F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, from country M as Claimant against the club, Club E, from country T as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, from country M as Claimant against the club, Club E, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 September 2010, the player A, from country M (hereinafter: player or Claimant) and Club E, from country T (hereinafter: club or Respondent) signed an employment contract valid during three seasons until 31 May 2013. 2. In accordance with the employment contract, the player was to receive inter alia the total amount of EUR 740,000 for the whole duration of the contract payable as follows: a. 2010-11 season: EUR 60,000 upon the signature of the contract and EUR 200,000 in 10 equal monthly instalments of EUR 20,000 as from 30 September 2010; b. 2011-12 season: EUR 230,000 in 10 equal monthly instalments of EUR 23,000 as from 30 August 2011; c. 2012-13 season: EUR 250,000 in 10 equal monthly instalments of EUR 25,000 as from 30 August 2012. 3. Art. 6 par. 2 of the contract stipulates that in case that “… the receivables of the player are not paid by the club, the player may claim his receivables to be paid to him within 90 days by giving notice in writing to the club through notary. In case the receivables are not paid to the player within 15 days after receiving the written notice, the player may terminate this Contract.” 4. On 24 February 2011, the player lodged a claim against the club in front of FIFA maintaining that the club had acted in breach of contract without just cause by failing to comply with its financial obligations. 5. In this regard, the player alleged that, on 27 December 2010, his agent put the club in default of payment of the EUR 60,000 signing-on fee as well as of EUR 70,000 relating to his monthly salaries setting a time limit of three days, after which date he would consider the employment contract as having been terminated in accordance with art. 6 par. 2 of the contract. He further alleged that said default notice remained unanswered. 6. According to the player, he had only received EUR 10,000 from the club and, therefore, he asks to be awarded payment of the total amount of EUR 730,000 for breach of contract, which amount, according to the player, may be reduced should he conclude new employment contracts with other clubs until the end of the 2012-13 season. 7. Later on during the proceedings, the player indicated that in accordance with the new employment contracts that he signed, he has earned the total amount of EUR 79,800 during the relevant period of time and, consequently, he reduced his claim for compensation to the amount of EUR 650,200. 8. In addition, he asked to be awarded 5% interest as from the due dates of the relevant payments and EUR 30,000 relating to procedural costs. 9. The club, for its part, while referring to art. 6 par. 2 of the contract, affirmed that it never received the player’s alleged default notice and pointed out that it was signed and sent by a company. According to the club, the relation between this company and the player is unclear. Therefore, the club deemed that this notification is invalid and that it cannot be held liable for not having taken any action. 10. The club added that it has not received any other termination notification, although this should have been the case, according to the club. The player having signed on with another club while the employment contract with it was, thus, still in force, the club deemed that the player has terminated the contract without just cause. 11. The club further held that the amount requested by the player is high, since he signed on with another club and therefore, he has no damages. According to the club, it should further be taken into consideration that the player signed on with another club while his contract with the club was actually still in force, which is why the club deemed that he has no right to claim compensation. 12. Furthermore, according to the club, the player has not attended trainings although he was invited to do so. 13. Therefore, the club asked that the player’s claim be rejected and that sporting sanctions be imposed on the player. 14. The club stated that it reserved its right to file a possible counterclaim due to the player having signed on with another club while the contract was still in force and the termination of the employment contract without just cause by the player. 15. In his replica, the player pointed out that the notification letter was sent by fax, by mail and delivered personally to the club by him. He added that his correspondence of 27 December 2010 was given to the club through a notary public from country S. 16. The player affirmed that he was represented by the company, which the club refers to in its reply to the claim, during negotiations and when he entered into the employment contract with the club. He added that a power of attorney was given to the club. 17. The player refuted that in accordance with the terms of the employment contract he would have needed to send a separate letter of termination of the contract to the club. 18. He further denied that he did not attend trainings and asserted that the club did not allow him to train with the rest of the players. 19. The player admitted that he entered into contracts with other clubs after the termination of the contract. 20. The club has not presented a duplica, in spite of having been invited to do so. 21. On 31 January 2011, the player signed an employment contract with the country S club, Club N, valid until 30 June 2011, in accordance with which the player was to receive a monthly gross salary of EUR 2,900. 22. On 1 June 2011, the player signed an employment contract with the country S club, Club M, valid as from 1 July 2011 until 31 May 2013, in accordance with which the player is to receive a monthly salary of EUR 4,000. 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 24 February 2011. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) 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 M and a country T club. 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2010), and considering that the present claim was lodged on 24 February 2011, the 2010 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 the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 5. In this respect, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract on 1 September 2010 valid during three seasons until 31 May 2013. 6. The Claimant, on the one hand, maintains that he had just cause to terminate the employment contract by the end of December 2010, as the Respondent had failed to comply with its financial obligations and that, therefore, the Respondent was to be held liable for the early termination of the employment contract. In this respect, the Chamber recalled that, on 27 December 2010, the agent of the Claimant served a notice of default on the Respondent setting a three days’ time limit to the Respondent in order to comply with its contractual obligations in the total amount of EUR 130,000. 7. The Respondent, for its part, alleged that it never received any default notice from the Claimant and that, therefore, the employment contract between the parties was still in force. Consequently, the Respondent deemed that the Claimant, in fact, has terminated the employment contract without just cause when he signed on with another club and that the Claimant has no right to claim compensation. In this respect, the Respondent stated that it reserved its right to lodge a counterclaim against the Claimant. 8. In this connection, first and foremost, the members of the Chamber highlighted that, ultimately, no counterclaim was lodged by the Respondent. 9. Furthermore, the Chamber noted that the Respondent’s defence is merely based on alleged formalities relating to the question as to whether the Claimant duly put the Respondent in default of its contractual obligations in the context of art. 6 par. 2 of the employment contract. The members of the Chamber stressed that the Respondent had not contested that, at the time when the Claimant alleges having notified the Respondent of the termination of the employment contract in the event of the time limit for payment having elapsed without remedy of breach by the club, i.e. on 31 December 2010, the signing-on fee of EUR 60,000 as well as the amount of EUR 70,000 relating to the player’s monthly salaries had remained unpaid. 10. In addition, the members of the Chamber recalled the Respondent’s allegation that, as it never received a valid default or termination notice from the Claimant, the employment contract could not have been considered terminated. On this basis, the Respondent deemed that it was, in fact, the Claimant who acted in breach of contract by having signed on with another club. 11. Having said this, the members of the Chamber reverted to art. 6 par. 2 of the employment contract, in accordance with which “… the receivables of the player are not paid by the club, the player may claim his receivables to be paid to him within 90 days by giving notice in writing to the club through notary. In case the receivables are not paid to the player within 15 days after receiving the written notice, the player may terminate this Contract.” 12. The Chamber highlighted that such clause was worded in such a way that it would greatly be to the benefit of the Respondent. 13. In continuation, the Chamber reverted to the Respondent’s main argument that it never received a valid default notice or termination notice from the Claimant. In this context, the members of the Chamber concurred that, irrespective of the issue as to whether the player validly put the club in default or terminated the employment contract in writing, the question as to whether the employment contract has been terminated with or without just cause shall be analysed on a case-by-case basis and taking into account all of the circumstances surrounding a matter. 14. Having said that, the Chamber pointed out that, in the present matter, it has remained uncontested that as from the starting date of the employment contract until the end of December 2010, the Claimant had only received EUR 10,000 from the Respondent instead of the amount of EUR 120,000, which includes EUR 60,000 relating to the signing-on fee that fell due on 1 September 2010, and thus EUR 50,000 of which had remained outstanding more than 90 days, as well as EUR 60,000 relating to the Claimant’s monthly salaries of EUR 20,000 each falling due on the 30th day of each month as from September 2010 up to and including November 2010. 15. What is more, the Chamber agreed that the Claimant had no reason to believe that the Respondent would have paid him his receivables in the event that he would have fully respected the time limits contained in art. 6 par. 2 of the employment contract. The members of the Chamber felt confirmed in this belief on the basis of the fact that the Respondent, neither within the context of the Claimant’s notice dated 27 December 2010 nor until today, has not remitted any payment to the Claimant. 16. In addition, the Chamber took into account that the Respondent had not indicated any (valid) reasons that possibly could have justified the non-payment of the Claimant’s remuneration during such considerable period of time. As regards the Respondent’s allegations that the Claimant did not attend trainings although he was invited to do so, the Chamber noted that the Respondent had not indicated any further details regarding such alleged absence while it merely referred to “notary reports”, which were presented in the country T language without any translation into an official FIFA language only. For these reasons, the Chamber could not take into consideration such allegation. 17. On account of all of the above considerations, the Chamber decided to reject the arguments put forward by the Respondent in its defence and established that the Respondent has seriously failed to comply with its contractual obligations. 18. Consequently, the Chamber decided that the Claimant had just cause to terminate the employment contract with effect as of 31 December 2010 and that the Respondent is to be held liable for the early termination with just cause by the Claimant. 19. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focussed 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 an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract. 20. Consequently, on account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of EUR 110,000 in connection with the remuneration due to the Claimant in accordance with the employment contract until its early termination. 21. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the day following the day on which each of the payments included in the global amount of EUR 110,000 fell due in accordance with the pertinent employment contract. 22. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract 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. 23. 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. 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. 24. 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 25. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 31 December 2010, until 31 May 2013, and concluded that the Claimant would have received in total EUR 620,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 620,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 27. 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. 28. The Chamber recalled that, on 31 January 2011, the player signed an employment contract with the Club N, from country S, valid until 30 June 2011, in accordance with which the player was to receive a monthly salary of EUR 2,900. Furthermore, on 1 June 2011, the player signed an employment contract with the Club M from country S, valid as from 1 July 2011 until 31 May 2013, in accordance with which the player is to receive a monthly salary of EUR 4,000. These employment contracts enabled the Claimant to earn an income of EUR 106,500 (i.e. 5 months x EUR 2,900 plus 23 months x EUR 4,000) during said period of time. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 450,000, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand. 30. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the present decision, i.e. 23 January 2013 until the date of effective payment. 31. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club E, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount EUR 110,000, plus interest at the rate of 5% p.a. as follows: a. 5% p.a. on the amount of EUR 50,000 as of 2 September 2010; b. 5% p.a. on the amount of EUR 20,000 as of 1 October 2010; c. 5% p.a. on the amount of EUR 20,000 as of 1 November 2010; d. 5% p.a. on the amount of EUR 20,000 as of 1 December 2010. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount EUR 450,000, plus interest at the rate of 5% p.a. as of 23 January 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant 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 request filed by the Claimant is rejected. 6. 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 www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl.: CAS directives