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 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Mohamed Al-Saikhan (Saudi Arabia), member Mario Gallavotti (Italy), member on the matter between the player, Player A, country B as Claimant 1 / Respondent 2 and the club, Club C, country D as Claimant 2 / Respondent 1 and the club, Club E, country F as Intervening Party 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 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Mohamed Al-Saikhan (Saudi Arabia), member Mario Gallavotti (Italy), member on the matter between the player, Player A, country B as Claimant 1 / Respondent 2 and the club, Club C, country D as Claimant 2 / Respondent 1 and the club, Club E, country F as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 22 August 2013, the player from country B, Player A (hereinafter; the player) and the club from country D, Club C (hereinafter; Club C or the club) concluded an employment contract valid as of the date of its signature until 31 December 2015. 2. According to Annexe 2 of the employment contract, the player was entitled to receive as remuneration from Club C a monthly salary of 9,800. Equally, in accordance with Annexe 3 of the employment contract, Club C undertook to pay the player a monthly salary of USD 13,000. 3. Moreover, clause 6.3 of the contract stipulated that “Amendments and addenda to the present Contract, introduced in written form and signed by plenipotentiaries of the Parties are an integral part of the present contract”. 4. On 20 May 2014, the player, via his legal representatives, put Club C in default of payment of “three salaries” requesting the payment of USD 39,000 and 29,400, within 3 days of receipt of the notification. 5. By letter dated 25 May 2014, apparently received by the player on 26 May 2014, Club C replied inter alia as follows: “Club C confirms its willingness to act in full compliance with (…) the contract with the player. We have reiterated our assurance in conversation with the Player on May 22nd. Additionally, we have notified the player of the time-terms which are planned by the Club in regard of paying salaries (…) and we did not meet objections against such terms…”. 6. On 26 May 2014, the player replied, via his legal representatives, denying having accepted any rescheduling of his salaries and putting the club in default for a second time, requesting to receive the payment within 3 days of receipt of the notification. 7. On 29 May 2014, Club C reverted to the player in similar terms as in its previous letter adding that “during the [conversation of 22 May 2014] the player expressed the wish to receive his salary in cash in the office of the Club within the agreed terms. Therefore, the club would like to receive the proper notification from the Player about his will to receive the money via the bank transfer (…)”. 8. On 30 May 2014, the player himself replied to Club C’s last correspondence ratifying the content of his previous letters, denying once again that he had ever agreed to reschedule the payment of his salaries, emphasising that “I personally specifically refused to reschedule such payments” and providing Club C with a last chance for the payment of his outstanding salaries within 72 hours. 9. In this context and as Club C failed to pay him his alleged outstanding salaries, on 4 June 2014, the player terminated the contract invoking just cause. 10. On 26 June 2014, Club C requested the player to return to the club and stressed, inter alia, that it “is ready to meet its obligations”. Likewise, Club C stated that “the Player’s presence in Lutsk is necessary for accomplishment the payments” as Club C, being a legal entity under the law of country D, “is not allowed to enroll and transfer salaries under the employment contract to the accounts abroad country D”. 11. On 30 June 2014, the player answered to Club C’s correspondence reiterating the termination of the contract with just cause. 12. On 1 July 2014, the player lodged a claim against Club C in front of FIFA requesting as follows: a. USD 39,000 as outstanding salaries of March, April and May 2014 as per Annexe 3 of the contract plus 5% interest as of the due dates; b. 29,400 as outstanding salaries of March, April and May 2014 as per Annexe 2 of the contract plus 5% interest as of the due dates; c. USD 247,000 as well as 186,000 as compensation for breach of contract plus 5% interest as of 4 June 2014; d. Sporting sanctions on Club C; e. Legal and procedural costs. 13. In particular, the player explained that Club C failed to pay him his salaries of March, April and May 2014 in accordance with Annexe 2 and 3 of the contract, reason for which he put the club in default three times. 14. Moreover, the player argued that Club C not only failed to pay him three consecutive salaries but that it “even falsely stated that the player would have agreed to reschedule such payments”. The player further stressed that the aforementioned facts “made him lose his faith that the club would in the future comply with its obligations”. 15. On account of the above, the player alleged that his termination of the contract was with just cause and thus, on top of his outstanding salaries, he is entitled to receive from Club C compensation for breach of contract. 16. On 8 October 2014, Club C filed in front of FIFA a separate claim against the player claiming inter alia the amounts of USD 234,000 and 176,000 as compensation for breach of contract. 17. In particular, Club C argued that on “21 May 2014”, the club’s management met with the player and informed him “about the planned time-terms for salary payments to football players and didn’t meet any objections against such terms on the Player’s side”. Moreover, Club C argued that the player accepted such terms and that he requested for the payments to be made in cash. Consequently, according to Club C, “the parties agreed that the Player would receive all the payments he was entitled to under the Contract in the Club’s office upon his return to the Club to pass pre-season training starting on 22.06.2014 (…)”. 18. Club C further argued that on 22 May 2014, the player left for the vacation period and that thereafter, contrary to what was agreed, he started to send, via his legal representatives, letters asking for the payment of his salaries. 19. In this respect, Club C stressed that the player “has deliberately created the preconditions to deprive the club of the opportunity to fulfil its obligations under the contract”. Club C argued that in accordance with law of country D, a legal entity incorporated under the Laws of country D is not permitted to make salary payments to foreign bank accounts, situation which, according to Club C, was known by the player. Therefore, Club C argued that the player “blocked the club’s opportunities” to comply with its obligations. 20. In this context, Club C explained that it was not the first time that the player had tried to terminate a contract with the club. Club C asserted that in 2013, the player tried to use the same “tactic” to terminate a previous contract concluded between the parties. Therefore, according to Club C, the player was aware of the fact that Club C could not make payments to a foreign bank account. As such, Club C argued that “all player’s actions regarding the contract in 2014 were conscious and based on the previous experience gained in 2013”. 21. In addition, Club C alleged that the “loss of confidence” argued by the player is inconsistent with their labour relationship history which dates back to 2009. Moreover, Club C argued that the player breached several provisions of the employment contract as he “ignored the requirements of the head coach to come back to the club” for the pre-season training of the 2014/2015 season. 22. In continuation, Club C argued that on 29 June 2014, it found out that the player had signed a new employment contract with the club from country F, Club E and thus, it informed the latter that it still had a valid employment contract with the player. 23. As a result of the above, Club C affirmed that, by signing a new contract with Club E and by not returning to the club, the player breached the employment contract concluded between the parties without just cause. 24. On 26 November 2014, FIFA notified the player and Club C of the respective claims against them and granted a time limit of 20 days starting as from the receipt of the correspondence by DHL to submit their replies. In this respect, the letter and its enclosures were notified to the parties by DHL on 28 November 2014. 25. In its reply to the player’s claim, Club C enclosed 4 witness statements from the club’s staff which, apparently, confirmed that the meeting on “21 May 2014” with the player took place and that the latter agreed to the rescheduling of the payment of his salaries and asked to receive them in cash. 26. Finally, Club C reiterated the arguments of its claim. 27. By means of a correspondence dated 7 January 2015, but received on 15 January 2015, the player asked for an extension of the deadline to file his reply. In this respect, the FIFA administration informed him that the request had been made after the expiration of the original deadline and that thus, it would be up to the DRC to decide on whether it would take into account any further argument or documentation. On 16 January 2015, the player filled his reply. 28. Despite having been asked to do so by FIFA, the player’s new club, Club E failed to submit its position. 29. After having been asked to do so, the player informed FIFA that he signed two new employment contracts with Club E. The first one valid as of 29 June 2014 until 1 January 2015 whereby it was agreed that the player would receive a total amount of USD 78,000 and the second one valid as of 1 February 2015 until 1 January 2016 and according to which, the player was entitled to the total amount of USD 125,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 1 July 2014 by the player and on 8 October 2014 by the club. Consequently, and taking into consideration the first claim lodged, 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 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 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 an club from country D, with the involvement of a club from country F. 3. Furthermore, 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, the Chamber 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 first claim was lodged on 1 July 2014, the 2012 edition of the aforementioned 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 DRC acknowledged that on 22 August 2013, the parties concluded an employment contract valid until 31 December 2015 whereby the player was entitled to receive from Club C a monthly salary of 9,800 and USD 13,000 as per Annexe 2 and 3 of the contract. 6. In continuation, the DRC noted that, after putting Club C in default of payment on 20, 26 and 30 May 2014, on 4 June 2014, the player terminated the contract concluded between the parties invoking just cause in view of the alleged nonpayment of 29,400 and USD 39,000 corresponding to his salaries of March, April and May 2014 as per Annexe 2 and 3 of the contract. 7. As a consequence of the above, the Chamber took note that the player lodged a claim against Club C for the payment of his outstanding remuneration as well as compensation for breach of contract. 8. Furthermore, the Chamber proceeded to take note of Club C’s claim which argued that the player terminated the contract without just cause as, apparently, on 21 May 2014, the parties reached a verbal agreement whereby the player accepted to receive his outstanding salaries in cash upon his return to country D after his holiday period. Moreover, the Chamber acknowledged that, according to Club C, the player “has deliberately created the preconditions to deprive the club of the opportunity to fulfill its obligations under the contract” while emphasising that Ukrainian Law prevented it from paying the player his salaries to a foreign bank account. 9. As such, the members of the Chamber took note that Club C lodged a claim against the player claiming the amounts of 176,000 and USD 234,000 for the termination of the contract by the player without just cause. 10. In view of the foregoing considerations, the Chamber deemed that the underlying issue in the dispute at hand, considering the claims of both parties, was to determine whether the relevant employment contract had been unilaterally terminated with or without just cause by the player on 4 June 2014, 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. 11. At this point, the Chamber, while referring to the letter of the FIFA Administration dated 16 January 2015, wished to stress that the player’s reply to the claim submitted on 16 January 2015 will not be taken into account in the following considerations, as a consequence of the late request of the player to extend the deadline to file his answer. 12. Having said that, the members of the Chamber wished to begin by pointing out that it is undisputed by the parties that at the moment of the termination of the contract, i.e. 4 June 2014, Club C had not paid to the player the total amount of 29,400 and USD 39,000 comprised of the player’s salaries of March, April and May 2014 in accordance with Annexe 2 and 3 of the contract. However, the Chamber noted that Club C justified the non-payment by arguing that the player had accepted a rescheduling of his salaries. 13. With the above in mind, the Chamber focused its attention on the position of Club C which, indeed, argued that, on 21 May 2014, it had reached a verbal agreement with the player in order to pay him his outstanding salaries in cash upon his return to country D after the holiday period. 14. At this point, the Chamber wished to refer to art. 12 par. 3 of the Procedural Rules, according to which, “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, and highlighted that Club C had failed to present any objective documentation in support of its position. In particular, the members of the Chamber were of the opinion that Club C was not able to provide the DRC with clear, precise and convincing evidence that the parties actually reached an agreement for the payment of the player’s outstanding salaries to be made in cash upon his return to country D. 15. Along these lines, the Chamber highlighted that the witness statements presented by Club C in its reply to the claim, being all issued by employees of the club, are not completely impartial and might be affected by diverse contextual factors. Therefore, the credibility of such type of internal documentation is rather limited. Consequently, the Chamber deemed that the witness statements presented by Club C are unfit to establish that the parties actually reached an agreement to pay the player’s salaries after the holiday period. What is more, the Chamber referred to the player’s letters of 26 and 30 May 2014 whereby he explicitly rejected having ever accepted any rescheduling of the payment of his salaries. On account of the above, the DRC decided to dismiss the club’s argument that the parties had reached any kind of agreement in May 2014. 16. In continuation, the Chamber referred to Club C’s second argument, according to which the player terminated the contract without just cause since he “blocked the club’s opportunities” to comply with its obligations, as according to law of country D, Club C was not able to pay the player’s salaries to a foreign bank account. 17. In this context, the DRC wished to stress, in the first place, that the player’s first default notice was sent on 20 May 2014, i.e. while he was still in country D. With the above in mind, the members of the Chamber observed that in all his default notices, the player merely requested to be paid on his “bank account”, without any further specification. Therefore, the Chamber was of the unanimous opinion that, contrary to what Club C argues, there is no proof that the player ever requested for the payment of his salaries to be made in a foreign bank account. Moreover, the Chamber pointed out that such argument was never raised by Club C in its letters of 26 and 29 May 2014 and it was only until 26 June 2014, i.e. after the player had already terminated the contract, when it first put forward the alleged impossibility to pay the player in a foreign bank account. 18. In this framework, the Chamber wished to emphasise that in its letter of 29 May 2014, i.e. when the player had already left country D, Club C explicitly stressed that “The club would like to receive the proper notification from the player about his will to receive the money via the bank transfer”. Indeed, in the Chamber’s view, the aforementioned statement of Club C could only possibly mean that Club C was either of the understanding that the player wanted to receive his money in his bank account of country D or that, if Club C understood that the player wanted to receive the money in a foreign bank account, it was an actual possibility to make such payment to a foreign bank account. As a consequence, the Chamber unanimously decided to reject the club’s argument. 19. On account of all the aforementioned considerations, the Chamber unanimously concluded that Club C had seriously neglected its contractual obligations towards the player in a continuous and constant manner, i.e. Club C had failed to remunerate the player for a substantial period of time. Therefore, the Chamber considered that the club was found to be in breach of the employment contract and that the breach was of such seriousness that, in line with the Chamber’s longstanding and well-established jurisprudence, the player, having previously put the club in default of the outstanding amounts three times, had a just cause to unilaterally terminate the contractual relationship with Club C on 4 June 2014. Consequently, Club C is to be held liable for the early termination of the employment contract with just cause by the player. 20. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the player. 21. First of all, the members of the Chamber concurred that Club C must fulfill its obligations as per the contract in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that Club C is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. 29,400 and USD 39,000 as per the player’s salaries of March, April and May 2014 according to Annexe 2 and 3 of the contract. 22. In addition, taking into consideration the player’s claim as well as the Chamber’s long-standing jurisprudence, the members of the DRC decided to award interest on said amount at the rate of 5% p.a. as of the relevant due dates. 23. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from Club C compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 24. 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. 25. 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. 26. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by Club C, the members of the Chamber took into account the remuneration due to the player in accordance with the employment contract, along with the professional situation of the player after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the contract, the remaining value of the contract as from its early termination by the player until its regular expiry amounted to 186,200 and USD 247,000 as per Annexe 2 and 3 of the contract. The Chamber concluded that these amounts shall serve as the basis for the final determination of the amount of compensation for breach of contract. 27. In continuation, the Chamber recalled that the player had entered into two new employment contracts with the club from country F, Club E, the first one valid as of 29 June 2014 until 1 January 2015 and the second one as of 1 February 2014 until 1 January 2016 and according to which, he was entitled to the total amount of USD 203,000. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, the above-mentioned amounts shall be taken into account in the calculation of the amount of compensation for breach of contract. 28. In view of all of the above, the Chamber decided that Club C must pay the amounts of 186,200 and of USD 44,000 to the player as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount, as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 1 July 2014, until the date of effective payment. 29. Furthermore, as regards the claimed legal costs by the player, the DRC referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the player’s request relating to legal costs. 30. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates inter alia that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on a club found to be in breach of contract during the protected period. 31. Subsequently, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this respect, the Chamber took note that the breach of the employment contract by Club C had occurred in June 2014. Therefore, the Chamber concluded that – irrespective of the player’s age - the breach of contract by Club C had clearly occurred within the protected period. 32. In this regard, the Chamber emphasised that apart from Club C having clearly acted in breach of the contract within the protected period in the present matter, Club C had also on several occasions in the recent past been held liable by the Chamber for the early termination of the employment contracts with other players, for example: Player G (case. ref. xxxxxxxxx; decided on 25 April 2014), Player H (case ref. nr. xxxxxxx; decided on 16 October 2014) and Player I (case ref. nr. xxxxxxxxxx; decided on 3 September 2015). 33. As a result, by virtue of art. 17 par. 4 of the Regulations and also considering that Club C had on previous occasions been found in breach of an employment contract without just cause by the Chamber, the Chamber decided that Club C shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 34. Finally, the Chamber concluded its deliberations by establishing that any further claim lodged by the player is rejected. Equally, and considering that Club C was found to be in breach of the contract, the Chamber decided that the claim of Club C is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant 1 / Respondent 2, Player A, is partially accepted. 2. The Claimant 2 / Respondent 1, Club C, is ordered to pay to the Claimant 1 / Respondent 2, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of 29,400 and USD 39,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5 % p.a. on the amount of 9,800 as of 1 April 2014; b. 5 % p.a. on the amount of USD 13,000 as of 1 April 2014; c. 5 % p.a. on the amount of 9,800 as of 1 May 2014; d. 5 % p.a. on the amount of USD 13,000 as of 1 May 2014; e. 5 % p.a. on the amount of 9,800 as of 1 June 2014; f. 5 % p.a. on the amount of USD 13,000 as of 1 June 2014; 3. The Claimant 2 / Respondent 1 is ordered to pay to the Claimant 1 / Respondent 2, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of 186,200 and of USD 44,000 plus 5% interest p.a. as of 1 July 2014 until the date of effective payment. 4. In the event that the amounts plus interest due to the Claimant 1 / Respondent 2 in accordance with the above-mentioned numbers 2. and 3. are not paid by the Claimant 2 / Respondent 1 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 1 / Respondent 2 is rejected. 6. The claim lodged by the Claimant 2 / Respondent 1 is rejected. 7. The Claimant 1 / Respondent 2 is directed to inform the Claimant 2 / Respondent 1, 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. 8. The Claimant 2 / Respondent 1 shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. ***** Note relating to the motivated decision (legal remedy): According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: _____________________________ Markus Kattner Acting Secretary General Encl. CAS directives