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 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 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 arisen between the parties I. Facts of the case 1. On 27 June 2014, the player from country B, Player A (hereinafter: player or Claimant) and the club from country D, Club C (hereinafter: club or Respondent) concluded an employment agreement, valid from 27 June 2014 until 30 June 2015. 2. According to article 3 of the employment contract, the player was entitled to receive the following remuneration: USD 50,000, payable not later than 7 July 2014; USD 30,000 as an ‘agent commission’, payable no later than 31 October 2014; 12 monthly salary payments of USD 25,000. 3. On 29 November 2014, the player put the club in default of payment of the amount of USD 30,000, which was due as from 31 October 2014, and of payment of the amount of USD 75,000, corresponding to the monthly salaries for September, October and November 2014, which were allegedly due by the last day of each month. The player asked the club to pay the outstanding amounts not later than 8 December 2014. 4. On 9 December 2014, after having received his September salary, the player put the club again in default of the aforementioned amount of USD 30,000 due as from 31 October 2014 and of his salaries for October and November 2014. The player asked the club to pay the outstanding amounts not later than 11 December 2014. 5. The club having failed to pay these amounts, the player unilaterally terminated the contract on 15 December 2014, stating that he had just cause to terminate the employment contract. 6. On 20 January 2015, the player filed a claim before FIFA against the club, claiming payment of outstanding remuneration and compensation for breach of contract by the club, and requested the payment of the total amount of USD 255,000, as follows: USD 55,000 as outstanding remuneration for October (USD 25,000 plus USD 30,000), plus 5% interest as of 1 November 2014 until the date of effective payment; USD 25,000 as outstanding remuneration for November, plus 5% interest as of 1 December 2014 until the date of effective payment; USD 175,000 as compensation for breach of contract (7 monthly salaries as from December 2014), plus 5% interest as of 16 December 2014 until the date of effective payment. 7. In its reply to the claim of the player, the club states that on 29 November 2014 only two monthly salaries were outstanding and that it paid the salary for September 2014 in cash on 9 December 2014. Further, the club states that it paid the salaries normally between the 15th and the 20th day of the following month and that the amount of USD 30,000 was not due to the player, but to the player’s agent. 8. According to the club, the player had therefore no just cause to terminate the contract, since only one salary payment was outstanding when the player unilaterally terminated the contract on 15 December 2014. He further did not fulfil his contractual obligations towards the club after 15 December 2014, since he ‘left the disposal of the club’. Further, the club states that the player left prior to two important matches to be played on 18 December 2014 and 21 December 2014, which behaviour has, according to the club, to be considered as “contributory negligence”. 9. The club concludes that it partially accepts the claim of the player, up to the amount of USD 61,290.33, but also requests the DRC to consider that the player was in breach of the contract and that sporting sanctions will be imposed on the player, i.e. a restriction for playing matches in the month August 2015. 10. In his response to club’s allegations, the player states that he had just cause to terminate the contract. According to the player, there was no ‘established custom of payment’, reason why the salaries were due on the last day of the respective month. Therefore, on 15 December 2014, the salaries for October 2014 and November 2014 were outstanding, as well as the payment of USD 30,000 that fell due on 31 October 2014. 11. Consequently, the player maintains his claim. 12. The player signed a new contract with the club from country F, Club E, valid as from 2 February 2015 until 31 May 2016, according to which he was entitled to receive 15 monthly salaries of USD 8,000. 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 20 January 2015. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 20 January 2015, the 2014 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the members of the Chamber started by acknowledging that the parties to the dispute had signed an employment contract, valid from 27 June 2014 until 30 June 2015 in accordance with which the Respondent would pay the Claimant on 7 July 2014 an instalment of USD 50,000, as well as 12 monthly salary payments of USD 25,000. Also, the contract provided for an “agent commission” payment to be paid no later than 31 October 2014. 6. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had breached the employment contract by failing to remit the payments he was entitled to. 7. Furthermore, the members of the Chamber took into account that, on 15 December 2014, the Claimant notified the Respondent of the termination of the contract, after previously having put the Respondent in default, since it allegedly failed to pay the Claimant’s remuneration. In this respect, the Claimant stated that the Respondent failed to pay him the amount of USD 30,000, which was due as from 31 October 2014 and the monthly salaries for October and November 2014, corresponding to USD 25,000 each, which were allegedly due by the last day of each month. Consequently, the Claimant asked to be awarded the allegedly outstanding monies as well as the payment of compensation for breach of the employment contract. 8. The Respondent, for its part, partially recognised the claim of the Claimant, stating that one payment was indeed outstanding, but also argues that the Claimant terminated the contract on 15 December 2014 without just cause. In this respect, the Respondent states that on 15 December 2014, only one salary payment was outstanding and that it paid the salary for September 2014 on 9 December 2014, after having received the Claimant’s first notification. In particular, the Respondent hold that it always paid the salaries between the 15th and the 20th day of the next month. Further, the Respondent states that the payment of USD 30,000 was not due to the Claimant, but to the agent of the Claimant. 9. Furthermore, the members of the Chamber noted that the Claimant stated that the Respondent had no established custom of payment, and that at 15 December 2014, two salary payments were outstanding, as well as the amount of USD 30,000, due as from 31 October 2014, since the contract clearly stipulates that this amount is to be paid to the Claimant. The Chamber finally took note of the Respondent’s allegations that the Claimant left prior to two important matches to be played on 18 December 2014 and 21 December 2014 and that this behaviour has to be considered as “contributory negligence”. 10. The DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to terminate the contract on 15 December 2014. 11. In this respect, the Chamber wished to emphasize that, according to the Claimant, at the time of the termination of the contract on 15 December 2014, the total amount of USD 80,000 was yet to be paid by the Respondent. 12. The members of the Chamber then turned their attention to the arguments of the Respondent and acknowledged that according to the latter, on 15 December 2014 only one salary payment was outstanding as well as that the Claimant was not entitled to the instalment of USD 30,000, since this amount was to be paid to the Claimant’s agent. In this context, the DRC noted that the Respondent had submitted several documents, allegedly payment receipts, stating that these documents show that it always paid the salaries between the 15th and the 20th day of the next month, and that therefore at the termination date of the contract, i.e. 15 December 2014, only one salary payment was outstanding. 13. Thus, the Chamber noted that the Respondent argued that on the date of termination of the contract, only one salary was outstanding and that the Claimant’s unilateral termination therefore could not be considered as a termination with just cause. 14. In relation to the argumentation submitted by Respondent, the Chamber recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 15. As to the documentary evidence presented by the Respondent, the DRC observed that these documents only correspond to two salary payments. Therefore, the DRC decided that said documents could not be considered as evidence that there was an established “custom of payment”, holding that the salaries were normally paid between the 15th and the 20th day of the following month. Further, the Chamber stressed that the Claimant explicitly disputed such a “custom of payment” and that therefore it could not establish that there was an agreement between the parties in relation to the payment dates. Hence, the Chamber concluded that payment was due on the last day of the month. As a result, the DRC held that the Respondent failed to substantiate its allegation that on 15 December 2014, only one salary payment was outstanding. 16. Furthermore, the Chamber noted the Respondent’s arguments that the Claimant was not entitled to the amount of USD 30,000, as this was to be paid to the Claimant’s agent. Turning to the arguments of the Respondent, as well as to the statements made by the Claimant, the DRC referred again to art. 12 par. 3 of the Procedural Rules and concluded that the Respondent did not provide any documentary evidence that the amount of USD 30,00 was only to be paid to the Claimant’s agent, as clause 3.1 of the contract clearly stipulates that this amount is to be paid to the Claimant. 17. Consequently, the Chamber considered that the Respondent had not sufficiently substantiated its defence, as it did not present any conclusive documentary evidence which could corroborate that the salaries for October and November 2014 were indeed only due between the 15th and the 20th day of the following month and that the Claimant was not entitled to the amount USD 30,000 as mentioned in the contract. 18. 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 two monthly salaries, corresponding to the months October and November 2014, as well as the amount of USD 30,000, due on 31 October 2014, had fallen due and remained outstanding at the time of the termination of the contract by the Claimant. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant. 19. On account of the above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 15 December 2014, the total amount of USD 80,000. Consequently, and considering that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 15 December 2014, having previously put the club in default. As a result, the Chamber concluded that the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 20. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination. 21. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination, i.e. the amount of USD 80,000, consisting of the salaries for October and November 2014 of USD 25,000 each and the amount of USD 30,000, due on 31 October 2014. 22. Furthermore, and considering the Claimant’s claim for interest, the Chamber ruled that the Respondent must pay 5% interest on the amount of USD 80,000 as from the respective due dates, i.e. the first day of the next month. 23. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 24. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 25. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 26. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 27. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the contract as from its date of termination with just cause by the Claimant, i.e. 15 December 2014, until 30 June 2015, and concluded that the Claimant would have received in total USD 175,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 175,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 28. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 29. In this respect, the Chamber noted that on 2 February 2015, the Claimant found employment with the club from country F, Club E. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 31 May 2016, the Claimant was entitled to receive 15 monthly payments of USD 8,000. The Chamber took into account that 5 of these monthly salary payments were to be paid in the period between 2 February 2015 and 30 June 2015. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and Club E for the period as from 2 February 2015 until 30 June 2015 amounted to USD 40,000 and that the Claimant was able to mitigate his damages with the amount of USD 40,000 (i.e. 5 months x USD 8,000) during said period of time. 30. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 135,000 as compensation for breach of contract in the case at hand. 31. 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. 20 January 2015 until the date of effective payment. 32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 80,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 November 2014 on the amount of USD 55,000; b. 5% p.a. as of 1 December 2014 on the amount of USD 25,000. 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 USD 135,000 plus 5% interest p.a. on said amount as from 20 January 2015 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org / www.tas-cas.org For the Dispute Resolution Chamber: Marco Villiger Acting Deputy Secretary General Encl.: CAS directives