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 C, from country S as Claimant against the club, Club A, from country G as Respondent regarding an employment-related dispute 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 C, from country S as Claimant against the club, Club A, from country G as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 6 January 2011, Player C, from country S (hereinafter: Claimant or player), and Club A, from country G (hereinafter: Respondent or club), signed an employment contract valid as from the date of signature until 30 June 2013. 2. According to art. 4.4 of the contract, the player was entitled to receive the total net amount of EUR 375,000, to be paid as follows: - EUR 10,000 on 31 January 2011, - EUR 30,000 on 31 March 2011, - EUR 35,000 on 30 June 2011, - EUR 30,000 on 31 October 2011, - EUR 45,000 on 31 January 2012, - EUR 75,000 on 30 June 2012, - EUR 30,000 on 31 October 2012, - EUR 45,000 on 31 January 2013, - EUR 75,000 on 31 March 2013. 3. Art. 4.11 of the contract indicates that if the club prematurely terminates the contract with the player during the protective period, the latter will be entitled to a compensation of EUR 300,000 whereas, according to art. 5.5 of the contract, if the opposite occurs, the club will be thereby entitled to a compensation of EUR 500,000: - art. 4.11: “De común acuerdo, en el caso de rescisión del contrato por parte del FC, con la reserva de los previstos en el párrafo 2 del articulo 17 del Reglamento, en especial y como mínimo, la indemnización que el jugador recibirá es de: a) durante la temporada protegida 300,000 Euros (…)” - art. 5.5: “De común acuerdo, en el caso de rescisión del contrato por parte del jugador, con la reserva de los previstos en el párrafo 3 del artículo 17 del Reglamento, en especial y como mínimo, la indemnización que el FC recibirá es de: a) durante la temporada protegida 500,000 Euros (…)” 4. Furthermore, art. 10 of the contract stipulates that all disputes between the parties are settled by the Committee for the Resolution of Financial Disputes (PEEOD) at first instance, and the Court of Arbitration of the country G Football Federation at second instance : - art. 10: “Cada controversia entre las partes será resuelta por la Camera de Primer Grado de Resolución de Disputas Económicas y en Segundo grado por el Tribunal Arbitral de la country S Football Federation.” 5. On 19 January 2012, the player lodged a claim against the club in front of FIFA claiming that on 3 January 2012, he was left with no other option but to unilaterally terminate the employment contract with just cause. 6. According to the player, the club had been continuously and unjustifiably failing to comply with its contractual obligations; it had failed to pay the player its due amounts, whilst also excluding the player, without any reason, from training and team related activities. The player claims to have only received from the club the total amount of EUR 30,500, which were paid in five partial installments, the last one having been paid out in September 2011. 7. In this respect, the player claims to have contacted the club on several occasions but to no avail; reason why on 27 December 2011, the player formally notified the club of his discontent, requesting to be reinstated in the dynamic of the team’s activities whilst also requesting the payment of his outstanding salary, amounting to EUR 74,500. This formal notification was an ultimatum to the club. 8. On 3 January 2012, as a result of the club´s apparent failure to address the issues exposed in the aforementioned letter, the player formally notified the club of its decision to unilaterally terminate the contract with just cause. 9. On the basis of the above-mentioned facts, the player requests the payment of the following amounts: 1) Outstanding salary: EUR 119,500 corresponding to the outstanding salaries as from 31 January 2011 until 31 January 2012 (150,000 - 30,500) or in case the DRC deems that the amount falling due on 31 January 2012 is not to be considered as outstanding remuneration as the contract was terminated on 3 January 2012, subsidiarily EUR 74,500 net (105,000 - 30,500) plus 5% interest p.a. to be applied. 2) Compensation: EUR 300,000 in connection with the compensation amount contractually agreed between the parties upon the signing of the contract. 10. In its reply, the club claims that according to art. 10 of the contract, the sole competent and qualified organs to resolve the dispute at hand should be the relevant decision-making bodies of the country G Football Federation. The club avers that the Committee for the Resolution of Financial Disputes (PEEOD) (hereinafter: the Committee) and the Court of Arbitration of the country G Football Federation (hereinafter: the Court of Arbitration), in their current form, are independent arbitration tribunals guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. In this respect, the club deemed that the player was obliged to file his claim before the country G bodies, which according to the agreement of the parties, should be considered the only competent bodies to hear the present dispute. 11. Upon request of FIFA, the country G Football Federation provided FIFA with a copy of the Statutes (edition 2010) and the Procedural Rules of the Dispute Resolution Committees of the country G Football Federation (edition 2009). In particular, the mentioned regulations stated the following: a. with regard to the jurisdiction of the Committee: Art. 41 G. 5. of the Statutes of the country G Football Federation stipulates that the Committee is competent to resolve financial disputes between players and professional clubs. Art. 41 G. 2b. of the Statutes of the country G Football Federation states that the Appeals Arbitration Division of the Court of Arbitration is competent to “resolve at second degree the disputes settled by the Dispute Resolution Committee between player or coaches and Professional Football Clubs (…)”. b. with regard to the composition: According to art. 41 G. 5. of the Statutes of the country G Football Federation and art. 4 of the Procedural Rules of the country G Football Federation, the Committee is composed of five members. In this respect, said article of the Statutes specified the composition as follows: a chairman, which is a “active higher judiciary”, two members appointed by the Board of Directors of the country G Professional Players Association and two members appointed from the Board of Directors of the Professional Associations. Art. 41 G. 1. of the Statutes of the country G Football Federation stipulates that the Court of Arbitration is composed of three members: the president, which has to be a “supreme active judiciary”, two members, which are “appointed each by each party”. c. with regard to the possibility of an appeal: Art. 53 par. 1 of the Procedural Rules of the country G Football Federation stipulates that “As a last recourse, the decisions of the Committee may be challenged before the Court of Arbitration of the country G Football Federation”. d. with regard to the adoption and enforcement: The Procedural Rules of the country G Football Federation entered into force on 13 June 2009. The Statutes of the country G Football Federation are dated 5 June 2010. 12. Notwithstanding the claim of lack of competence of the DRC, the club also submitted a statement on the substance of the dispute. According to the club, the outstanding amount that was due to the player up to the day of the termination of the contract on 3 January 2012 was in fact equivalent to only EUR 69,500 net, claiming that the player had received the total amount of EUR 35,500 net and not EUR 30,500 as mentioned in his claim, since on 21 October 2011, it had made another payment to the player of EUR 5,000. 13. Furthermore, and since the contract was terminated on 3 January 2012, the club deems that the installment due on 31 January 2012 amounting to EUR 45,000 had not yet matured and thus, was not yet outstanding and due on the day of the termination of the contract. 14. Moreover, and while the club acknowledges that there is an outstanding amount of EUR 69,500 due the player, it firmly objects to the player´s compensation request of EUR 300,000. According to the club, as the player terminated the contract without filing the relevant claim before the country G bodies, he is now therefore not entitled to request such compensation, “since the said provision of art 4.11 (a) refers to article 17 par. 2 of the country G Football Federation´s Regulations and is only applicable when the case is brought before the competent bodies of the country G Football Federation and only when the aforementioned Regulations of the country G Football Federation are applicable”. 15. Indeed, the club states that if the DRC declares itself competent to adjudicate on the matter at hand, the maximum compensation that the player could be awarded is the residual value of his contract minus any amount that the player will earn or fail to earn until 30 June 2012. However, the club argues that the player should not be entitled to this compensation, as such a decision would be “ultra petita” since the player did not request for it, but instead requested compensation for the amount stipulated in art. 4.11 of the contract, which as previously stated, cannot be applicable to the present case. 16. Finally, the player as well as dismissing the competence of the country G Football Federation, informed FIFA that on 26 October 2012, he concluded an employment contract with the country S club, Club B, valid as from the date of signature until 30 June 2013, in accordance with which he was entitled to receive a gross monthly salary of EUR 1,272.26. ** II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The present matter was submitted to FIFA on 19 January 2012, thus, after the aforementioned Rules entered into force on 1 July 2008. Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned 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 country S player and a country G club. 3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 10 of the employment contract according to which “[all] disputes between the parties are settled by the Appeals Committee for the Resolution of Financial Disputes (PEEOD) at first instance, and the Court of Arbitration of the country G Football Federation at second instance” (informal translation). 4. In this regard, the Chamber noted that the Claimant rejected such position and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 5. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one in 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. 6. While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber turned to art. 10 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. The Chamber recalled once more that said art. 10 stipulates that “all disputes between the parties are settled by the Committee for the Resolution of Financial Disputes (PEEOD) at first instance, and the Court of Arbitration of the country G Football Federation at second instance”. 7. In this respect and in view of the aforementioned jurisdiction clause, the DRC had primarily to examine, based on the documents provided, whether or not the Committee and the Court of Arbitration of the country G Football Federation meet the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 8. In this regard, the DRC, after a careful study of the documents on file, referred to art. 41 G. 5. of the country G Football Federation Statutes and art. 4 of the Procedural Rules of the country F Football Federation, which, in relation to the composition of the Committee, stipulate that the Committee is composed of five members. Furthermore, the relevant article of the Procedural Rules of the country G Football Federation stipulates that the Committee shall be composed of a chairman and a substitute chairman who will be active higher judiciaries; two representatives of the players and two representatives of the clubs. The relevant article of the country F Football Federation Statutes provides that “the Chairman of the Committee and his substitute being active higher judiciaries. In the event that an active judiciary is not able to participate, then a non-active judiciary is appointed. Two (2) members are appointed from the Board of Directors of the country G Professional Players Association and two (2) from the Board of Directors of the Professional Associations.” 9. In this context, the Chamber observed that there was no indication in said rules and statutes how the chairman of the relevant country G decision-making bodies is appointed, i.e. it remains unknown whether the chairman is appointed by consensus by the player and club representatives, nor does it become clear who exactly the chairman is. As a result, the Chamber decided that the aforementioned provisions of the rules and statutes of the country G Football Federation do not comply with art. 3 of the NDRC Standard Regulations, which, inter alia, requires that a chairman and deputy chairman are chosen by consensus by the player and club representatives. 10. Likewise, the Chamber referred to art. 41 G. 1. of the country G Football Federation Statutes and noted that the Court of Arbitration is composed of three members, consisting of its President and his substitute who are “supreme active judiciaries” and two members, which are appointed “each by each party”. Equally, the Chamber came to the conclusion that the provisions governing the composition of the Court of Arbitration do not demonstrate how exactly the President and his substitute are appointed and thus fail to clarify whether the President and his substitute are chosen by consensus by the player and club representatives. 11. In conclusion, the Chamber decided that the Respondent could not prove that both national bodies, i.e. the Committee and the Court of Arbitration, comply with the minimal procedural standards in order to be recognised as an independent arbitration tribunal, as established in art. 22 lit. b) of the FIFA Regulations as well as in the FIFA Circular no. 1010. In particular, said bodies do not respect the principle of equal representation of players and clubs, which is a fundamental principle to meet. Consequently, as established by the DRC on previous occasions, the Chamber considered that neither the Committee nor the Court of Arbitration can be recognised. 12. In view of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber 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. 13. In continuation, the Chamber analysed which edition of the FIFA Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2012) and considering that the present claim was lodged on 19 January 2012, the 2010 edition of said Regulations is applicable to the matter at hand as to the substance. 14. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber acknowledged that it was undisputed by the parties that they had signed an employment contract on 6 January 2011 valid as of the date of signature until 30 June 2013, in accordance with which the player was entitled to receive, inter alia, the total amount of EUR 375,000 for the period of time between 31 January 2011 and 31 March 2013. 15. Subsequently, the Chamber also took note that it is uncontested by the Respondent that the contractual relationship between the parties to the present dispute was terminated by the Claimant on 3 January 2012, at the moment when the Claimant had submitted its termination letter to the Respondent. 16. The Claimant maintains that he had just cause to terminate the employment contract on 3 January 2012, as the Respondent had only paid him EUR 30,500 out of the EUR 105,000 which were, according to the Claimant, due at the time of the unilateral termination. In this respect, the Chamber recalled that, on 27 December 2011, the player had formally notified the club of his discontent, providing the latter with an ultimatum as to comply with its contractual obligations, i.e. payment of his outstanding salaries amounting to EUR 74,500. 17. The Respondent, for its part, does not contest to have been in delay with the payments due to the Claimant, but it does however contest the exact amount claimed by the latter. According to the Respondent, the outstanding amount that was due to the player up to the day of the termination of the contract on 3 January 2012 was in fact equivalent to EUR 69,500 and not 74,500 as requested by the Claimant. The Respondent sustains to have paid the player an extra EUR 5,000 on 21 October 2011, which it justifies by providing a dated bank account statement. 18. In this respect, the members of the Chamber deemed it important to highlight that the Claimant had not contested the Respondent´s allegation regarding the extra payment of EUR 5,000 on 21 October 2011. 19. Having said this, and in view of the abovementioned facts, in particular, that the Respondent admitted that EUR 69,500 remained unpaid at the moment of the early termination of the contract by the Claimant, the Chamber concurred that the Respondent had evidently failed, without any valid reason, to pay the Claimant´s remuneration in accordance with its contractual obligations and that it had, thus, as a result seriously neglected its obligations under the employment contract. 20. At this juncture, the members of the Chamber also wished to emphasise that, according to its long-standing jurisprudence, the non-payment or late payment of remuneration by an employer does in principle - and particularly if repeated as in the present case - constitute “just cause” for termination of the contract, since the employer’s payment obligation is his main obligation towards the employee. The Chamber wished to underline in this respect that, once the employer repeatedly fails with this obligation, the employee can no longer be expected to continue in the employment relationship. 21. On account of the preceding considerations, the Chamber stated that it was obvious that the Respondent had seriously neglected its contractual obligations towards the Claimant by failing to pay the Claimant several of his salary payments, even though having been formally notified by the Claimant of its arrears. Therefore, the Chamber considered that the Respondent was found to be in breach of the contract and that, in line with the Chamber’s long-standing and well-established jurisprudence, the breach was of such seriousness that the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 3 January 2012. 22. On account of the above, the Chamber established that the Claimant had terminated the employment contract with just cause on 3 January 2012 and that the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 23. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 24. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, and taking into account that the Claimant never contested that it had received the extra EUR 5,000, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination in the amount of EUR 69,500. 25. In addition, taking into consideration the player’s claim, the Chamber decided to award him interest at the rate of 5% p.a. over said amount as of 19 January 2012 until the date of effective payment. 26. Furthermore, having established that the Respondent is to be held responsible for the early termination of the employment contract with just cause by the Claimant, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 27. In this context, the Chamber outlined that, in accordance with said provision, 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. 28. 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. Upon careful examination of the employment contract concluded between the Claimant and the Respondent, the members of the Chamber took note that art. 4.11 of the contract indicates that if the club prematurely terminates the contract with the player during the protective period, the latter will be entitled to a compensation of EUR 300,000 whereas, according to art. 5.5 of the contract, if the opposite occurred, the club will be thereby entitled to a compensation of EUR 500,000. 29. The Chamber duly analysed the contents of said clause and acknowledged that both parties had duly signed the employment contract and thus had mutually agreed on said clause. The Chamber further acknowledged that the aforementioned clause provides for the amount of compensation payable in the event of the termination of the employment contract by one of the parties. Having said this, the members of the Chamber considered said clause to be reciprocal, not disproportional, and outlined that such clauses are recognised by art. 17 par. 1 and 2 of the Regulations. In relation to the argument raised by the Respondent in this respect, the Chamber underlined that the relevant clause did not, contrary to what the Respondent sustained, refer to the Regulations of the country G Football Federation and that, therefore, the Respondent’s argumentation could not be followed. 30. On account of the above, the parties having contractually agreed on the compensation payable in the event of breach of contract and such compensation not being disproportionate, the Dispute Resolution Chamber concluded that the provision contained under art. 4.11 of the employment contract has to be considered as valid and fully effective, i.e. the amount of compensation provided in said article shall be awarded to the Claimant. Furthermore, for these reasons, the Chamber concurred that any remuneration under the new employment is irrelevant in the case at hand. 31. Consequently, the members of the Chamber decided that the Respondent has to pay to the Claimant the total amount of EUR 300,000 as compensation for breach of contract. 32. Finally and for all the above reasons, the Chamber decided to partially accept the Claimant´s claim and that the Respondent must pay to the Claimant the amount of EUR 69,500 as outstanding remuneration, plus 5% interest p.a. on said amount as of 19 January 2012 and EUR 300,000 as compensation for breach of contract. 33. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected. ** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player C, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club A, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 69,500 plus 5% interest p.a. as on said amount as of 19 January 2012 until the date of effective payment. 4. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract amounting to EUR 300,000. 5. In the event that the amounts due to the Claimant in accordance with the above- mentioned numbers 3. and 4. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ** 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: Jérôme Valcke Secretary General Encl. CAS directives