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 28 January 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 28 January 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theodore Giannikos (Greece), member

Theo van Seggelen (Netherlands), 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 1 Augustus 2013, the futsal player from country B, Player A (hereinafter: the player or Claimant) and the futsal club from country D, Club C (hereinafter: the club or Respondent) concluded an employment contract valid as from 1 August 2013 until 1 May 2014 (hereinafter: the contract).

2. According to article 7 of the contract, the player was entitled to receive, inter alia, a monthly salary of EUR 2,500 in the period between 1 August 2013 and 1 May 2014.

3. Article 1 of the contract provides inter alia for the following: ‘1. Subject of a contract [….] Footballer also avoids everything that may harm the interests of the Football Club, his personal interests and the performance of his professional duties’.

4. Further, article 3 of the contract stipulates: ‘3. Rights and duties of the club [….] 3.2 The Football Club duties: [….] 3.2.5 Provides befitting medical maintenance and restoration treatments (massage, sauna, swimming pool, etc.); 3.2.6 Incurs other expenses of players and of the Football Club, which are derived from the goals of their business.’.

5. Article 6 of the contract provides for the following: ‘6. Termination of the Agreement

6.1 The Agreement shall terminate on the day of expiry. Early termination shall be made on the basis provided by the cases specified in this contract. The final payment is done on the day of termination of the Agreement. In case of early termination of the Agreement, the Parties agree to meet deadlines mutual notification by the law this agreement.

6.2 The contract may be terminated early in the following cases: 6.2.1 at the initiative of the Football Club, Footballer is notified 10 days prior to termination of the contract: [….] - In the case of lowering of sportsmanship’.

6. According to the player, the club ‘cessed the contract after only three months since it’s beginning, meaning, in November of 2013’. According to the player, the club dismissed him due to an injury, which has to be considered as a termination of his contract contrary to article 6 par. 1 of the contract, as well as contrary to article 16 and 17 of the Regulations on the Status and Transfer of Players.

7. In addition, the player states that ‘given this untreated lesion’, he had problems finding a new club, causing him moral damages in the amount of EUR 20,000.

8. On 15 May 2014, the player asked the club to pay him the amount of EUR 17,500 as salaries, the amount of EUR 7,500 as medical and pharmaceutical expenses and the amount of EUR 10,000 as moral damages.

9. On 23 December 2014, the player lodged a claim before FIFA against the club, claiming payment of the total amount of EUR 38,688.43, specified as follows:

 EUR 17,500 as his monthly salaries as from November 2013;

 EUR 1,188.43, as costs of medical treatment;

 EUR 20,000 as ‘moral damages’.

10. On 12 February 2015, the club replied to the claim of the player, by stating that on 4 October 2013, it terminated the contract of the player in accordance with article 6.2 and 6.2.1 of the contract. The club based this termination on ‘the lowering of sportsmanship and that Player A proved wrong player skill’.

11. In addition, the club states that the player did not prove that he had not received his salary for ‘the months in question’ and that the medical condition of the player was not sufficient to fulfil his obligations as a player. In this respect, the club states that the player got injured shortly after arriving at the club and that he received appropriate medical treatment from the club. Further, the club argues that its medical staff concluded that the player arrived with a not fully healed injury and that he did not inform the club about said injury.

12. The club holds that these circumstances are a violation of article 1 of the contract and refers to a declaration of the player’s former club, which confirmed that it terminated its contract with the player due to his ‘constant health problems’.

13. Furthermore, the club holds that the player refused to sign the notification document dated 4 October 2013, but that this cannot be considered as a failure from the club to make the notification.

14. As to the amounts claimed by the player, the club states that (a) the player did not provide evidence for his claim of EUR 20,000 as moral damages and (b) that the medical expenses of EUR 1,188.43 are ‘baseless’, because these expenses only occurred after the player left country D. The club concludes that it had just cause to terminate the contract and asks for the claim of the player to be rejected.

15. Finally, the player informed FIFA that after the termination of the contract, he remained unemployed until 1 May 2014.

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 23 December 2014. 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 par. 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 futsal player from country B and a futsal 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 23 December 2014, 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. First of all, the members of the Chamber acknowledged that the parties were contractually bound by means of an employment contract valid as from 1 August 2013 until 1 May 2014.

6. In this respect, the player maintained that the club unilaterally terminated the contract ‘at the beginning of November 2013’ without just cause and therefore, request the total amount of EUR 17,500, corresponding to seven monthly salaries of EUR 2,500 each for the period of November 2013 until May 2014. Furthermore, the player requested that the club be ordered to pay him moral damages in the amount of EUR 20,000 and medical and pharmaceutical expenses in the amount of EUR 1,188.43.

7. The Chamber noted that the club, on the other hand, rejected the claim put forward by the player. The club holds in this respect that on 4 October 2013, it terminated the contract with player on the basis of his weak performance, which was – according to the club – a valid reason in line with article 6.2 and 6.2.1. of the contract. Furthermore, the club holds that the player’s claim for moral damages is groundless and that it is not obliged to reimburse the medical expenses of the player.

8. In this framework, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the club had terminated the contract with or without just cause on 4 October 2013 and subsequently, to determine the consequences of the early termination of the contractual relationship.

9. First and foremost, in the light of the main reason at the basis of the termination of the contract in the matter at hand, i.e. the player’s alleged poor performance, the Chamber wished to emphasise that the alleged poor performance of a player, is a purely unilateral and subjective evaluation by the club. The Chamber stressedemphasised that poor or unsatisfactory performance cannot, by any means, be considered as a valid reason to terminate the contract of a player, as it is the result of a purely subjective perception, not measurable in objective criteria. Thus, it cannot be considered as a just cause for the premature termination of an employment contract, not even in the case it is contractually agreed.

10. As regards the club’s allegations that the player arrived at the club with a not fully healed injury and the fact that he did not disclose his medical condition to the club prior to entering into the contract, the Chamber stressed that the responsibility to conduct the necessary medical examinations prior to the signing of the employment contract is incumbent on the club and that therefore, the argument of the club could not be allowed.

11. On account of all of the above, the members of the Chamber decided that the club terminated the contract on 4 October 2013 without just cause.

12. In continuation, prior to establishing the consequences of the breach of contract without just cause by the player in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the club.

13. In his statement of claim, the player alleges that the club did not pay him the total amount of EUR 17,500 and requested in his default letter and his claim for the payment of these ‘unpaid salaries’. On the other hand, the members of the Chamber noted that it remained undisputed that the club paid the player’s salaries for August and September 2013. Further, the player alleges that the amount of EUR 17,500 is related to the period as from November 2013.

14. On account of the aforementioned, and bearing in mind, as stated above, that the contract was terminated by the club on 4 October 2013, the Chamber established that on the date of termination of the contract, no salary payments were outstanding.

15. With respect to the claim for reimbursement of medical costs, the Chamber recalled that the player requested that the club be ordered to reimburse the medical expenses he alleges having incurred in country B, in the amount of EUR 1,188.43. The player presented several receipts of medical treatments in respect to this part of his claim.

16. In this regard, the Chamber noted that the medical expenses only seem to have occurred after the termination of the contract and that these costs occurred in country B. In this respect, the Chamber took into account that the contract does not include any clause, on the basis of which the club could be held liable for the payment of the player’s medical costs incurred outside of the territory of country D and after the termination of the contract.

17. Further, the Chamber recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this respect, the Chamber noted that the player did not submit evidence, on the basis of which it could be established that the club committed itself to paying costs incurred for the medical treatment of the player in country B.

18. The members of the Chamber established that as a result of these circumstances, the club cannot be held liable for costs incurred for such treatment and decided to reject the player’s claim pertaining to the reimbursement of the medical costs.

19. Consequently, the members of the Chamber determined that, until the date of termination of the contract, the club paid all the amounts the player was entitled to, and thus concluded that no amounts remained outstanding on the termination date.

20. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.

21. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club 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.

22. 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.

23. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player 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.

24. Bearing in mind the foregoing as well as the claim of the player and the statement of the club that it terminated the contract on 4 October 2013, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract 1 May 2014, taking into account that it remained undisputed that the player received his monthly remuneration for August and September 2013. Consequently, the Chamber concluded that the amount of EUR 17,500 (i.e. remuneration as from October 2013 until and including April 2014), serves as the basis for the determination of the amount of compensation for breach of contract.

25. In continuation, the Chamber verified as to whether the player 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.

26. However, the Chamber noted that the player did not find new employment with another club during the relevant period of time and established that as a result thereof, no amounts shall be deducted from the amount of compensation for breach of contract as claimed by the player.

27. As a result, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the players’ claim and that the club must pay the amount of EUR 17,500 as compensation for breach of contract in the case at hand.

28. Furthermore, as regards the player’s claim pertaining to moral damages in the amount of EUR 20,000, the Chamber reiterated the legal principle of the burden of proof and noted that the player did not submit any evidence of having suffered the moral damages he claimed. In addition, the members of the Chamber noted that the claimed amount is not specified by the player. As a result thereof, the Chamber agreed that such claim is to be rejected due to a lack of legal basis.

29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player 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 compensation for breach of contract in the amount of EUR 17,500, within 30 days as from the date of notification of this decision.

3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. 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

For the Dispute Resolution Chamber:

Markus Kattner

Acting Secretary General

Encl.: CAS directives