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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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.

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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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 28 May 2012, the player from country B, Player A (hereinafter: player or Claimant) and the club from country D, Club C (hereinafter: club or Respondent) concluded an employment contract valid as from 1 July 2012 until 30 June 2015 (hereinafter: the contract). 2. According to article 5.1 of the contract, the player was entitled to receive, inter alia, 12 monthly salary payments of EUR 19,166.67 in the period between 1 July 2014 and 30 June 2015, payable on the 25th day of the next month. 3. On 30 June 2014, the player was transferred on a temporary basis to the club from country B, Club E (hereinafter: Club E), for the period between 1 July 2014 and 30 June 2015 for a loan fee of EUR 80,000. In this respect, the club, the player and Club E concluded a document referred to as ‘Football Player International Contract’ (hereinafter: the loan transfer contract), whereby the parties agreed to transfer the “federative sportive rights” of the player from the club to Club E as per 1 July 2014. 4. Article 8 of the loan transfer contract stipulates: ‘Club C is responsible to pay to Player A the monthly salary of EUR 19.166.67 EUR NET due according to article 5.1. a) of the Civil Convention related to the season 2014/2015. With this payment and in which concerns to season 14/15 the player does not have nothing else to receive from Club C. During the temporary transfer the Player will not receive any other amounts, flight tickets, house rent from his Former Club (i.e. Club C) except his monthly salaries related to the season 2014/2015.’. 5. Article 9 of the loan transfer contract provides for the following: ‘According to the temporary transfer agreement signed between Club C, Association of country B and the Player for the season 2013/2014, Club C was responsible to pay to Player A the total net amount of Euro 109,999.98 for the period 01.01.2014 – 30.06.2014. The remaining due amounts related to the season 2013/2014 will be paid as follows: 35% (Thirty Five Percent) from the due amount will be paid until 15.09.2014; 35% (Thirty Five Percent) from the due amount will be paid until 15.12.2014; 30% (Thirty Percent) from the due amount will be paid until on 15.03.2015.’ Further, article 9 of the loan transfer contract provides for the following: ‘With these payments and in which concerns to season 13/14 the player does not have nothing else to receive form Club C’. 6. On 24 September 2014, the club, the player and Club E concluded an agreement (hereinafter: the agreement dated 24 September 2014), which establishes that Club E owed EUR 80,000 to the club and that the club owed EUR 80,000 to the player ‘representing salaries for the season 2014/2015’. As a result, it was agreed that Club E would pay the amount it owed to the club, directly to the player. Furthermore, the player confirmed that the only outstanding payment related to the period 1 July 2014 until 30 November 2014 vis-à-vis the club was the ‘remaining salary’ for the month November 2014, in the amount of EUR 15,833.35. 7. On 23 January 2015, the player put the club in default for not having paid the total outstanding amount of EUR 112,000 related to the first two instalments as mentioned in article 9 of the loan transfer contract, the amount of EUR 15,833.35 as salary for the month November 2014 and the salary of EUR 19,166.67 for the month December 2014. According to the player, the club did not pay the requested amounts. 8. On 24 February 2015, the player informed the club that the salary for the month January 2015 would become due on 25 February 2015, and informed the club that he would prematurely terminate the contract, if said salary payment as well as the amount of EUR 112,000 was not received on 25 February 2015. 9. After not having received the relevant amounts, on 26 February 2015, the player terminated the contract with immediate effect. 10. On 10 February 2015, the player lodged a claim before FIFA against the club for outstanding remuneration (which claim was amended on 5 March 2015 with a claim for breach of contract), requesting the total amount of EUR 260,000.03, as follows: Outstanding remuneration in the total amount of EUR 164,166.68, as follows: EUR 76,999.99 as the first and second instalment of article 9 of the loan transfer contract; EUR 33,000 as the third instalment of article 9 of the loan transfer contract; EUR 15,833.35 as the residual salary for November 2014; EUR 19,166.67 as salary for the month December 2014; EUR 19,166.67 as salary for the month January 2015. Compensation for breach of contract in the total amount of EUR 95,833.35: EUR 95,833.35 as residual value of the contract ‘representing the salaries of the player until the termination of the contract’, i.e. the salaries for the months February, March, April, May and June 2015 of EUR 19,166.67 each. The player further claimed 5% interest on the above-mentioned amounts ‘in accordance with Swiss law’ and asked for the reimbursement by the club of his legal fees. 11. In its reply to the claim of the player, the club asked for the suspension of the case, due to the fact that since 4 February 2015, the club is in insolvency proceedings. Further, the club stated that on 13 March 2015, the player enrolled his claim of EUR 164,166.67 in the ‘preliminary table of debts’ and the claim is currently pending before the Commercial Court of country D. 12. In his replica, the player requested FIFA to proceed with the case, since ‘the insolvency estate of the Club does not affect the present procedure, which aims at the recognition not only of the salaries in arrear, but also compensation in view of the premature contractual termination without characterized just cause by the club, or, alternatively with just cause by the player as stipulated in article 17 of the RSTP’. 13. Despite being invited to do so, the player did not provide FIFA with an update of his employment situation after 26 February 2015. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 10 February 2015. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are 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 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 (edition 2015), and considering that the present claim was lodged on 10 February 2015, the 2014 edition of said regulations (hereinafter: 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, the Chamber entered into the substance of the matter. In this respect, 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 Chamber started by acknowledging that the parties to the dispute had signed an employment contract, valid from 1 July 2012 until 30 June 2015, in accordance with which the Respondent would pay the Claimant inter alia during the season 2014/2015 a monthly salary of EUR 19,166.67. Further, the Chamber noted that the Claimant, the Respondent and Club E also signed a loan transfer contract, on the basis of which the Claimant would be transferred to Club E during the 2014/2015 season and under which the Claimant was entitled to receive from the Respondent the total amount EUR 109,999.98 related to the season 2013/2014, as well as salary in the amount of EUR 19,166.67 during the season 2014/2015. Further, the members of the Chamber noted that based on the agreement dated 24 September 2014, the Claimant was entitled to receive the amount of EUR 15,833.35 related to the month November 2014. 6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 26 February 2015, after previously having put the club in default, since the Respondent allegedly failed to pay the Claimant’s remuneration. In this respect, the Claimant argues that the Respondent failed to pay him the total amount of EUR 109,999.98 related to the season 2013/2014, as well as the salaries for November 2014, December 2014 and January 2015, at the time he terminated the employment contract. Consequently, the Claimant requested on 10 February 2015 to be awarded his outstanding dues as well as - after amending his claim on 26 February 2015 - the payment of compensation for breach of the employment contract. 7. The Respondent, for its part, failed to present its response as to the substance of the claim of the Claimant, in spite of having been invited to do so, but only requested for the suspension of the case. This because it is under insolvency proceedings since 4 February 2015 and because of the fact that the Claimant already enrolled his claim in the ‘preliminary table of debts’, which claim is currently pending before a court of country D. 8. With respect to the request put forward on behalf of the Respondent to suspend proceedings in which the Respondent is involved due to the insolvency, the Chamber stressed that in accordance with the jurisprudence of both the DRC and the Court of Arbitration for Sport, bankruptcy/insolvency procedures do not affect procedures in front of the DRC. In fact, the Chamber wished to outline that it is only requested to address the recognition of the Claimant’s claim and not the execution of a possible debt. What is more, the members of the Chamber noted that no decision has been taken regarding the claim enrolled by the player in the insolvency proceedings in country D. Consequently, the Chamber decided that such request has to be dismissed. 9. Furthermore, as a consequence of the aforementioned considerations, and the lack of response as to the substance of the matter by the Respondent, the members of the Chamber further focused on the arguments and the documentation presented by the Claimant. 10. In accordance with the contract, the loan transfer contract and the agreement dated 24 September 2014, the Respondent was obliged to pay to the Claimant at the time the contract was terminated by the player, i.e. on 26 February 2015, the amount of EUR 76,999.99 as the first two instalments of the loan transfer contract, due on 15 September 2014 and 15 December 2014, the amount of EUR 15,833.35 as salary for November 2014 (due on 25 December 2014), the amount of EUR 19,166.67 as salary for December 2014 (due on 25 January 2015) and the amount of EUR 19,166.67 as salary for January 2015 (due on 25 February 2015). 11. On account of the aforementioned, in particular in view of the considerations under point II./9. and II./10. above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 26 February 2015, date on which the Claimant terminated the contract, the total amount of EUR 131,166.68. Consequently, and considering that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 26 February 2015 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 12. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination. In this regard, the members of the Chamber first of all determined that the Respondent is to pay the amount of EUR 131,166.68 as outstanding remuneration to the Claimant. 13. Furthermore, and considering the player’s claim for interest, the Chamber ruled that the club must pay 5% interest on the amount of EUR 131,166.68 as from the date the claim was lodged. 14. 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. 15. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent in the case at stake. In doing so, the members of 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 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. 16. 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. 17. 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. 18. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until 30 June 2015 as well as under the loan transfer contract, taking into account that the player?s remuneration until January 2015 is included in the calculation of the outstanding remuneration (cf. no. II./10. above). Consequently, the Chamber concluded that the amount of EUR 128,833.35 (i.e. remuneration as from February 2015 until June 2015, as well as the amount of EUR 33,000 as the third instalment of article 9 of the loan transfer contract) serves as the basis for the determination of the amount of compensation for breach of contract. 19. 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 player’s general obligation to mitigate his damages. 20. However, in accordance with the loan transfer agreement, signed by the Claimant, the Respondent and Club E, the Claimant was only entitled to receive payments from the Respondent during the course of the loan period. Consequently, the Chamber established that no amounts shall be deducted from the amount of compensation for breach of contract as claimed by the Claimant. 21. As a result, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 128,833.35 as compensation for breach of contract in the case at hand. 22. In addition, taking into account the Claimant’s request as well as the constant practice of the Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was amended with the request for compensation for breach of contract, i.e. 5 March 2015, until the date of effective payment. 23. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 24. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged 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, 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 131,166.68 plus 5% interest p.a. as from 10 February 2015 until the date of effective payment. 3. 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 128,833.35 plus 5% interest p.a. on said amount as from 5 March 2015 until the date of effective payment. 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, 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 Acting Secretary General Encl. CAS directives