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 27 February 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member Essa M. Saleh Al-Housani (U.A.E.), member on the claim presented by the player, Player S, from country M, as Claimant against the club, Club A, from country C 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 27 February 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member Essa M. Saleh Al-Housani (U.A.E.), member on the claim presented by the player, Player S, from country M, as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 28 April 2008, the Player S, from country M (hereinafter: player or Claimant) and the Club A, from country C (hereinafter: club or Respondent) signed an employment contract (hereinafter: contract) valid as from 1 June 2008 until 30 May 2010, according to which the player was entitled to receive from the club the amount of EUR 80,000 in twenty monthly instalments of EUR 4,000 each, the first one to be paid on 1 August 2008 and the last one to be paid in May 2010. 2. On 29 April 2008, the player and the club signed another document entitled “Supplementary agreement” (hereinafter: supplementary agreement), valid as from 2 June 2008 until 30 May 2010, which provided for the player to receive from the club: a) EUR 30,000 to be paid on 1 June 2008; b) EUR 30,000 to be paid on 1 June 2009; c) EUR 120,000 in twenty monthly instalments of EUR 6,000 each, the first one to be paid on 1 August 2008 and the last one to be paid on 30 May 2010; d) Accommodation not exceeding EUR 700 per month; e) “Bonuses for wins as per the internal regulation of the club with a minimum guaranteed amount of EUR 10,000”; f) EUR 10,000 per season in case the club “wins the cup or participate to UEFA”; g) EUR 10,000 per season in case the club “wins the championship”; h) Two air tickets per year country C-country S-country S; i) Insurance coverage “under the ALIGO Insurance Company”. 3. On 31 May 2009, the club informed the player in writing of the termination of the employment contract as from 1 June 2009. The player signed such letter and added: “I, Player S hereby confirm that I receive this letter. However I reserve my rights for all my unpaid wages, salaries and bonuses as well as compensation and/or damages for termination by Club A of my contract without just cause.” 4. On 18 June 2009, the player lodged a claim before FIFA against the club, maintaining that the club had terminated the contract and the supplementary agreement (hereinafter together referred to as contracts) without just cause and requesting from the latter the payment of EUR 193,286, which was detailed as follows: a) EUR 10,000 as outstanding salary for May 2009 according to both the contract and the supplementary agreement; b) EUR 1,400 as costs for accommodation for the months of March and May 2009; c) EUR 10,000 as “yearly guaranteed bonus”; d) EUR 10,000 as bonus for the qualification of the club for the UEFA Cup; e) EUR 12,500 as bonus for the Champions League; f) EUR 766 for two air tickets from country C to country S; g) EUR 220 for medical expenses covered by the above-mentioned insurance; h) EUR 30,000 that was due on 1 June 2009 according to the supplementary agreement; i) EUR 118,400 as compensation for breach of contract corresponding to: i. EUR 100,000 as yearly salary; ii. EUR 8,400 as yearly costs for accommodation; iii. EUR 10,000 as bonus for matches. 5. Finally, the player asked for sporting sanctions to be imposed on the club. 6. The club, for its part, rejected the player’s claim in its entirety, arguing that it had terminated the contract and the supplementary agreement with just cause. The club stated that in accordance with the receipts presented by the player it paid the total amount of EUR 222,000 to the player, consisting of: a) EUR 130,000 as salaries; b) EUR 7,000 for accommodation; c) EUR 10,000 as minimum guaranteed bonus; d) EUR 10,000 “for participating in the UEFA competition according to art. 2f of the supplementary agreement”; e) EUR 65,000 “for the Champions League competition”. 7. Finally, the club stated that the player had not sustained any loss on the basis of the termination, as he found employment with another club. 8. According to the player, on 7 August 2009, he concluded an employment contract with Club K, from country G, valid as from the date of signature until 30 June 2011, according to which he was entitled to receive EUR 826 as monthly salary and EUR 4,000 in two instalments of EUR 2,000 each, the first one to be paid on 15 December 2009 and the second one to be paid on 15 December 2010. Furthermore, the player stated that he had received from Club K the total amount of EUR 10,608. Finally, the player added that the contract concluded with Club K had been mutually terminated on 30 March 2010. 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 18 June 2009. 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 stake (cf. art. 21 par. 2 and 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 an country M player and a country C 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 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2010 and 2009), and considering that the present claim was lodged in front of FIFA on 18 June 2009, the 2008 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 acknowledged that the Claimant and the Respondent, on 28 April 2008, signed an employment contract setting out a period of validity as from 1 June 2008 until 30 May 2010. In addition, on 29 April 2008, the parties signed a supplementary agreement valid as from 2 June 2008 until 30 May 2010. 5. The Claimant, on the one hand, maintains that the Respondent is to be held liable for the early termination of the contracts as from 1 June 2009 without just cause by having informed the player in writing of the termination of said contracts. The Respondent, on the other hand, rejects such claim, arguing that it had terminated the contract and the supplementary contract with just cause. 6. The Chamber highlighted that it is uncontested by the Respondent that the contractual relation between the parties to the present dispute was terminated by the Respondent on 31 May 2009, when the Respondent had submitted its termination letter to the Claimant, with effect as of 1 June 2009. 7. Consequently, the Chamber concurred that the underlying issue in this dispute was to determine whether the contracts had been terminated by the Respondent with or without just cause. The Chamber also underlined that subsequently, if it were found that the contracts were terminated without just cause, it would be necessary to determine the consequences thereof. 8. In analysing whether the Respondent terminated the contracts with or without just cause, the Chamber concentrated on the reasons given by the Respondent for said termination and, in particular, on any corroborating documentation in support of such reasons. 9. Taking into account the aforesaid as well as the Respondent’s allegation that it terminated the contracts with just cause, the Chamber referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In continuation, the Chamber turned its attention to the documentation on file. 10. The Chamber recalled that the Respondent had terminated the employment contract and the supplementary agreement on 31 May 2009, effective as of 1 June 2009, by means of a letter in which it informed the Claimant about the termination of the contracts. The Chamber noted from said notice of termination that the Respondent had not included therein any reasons for the termination of the contracts. 11. On a side note, the Chamber wished to emphasise that the Claimant’s signature and additional remark on the relevant notice of termination are not to be understood as an acceptance by the Claimant of the termination of the contracts by the Respondent, but merely as a confirmation of receipt of the termination notice. 12. In addition, the Chamber noted that the Respondent did not provide any reasons for the early termination of the contracts in response to the claim of the Claimant. 13. On account of all the above, the Chamber concluded that the Respondent had terminated the contracts without just cause by means of its letter dated 31 May 2009 effective as of 1 June 2009. 14. Having established that the Respondent is to be held liable for the early termination of the contracts without just cause, the Chamber turned its attention to the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contracts. 15. First of all, the Chamber reverted to the Claimant´s financial claim, which includes outstanding remuneration of EUR 10,000 relating to his monthly salary for May 2009 according to the contract and the supplementary agreement, as well as outstanding accommodation costs of EUR 1,400 for the months of March and May 2009 and EUR 20,000 relating to the yearly guaranteed bonus and to the qualification for the UEFA Cup of EUR 10,000 each. 16. After careful examination of the documentation on file, the DRC, first of all, noted that the payment receipts include three receipts totalling EUR 86,000 relating to Champions’ League bonuses, which bonuses do not appear to be included in the contracts and which apparently have been paid to the Claimant on the basis of an agreement other than the pertinent contracts. Consequently, the members of the Chamber concurred that those receipts cannot be taken into consideration with respect to the analysis as to whether the Respondent had paid all of the remuneration due to the Claimant on the basis of the contracts. 17. Furthermore, the Chamber duly noted that among the various payment receipts on file, no receipts regarding the Claimant’s salary for May 2009 (EUR 10,000) and regarding accommodation costs for March 2009 and May 2009 (totalling EUR 1,400) were presented. 18. Consequently, taking into account the above and the fact that the contracts were considered terminated as of 1 June 2009, the Chamber decided that the Respondent is liable to pay the Claimant the amount of EUR 11,400 relating to the remuneration due to the Claimant for March and May 2009 in accordance with the contract and the supplementary agreement. 19. In continuation, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract in the matter 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 contracts at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contracts contain 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 had been included in the contracts at the basis of the matter at stake. 21. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contracts until 30 May 2010, i.e. the date on which the contracts were set to expire. Consequently, the Chamber concluded that the amount of EUR 148,400 (i.e. EUR 100,000 as yearly salary, EUR 8,400 as yearly costs for accommodation, the monthly amount of which was included in the supplementary agreement, EUR 10,000 as guaranteed bonus and EUR 30,000 as lump sum payment due on 1 June 2009) serves as a basis for the final determination of the amount of compensation for breach of contract. 22. 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 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. 23. In this respect, the Chamber noted that the Claimant had concluded an employment contract with Club K, from country G, for the period as from 7 August 2009 until 30 June 2011, enabling the Claimant to reduce his loss of income. In particular, the members of the Chamber took into account that the Claimant had received the amount of EUR 10,608 from his new employer covering the period of time until 30 May 2010 on the basis of the new employment contract. 24. On account of the aforementioned considerations and the particularities of the case at hand, the Chamber decided that Respondent must pay to the Claimant the amount of EUR 137,792 as compensation for breach of contract without just cause. 25. 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 S, is partially accepted. 2. The Respondent, Club A, has to pay to the Claimant outstanding remuneration in the amount of EUR 11,400 within 30 days as from the date of notification of this decision. 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 of EUR 137,792. 4. In the event that the amounts due to the Claimant are not paid by the Respondent within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 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 article 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