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 15 January 2013, the Player of Country B, Player A (hereinafter: the player or the Claimant), and the Club of Country D, Club C (hereinafter: the club or the Respondent), signed an employment contract (hereinafter: the contract) as well as an annex to it (hereinafter: the annex), both valid as from the date of signature until 15 November 2014.

2. According to art. 3.1 of the contract and to art. 1 and 2 of the annex, the Respondent undertook to provide the Claimant with:

- 1,963,000 as monthly salary, which according to the Claimant, corresponded to USD 13,000 at the date of signature of the contract and is the amount orally agreed upon by the parties;

- an air ticket City E-City F-City E-City G, “at the expense of the club, according to documents submitted once a year”;

- 45,000 as monthly rent expenses, which according to the Claimant, corresponded to USD 300 at the date of signature of the contract and is the amount orally agreed upon by the parties.

3. The contract further stipulates the following:

“2.1. The Employee has the right:

[…]

2.1.5. to be paid for enforced leave in accordance with the labour law of Country D;

[…]

2.1.8. to compensation for damage, which has been caused to his health due to fulfilling work obligation;

[…]

2.1.14. in case of disagreement with the diagnosis of the medical doctor of the Employer’s football team, to consult with an independent medical expert, and if their diagnoses are different, to refer to an independent third party who has adequate medical qualifications;

2.1.15. in order to resolve a labour dispute, to address the legal authorities (the Dispute Resolution Chamber and Appeal Board) XXX “The Football Federation of Country D” Association […] a conciliation commission or a court of his choice;

[…]

2.2. The Employee shall:

[…]

2.2.10. inform the Employer on situations that threaten the lives and health of people, preservation of property of the Employer and employees, and on cases of enforced leave;

[…]

2.2.13. in case of illness or injury, immediately refer to medical doctors of the Employer’s football team, carry our all their instructions, and in case of treatment in medical institutions, submit to the Employer a document on work disability;

2.2.14. in case that work disability has been determined, notify the Employer within a maximum of one day since the moment work disability has been determined, expect in cases related to his severe health condition;

[…]

2.5. The Employer shall:

[…]

2.5.9. stop the work if the work is a threat to life and health of the Employee;

2.5.10. provide the Employee with mandatory social insurance and ensure civil and legal responsibility for causing damage to the life and health of the Employee during the performance of his job duties;

[…]

2.5.16. at their own expense, provide the Employee with a timely performance of preventive mandatory medical examinations, and in case of need, provide the Employee with a treatment by qualified personnel during the performance of his job duties;

[…]

2.5.22. compensate for the damages caused to the life and health of the Employee, in accordance with the legislation of Country D;

[…]

6.1. The Employer shall provide, at his own expense, the Employee with social benefits in case of temporary work disability […]. Social benefit for temporary work disability shall be paid to the Employee since the first day of disability, until restoring work ability, or until determining permanent disability, based on the Employee’s average personal income.

6.2. While the Employee, who is required to undertake a medical examination, is at the medical examination that is paid by the Employer […] the Employee retains the job (function) and the average income.

[…]

9.2. The parties have agreed that all disputes arising under this Employment Contract or in connection with it shall be resolved out of court, in legal bodies of Football Federation of Country D”.

4. On 14 April 2015, the Claimant contacted the Respondent, via his lawyer, claiming the payment, by no later than 24 April 2015, of the total amount of EUR 639,486, corresponding to EUR 28,834 (or 5,889,000) as salaries from August to October 2014, EUR 600,000 as compensation for breach, EUR 5,000 as reimbursement of medical and travel expenses and USD 6,000 as unpaid rent costs. In case of non-payment, the Claimant would refer the case to the FIFA DRC.

5. On 1 March 2016, the Claimant lodged a claim before FIFA against the Respondent requesting primarily the payment of the total amount of EUR 5,000 and USD 832,100, broken down as follows:

- USD 45,500 as salaries for August to mid-November 2014, plus interest of 5% p.a. as follows:

i. on USD 13,000 as from 2 August 2014;

ii. on USD 13,000 as from 2 September 2014;

iii. on USD 13,000 as from 2 October 2014;

iv. on USD 6,500 as from 2 November 2014;

- USD 6,600 as outstanding accommodation expenses (i.e. USD 300 x 22 monhts);

- EUR 5,000 as reimbursement of medical and travel expenses;

- USD 780,000 as compensation for breach of contract as from 16 November 2014 (i.e. USD 13,000 x 60 months; cf. point I.9 below).

6. The Claimant claims that in January and February 2014 he participated in the team’s preparation camp for the 2014 season in Country H. During a test match on an unspecified date, he felt for the first time pain in his back and requested medical care from the Respondent. According to the Claimant, the club’s doctor – a medicine student – prescribed him painkillers and massages. The pain, however, increased and he once again requested the Respondent to provide him with medical assistance, to which the Respondent, allegedly, reacted by assigning him to intensive training and more test matches. Fearing the consequences that might derive from his non-participation in such activities, the Claimant continued training and playing, in spite of his growing pain. As a consequence, his medical condition worsened. In spite of the Claimant’s insistence to consult with a doctor, the Respondent only offered him painkillers and massages. In February 2014, the Claimant allegedly had to leave a match at half-time, carried by his teammates, allegedly as the result of intense training and the Respondent’s pressure.

7. The Claimant further explained that, after such incident, the Respondent for the first time allowed the Claimant to undergo examinations. The result of such exams was however inconclusive and the Claimant continued to be treated with painkillers and massages. At the end of the preparation phase, the Claimant could no longer participate in the training, due to strong back pain. The Claimant then decided to organise himself an appointment with a doctor in Country B, to which he travelled after the end of the preparation phase. After a week and in view of his minimally improved health, he returned to Country D. As the new season began in March 2014, the strong back pain returned after training. The Claimant allegedly reminded the Respondent on a daily basis of his wish to follow proper medical treatment, which the Respondent denied, further threatening him with financial sanctions. The Claimant then organised himself an appointment with an external doctor, who recommended that he stop training and playing, in view of his health situation. As the Claimant informed the Respondent of the foregoing recommendation, the latter informed him that in case he would stop training based on a diagnosis of an external doctor, he would no longer receive any remuneration. In view of the Respondent’s threats and in spite of his pain, the Claimant still participated in two obligatory matches. In this respect, the Claimant provided a witness statement of his team- and roommate, Mr J, dated 2 September 2015.

8. Due to the alleged pressure of the Claimant and his teammates, the Respondent hired a doctor to assist the medical student. This doctor, however, did not allow the Claimant to undergo any medical exams or to modify his medical treatment. By then, the Claimant’s medical condition had worsened to the point that he feared for his general health, decided to leave Country D and seek medical help on his own expenses, in spite of the Respondent’s threats. In Country B, the Claimant was diagnosed with a nerve irritation in the lumbar vertebrae, as a result of which he would never again be able to play football. This is allegedly due to an insufficient and incorrect treatment provided to him at the early stage of his injury. After this diagnosis, the player decided not to return to Country D and to follow his treatment in Country B. In this respect, the following documentation has been provided: 1) “MRI examination findings” dated 9 July 2014 on file; 2) “specialist report” dated 14 July 2014, according to which the surgery performed was not entirely successful and new surgery was recommended; 3) “specialist report” dated 21 December 2014, according to which “In 2012 the patient underwent the operation of discus and he was subjected to rehabilitation process. One year after that, he had been involved into the training process, after which he was injured at the preparatory training in Country H. […] I believe all the problems appear as the results of poor and inadequate treatment as well as recovery and rehabilitation treatment after acute exacerbation of the problem. […] unable to training and physical activity, return to sports facilities is not possible”; 4) “specialist report” dated 9 June 2015, which states that “the patient is an active sportsman, footballer, goalkeeper. He has not been training since last year […]. Incapable of sports and physical activities, a full return to the sport cannot be restored even after the operative treatment made”.

9. The Claimant deems that his invalidity is solely due to the Respondent’s reckless attitude towards his injury, in violation of its own contractual obligations. He further points out that the Respondent failed to pay his salaries for August to mid-November 2014 as well as his accommodation fees for the entire duration of the contract. In particular, the Claimant claims that the Respondent breached art. 2.1.2, art. 2.1.8, art. 2.5.9 and art. 2.5.16 of the contract. Thus, he should be entitled to compensation for a duration of at least 5 years, considering that when the contract was breached he was 27 years old and would still be able to play for approximately 5 seasons. In this respect, the Claimant claims that he should not be punished by the loss of value of the Currency K over the past years. He claims that the amount of 1,963,000 corresponded to USD 13,000 at the time the contract was signed and, thus, this should be the salary taken into account for the calculation of compensation. Alternatively, the Claimant deems that he should at least be entitled to compensation for 2 years, the period for which the Respondent intended to extend his contract, before the injury (i.e. USD 13,000 x 24 months = USD 312,000), plus for another year for the breach of contract within the protected period (i.e. USD 13,000 x 12 months = USD 156,000).

10. In its reply to the Claimant’s claim, the Respondent first contested the competence of FIFA to deal with the present dispute. The club deems that, in accordance with art. 9.2 and art. 2.1.15 of the contract (cf. point I.3 above), the national dispute resolution chamber of the Football Federation of Country D (hereinafter: the Country D NDRC) should be competent. In spite of having been invited to do so, the Respondent did not provide any documentation related to the Country D NDRC.

11. As to the substance, the Respondent rejects the Claimant’s claim entirely and deems that he had no right to seek medical treatment outside of Country D. Furthermore, the Respondent deems that the Claimant violated art. 2.2.10 and art. 2.2.15 of the contract (cf. point I.3 above), as he never sent any formal communication to the Respondent informing it of his medical condition. The Respondent also considers that the Claimant breached art. 2.2.13 of the contract (cf. point I.3 above) as he never addressed any formal communication to the team doctor before consulting an external specialist. The Respondent rejects the results of the examinations carried out by the Claimant in Country B, i.e. outside “the territory of Association, where a player is registered”. As per the Respondent, “Player A left the club on 13 May 2014 and […] made MRI of spine and addressed to his doctor on the 16 July 2015. So approximately one year left”. Thus, the “document provided by Player A is fabricated, since the fact of his injury didn’t take place and proved by nothing”. Thus, he also infringed art. 2.2.14 of the contract (cf. point I.3 above).

12. The Respondent denies having breached the contract and that the Claimant should be entitled to any type of compensation. In this respect, the Respondent states that despite the fact that the Claimant left the club permanently on 13 May 2014, it still paid his salaries for August and September 2014 as compensation. In this respect, the Respondent provided a copy of an air ticket for the Claimant dated 13 May 2014, from City M to City N, and of an “order” dated 14 July 2014, issued by the Respondent, according to which the Claimant left the club on 13 May 2014 and the Respondent considers the contract as terminated as from 14 July 2014. Also according to such document, the Respondent should pay the Claimant his salary of May 2014, withhold his salaries of June and July 2014 and pay his salaries of August and September 2014. No proof of dispatch of such document provided by the Respondent. Finally, the Respondent points out that the remuneration provided for in the contract is in Currency K and not US dollars, as claimed by the Claimant.

13. In his replica, the Claimant insisted on the competence of the DRC, pointing out that the Respondent did not provide any documentation in support of its objection and that the Country D NDRC does not provide for fair proceedings or the equal treatment of the parties. As to the substance, the Claimant rejects all of the Respondent’s accusations. In particular, he questions how the Respondent could be in possession of the Claimant’s flight ticket dated 13 May 2014, from City M to City N, (cf. point I.12 above) had he in fact left without its authorisation. In fact, he claims this ticket was provided to him by the Respondent itself. Furthermore, the Claimant claims to have never received the “order” dated 14 July 2014 (cf. note in point I.12 above).

14. The Claimant also rejects the Respondent’s argument that it was never informed of his injury and need for treatment. In this respect, he provides a copy of a letter dated 26 June 2014, sent by his previous lawyer to the Respondent via the federation, with proof of dispatch, in which it is stated “As you know the Player A has health issues and has medical treatment in Country B, with your approval. As I have been informed by the player, the club invited him to come back to Country D but unfortunately he is unable to travel because of his health issues. In attachment you will find his medical reports. I also kindly ask you to pay player’s salaries for April and May 2014 according to the player contract”. Finally, the Claimant insists that the Respondent never provided him with accommodation, as per the annex, and that he had to share a 15 square meter hotel room with his teammate, in which his health condition deteriorated. Thus, he insists on his claim.

15. In its final position, the Respondent, as to the issue of competence, claims that “according to the opportunity of considering of the present dispute in DRC FIFA, club respects the principles of FIFA and doesn’t object to this, but if there is any opportunity to pass this matter to the Football Federation of Country D club asks for this, because employment contract was concluded on the territory of local association (Republic of Country D) and conditions of employment contract are based on the Code of Country D”.

16. As to the substance, the Respondent insists on its previous argumentation and adds that there were never any delays in the payment of his remuneration, that the Claimant was not authorised to leave Country D on 13 May 2014 and that it had access to the Claimant’s air ticket dated 13 May 2014, from City M to City N (cf. point I.13 above) after sending an “official inquiry to the airline of City F and to the airport”, for which no evidence was provided. Thus, the Respondent deems that the Claimant’s claim should be entirely rejected.

17. According to the information contained in TMS and provided by the Claimant, the latter has not found new employment.

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 1 March 2016. Consequently, the 2015 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 of the Procedural Rules).

2. Prior to entering into the analysis of the preliminary issues raised in the present matter, the Chamber noted that the Respondent’s final position (cf. points I.15 and I.16) dated 10 July 2016 was received only per post on 18 July 2016, i.e. 7 days after the expiry of the deadline granted, and that from the alleged evidence of dispatch provided it is not possible to establish the date of dispatch, since the latter is not legible. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard, the DRC decided not to take into account the final position of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents submitted by the parties within the deadline granted by FIFA for such.

3. Having established the foregoing, 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 (editions 2015 and 2016; hereinafter: Regulations), the Dispute Resolution Chamber would, in principle, be 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.

4. The Chamber however acknowledged that the Respondent, in its correspondence dated 24 March 2016, contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present dispute, stating that any dispute arisen between the parties should be submitted to the deciding bodies of the Football Federation of Country D, on the basis of art. 9.2 and art. 2.1.15 of the contract (cf. points I.3 above).

5. The Chamber equally noted that the Claimant rejected such position and insisted on the fact that FIFA had jurisdiction to deal with the present matter, since the deciding bodies of the Football Federation of Country D allegedly do not provide for fair proceedings or the equal treatment of the parties.

6. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the Regulations, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

8. Therefore, while analysing whether it was competent to hear the present matter, the DRC considered that it should, first and foremost, analyse whether the employment contract and the annex at the basis of the present dispute actually contained a jurisdiction clause.

9. Having said this, the members of the Chamber turned their attention to art. 9.2 and art. 2.1.15 of the contract, mentioned by the Respondent as the basis to reject the DRC’s competence over the present case.

10. In this context, the Chamber first focused its attention on art. 9.2 and art. 2.1.15 of the contract and, after carefully analysing their content, it concluded that such clauses do not constitute clear and exclusive arbitration clauses.

11. In particular, the Chamber first noted that while art. 9.2 fails to mention one specific deciding body, rather referring to “legal bodies of the [Football Federation of Country D]”, art. 2.1.15 even mentioned that the Claimant has the right to address “a court of his choice” in case of any dispute regarding the employment contract.

12. In light of the aforementioned, the members of the DRC were of the opinion that art. 9.2 and 2.1.15 of the contract can by no means be considered as clear arbitration clauses in favour of one national deciding body within the Football Federation of Country D and, therefore, cannot be applicable.

13. Having established that the first criteria for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body. In any case, the DRC pointed out that the Respondent failed to provide any documentation related to the Country D NDRC, in spite of having been invited by FIFA to do so.

14. In view of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

15. Before entering into the substance of the present matter and while exercising its duty to analyse ex officio the admissibility of every claim lodged in front of it, the Chamber noted that the question of prescription must be discussed in the context of the present claim.

16. In this regard, the members of the Chamber referred to art. 25 par. 5 of the FIFA Regulations (editions 2015 and 2016), according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to said Regulations if more than two years have elapsed since the event giving rise to the dispute. In this respect, the Chamber noted that the present claim was lodged in front of the DRC on 1 March 2016. Therefore, in line with art. 25 par. 5 of the Regulations, any amounts fallen due before 1 March 2014 are affected by prescription. The DRC noted that the Claimant, inter alia, requests the payment of accommodation expenses for the entire duration of the contract, i.e. 22 months, as the Respondent allegedly never paid him these amounts since the beginning of the contract. Bearing in mind the foregoing, the DRC concluded that the Claimant’s request for the payment of accommodation expenses for the period between January 2013 and February 2014 is time-barred. Consequently, this specific part of the Claimant’s claim is considered inadmissible.

17. Having established the foregoing, the Chamber proceeded to analyse 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 par. 2 of the Regulations (editions 2015 and 2016), and considering that the present claim was lodged on 1 March 2016, the 2015 edition of said regulations is applicable to the matter at hand as to the substance.

18. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation timely submitted by the parties, as specified in point II.2 above. 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.

19. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 15 January 2013, they signed an employment contract and an annex to it valid until 15 November 2014, as per which the Claimant was entitled to receive the remuneration and benefits detailed in point I.2. above. Furthermore, the Chamber noted that it was also undisputed by the parties that, on 14 April 2015, the Claimant had put the Respondent in default of payment of allegedly outstanding remuneration due until October 2014, requesting also the payment of compensation for breach of contract, the reimbursement of medical expenses and the unpaid rental costs.

20. Subsequently, the Chamber took note of the argumentation put forward by the Claimant, according to which, during the preparation phase in January and February 2014, he for the first time felt a strong back pain. After consulting with the Respondent’s doctor, he received as treatment massages and painkillers. The Claimant further explains that the Respondent never reacted to his oral requests for a proper medical treatment, but assigned him to even more intensive training and matches instead. In this regard, the Claimant further explains that in spite of being recommended to stop playing by a local specialist, the Respondent threatened him with financial sanctions in case he would do so. Therefore, and fearing for his general health condition, the Claimant left Country D on 13 May 2014 in order to seek medical treatment in Country B.

21. The Chamber further noted that the Respondent alleges that the Claimant left the club without authorization on 13 May 2014 and never informed it of his medical condition, violating art. 2.2.10, 2.2.13, 2.2.14 and 2.2.15 of the employment contract (cf. point I.3 above). According to the Respondent, in spite of the fact that it deems that the Claimant breached the contract, the Respondent still paid him his salaries for August and September 2014 as compensation. The Respondent also provided an “order” issued by the club on 14 July 2014, as per which inter alia the contract was considered as terminated as from that date. In this respect, the Chamber noted that the Claimant claims to have never received such document and that a proof of dispatch could not be provided by the Respondent.

22. Having established the aforementioned, the Chamber deemed that, in view of the parties’ diverging statements and in the absence of a specific and undisputed termination document, the underlying issue in the present dispute was to determine which party had in fact terminated the employment contract, which is to be considered the termination date and whether this termination was based on a just cause.

23. In this context, the DRC referred again to the “order” dated 14 July 2014, which was considered to be the only written documentary evidence provided by the parties referring to the termination of the contract. In this respect, the Chamber first noted that the parties do not appear to dispute that the contract was terminated prematurely and was not executed until its original expiry date, i.e. 15 November 2014. In view of the foregoing, the Chamber deemed that in spite of the fact that no evidence of dispatch of the “order” of 14 July 2014 was provided by the Respondent and that the Claimant denies having received it, said document – brought to the file by the Respondent – clearly shows the will of the club to have the contract considered as terminated as from 14 July 2014, due to the alleged breach of the Claimant. Therefore, and in view of any other substantial documentary evidence, the Chamber considered that the contract was deemed as terminated by the Respondent on 14 July 2014, as per the aforementioned “order”.

24. Having established the foregoing, the Chamber subsequently went on to deliberate as to whether the reasons given by the Respondent for the unilateral termination on 14 July 2014, i.e. the alleged unauthorised departure of the player on 13 May 2014 and his alleged failure to properly inform the club of his medical condition, were duly substantiated and could be considered as a just cause for it to prematurely terminate the employment relationship with the Claimant.

25. At this point and for the sake of good order, the DRC deemed it appropriate to refer to the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof.

26. In this respect, the DRC first noted that, as pointed out by the Claimant in his replica, the Respondent was in possession of his flight ticket to travel to Country B on 13 May 2014, which clearly demonstrates the Claimant’s allegation that it was actually the club that provided him with those tickets. Therefore, the Respondent’s first argument related to the Claimant’s unauthorised absence was deemed unsustainable by the Chamber and consequently unable to justify a termination with just cause by the club on 14 July 2014.

27. In continuation, the Chamber referred to the Respondent’s second argument, according to which the Claimant failed to inform it of his medical condition. In this respect, and bearing in mind the principle of burden of proof, the DRC noted that the Claimant submitted documentary evidence that he informed the club of his critical medical situation on 26 June 2014, as mentioned in point I.14 above. Thus, and also bearing in mind that the Respondent did not contest having received this specific correspondence of the Claimant, the Chamber considered that the second reason given by the Respondent for the unilateral termination of the contract on 14 July 2014 could not be sustained.

28. Furthermore, the Chamber also noted that the Respondent never disputed the Claimant’s allegation that it never paid him his contractually due accommodation expenses for the entire duration of the contract.

29. In view of the foregoing, the Chamber concluded that the Respondent had no just cause to unilaterally and prematurely terminate the employment contract with the Claimant on 14 July 2014 and therefore was to be held liable for the consequences of the unjustified breach of the contract, including the possible payment of compensation to the Claimant, in addition to any possibly outstanding amounts at the time of termination.

30. Having established the above, the DRC first proceeded to analyse whether any amounts had remained outstanding under the terms of the employment contract until the date of termination by the Respondent, i.e. 14 July 2014.

31. In this regard, the DRC noted that in point I.12 above the Respondent indicated to have paid the Claimant his monthly remuneration for the month of May 2014, to have withheld his salary for June and July 2014 and to have paid him the salaries for August and September 2014 as compensation. This argumentation is in line with the wording of the “order” of 14 July 2014, also mentioned in point I.12 above. Furthermore, the Chamber noted that the Claimant is requesting the payment of his salaries as from August 2014 until the end of the contract. Combining the aforementioned argumentations of both parties, the Chamber concluded that the 2 salaries paid by the Respondent, which it claims to correspond to the months of August and September 2014, in fact correspond to the salaries of June and July 2014, which the Claimant considers to have been paid. In view of the foregoing, the Chamber could conclude that all monthly salaries were paid by Respondent to the Claimant until July 2014, month during which the club considered the contract as terminated. Therefore, the DRC concluded that no monthly salaries were outstanding at the date of termination.

32. In continuation, the Chamber noted that the Claimant claimed that the Respondent never paid him any accommodation expenses, allegation which remained undisputed by the Respondent. Bearing in mind the analysis made in points II.16 and II.17 above regarding the partial admissibility of this part of the Claimant’s claim, the Chamber concluded that in accordance with the legal principle of pacta sunt servanda the Respondent was to be held liable to pay the Claimant outstanding accommodation expenses for 5 months, i.e. from March to July 2014. In this respect, the Chamber further deemed that any kind of oral agreement allegedly concluded by the parties with regard to the equivalent of the amount of the accommodation expenses in US dollars – as alleged but not evidenced by the Claimant in his claim – cannot possibly prevail over the wording of the contract duly signed by the parties on 15 January 2013, as per which such expenses amount of 45,000 per month. Therefore, the Chamber concluded that the total amount of 225,000 was due to the Claimant by the Respondent as outstanding accommodation expenses for the months of March to July 2014.

33. Subsequently, the Chamber took note of the Claimant’s request for the reimbursement of the total amount of EUR 5,000 as medical expenses by the Respondent. In this respect, the Chamber once again referred to the principle of burden of proof and pointed out that the Claimant was not able to provide substantial evidence that he had in fact incurred such expenses. Thus, the DRC concluded that such request must be rejected.

34. In continuation, the Chamber focused its attention on the question of whether or not an amount of compensation for breach of contract is payable 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.

35. In application of the relevant provision, the Chamber held that it first of all had to clarify as to 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.

36. In this regard, the Chamber noted that art. 6.1 of the contract establishes that “The Employer shall provide, at his own expense, the Employee with social benefits in case of temporary work disability […]. Social benefit for temporary work disability shall be paid to the Employee since the first day of disability, until restoring work ability, or until determining permanent disability, based on the Employee’s average personal income” (emphasis added).

37. In this context, the Chamber considered that such a clause was not only voluntarily agreed upon by the parties to the contract, but also that it did not establish any disproportionate or unbalanced consequences for the Claimant or the Respondent. Therefore, in line with art. 17 of the contract, the Chamber decided to take into account the wording of such art. 6.1 in the calculation of the amount of compensation due by the Respondent to the Claimant in the case at hand.

38. On account of the above, the Chamber noted that from the documentation provided by the Claimant regarding his injury – mentioned in numbers 1) to 4) of point I.8 above –, it could establish that the Claimant’s permanent disability to play football was formally confirmed by means of the “specialist report” dated 21 December 2014 (cf. number 3) of point I.8 above).

39. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the remuneration payable to the Claimant under the terms of the employment contract as from the date of termination, i.e. 14 July 2014, until 21 December 2014, while pointing out that the salary for the entire month of July 2014 had been paid by the Respondent and acknowledged by the Claimant. The Chamber concluded that the amount of 9,013,500, corresponding to 4 and a half monthly salaries (8,833,500) and 4 months of accommodation expenses (180,000), serves as the basis for the final determination of the amount of compensation for breach of contract.

40. 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 Dispute Resolution Chamber, 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.

41. In this regard, the Chamber noted that the Claimant – confirming the content of the “specialist report” of 21 December 2014 and the permanent incapacity to play football – informed the Chamber that he had not been able to find new employment after the end of his employment relationship with the Respondent.

42. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that, in addition to 225,000 as outstanding rental expenses, the Respondent must pay the amount of 9,013,500 to the Claimant as compensation for breach of contract. Furthermore, as per the Claimant’s request and the Chamber’s well-established jurisprudence, interest of 5% p.a. shall apply over the amount of 9,013,500 as from 1 March 2016, i.e. the date of claim, until the date of effective payment.

43. For all the above reasons, the DRC decided that the claim of the Claimant is partially accepted insofar as it is admissible.

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III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted insofar as it is admissible.

2. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 225,000 as outstanding rent expenses.

3. The Respondent is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 9,013,500 as compensation for breach of contract plus 5% interest p.a. as from 1 March 2016 until the date of effective payment.

4. In the event that the aforementioned amounts are not paid by the Respondent within the stated time limit, interest of 5% p.a. will fall due on the amount stipulated in point 2. as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. Any further claim of 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:

_____________________________

Marco Villiger

Deputy Secretary General

Encl.: CAS directives