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DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO
• Data decisione: • Stagione sportiva: 2016/2017

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 8 September 2016

Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 September 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Leonardo Grosso (Italy), member
Theodore Giannikos (Greece), member
Mohamed Mecherara (Algeria), 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 12 January 2014, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid until 31 December 2014.
2. Pursuant to art. 3 of the contract, the Claimant was entitled to receive the following net remuneration:
- USD 100,000 as advance payment;
- USD 400,000 payable in twelve equal monthly instalments.
3. On 18 July 2014, the Claimant put the Respondent in default of payment of the amount of USD 136,333.32.
4. On 1 September 2014, the Claimant sent a notice of termination to the Respondent, emphasising that the latter had a debt of USD 103,500.65 towards him.
5. On 10 November 2014, the Claimant and the Respondent concluded an “Annex to the Professional Football Contract” (hereinafter: the annex), by means of which the Claimant withdrew his notice of termination and the parties decided to extend their contractual relationship until 31 December 2015.
6. In accordance with art. 5.1 of the annex, the Claimant was entitled to receive the following net monthly salaries:
- USD 33,333.33 as salary for October 2014 payable by no later than 15 November 2014;
- USD 33,333.33 as salary for November 2014 payable by no later than 15 December 2014;
- USD 33,333.33 as salary for December 2014 payable by no later than 15 January 2015;
- USD 25,500 as salary for January 2015 payable by no later than 15 February 2015;
- USD 25,500 as salary for February2015 payable by no later than 15 March 2015;
- USD 25,500 as salary for March 2015 payable by no later than 15 April 2015;
- USD 25,500 as salary for April 2015 payable by no later than 15 May 2015;
- USD 25,500 as salary for May 2015 payable by no later than 15 June 2015;
- USD 25,500 as salary for June 2015 payable by no later than 15 July 2015;
- USD 25,500 as salary for July 2015 payable by no later than 15 August 2015;
- USD 25,500 as salary for August 2015 payable by no later than 15 September 2015;
- USD 25,500 as salary for September 2015 payable by no later than 15 October 2015;
- USD 25,500 as salary for October 2015 payable by no later than 15 November 2015;
- USD 25,500 as salary for November 2015 payable by no later than 15 December 2015;
- USD 25,500 as salary for December 2015 payable by no later than 15 January 2016.
7. Article 5.2 of the annex further states that the Respondent has “to pay to the [Claimant] monthly accommodation expenses in net amount of USD 500,00 (five hundred US dollars) which mature on 15 of each month starting from 1 October 2014 till the expiration of the main contract”.
8. In addition, art. 6 of the annex provides that “[i]f the [Respondent] is late more then 30 with any of the payments stipulated in the article 5.1/ and 5.2/ of this annex, then the [Claimant] is entitled to unilaterally terminate the main contract, this annex and all other related contracts in which case the [Respondent] and the [Claimant] agree that the [Respondent] is obliged to pay to the [Claimant]:
- all overdue amounts till the day of unilateral termination of the main contract, this annex and all other related contracts,
- all amounts stipulated in the article 5.1/ and 5.2/ of this annex which were due as from the day of unilateral termination of the main contract, this annex and all other related contracts, till 16 January 2016,
- plus additional compensation for the breach of aforementioned contracts in net amount of 100.000,00 USD (one hundred thousand dollars)”.
9. On 12 May 2015, the Claimant put the Respondent in default of paying his salary for March 2015 in the amount of USD 25,500 as well as USD 2,500 as accommodation allowance by 15 May 2015, stressing that should the Respondent fail to do so, he would terminate the contract in accordance with art. 6 of the annex.
10. On 18 May 2015, the Respondent issued a document allowing the Claimant to travel home and not to attend training sessions until the beginning of the pre-season 2015-16 due to an injury.
11. On 12 June 2015, the Claimant put the Respondent in default of paying his salary for April 2015 as well as USD 3,000 as accommodation allowance by 15 June 2015, stressing that should the Respondent fail to do so, he would terminate the contract in accordance with art. 6 of the annex.
12. On 13 July 2015, the Claimant put the Respondent in default of paying his salaries for April and May 2015 as well as USD 3,500 as accommodation allowance by 15 July 2015, stressing that should the Respondent fail to do so, he would terminate the contract in accordance with art. 6 of the annex.
13. On 30 July 2015, the Respondent replied to the Claimant, informing him that it would soon send him the final draft of the termination agreement.
14. On 7 August 2015, the Respondent granted the Claimant the authorisation to be absent until 31 August 2015.
15. On 12 August 2015, the Claimant sent a final default notice, requesting the Respondent to pay his salaries for April, May and June 2015 as well as USD 4,000 as accommodation allowance by 15 August 2015.
16. On 31 August 2015, the Claimant terminated the contract in writing.
17. On 9 September 2015, the Claimant, the Respondent and a company called Company E signed a document by means of which Company E confirmed that “the transaction dated 15.8.2015, in net amount of USD 23,950.00 (twenty-three thousand, nine hundred and fifty US dollars) to professional football player (…) was concluded in accordance with the instruction to the account of the [Claimant], in name and behalf of [the Respondent], as a payment of April 2015 salary and Company E has no financial or any other claims towards the [Claimant] regarding the aforementioned amount”.
18. On 14 January 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting:
 USD 82,550 as outstanding salaries, broken down as follows:
- USD 1,550 corresponding to part of his salary for April 2015;
- USD 76,500 corresponding to his salaries from May until July 2015;
- USD 4,500 corresponding to his accommodation allowance from December 2014 until August 2015;
 USD 230,000, “which matured on 12 January 2016”, as compensation for breach of contract in accordance with art. 6 of the annex;
 “a default interest of 5% per year on the aforementioned amounts starting from the respective date of maturity until the effective date of payment”;
 the imposition of sanctions on the Respondent based on art. 12bis par. 4 of the FIFA Regulations on the Status and Transfer of Players;
 the imposition of sporting sanctions on the Respondent;
 to condemn the Respondent to bear his legal expenses and the procedural costs.
19. In its reply to the claim, the Respondent “does not dispute the fact, that the [Claimant] terminated the Annex to the [contract] as well as the [contract] itself with just cause”.
20. The Respondent further explains that due to the devaluation of the Currency of Country D in February 2015, as well as the Claimant’s health and his relationship with the coach, it expressed its intention to settle the matter by means of a termination agreement.
21. In continuation, the Respondent alleges that an amount equivalent to USD 1,550 was paid monthly to the Claimant in the Currency of Country D (XXX) to his “other account” until December 2015. In view of the above, the Respondent sustains that the amount of USD 1,550 should be deducted from the monthly amounts claimed and that, therefore, the Claimant should be entitled to receive an amount of USD 191,600 from May until December 2015. In addition, the Respondent points out that the Claimant is only entitled to claim the accommodation allowance that fell due prior to the termination of the contract. Consequently, the Respondent holds that the Claimant is only entitled to USD 4,500 as accommodation allowance, i.e. from December 2014 until August 2015.
22. Furthermore, the Respondent argues that art. 6 of the annex is not reciprocal since it is to the benefit of the Claimant only and that, therefore, said clause cannot be taken into consideration in the determination of the amount of compensation. In this respect, the Respondent states that the annex was drafted by the Claimant.
23. In his replica, the Claimant emphasises that the Respondent did not submit any element in support of its assertion that part of his salary was paid in XXX.
24. In addition, the Claimant points out that the parties freely agreed on a method of calculation of the compensation payable by the Respondent in case of termination of the contract with just cause by him. In this respect, the Claimant outlines that the annex was drafted by the Respondent and revised by him. Moreover, the Claimant argues that the “ratio” of art. 6 of the annex is to ensure that the Respondent complies with its contractual obligations in due time and as such, does not favour any of the parties. The Claimant points out that his acceptance to sign the annex was motivated by the following commitments made by the Respondent: (i) the payment of one overdue salary in the amount of USD 33,333; (ii) extension of the contractual relationship until 31 December 2015; and (iii) insertion of the additional penalty payable in case of termination with just cause.
25. In spite of having been invited to do so, the Respondent did not submit any additional comments.
26. Having been invited to do so, the Claimant informed FIFA that he had not entered into any new employment contract between August and December 2015.
II. Considerations of the Dispute Resolution Chamber
1. In a first instance, 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 14 January 2016. Consequently, the 2015 edition of the 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 of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), 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 of Country B and a Club of 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 2016), and considering that the present claim was lodged on 7 March 2016, the 2015 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. However, the Chamber emphasised that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.
5. In this respect, the DRC acknowledged that, on 12 January 2014, the parties signed an employment contract, valid as from the date of signature until 31 December 2014 and that subsequently, i.e. on 10 November 2014, extended the contractual relationship until 31 December 2015. Furthermore, the Chamber also took note that it is uncontested by the parties that on 31 August 2015, and after having put the Respondent in default on several occasions, the Claimant terminated in writing the contractual relationship with the Respondent.
6. In this regard, the Chamber took note of the Claimant’s affirmation according to which he had just cause to terminate the contract. In particular, the members of the Chamber noted that the Claimant asserts that the Respondent failed to pay his salaries as from April 2015 as well as his housing allowances as from December 2014.
7. In continuation, the Chamber noticed that the Respondent explicitly acknowledged that the Claimant had just cause to unilaterally terminate the employment contract on 31 August 2015 and therefore concluded that the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.
8. Having established that the Respondent is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.
9. First, the Chamber reverted to the Claimant’s claim for outstanding salaries and housing allowances. In this respect, the Chamber observed that the Respondent alleges that an amount equivalent to USD 1,550 was paid monthly to the player in the Currency of Country D (XXX) to his “other account” until December 2015; however, without substantiating its assertions with any concrete evidence. Accordingly, and in accordance with art. 12 par. 3 of the Procedural Rules, the DRC held that the Respondent failed to satisfactorily carry the burden of proof and, therefore, decided to reject its argument. In view of the above, the Chamber concluded that at the time of termination, the salaries for April, May, June and July 2015, as well as the allowance due from December 2014 until July 2015, were outstanding. The Chamber however considered that even though the Claimant’s salary for August 2015 had not formally fallen due on the date of termination, the Claimant had rendered his services to the Respondent for the entire month of August 2015 and thus decided that said month shall also be taken into consideration for the calculation of the outstanding remuneration.
10. Having stated the foregoing, the Chamber took note that on 9 September 2015, i.e. after the termination of the contract, the Claimant acknowledged receipt of a payment of USD 23,950 made on behalf of the Respondent. Consequently, and considering that the above-mentioned outstanding salaries amounted to USD 127,500, the Chamber concluded that the outstanding salaries amounted to USD 103,550
11. Regarding the housing allowances, the members of the Chamber observed that the Respondent does not contest that they were due and thus considered that the amount of USD 4,500, corresponding to the housing allowances due for the period from December 2014 until August 2015, was outstanding at the time of the termination.
12. In addition, taking into consideration the Claimant’s claim, the Chamber decided that the Respondent had to pay default interest at a rate of 5% as follows:
a. 5% p.a. as of 16 December 2014 on the amount of USD 500;
b. 5% p.a. as of 16 January 2015 on the amount of USD 500;
c. 5% p.a. as of 16 February 2015 on the amount of USD 500;
d. 5% p.a. as of 16 March 2015 on the amount of USD 500;
e. 5% p.a. as of 16 April 2015 on the amount of USD 500;
f. 5% p.a. as of 16 May 2015 on the amount of USD 2,050;
g. 5% p.a. as of 16 June 2015 on the amount of USD 26,000;
h. 5% p.a. as of 16 July 2015 on the amount of USD 26,000;
i. 5% p.a. as of 16 August 2015 on the amount of USD 26,000;
j. 5% p.a. as of 31 August 2015 on the amount of USD 25,500.
13. In continuation, the Chamber focused its attention on 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.
14. In application of the relevant provision, the Chamber held that it first 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. The members of the Chamber recalled that in accordance with art. 6 of the annex, in case of termination of the contract with just cause by the Claimant, “the [Respondent] is obliged to pay to the [Claimant]:
- all overdue amounts till the day of unilateral termination of the main contract, this annex and all other related contracts,
- all amounts stipulated in the article 5.1/ and 5.2/ of this annex which were due as from the day of unilateral termination of the main contract, this annex and all other related contracts, till 16 January 2016,
- plus additional compensation for the breach of aforementioned contracts in net amount of 100.000,00 USD (one hundred thousand dollars)”.
15. In this respect, the members of the Chamber agreed that this clause, in particular the additional compensation of USD 100,000 included therein, is to the benefit of the Claimant only, as it does not grant the same rights to the Respondent, and that, therefore, said clause cannot be taken into consideration in the determination of the amount of compensation as it is clearly unbalanced.
16. 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.
17. 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 Claimant under the terms of the employment contract until 31 December 2015, taking into account that the Claimant´s remuneration until August 2015 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of EUR 104,000, i.e. remuneration as from September 2015 until December 2015, serves as the basis for the determination of the amount of compensation for breach of contract.
18. 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.
19. The Chamber noted that it appears from the documentation on file that the Claimant did not sign any contract with a new club within the relevant period. Thus, the Claimant had apparently not been able to mitigate damages. In this context, the DRC declared that there is no remuneration to be taken into account in order to mitigate the amount of compensation for breach of contract.
20. In this respect, and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided that the Respondent must pay the amount of EUR 104,000 to the Claimant, which is considered by the DRC to be a reasonable and justified amount as compensation for breach of contract.
21. In addition, taking into account the Claimant’s request, 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 on which the claim was lodged, i.e. 14 January 2016, until the date of effective payment.
22. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.
23. 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 108,050 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 16 December 2014 on the amount of USD 500;
b. 5% p.a. as of 16 January 2015 on the amount of USD 500;
c. 5% p.a. as of 16 February 2015 on the amount of USD 500;
d. 5% p.a. as of 16 March 2015 on the amount of USD 500;
e. 5% p.a. as of 16 April 2015 on the amount of USD 500;
f. 5% p.a. as of 16 May 2015 on the amount of USD 2,050;
g. 5% p.a. as of 16 June 2015 on the amount of USD 26,000;
h. 5% p.a. as of 16 July 2015 on the amount of USD 26,000;
i. 5% p.a. as of 16 August 2015 on the amount of USD 26,000;
j. 5% p.a. as of 31 August 2015 on the amount of USD 25,500.
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 amounting to USD 104,000 plus 5% interest p.a. on said amount as from 14 January 2016 until the date of effective payment.
4. In the event that the amounts plus interest due to the Claimant in accordance with the above-mentioned points 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. 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
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives

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