, satisfactorily passed a medical test for the Respondent before the entry into force of the contract. Consequently, the members of the Chamber unanimously agreed that the argument brought by the Respondent by means of which it considered that the Claimant misled it about its medical condition cannot be upheld. 36. In view of the aforementioned, the Chamber stated that the unilateral termination of the employment contract on 13 May 2014 by the Respondent constitutes a breach of contract without just cause. 37. 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 Respondent. 38. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of termination, i.e. the amount of USD 16,610, consisting of three salaries for the months of February 2014, March 2014 and April 2014, as well as their related costs for housing and daily meals as agreed upon in the contract, plus 5% interest p.a. as from the dates on which the aforementioned payments became due, as requested by the Claimant. 39. In continuation, 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 in addition to any outstanding salaries on the basis of the relevant employment contract. 40. 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 Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 41. 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. 42. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a 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. 43. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 44. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination without just cause by the Respondent, i.e. 13 May 2014, until 31 January 2015, and concluded that the Claimant would have received in total EUR 52,200 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 52,200 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 45. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Claimant’s general obligation to mitigate his damages. 46. The Chamber recalled that, on 9 July 2014, the Claimant signed an employment contract with the club from country B, Club F, valid until 30 November 2015, in accordance with which he was to receive a monthly salary of EUR 757 during his injury and of EUR 2,073 following his recovery. The members of the Chamber understood that the Claimant would have earned a total income of EUR 9,247 during the period comprised between July 2014 and January 2015. 47. As a result of the above, the DRC decided that the Respondent must pay the amount of EUR 42,953 to the Claimant, which is considered by the Members of the Chamber to be a reasonable and justified amount as compensation for breach of contract. 48. In addition, and as requested by the Claimant, the Members of the Chamber unanimously agreed to award the Claimant with interest for the amount due for compensation for breach of contract without just cause in the rate of 5% p.a. as of the date of the claim (i.e. 29 July 2014). 49. Furthermore, as regards the Claimant’s request pertaining to moral damages, the Chamber agreed that such claim is to be rejected due to a lack of legal basis. 50. In addition, in relation to the Claimant’s claim pertaining to the refund of medical costs due to his injury, estimated by him in the amount of EUR 11,300, the Chamber took note that the Claimant failed to provide any objective valuation of said costs. Consequently, the Chamber agreed that such claim is to be rejected due to a lack of evidence. 51. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are 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 C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 16,610, plus interest as follows: - 5% interest p.a. over the amount of EUR 5,000 as of 1 March 2014 until the date of effective payment. - 5% interest p.a. over the amount of EUR 5,810 as of 1 April 2014 until the date of effective payment. - 5% interest p.a. over the amount of EUR 5,800 as of 1 May 2014 until the date of effective payment. 4. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 42,953, plus 5% interest p.a. as of 29 July 2014 until the date of effective payment. 5. In the event that the aforementioned sums plus interest are not paid 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. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 3. and 4. 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 (CAS) Avenue de Beaumont 2 CH-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 Enclosed: CAS directives