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 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, K , from G represented by xxxxx as Claimant against the club, Z, from E represented by xxxxx as Respondent 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 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, K , from G represented by xxxxx as Claimant against the club, Z, from E represented by xxxxx as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. The player from G, K (hereinafter: the Claimant or the player) and the club from E, Z (hereinafter: the Respondent or the club) signed an undated employment contract valid as from the beginning of the 2011/2012 sporting season until the end of the 2015/2016 season (hereinafter: the contract). 2. In accordance with the employment contract, the Claimant was inter alia entitled to receive the following remuneration: a. For the 2011/2012 season, a total of USD 300,000, payable as follows: i. USD 150,000 payable on 15 August 2011; ii. USD 7,500 monthly remuneration from 1 September 2011 until 1 June 2012; iii. USD 75,000 payable on 1 July 2012. b. For the 2012/2013 season, a total of USD 300,000 as well as USD 300,000 for each of the subsequent seasons (i.e. 2013/14 season until 2015/16 season). 3. Article 4 of the contract provides that “the player will incur the taxes of the total amount of the contract according to law. The club will settle the taxes to the concerned tax administration and inform the player for the document of paying after the end of the season and before the beginning of the next season”. 4. The contract provides in its article 5.10 that: “the club has the right to inform the player in writing to terminate the contract between them at the end of the season during its validity within fifteen days after last national official match for the club. In this case the player does not deserve any compensation for the rest of the period of the contract the player will receive his financial dues up to the end of the contract”. 5. Article 5.11 of the contract provides: “if the player has not been informed of termination of the contract during fifteen days from last official match for the club the player will received 50% of the amounts mentioned on the contract until the beginning of second entry period if he has not transferred to another club and 50% of advances payment if he has transferred to another club before”. 6. On 8 May 2012, the Respondent sent notice of termination to the Claimant apparently invoking article 5.10 of the contract and stating that “according to the letter of Football Federation of E (FFE), we are therefore notifying you of our lack of interest in completing the concluded contract between us without any of the two parties undertaking any legal action or demanding compensational penalty and that the contract is deemed null and void from the date we notify your lordliness with that accordance with the clause mentioned above”. Said termination notice refers to 10 May 2012 as being the date of the last match and that the termination will take effect from 25 May 2012. The Respondent’s submitted translation of the notice of termination mentions the date as being 18 May 2012 (cf. point I.20 below). 7. On 19 April 2014, the Claimant lodged a claim before FIFA against the Respondent maintaining that the termination of the contract by the Respondent on 8 May 2012 was without just cause and asking that he be paid outstanding remuneration relating to the contract in the amount of USD 90,000. The Claimant also asks to be awarded the additional amount of USD 1,200,000 “as guaranteed salaries due to him for the rest of the contracted period” and “appropriate compensation” for moral damages, no interest is claimed. 8. The Claimant claims that his salary instalments for the months of May and June 2012 as well as the instalment due on 1 July 2012 were never paid, amounting to USD 90,000 (i.e. (2x USD 7,500) + USD 75,000). 9. On 13 May 2014, the FIFA administration submitted the claim to the Respondent via the FFE. 10. On 1 June 2014, the Respondent requested an extension of the deadline set by the FIFA administration stating inter alia as follows: “we confirm receipt of your correspondence dated 13 May 2014”. 11. On 3 June 2014, the FIFA administration granted the Respondent an extension of the deadline until 17 June 2014. 12. On 16 June 2014, the Respondent requested a second extension of the deadline, which was denied by the FIFA administration. 13. On 26 June 2014, the FIFA administration closed the investigation of the matter at hand and inter alia informed the parties that in accordance with art. 9.3 of the Procedural Rules, no further submissions from the parties would be admitted to the file. 14. On 8 September 2014, the Respondent asked to be informed of the updated contractual situation of the Claimant which was requested by the FIFA administration at the time of the closure of the investigation. 15. On 6 March 2015, the Respondent claimed that it had not received any documentation relating to the claim. 16. On 27 March 2015, the FIFA administration informed the Respondent that in view of the content of its letter of 26 June 2014, it would be up to the relevant decisionmaking body of FIFA to decide whether or not it will take into account its additional unsolicited comments of 8 September 2014 and 6 March 2015. The FIFA administration further informed the Respondent that it should provide a confirmation from the Egyptian Football Association stating that it had not forwarded the claim of the player to the Respondent. 17. The Respondent then provided correspondence sent by the FFE dated 27 April 2015 in support of its argument, which stated: “this is to confirm that, from your side, you didn’t receive the claim of K (correspondence of 14 May 2014)”. 18. In its late reply to the substance of the matter, the Respondent starts by stating that it had to deduct 1% of the entire value of the contract in order to pay the Claimant’s share of the “registration fee” in relation to the last page of the contract. This is seemingly the Respondent’s justification for the deduction of USD 15,000 from his first salary. Having provided correspondence from the FFE which states that this deduction is an obligation imposed by the federation, the Respondent asserts that its contractual obligation towards the Claimant for the 2011/2012 season is USD 285,000. 19. In addition, the Respondent notes that the Claimant acknowledges having received USD 210,000 and that the gross amount allegedly owed to him was USD 225,000 before the deduction which was allegedly paid by the Respondent (cf. point I.18 above). 20. According to the Respondent, in light of the suspension of the league, the Claimant allegedly requested that the contract be terminated and the Respondent claims it is for this reason art. 5.10 was enforced on 18 May 2012. The Respondent claims the Claimant affixed his signature to the termination notice “as confirmation”. The Respondent contests the version of the notice of termination submitted by the Claimant which does not contain the mention “I confirm reciept and accept for termination” (sic) which is contained on the version submitted by the club. It therefore considers that the contract was mutually terminated thereby meaning that the Respondent does not owe any compensation. 21. In relation to the instalment due on 1 July 2012, the Respondent states that in light of internal regulations, the Claimant would only receive his fixed salary of 75% only if the player plays in 80% of matches or more. Consequently, the Respondent asserts it does not owe the Claimant USD 75,000. 22. In reply to the Respondent’s late submission, the Claimant submitted a scan of the original notice of termination which, according to the translation provided, was dated 8 May 2015 and does not contain the mention “I confirm reciept and accept for termination”(sic), which he claims he would never have misspelt. Furthermore, the Claimant contests that the mere signing of a document to acknowledge receipt cannot be in any way construed as being an acceptance of the content of the letter. 23. The Claimant asserts that any clause in the contract permitting the unilateral termination of the contract should be disregarded as it is inconsistent with FIFA’s quest for contractual stability and that there is no indication in the contract that his salaries are linked to his performance. 24. The Claimant further claims that a year after having lodged his claim in front of FIFA, the Respondent proposed a mutual termination on 17 August 2014 in exchange for the amount of USD 25,000 and the acknowledgement that both parties had agreed to terminate, which was refused. 25. Finally, the Respondent answered once again and rejects all considerations of the Claimant, asserts that the termination of “18th May 2012” was a mutual termination and that by that time all financial dues had been paid. It further claims that the Claimant’s signature on the notice of termination clearly indicates that he accepted the termination allegedly by mutual agreement. It also states that the internal regulations clearly state that the Respondent will withhold payment of 25% of the contract unless the Claimant competes in 80% of matches for the Respondent. 26. The Respondent argues that all amounts are to be paid as gross, which consequently explains the alleged outstanding sums. Adding that 25% was indeed withheld as the Claimant did not compete. It asked that the Claimant’s claim be rejected, that the Respondent shall not pay any compensation and sporting sanctions to be imposed on the Claimant. 27. According to the information provided by the Claimant and contained in TMS, the Claimant had signed a contract with: a. A valid from 24 August 2012 until 31 May 2014, which was mutually terminated on 9 January 2013, and provides that the Claimant will receive USD 46,000 as an advance of payment as well as USD 6,500 per month; b. L valid from 29 August 2014 until 28 August 2017 which provides that the player will receive xxx 30,000 as a sign-on fee as well as xxx 300 per month; c. On 30 November 2015 the Claimant was loaned to M for one season until 30 October 2016, and signed an employment contract with said club according to which the Claimant will receive USD 3,000 as a down-payment and a monthly salary of USD 2,000. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 19 April 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the 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 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (2016 edition) 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 G and a club from E. 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 (2016 edition) and considering that the present matter was lodged on 19 April 2014, the 2012 edition of said regulations (hereinafter: the Regulations) is applicable to the substance of the matter at hand. 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 aforementioned facts as well as the arguments and the documentation submitted by the parties. The Chamber, however, 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 continuation, the DRC noted that the Claimant lodged a claim against the Respondent asserting that the Respondent had terminated the employment relationship without just cause on 8 May 2012 on the basis of a clause the Claimant considers to be unilateral and disproportionate in nature. In this respect, the Claimant considers that he is owed outstanding remuneration for the months of May and June 2012 as well as the payment due on 1 July 2012 (cf. point I.2 above) in addition to compensation for breach of contract which should correspond to the residual value of the employment contract. 6. The members of the Chamber then deemed it important to clarify that the Respondent had submitted a request to be granted a deadline extension in light of the content of art. 16 par. 10 of the Procedural Rules. In this regard, the members of the Chamber noted that the FIFA administration had granted an extension of the initial time-limit set (i.e. 29 May 2014) until 17 June 2014. The DRC took note that the FIFA administration had received a second request to be granted a deadline extension on 16 June 2014. The Chamber acknowledged that said request had been refused and that the investigation phase of the present matter was closed on 26 June 2014. 7. In continuation, the DRC noted that on 6 March 2015 the Respondent claimed that the claim and the evidentiary evidence submitted had remained unknown to it. In this regard, the members of the Chamber acknowledged that the Respondent had been requested to provide a statement from the Association it is affiliated to establish whether the claim had been sent to it, in spite of the existence of two deadline extension requests in which the issue had not been raised by the Respondent (cf. points I.9 to I.17 above). The members of the Chamber agreed that the statement provided by the relevant Football Association does not clearly state that it had not sent the claim to the Respondent. What is more, the Chamber highlighted that in its first request for an extension of the deadline, the Respondent explicitly acknowledges having received the claim of the player. 8. On account of the aforementioned considerations, in particular those to be found in points II.6 and II.7 above, the members of the Chamber concluded that the Respondent had in fact received the Claimant’s claim but only submitted its position to the claim after the closure of the investigation, in spite of having been invited to do so on 13 May 2014 (i.e. the date the claim was sent to the Respondent) and 3 June 2014 (i.e. the date of the granting of the first deadline extension request). The Chamber, therefore, deemed that the reply of the Respondent cannot be taken into account. For the sake of clarity, the Chamber established that the player’s replica as well as the Respondent’s rejoinder are also declared inadmissible. 9. Consequently, the members of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken on the basis of the documents already on file, in other words, on the statements and documents presented by the Claimant in his claim. 10. In this respect, the Chamber acknowledged that the Claimant and the Respondent had signed an employment contract valid from the beginning of the 2011/12 season until the end of the 2015/16 season. The DRC noted that the Claimant considered that the Respondent had terminated the employment contract without just cause on 8 May 2012 and therefore requested to be awarded outstanding remuneration and compensation for breach of contract. According to the content of the termination letter, the termination was based on art. 5.10 of the employment contract which the player deems to be unilateral and potestative. 11. As established above, according to art. 5.10 of the employment contract “the club has the right to inform the player in writing to terminate the contract between them at the end of the season during its validity within fifteen days after last national official match for the club. In this case the player does not deserve any compensation for the rest of the period of the contract the player will receive his financial dues up to the end of the contract” and the Chamber noted that no clause granting the Claimant a similar possibility was included in the contract. 12. In this respect, the Chamber held that it could not accept the validity of such a clause as it provides the Respondent with a right to unilaterally terminate the employment relationship arbitrarily and with a lack of reciprocity. In particular, the Chamber considered that such a clause consists in fact of a disguised advantage granted to the club only to terminate the contract at the end of each season without any financial consequences. In other words, such a clause provides the Respondent with the unilateral option of reducing the term of the employment relationship with the Claimant of its own will, whereas the player does not have such a possibility. Furthermore, in consideration of the Chamber’s well-established jurisprudence, unilateral termination clauses establishing no consequences whatsoever for the terminating party – as is the case in article 5.10 of the employment contract – have a clear unilateral an potestative nature and can therefore not be considered as valid clauses. In view of the foregoing, the Chamber concluded that the consequences deriving from article 5.10 of the employment contract are so unbalanced for the Claimant and the Respondent that such a clause should be considered to be null and void, and not be applied. 13. Having concluded the above, the Chamber concurred that art. 5.10 of the contract can not constitute a valid legal basis or reason that can be invoked to terminate the employment contract and therefore concluded that the contract was terminated by the Respondent without just cause with effect from 25 May 2012. 14. In continuation, prior to establishing the consequences of the breach of contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the Respondent. 15. Indeed, in his statement of claim, the Claimant alleges that his salary and other instalments until 1 July 2012 in the total amount of USD 90,000 were to be considered outstanding. Bearing in mind, as stated above and established from the documentation on file, that the contract was terminated by the Respondent effective on 25 May 2012 and that neither the salary for the month of June nor the instalment due on 1 July 2012 had fallen due, the Chamber established that only the monthly salary of May 2012 had remained unpaid. Consequently, the Dispute Resolution Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay outstanding remuneration in the total amount of USD 7,500 to the Claimant. 16. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the employment contract by the Respondent without just cause with effect from 25 May 2012. 17. The members of the Chamber first recalled 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. 18. In application of the relevant provision, the Chamber held that it first had to clarify as to whether the contract at the basis of the present dispute contains a valid provision by means of which the parties had agreed on an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber referred to the analysis made in points II. 12 and II. 13 above and consequently concluded that art. 5.10 of the employment contract could not be taken into account to determine the amount of compensation due by the Respondent to the Claimant. 19. Consequently, the members of the Chamber determined that the amount of compensation payable to the Claimant by the Respondent 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. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 20. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contracts 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, if any, in the calculation of the amount of compensation. 21. On the basis of the contract signed by the Claimant and the Respondent, which was to run for four more seasons after the breach had occurred, i.e. until the end of the 2015/16 season as well as the claim of the Claimant, which includes the salary of June 2012 in the amount of USD 7,500; the amount of USD 75,000 due on 1 July 2012 and the total amount of USD 300,000 for each of the relevant subsequent seasons, the Chamber concluded that the amount of USD 1,282,500 serves as the basis for the final determination of the amount of compensation for breach of contract. 22. 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 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. 23. The members of the Chamber recalled that on 24 August 2012 the player signed an employment contract with A until 31 May 2014, which was mutually terminated between the parties on 9 January 2013, and in accordance with which the player was set to receive an advance of payment of USD 46,000 and USD 6,500 per month. In continuation, the DRC took note that the player had signed an employment contract with L until 28 August 2017, the terms of which provide he would receive xxx 30,000 as a sign-on fee as well as xxx 300 per month. On 30 November 2015, the player was loaned to M for one season until 30 October 2016, and signed an employment contract with said club according to which the player would receive USD 3,000 as a down-payment and a monthly salary of USD 2,000. These employment contracts allowed the player to earn income of approximately USD 62,000 during the relevant period of time. 24. Consequently, on account of all the aforementioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damages, the Chamber decided to partially accept the Claimant’s claim and concluded that the Respondent must pay the total amount of USD 1,220,500 to the Claimant as compensation for breach of contract to the Claimant. 25. 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 is partially accepted. 2. The Respondent has to pay to the Claimant within 30 days from the date of notification of this decision, outstanding remuneration in the amount of USD 7,500. 3. The Respondent has to pay to the Claimant, within 30 days from the date of notification of this decision, compensation for breach of contract in the amount of USD 1,220,500. 4. In the event that the amount due to the Claimant in accordance with the aforementioned points III.2. and III.3. are not paid by the Respondent within the stated time limit, interest at a rate of 5% p.a. will apply and 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 article 58 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: Marco Villiger Deputy Secretary General Encl. CAS directives