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 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), member on the claim presented by the player, A, country R, represented by Mr xxxx as Claimant against the club, B, country U 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 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), member on the claim presented by the player, A, country R, represented by Mr xxxx as Claimant against the club, B, country U as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 5 September 2013, the player from country R, A (hereinafter: the Claimant), and the club from country U, club B (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), as well as an “additional agreement to the employment contract” (hereinafter: the agreement), both valid as from the date of signature until 30 June 2015. 2. According to art. 2 of the agreement, the Respondent undertook to provide the Claimant, inter alia, with the following net amounts: i. For the season 2013/2014: a. USD 30,000 as sign on fee; b. USD 50,000, payable on 30 September 2013; c. USD 250,000 divided in ten monthly salaries (10 x USD 25,000), payable on the 25th day of each month, from September 2013 until June 2014. ii. For the season 2014/2015: a. USD 60,000, payable on 15 July 2014; b. USD 30,000, payable on 15 September 2014; c. USD 240,000 divided in twelve monthly salaries (12 x USD 20,000), payable on the 25th day of each month, from July 2014 until June 2015. iii. In addition, according to art. 2.4 “The Club will pay 500 US dollars for renting apartments” and art. 2.5 further stipulates that “The Club will pay 4 tickets for the Player per season”. 3. According to art. 6.3 of the contract “ A contract may be prematurely terminated at the initiative of the Player under the grounds specified in art. 39 of country U Labor Regulatory, namely (…) Club’s violation of its obligations under the contract”. 4. Furthermore, art. 6.4 stipulates that “ The Party which has terminated to contract prematurely without providing solid grounds for such action may be prosecuted by YX Football Federation regulation of the player transfers. Moreover, claims may be brought up for the other party for losses associated with the failure of a Party of its obligations as a result of early termination the Contract”. 5. On 20 March 2014 the Claimant sent a notice to the Respondent by means of which he reminded it of its arrears, claiming a total amount of USD 202,500 (USD 50,000 due on 20.09.2013, cf. point. I.2.i.a.; plus salaries from September 2013 to February 2014, i.e 6 months plus rent allowance as from October 2013). 6. On 13 May 2014, after receiving two other reminders from the Claimant (dated 28 April and 8 May 2014), the Respondent sent a reply to the Claimant stating that “Due to the difficult political and financial situation in country U the Club has had temporary financial problems. (…) the club is trying to solve its financial problems (…) the club will settle with its creditors before the end of May 2014”. On the same day, the Claimant replied to the Respondent that he would not accept any further delay and gave the Respondent a last 24 hours deadline to fulfil its financial obligations, before terminating the contract. 7. On 14 May 2014, the Claimant terminated the employment contract in writing, alleging that the Respondent had not made any payment and that an amount of USD 203,500 was outstanding. 8. On 23 May 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract without just cause, requesting the payment of the amounts below plus 5% interest p.a. “in accordance with Swiss law”, as follows: i. USD 211,290 as outstanding remuneration until 14 May 2014, corresponding to the salaries from November 2013 to April 2014 (USD 150,000), plus 14 days of the salary of May 2014 (USD 11,290), plus USD 50,000 as payment due on 30 September 2013; ii. USD 3,725, corresponding to the rent allowance [USD 500 x 7 + (14 days in May 2014 = USD 225)]; iii. EUR 1,000, corresponding to an estimation of 4 rounds tickets X – Y(place of residence of the Claimant); iv. USD 375,484 and EUR 1,000 as compensation for breach of contract, corresponding to the residual value of the contract as from 14 May 2014 as follows: a. USD 13,709 corresponding to the remaining remuneration for May 2014; b. USD 25,000 corresponding to the remuneration for June 2014; c. USD 90,000 corresponding to the advance payments for the season 2014/2015; d. USD 240,000 corresponding to the accumulated monthly remuneration for the season 2014/2015; e. USD 6,775 corresponding to the rent allowance from 14 May 2014 until 30 June 2015; f. EUR 1,000 representing the estimated value of 4 return tickets to Bucharest; v. EUR 10,000 to cover legal costs and attorney fees; vi. sporting sanctions on the Respondent. 9. In his claim, the Claimant states that he fully respected all his contractual obligations. The Respondent, however, failed to pay him his salaries as of November 2013, as well as the instalment due on 30 September 2013 (cf. point I.2. above). Under these circumstances, after having sent several reminders to the Respondent (cf. point I.5. and I.6. above), the Claimant deems to have had no other choice but to terminate the contract with the Respondent on 14 May 2014. The next day, the Respondent contacted him in writing stating that he left the Respondent’s training without giving any explanations and that it tried to contact him without success. The Claimant on the contrary holds having attended “(…) the players’ meeting in the Club, which was held yesterday at 12:00” and left for Bucharest late in the afternoon and did not receive any call on his phone which was turned on the whole day. 10. Based on the foregoing, the Claimant deems that he had a just cause to terminate the contract with the Respondent after having given it multiple chances to solve the matter amicably. 11. In its reply to the Claimant’s claim, the Respondent confirms having financial problems due to the political situation in country U, acknowledges a debt towards the Claimant and plans to be able to pay its dues before the end of the month of July 2014, which allegedly did not occur. 12. Finally, the Claimant informed FIFA in November 2014 that he remained unemployed as from 14 May 2014. According to TMS, the Claimant found new employment with the XY club, FC xxxxx, from 1 January 2015 until 31 May 2015, for which he is entitled to a monthly salary of EUR 5,000. 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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 23 May 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and par. 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 2 in combination 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 R and a club from country U. 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, 2014 and 2015), and considering that the present claim was lodged on 23 May 2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 5. 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. 6. In this respect, the DRC acknowledged that on 5 September 2013, it was undisputed by the parties that the Claimant and the Respondent had signed an employment contract and an additional agreement both valid as from the date of signature until 30 June 2015. 7. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 14 May 2014, after having previously put the club in default by sending it four reminders, since the Respondent allegedly failed to pay the Claimant’s remuneration (cf. point I.5. to I.7. above). In this respect, the Claimant submits that the Respondent failed to pay him the instalment due in September 2013, his monthly salaries as from the month of November 2013 and his rent allowance since October 2013. Consequently, the Claimant asks to be awarded his outstanding monies, the payment of compensation for breach of the employment contract, legal costs, attorney fees, as well as sporting sanctions on the Respondent. 8. The Respondent, for its part, confirmed that the Claimant did not receive his outstanding remuneration and stated that it was willing to fulfil its obligations. 9. At this point already, the Chamber deemed it appropriate to refer the parties to the content of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis on an alleged fact shall carry the burden of proof”. In this particular case, the Chamber pointed out that the Respondent bore the burden of proving that the Claimant’s salaries had in fact been paid, in accordance with the intention conveyed by the Respondent in its answer to the claim (cf. point I.11. above). In this respect, the DRC noted that the Respondent did not present any documentary evidence to prove that part of or the entire amount due to the player has in fact been paid in the meantime. 10. In view of all the above, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations towards the Claimant and is to be held liable to pay the latter the amount of USD 203,500, which is the total amount of remuneration that was outstanding at the time the Claimant terminated the contract, i.e. 14 May 2014. This amount corresponds to six monthly salaries for the months of November 2013 to April 2014 amounting to USD 25,000 each and seven rent allowances for the months of October 2013 to April 2014 of USD 500 each. 11. In addition, considering the Claimant’s claim and the relevant terms of the annexe to the employment contract (cf. point I.2.iii. above), the Chamber decided that the Respondent must pay to the Claimant the amount of USD 100, equivalent to a oneway flight ticket X – Y, in accordance with the fares informed by FIFA Travel. 12. In view of the Claimant’s claim and bearing in mind the Chamber’s well-established jurisprudence, the members of the Chamber established that an interest rate of 5% p.a. would apply over the amounts of USD 203,500 and USD 100 mentioned in points II.10. and II.11. above, as from 23 May 2014, which is the date of the Claimant’s claim. 13. On account of the aforementioned, in particular in view of the considerations under point II.10. and II.11. above, the Chamber could establish that the Respondent, undisputedly and without any valid reason, failed to remit to the Claimant, until 14 May 2014, date on which the Claimant terminated the contract, the total amount of USD 203,500, corresponding to six monthly salaries and seven months of rent allowance. 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 a just cause to unilaterally terminate the employment contract on 14 May 2014 and that, as a result, the Respondent is to be held liable for the breach of the employment contact without just cause. 14. In continuation, having established that the Respondent is to be held liable for the breach of the employment contract without just cause, the Chamber focused its attention on the consequences of such breach. In this regard, the members of the Chamber determined that the Respondent was not only to pay the amounts of USD 203,500 and USD 100 as, respectively, outstanding remuneration and one flight ticket to the Claimant, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 15. Having stated the above, the Chamber turned its attention 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 player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 16. 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. 17. 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. 18. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2015, taking into account that the player’s remuneration until April 2014 is included in the calculation of the outstanding remuneration (cf. point II.10. above). Consequently, the Chamber concluded that the amount of USD 387,000 (i.e. remuneration as from May 2013 until 30 June 2015) serves as the basis for the determination of the amount of compensation for breach of contract. 19. 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 able 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. 20. Indeed, on 1 January 2015, the Claimant found new employment with the xxxxx club, FC xxxx. In accordance with the pertinent employment contract, which was entered in the Transfer Matching System (TMS), valid until 31 May 2015, the Claimant was entitled to receive a monthly salary of EUR 5,000. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and FC xxxx for the period as from 1 January 2015 until 31 May 2015 amounted to USD 28,500, after conversion. 21. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of USD 358,500 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. In addition, taking into consideration the Claimant’s claim and the DRC’s well-established jurisprudence, the Chamber decided to award the Claimant interest at a rate of 5% p.a. over the aforementioned amount, as from 23 May 2014, i.e. the date of the claim. 22. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay to the Claimant the amount of USD 203,500 as outstanding remuneration, USD 100 as a flight ticket and USD 358,500 as compensation for breach of contract, plus interest of 5% p.a. over all aforementioned amounts as of 23 May 2014 until the date of effective payment. 23. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 24. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates inter alia that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on a club found to be in breach of contract during the protected period. 25. Subsequently, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this respect, the Chamber took note that the contract and the agreement signed by the parties were valid as from 5 September 2013 (cf. point I.1. above). Furthermore, the DRC also noted that on 14 May 2014 such contract was terminated by the Claimant due to the Respondent’s breach of it without just cause. Therefore, the Chamber concluded that, independent of the player’s age, such breach of contract by the Respondent had occurred within the protected period. 26. As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the Respondent was found in breach of the employment contract without just cause within the protected period, the Chamber decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. In this regard, the Chamber emphasised that, apart from the Respondent having clearly acted in breach of the contract within the protected period in the present matter, the Respondent had also on several occasions in the recent past been held liable by the Chamber for the early termination of the employment contracts with the players xxx (case. ref. nr. xxxxx; decided on 24 April 2015),xxxx (case ref. nr. xxxx; decided on 23 July 2015) and xxxx (case ref. nr. xxxx; decided on 12 March 2015). 27. 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, A, is partially accepted. 2. The Respondent, club B, 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 203,500 plus 5% interest p.a. as from 23 May 2014 until the date of effective payment. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, a flight ticket in the amount of USD 100, plus 5% interest p.a. as from 23 May 2014 until the date of effective payment. 4. 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 358,500 plus 5% interest p.a. as from 23 May 2014 until the date of effective payment. 5. In the event that the amounts due to the Claimant 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. 6. Any further request filed by the Claimant is rejected. 7. 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. 8. The Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. ***** Note relating to the motivated decision (legal remedy): According to 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