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 Mario Gallavotti (Italy), member Mohamed Al Saikhan (Saudi Arabia), member on the claim presented by the player, Player A, country B as Claimant / Counter-Respondent against the club, Club C, country D as Respondent / Counter-Claimant regarding an employment-related dispute 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 Mario Gallavotti (Italy), member Mohamed Al Saikhan (Saudi Arabia), member on the claim presented by the player, Player A, country B as Claimant / Counter-Respondent against the club, Club C, country D as Respondent / Counter-Claimant regarding an employment-related dispute between the parties I. Facts of the case Facts relating to the preliminary issue of the competence of the DRC: 1. On 11 June 2010, the player from country B, Player A (hereinafter: Claimant/Counter-Respondent or player), and the club from country D, Club C (hereinafter: Respondent/Counter-Claimant or club), concluded an employment contract (hereinafter: contract) as well as an annex (hereinafter: annex), both valid from 1 July 2010 until 30 June 2013. 2. The club contested the competence of FIFA to deal with the claim lodged by the player, referring to art. 12.1 of the contract which stipulates that “any dispute between the Parties arising from or in connection with this Agreement, including its validity, interpretation, execution or termination, shall be settled amiably. Unless the Parties shall reach an amiable resolution then any such dispute shall be submitted to the competent bodies of the Football Association of country D and the Professional Football League with respect of the legislation of country D and to the competent bodies of FIFA with respect of the FIFA regulations”. 3. In this context, the club argued that the parties did not expressly exclude the competence of FIFA, but that such exclusion arises from the FIFA Regulations on the Status and Transfer of Players (hereinafter: Regulations) and its art. 22 lit. b. 4. In light of the above, the club held that the player should have filed his claim in front of the DRC of the Professional Football League of country D (hereinafter: Professional Football League of country D) and not with FIFA. 5. Furthermore, the club asserted that the Dispute Resolution Chamber of the Professional Football League of country D meets all the requirements set forth in art. 22 lit. b) of the Regulations. 6. In support of such position, the club presented a letter from the Professional Football League of country D dated 10 October 2013, which explains the constitution of the Dispute Resolution Chamber of the Professional Football League of country D and concludes that said deciding body meets the requirements. In particular the letter states: i. “Starting with the season 2010/2011 the panels are composed on a parity basis, by two members appointed by the clubs and two members appointed by the Footballers Union of country D”; ii. “The Presidents of the panels are recognized as independents by the Footballers Union of country D and clubs”; iii. “The Professional Football League of country D’s commissions ensures the legality of the proceedings, the right to defense, to a fair hearing and, the most important, the possibility to appeal any final internal decision before Court of Arbitration for Sport from Lausanne.” 7. The player, for his part, insisted that FIFA’s Dispute Resolution Chamber is competent to deal with the present matter. In particular, the player held that the parties did not exclude the competence of FIFA. Furthermore, the player held that the club failed to submit evidence that the deciding body of the Professional Football League of country D fulfils the requirements of an independent arbitration tribunal guaranteeing fair proceedings and respecting the principal of equal representation of players and clubs, for which it carries the burden of proof. 8. Moreover, the player argued that art. 12.1 of the contract is no valid arbitration clause since there is no clear reference to the national arbitration body. Facts relating to the substance of the matter: 9. On 11 June 2010, the player and the club signed an employment contract as well as an annex to it, both valid as from 1 July 2010 until 30 June 2013. 10. According to art. 5 of the contract, the club undertook to pay the player, inter alia, a monthly salary of EUR 12,500. 11. According to the annex, the club undertook to pay the player, inter alia, the amount of EUR 500 per month for accommodation. 12. According to art. 6.1 of the contract, the club must pay the player the remuneration “until the 25th of next month, in the currency of country D at the official exchange rate of the National Bank of country D on the day such payment is made.” 13. On 10 June 2013, the player allegedly sent a default notice to the club with respect to outstanding remuneration in the amount of EUR 103,773 corresponding to an “unjustifiable penalty” of 28 September 2011, outstanding accommodation allowance and outstanding salaries for the months of February to June 2013. 14. On 28 June 2013, the player allegedly terminated the contract on the basis of the club’s alleged non-fulfilment its financial obligations. 15. The insolvency administrators of the club have asked that proceedings in which the club is involved are suspended in the light of the insolvency procedure that has been opened against the club on 15 April 2015 and of national law of country D. Claim of the player against the club: 16. On 28 June 2013, the player lodged a claim with FIFA against the club for breach of contract without just cause and requested payment of the following monies: - EUR 32,250 corresponding to outstanding remuneration in connection with a financial penalty imposed on 28 September 2011 plus 5% interest p.a. as of 26 October 2011; - EUR 37,500 corresponding to outstanding salaries of March to May 2013; - EUR 3,500 corresponding to the accommodation allowance of November 2012 to May 2013; - EUR 12,500 corresponding to compensation for June 2013; - EUR 75,000 corresponding to “additional compensation”. In addition, the player requested interest of 5% p.a. as from the respective due dates for payment of the aforementioned amounts. 17. In his arguments, the player argued that the club imposed a disciplinary measure on him in September 2011 without inviting him to a hearing and giving him the possibility to defend himself during the relevant procedure. Additionally, the player held that the imposed fine was abusive, since it disproportionately favours the club. 18. Moreover, the player stated that the club failed to pay his salaries of March to May 2013 in the total amount of EUR 37,500. 19. Regarding the accommodation allowance, the player argued that the club failed to pay the accommodation allowance as of November 2012, after having previously organised a room in a hotel for the months of September and October 2012. 20. The player concluded that he had just cause to terminate the contract on 28 June 2013 since the club did not respect its contractual financial obligations and that he is entitled to receive the salary of June 2013 as compensation. 21. In addition, the player claimed EUR 75,000 as “additional compensation” for the alleged early termination based on Swiss Law. The reply and the counterclaim of the club: 22. The club requested that the claim of the player be rejected since it complied with its contractual obligations and submitted a counterclaim against the player requesting that he be ordered to pay EUR 53,500 plus interest of 5% p.a. 23. First of all, the club held that the disciplinary sanction imposed on the player on 28 September 2011 was justified. 24. The club explained that according to a report of the assistant coach, the player seriously violated his obligations between 15 April and 15 May 2011, such as: - “Uncivilized behaviour towards the coaching staff”; - “Refusal to make efforts in his activity as a professional football player during training”; - “Refusal to make efforts for reaching Club C’s sporting aims”. 25. On these grounds, the player was sanctioned with a “sporting penalty of 15% of the value of contractual rights due for 2010/2011 competition season”. 26. Moreover, the club pointed out that the decision states that “the player was subpoenaed in order to heard and to submit his defense”. 27. Subsequently, the club explained that the decision was notified to the player’s address in country B on 19 July 2011 via DHL. 28. On 26 October 2011 the Disciplinary Committee of the Professional Football League of country D informed the club that the decision became final and binding. 29. The club further held that the player never protested against the disciplinary decision before lodging his claim in front of FIFA. 30. Regarding the alleged termination of the contract by the player, the club argued that it never received the player’s default notice dated 10 June 2013. 31. Moreover, the club denied having received the player’s termination letter before the contract expired on 30 June 2013 and therefore held that the player did not terminate the contract unilaterally prior to its expiration. 32. Additionally, the club held that the player is not entitled to an additional compensation of EUR 75,000 based on Swiss law since law of country D is applicable. According to the club, even if Swiss law would be the applicable law, such claim would constitute a claim in bad faith since the player tried to terminate the contract two days before its expiration. 33. The club further alleged that the player failed to prove that he did not receive the salaries as of March to June 2013 amounting to EUR 50,000. 34. Regarding the claimed housing allowance, the club pointed out that it paid the amount agreed upon to the hotel directly and never to the player. 35. In its arguments, the club further pointed out having made a payment to the player in the total amount of EUR 53,500 on 31 March 2014. The club held that said payment was done “without acknowledgement of any legal obligation and/or responsibility” and that the “only reason for payment was that the Respondent [Club] was obliged by the relevant licensing department of the Football Federation of country D (Football Federation of country D) to execute payment of EUR 53,500/- to the Player as otherwise it would have not received the license to participate in the top division of country D concerning the upcoming 2014/2015 sportive season”. 36. In light of the above, the club held that it paid said amount only “upon unlawful intervention by the Football Federation of country D” and concluded that the player is “unjustified enriched”. Therefore, the club asked that the player shall be ordered to reimburse this amount to the club. The player’s reply to the counterclaim: 37. The player acknowledged receipt of the payment of EUR 53,500 and requested that the club’s counterclaim be rejected. 38. Regarding outstanding remuneration, the player pointed out that the club failed to bring forward any arguments regarding the non-payment of his salaries from March to May 2013. The player concluded that he therefore had just cause to terminate the contract and is entitled to compensation for the salary of June 2013. 39. Regarding the alleged notification of the disciplinary decision, the player held that he was living and working in country D at the time and that it made no sense to send the notification to country B. 40. Moreover, the player argued that he was confronted with said disciplinary decision for the first time in November 2012 during settlement negotiations regarding outstanding salaries. 41. The player denied “any uncivilized behaviour, any refusal or any other behaviour occurred that could be reasonably sanctioned accordingly” and he reiterated that he was never invited to a hearing in order to defend himself. 42. Furthermore, the player argued that the club used said financial penalty to settle outstanding payments. 43. Moreover, the player held that the club cannot withhold salary payments in order to enforce the payment of a fine. 44. The player upheld his request regarding the additional compensation of EUR 75,000 based on Swiss Law since the club “dismissed the Claimant prematurely”. 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 28 June 2013. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution Chamber, would, in principle, be 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. In continuation, the Chamber acknowledged that the Respondent/Counter-Claimant contested the competence of FIFA’s deciding body on the basis of art. 12.1 of the employment contract invoking an alleged compulsory jurisdiction of the Dispute Resolution Chamber of the Professional Football League of country D. 4. In this regard, the DRC noted that the Claimant/Counter-Respondent rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 5. While analysing whether it was competent to adjudicate the present matter, the Chamber recalled that art. 12.1 of the employment contract stipulates that “any dispute between the Parties arising from or in connection with this Agreement, including its validity, interpretation, execution or termination, shall be settled amiably. Unless the Parties shall reach an amiable resolution then any such dispute shall be submitted to the competent bodies of the Football Association of country D and the Professional Football League with respect of the legislation of country D and to the competent bodies of FIFA with respect of the FIFA regulations”. 6. In this respect, and regardless of the fact that art. 12.1 of the employment contract contains a reference to dispute resolution at national level, the Chamber pointed out that the wording of said art. 12.1 was unclear in the sense that it merely refers to “the competent bodies of the Football Association of country D and the Professional Football League with respect of the Legislation of country D and to the competent bodies of FIFA with respect of the FIFA regulations” and not to one specific deciding body in the sense of art. 22 lit. b) of the aforementioned Regulations. 7. Therefore, the Chamber held that clause 12.1 of the employment contract cannot be considered as a clear jurisdiction clause in favour of one specific national deciding body within the framework of the Football Federation of country D or the Professional Football League of country D and, consequently, cannot be applicable. 8. Moreover, the members of the Chamber outlined that art. 12.1 equally refers to the “competent bodies of FIFA”. 9. On account of the above and in accordance with its well-established pertinent jurisprudence, the Chamber established that the Respondent/Counter-Claimant’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to deal with the present matter as to the substance. 10. In continuation, 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 28 June 2013, the 2012 edition of said regulations is applicable to the matter at hand as to the substance. 11. With respect to the request put forward by the insolvency administrators of the Respondent/Counter-Claimant to suspend proceedings in which the Respondent/Counter-Claimant is involved, the Chamber stressed that in accordance with jurisprudence of both the DRC and the Court of Arbitration for Sport, bankruptcy/insolvency procedures do not affect procedures in front of the DRC. Consequently, so the Chamber, such request has to be dismissed. 12. The competence of the Chamber and the applicable regulations having been established, the DRC 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. 13. In this respect, the DRC recalled that, on 11 June 2010, the parties had signed an employment contract and an annex thereto, both valid as from 1 July 2010 until 30 June 2013. 14. In continuation, the members of the Chamber noted that the Claimant/CounterRespondent, on the one hand, lodged a claim against the Respondent/CounterClaimant maintaining that he had terminated the employment contract with just cause on 28 June 2013, after previously having put the club in default, since the Respondent/Counter-Claimant allegedly had failed to pay the Claimant/CounterRespondent’s remuneration. In this respect, the Claimant/Counter-Respondent submits that remuneration in relation to a financial penalty that was imposed on him, his salaries of March to May 2013 as well as accommodation allowance as of November 2012 until May 2013 remained outstanding. Consequently, the Claimant/Counter-Respondent asked to be awarded outstanding dues as well as compensation for breach of the employment contract and an “additional compensation”. 15. The Chamber further noted that the Respondent/Counter-Claimant, for its part, rejected the player’s claim and submitted a counterclaim against the Claimant/Counter-Respondent maintaining that the Claimant/Counter-Respondent must reimburse the amount of EUR 53,500, which it remitted to Claimant/CounterRespondent on 31 March 2014 due to the “unlawful intervention” of the Football Federation of country D. In this respect, the Respondent/Counter-Claimant argued that the player must reimburse said amount since he is “unjustified enriched”. 16. Subsequently the DRC observed that said counterclaim was rejected by the Claimant/Counter-Respondent, who acknowledged receipt of the aforementioned EUR 53,500, but upheld his claim against the Respondent/Counter-Claimant. 17. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 18. In continuation, the Chamber focussed its attention on the alleged termination of the contract by the Claimant/Counter-Respondent on 28 June 2013, i.e. 2 days prior to the ordinary date of expiry of the employment contract. Indeed, the Claimant/Counter-Respondent alleges having sent a notice, dated 28 June 2013, to the Respondent/Counter-Claimant in order to terminate the employment contract. 19. The Respondent/Counter-Claimant, for its part, denied having received any such notification from the Claimant/Counter-Respondent prior to the expiration of the contract and held that, thus, the employment contract was not unilaterally terminated prior to its expiry. 20. In this regard, bearing in mind art. 12 par. 3 of the Procedural Rules, the members of the Chamber took into account that the Claimant/Counter-Respondent had not submitted any documentation demonstrating that, in fact, the alleged notice of termination was transmitted to the Respondent/Counter-Claimant. Therefore, the DRC agreed that it cannot be established that the contract was terminated prior to its ordinary date of expiry on 30 June 2013. 21. On account of the above, the DRC rejected the Claimant/Counter-Respondent’s allegation that he terminated the employment contract on 28 June 2013 and decided that the employment relationship between the parties ended by means of expiry of the end date of the relevant contract, i.e. on 30 June 2013. 22. Having established the above, the Chamber turned its attention to the Claimant/Counter-Respondent’s claim pertaining to outstanding remuneration as well as the counterclaim of the Respondent/Counter-Claimant. 23. In this regard, the DRC acknowledged that the Claimant/Counter-Respondent held that the Respondent/Counter-Claimant failed to pay the amount of EUR 41,000 in relation to the monthly salaries of March until May 2013 as well as the accommodation allowance for November 2012 until May 2013. In this respect, the Chamber recalled that the salary for June 2013 in the amount of EUR 12,500 was claimed by the Claimant/Counter-Respondent as compensation. In light of the consideration under point II./21. above, the DRC concluded that, in fact, the June 2013 salary should be taken into account when establishing the amount of outstanding remuneration, if any. 24. In continuation, the Chamber took note of the Respondent/Counter-Claimant’s argumentation that the Claimant/Counter-Respondent failed to prove that he did not receive said salaries and that the accommodation allowance was allegedly paid to the hotel directly instead of to the player. 25. Furthermore, the DRC took into account that the Respondent/Counter-Claimant made a payment of EUR 53,500 to the Claimant/Counter-Respondent during the proceedings, reimbursement of which was claimed by the Respondent/CounterClaimant, who argued that said payment was only made upon the intervention of the Football Federation of country D, as a result of which the Claimant/CounterRespondent allegedly was “unjustified enriched”. 26. In this respect, the DRC first turned its attention to the question as to whether the Claimant/Counter-Respondent was entitled to receive the amount of EUR 53,500 from the Respondent/Counter-Claimant. 27. The Chamber noted that the Respondent/Counter-Claimant did not present any evidence demonstrating that it had remitted the claimed salaries and accommodation allowance to the Claimant/Counter-Respondent prior to the moment when it proceeded with the payment of EUR 53,500 during the proceedings. 28. What is more, the Respondent-Counter/Claimant has not presented any reasons which possibly could justify the non-payment of the Claimant/Counter-Respondent’s salary as from March until June 2013 and accommodation allowance as from November 2012 until May 2013 prior to the expiry of the employment contract. 29. In view of the above, the DRC established that the Claimant/Counter-Respondent was entitled to receive the amount of EUR 53,500 in relation to the aforementioned remuneration in accordance with the employment contract and the annex. 30. As a consequence and in view of the above, the Chamber decided that it had to reject the Respondent/Counter-Claimant’s counterclaim with respect to reimbursement by the Claimant/Counter-Respondent of said amount of EUR 53,500, receipt of which was acknowledged by the latter during the proceedings. 31. Subsequently, the Chamber analysed the fine imposed by the Respondent/CounterClaimant on the Claimant/Counter-Respondent on 28 September 2011 due to his alleged uncivilized behaviour and refusal to make efforts. 32. In this regard, the DRC took note of the Claimant/Counter-Respondent’s argumentation that the Respondent/Counter-Claimant had unlawfully deducted the fine of EUR 32,250 from his salary and that he had not been granted the possibility to defend himself. It was further noted that the Respondent/Counter-Claimant had not denied that it had deducted said amount from the remuneration of the Claimant/Counter-Respondent. 33. In this context, the Chamber concurred that the fine imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant shall be disregarded, since no convincing evidence was presented by the Respondent/Counter-Claimant with respect to the pertinent disciplinary proceedings. Furthermore, the amount of the fine imposed on the Claimant/Counter-Respondent represents more than 200% of the player’s monthly remuneration, as a consequence, the fine must be considered disproportionate. For these reasons, the Chamber decided that the Respondent/Counter-Claimant’s argument in this respect shall be rejected and that the Respondent/CounterClaimant could not validly deduct the amount of EUR 32,250 from the Claimant/Counter-Respondent’s receivables. 34. Furthermore, and irrespective of the foregoing consideration, the DRC wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. 35. Consequently, on account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent the amount of EUR 32,250 in relation with the remuneration due to the Claimant/Counter-Respondent in accordance with the employment contract and its annex. 36. In addition, taking into consideration the Claimant/Counter-Respondent’s claim, the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. as of the date of the claim, i.e. 28 June 2013. 37. Having established the above, the DRC analysed the request of the Claimant/Counter-Respondent corresponding to “additional compensation” in the amount of EUR 75,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant/CounterRespondent had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 38. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant/Counter-Respondent. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is admissible. 2. The claim of the Claimant / Counter-Respondent is partially accepted. 3. The counterclaim of the Respondent / Counter-Claimant is rejected. 4. The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 32,250 plus 5% interest p.a. as from 28 June 2013 until the date of effective payment. 5. In the event that the aforementioned sum is not paid by the Respondent / CounterClaimant within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 7. The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant, immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** 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