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 2 July 2015, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Joaquim Evangelista (Portugal), 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 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 2 July 2015, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Joaquim Evangelista (Portugal), 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 between the parties I. Facts of the case 1. On 13 August 2012, the player from country B, Player A (hereinafter: the player or Claimant), and the Club C from country D (hereinafter: the club or Respondent), signed an employment contract valid as from 13 August 2012 until 31 May 2014 (hereinafter: the contract). 2. In accordance with the contract, the player was inter alia entitled to receive the following remuneration: a. For the 2012/2013 season, a total of EUR 300,000, payable as follows: i. EUR 150,000 as an advance, of which: 1. EUR 120,000 upon signature; 2. EUR 30,000 by cheque before 30 September 2012. ii. “per match” EUR 150,000 divided by 34 matches, which amounts to EUR 4,411 per match payable after every four matches played. b. For the 2013/2014 season, a total of EUR 330,000, payable as follows: i. EUR 165,000 as an advance, of which: 1. EUR 120,000 payable on 13 August 2013; 2. EUR 45,000 by cheque before 30 September 2013. ii. “per match“ EUR 165,000 divided by 34 matches, which amounts to EUR 4,852 per match payable after every four matches played. 3. The contract further provides inter alia that “the amounts to be paid per match are determined in the following fashion: if he starts in the first 11 100% if he enters the field during the course of the match 75%, if he is part of the 18 named players without playing 50%”. 4. On 26 August 2013, the player put the club in default of EUR 120,000, 50,000 and the EUR 45,000 cheque, by letter notified to the club on 27 August 2013 and to the Football Federation of country D on 28 August 2013. 5. On 1 October 2013, the player formally sent notice of unilateral termination of contract for breach of contract by the club, by letter notified to the club on 4 October 2013. 6. On 5 November 2013, the player lodged a claim in front of FIFA against the club asking that he be paid total outstanding remuneration in the amount of EUR 165,000 and 50,000 and compensation for breach of contract in the amount of EUR 165,000. The player claims 5% interest p.a. interest on the aforementioned amounts, as well as legal fees and 6 monthly salaries in additional compensation. 7. The player asserts that all salaries for 2012/2013 were paid, apart from a bonus of 50,000 which was allegedly payable to all the players who took part in a match dated 18 May 2013. Furthermore, the player claims that the club failed to remunerate him the EUR 120,000 due on 13 August 2013 and the EUR 45,000 owed on 30 September 2013. He further claims that his termination was due not only to unpaid remuneration, but also as a result of the fact that the club sought to exclude him from the group and force him to leave the club. 8. In its reply, the club asserts that although the 50,000 was not a mandatory or contractual bonus owed, only the players of the starting eleven would receive it, and as a result of the player not taking part in this match he is not entitled to receive it. The club further claim that in relation to this match, the club had paid him EUR 10,000. 9. The club further claim that there is no legal basis for the player to receive compensation in the amount of EUR 165,000 as the player could have terminated his contract during the transfer period in consideration of the dates on which the club failed to remunerate the player, in particular August 2013. The club claims that the player did this deliberately and argues that this demonstrates his bad faith and that the fault of not being able to find employment elsewhere lies solely with the player. 10. The club further claims that the amount of EUR 165,000 payable “per match” is not a guaranteed wage but is an appearance fee, which allegedly, according to the contract, was only due if the player played in the starting eleven of the thirty four prescribed matches. The club adds that the player only started in two matches during the previous seasons and was only named in the squad for one game. They argue that it would be inequitable for a player who played in such a small number of games to ask for compensation in the form of an appearance fee of EUR 165,000 as if he had played in thirty four matches. 11. In addition, the club states that although the outstanding remuneration of EUR 165,000 was due before the termination of the contract, this amount pertains to wages for the whole season and should only be due if the player had stayed with the club until the end of the registration provided for by the contract, i.e. until 31 May 2014. 12. The club finally claim that it never excluded the player from the group, nor did it try to force the player to leave the club. The club asks that the claims of the player be dismissed. 13. After the player reiterated his position, the club reiterated its position regarding the player’s alleged bad faith and, referring to the FIFA Commentary on the Regulations for the Status and Transfer of Players, claimed that in light of the fact that the termination happened only two months after the breach it should be considered that there is no just cause for the player to have terminated the contract. 14. In response to FIFA’s pertinent request, the player asserts that he had not managed to find employment elsewhere. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 November 2013. Consequently, the 2012 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 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 (editions 2012, 2013 and 2015), and considering that the present claim was lodged on 5 November 2013, the 2012 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. In this respect, the Chamber recalled that the parties had signed an employment contract valid as from 13 August 2012 until 31 May 2014, in accordance with which the Claimant was inter alia entitled to receive remuneration for the 2012/2013 season of EUR 150,000 as well as a EUR 150,000 “per game” payment of EUR 4,411 for each match. The Chamber further noted that during the 2013/2014 sporting season the Claimant was inter alia entitled to receive remuneration of EUR 165,000 as well as a EUR 165,000 “per game” payment of EUR 4,852 for each match. 5. In continuation, the members of the Chamber took into account that on 26 August 2013 the Claimant formally put the club in default of outstanding remuneration and that, on 1 October 2013, the Claimant notified the Respondent of the termination of the contract on the basis of outstanding remuneration. The Respondent, for its part, submits that the Claimant terminated the contract on 1 October 2013 without just cause. 6. The DRC highlighted that the central issue in the matter at stake would therefore be to determine whether the Claimant had just cause to terminate the contract on 1 October 2013. 7. In this respect, the Chamber wished to emphasise that according to the Claimant, at the time of the termination of the contract on 1 October 2013 the total amount of EUR 165,000, corresponding to EUR 120,000 due on 13 August 2013 and EUR 45,000 due on 30 September 2013, had yet to be paid by the Respondent. The DRC also took due note of the Claimant’s allegation that, at the time of the termination of the contract, the Respondent had failed to pay a match-day bonus of 50,000 which was due at the end of the 2012/2013 season. 8. The members of the Chamber then turned their attention to the arguments of the Respondent and noted that according to the latter, even if certain amounts claimed fell due before the termination on 1 October 2013 and had remained unpaid, these amounts were advances of payment on salaries for the entire season and because the Claimant did not render his services for the Respondent for the duration of the season, these amounts should not be due by the Respondent. In addition, the Respondent states that the match-day bonus of 50,000 was neither contractually provided for nor mandatory, it nevertheless paid the Claimant EUR 10,000. In this context, the DRC noted that the Respondent had failed to submit any documentary evidence demonstrating that the aforementioned payment had been made. Furthermore, the Dispute Resolution Chamber noted that the Respondent claimed that it shouldn’t have to pay all “per match” payments as the Claimant had not participated in all the matches of the season. 9. With regard to the Respondent’s first argument, the members of the Chamber noted that the contract explicitly stipulates specific payment due dates, i.e. 13 August 2013 and 30 September 2013 for the amount of EUR 120,000 and EUR 45,000 respectively, and consequently the Chamber determined that the Respondent had not fulfil its obligation with said payments, which were undoubtedly outstanding at the time of termination, and therefore due to the Claimant. 10. In continuation, the Chamber took note of the Respondent’s comments pertaining to the “per-match” payments and deemed it appropriate to further analyse the wording of the employment contract, in particular taking into account the amount of the Claimant’s remuneration for the 2013/2014 season. In this regard, the Chamber noted that as per the contract, the Claimant was owed a total of EUR 330,000 for the 2013/2014 season, with EUR 165,000 to be paid on two specific due dates at the beginning of the season, and EUR 165,000 to be paid in parts, per match. The Chamber further noted that the contract also establishes that even though the total remuneration for the 2013/2014 season is EUR 330,000, a portion of EUR 165,000 is made conditional on the player’s participation in matches. Bearing in mind that the Respondent can unilaterally decide upon the Claimant’s participation in a match and, as a consequence, unilaterally reduce the total amount of remuneration per season which was agreed between the parties, the DRC considered such a clause to be arbitrary and unilateral in nature and is therefore to be considered unenforceable. In this regard, the Chamber noted that “per match” payments of EUR 165,000 were provided for in the contract for the period running from August 2013 to May 2014, i.e. a ten month period. Consequently, the Chamber concluded that “per match” payments were to be treated as being 10 monthly salary payments of EUR 16,500 each. 11. Furthermore, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the Chamber established that the lump sum of EUR 120,000 was due as from 13 August 2013, as well as EUR 45,000 due on 30 September 2013 as per the contract, of which both amounts remained outstanding until the date of termination of the contract by the Claimant, i.e. 1 October 2013. In addition, in light of the considerations in point II.10 above, the Chamber established that at the time of termination the amount of EUR 33,000 corresponding to August and September 2013 (i.e. 2 x EUR 16,500) was also due to the Claimant. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant. 12. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant had just cause to unilaterally terminate the contract on 1 October 2013 and that the Respondent is to be held liable for the early termination of the contract with just cause by the player. 13. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the contractually provided amounts which were outstanding at the time of the termination, i.e. EUR 198,000 corresponding to the payments due on 13 August 2013 and 30 September 2013, as well as the salaries (cf. point II.10 above) of August and September 2013, i.e. EUR 33,000. 14. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR 198,000 as follows: a. 5% p.a. as of 14 August 2013 on the amount of EUR 120,000; b. 5% p.a. as of 1 September 2013 on the amount of EUR 16,500; c. 5% p.a. as of 1 October 2013 on the amount of EUR 45,000; d. 5% p.a. as of 1 October 2013 on the amount of EUR 16,500. 15. Furthermore, due to the lack of evidence and in light of there being on contractual basis, the request for the payment of 50,000 as a bonus is rejected. 16. In continuation, having established that the Respondent is to be held liable for the termination of the contract with just cause by the Claimant, the Chamber decided that in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay compensation to the Claimant. In this respect, the Chamber recapitulated that in accordance with the aforementioned article, 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 fell within the protected period. 17. In application of the relevant provision, the Chamber held that it first had to clarify whether the pertinent employment contract contains 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. 18. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 19. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, a criterion which was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 20. In continuation, the Chamber verified 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 able to reduce his loss of income. According to the constant practice of the DRC, remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation due for breach of contract in combination with the player’s general obligation to mitigate his damages. The Chamber noted that according to the Claimant’s declaration, he had not been able to sign an employment contract with another club during the relevant period of time. 21. Consequently, on account of all the aforementioned considerations and the specificities of the case at hand, the members of the Chamber decided that the Respondent must pay the amount of EUR 132,000 to the Claimant as compensation for breach of contract in the matter at hand, pertaining to the pro-rata sum due from October 2013 until May 2014, as per point I.2.b.ii above. 22. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, 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 the claim was lodged, i.e. 5 November 2013. 23. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is 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 198,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 14 August 2013 on the amount of EUR 120,000; b. 5% p.a. as of 1 September 2013 on the amount of EUR 16,500; c. 5% p.a. as of 1 October 2013 on the amount of EUR 45,000; d. 5% p.a. as of 1 October 2013 on the amount of EUR 16,500. 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 132,000 plus 5% interest p.a. on said amount as from 5 November 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the aforementioned numbers 2. and 3. plus interest 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 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 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