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 15 March 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Carlos Soto (Chile), member Mario Gallavotti (Italy), member Zola Majavu (South Africa), member on the claim presented by the player, Player T, from country N as Claimant against the club, Club S, from country C 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 15 March 2013, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Carlos Soto (Chile), member Mario Gallavotti (Italy), member Zola Majavu (South Africa), member on the claim presented by the player, Player T, from country N as Claimant against the club, Club S, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On or about 25 June 2008, Player T, from country N (hereinafter: player or Claimant) and Club S, from country C (hereinafter: club or Respondent) signed a “football player’s agreement” (hereinafter: first agreement) valid for two sporting seasons and to come to its end on 31 May 2010. 2. According to art. 19 and art. 20 of the first agreement, should the player be guilty of serious and/or persistent misconducts, or have acted in breach of the agreement or of various regulations, the club has the right to either terminate the agreement or to impose a fine upon the player, in the written form, and explaining the reasons thereof. 3. According to art. 14 of the first agreement, the club has the right to terminate the contract in case of relegation to another division. 4. Based on the first agreement, the player was to receive the following remuneration: • Basic wage for the 2008/09 sporting season: • EUR 2,000 payable as an advance; • EUR 1,500 per month payable on the last day of the relevant month and starting as from 31 August 2008 until 31 May 2009. • Basic wage for the 2009/10 sporting season: • EUR 3,000 payable as an advance on 1 July 2009; • EUR 1,700 per month, payable on the last day of the relevant month and starting as from 31 August 2009 until 31 May 2010. 5. On or about the same date, the player and the club signed an additional agreement, bearing no signature date (hereinafter: additional agreement), and also valid until 31 May 2010. 6. Art. 27 par. 5 of the additional agreement stipulates that the player has the right to terminate his contract without further notice in case the club fails to pay him more than three monthly salaries. 7. The additional agreement provides for the following remuneration and benefits: • Basic wage for the 2008/09 sporting season: • EUR 13,000 payable as an advance; • EUR 3,000 per month, payable on the last day of the relevant month and starting as from 31 August 2008 until 31 May 2009. • Basic wage for the 2009/10 sporting season: • EUR 13,000 payable as an advance on 1 July 2009; • EUR 4,700 per month, payable on the last day of the relevant month and starting as from 31 August 2009 until 31 May 2010. • Accommodation amounting to EUR 500 per month during both sporting seasons. 8. On 15 July 2008, the club and the player allegedly signed a third agreement (hereinafter: third agreement), which contents are fully similar to the first agreement. However, and contrary to the first and the additional agreements, the third agreement is dated and bears a stamp. 9. Art. 26 of the third agreement sets forth that it cancels any previous agreements existing between the player and the club. 10. On 3 April 2009 and 17 April 2009, respectively, the player sent a default notice to the club. In particular, in his second default notice, the player indicated not having received one outstanding monthly salary in the amount of EUR 4,500, as well as five unpaid accommodation installments, i.e. EUR 2,500, and asked the club to proceed with the corresponding payments. 11. On 12 June 2009, the player sent another default notice to the club, requesting the payment of three outstanding salaries plus five accommodation-related installments and specified that in the absence of payment within the next two days, the player would terminate the employment relation. 12. On 15 June 2009, the player was informed of the club’s notice of termination of the employment relation dated 5 June 2009 due to the facts that the club had allegedly been relegated and that the player had been found guilty of persistent misconduct and breach of the regulations and of his contractual obligations. 13. On 30 June 2009, the player lodged a claim before FIFA against the club for breach of contract without just cause. 14. In this regard, he firstly held that the club had not been relegated. What is more, and should the club indeed have been relegated, the player put forward that such clause is anyhow illegal as it is a potestative clause. 15. Furthermore, the player denied having ever misbehaved or having been guilty of any persistent misconduct. In this respect, the player pointed out that he never received any warning from the club and that he never was given any copies of the various regulations the club referred to in its termination letter. 16. In addition, the player asserted that, in the beginning of April 2009, the club informed him that it was not willing to continue their employment relation any longer, to which he disagreed. 17. As a result of the above, the player claimed outstanding salaries in the amount of EUR 13,500 for the sporting season 2008/09, corresponding to the months of March, April and May 2009, plus EUR 2,500, corresponding to five unpaid installments relating to his accommodation. 18. In addition, the player claimed the amount corresponding to the entire residual value of the first agreement and the additional agreement as compensation for breach of contract by the club, i.e. EUR 80,000. 19. Finally, and based on decisions passed by of the Court of Arbitration for Sport related to breach of contract, the player claimed the additional amount of EUR 48,000, i.e. six monthly salaries of EUR 8,000 each, as punitive damages, this amount being based on the specificity of sport, the club’s behaviour and the inconvenient time when the latter would have breached the agreements signed with the player. 20. The player also claimed 5% interest to be calculated as from the relevant due dates. 21. In its reply to the claim, the club confirmed that it signed with the player, on 25 June 2008, the first agreement and the additional agreement. However, the club held that based on country C law, said agreements are void as they do not bear any state stamp nor any date. 22. However, the club stressed that, on 15 July 2008, the club and the player signed the third agreement valid as from the date of signature until 31 May 2010 and which, contrary to the first two agreements, bears the required State stamp as well as a date. 23. According to the club, this third agreement was signed after the club realised that the player was of an amateur level instead of a professional level. As a result, the club decided to diminish, with the player’s approval, his remuneration. 24. In this respect, the club highlighted that art. 26 of third agreement sets forth that all previous agreements between the player and the club are cancelled. As a result, the club held that the first two agreements that were signed in June 2008 are to be considered as cancelled. 25. In continuation, the club explained that it got relegated at the end of the sporting season 2008/09, which gave it the possibility to terminate the contractual relation with the player in accordance with contractual clause 14. 26. Finally, the club held that it actually paid more to the player than it should have and that, in fact, it could be that the player would have to reimburse some undue payments he received. 27. The club specified that it paid to the player the amount of EUR 56,500 and presented various documents in this respect, covering a period of time comprised between the months of August 2008 and April 2009. 28. In his replica, the player maintained that, as it is the practice in country C, two agreements were signed by and between the player and the club on 25 June 2008. 29. The player explained that the third agreement presented by the club, which contents are just the same as the first agreement, and which is, “all of a sudden”, dated 15 July 2008, is doubtful as he was not in country C on that date and he did not have any reason to sign this third agreement. 30. In addition, the player held that the third agreement presented by the club, if binding, would have been completely disregarded by the club, since the payments made to the player matched the terms of the first and additional agreements, apart from the fact that the club’s explanation that the player would have received more than he should have received is not plausible. 31. Furthermore, the player reiterated that the club cannot refer to art. 14, since it did not get relegated, but was actually promoted to the higher division at the end of the sporting season at stake and that the club never submitted any evidence of the player’s alleged misconducts, which allegations the player denied. 32. In conclusion, the player held that it can only be found that the club terminated the contract without just cause and that it has to pay the amounts claimed by the player, including the punitive damages. 33. In its final comments, the club reiterated that the only valid agreement binding the parties is the third agreement, the others being void under country C law as they do not bear any date or a stamp from the State. 34. On 14 July 2009, the player signed an employment contract with Club R, valid as from 1 July 2009 until 30 June 2012. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred as to 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 30 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 hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the members of the Dispute Resolution 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 Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country N 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 on 30 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 and reviewed the facts of the case. 5. In this respect, the Chamber acknowledged that the Claimant and the Respondent signed, on or about 25 June 2008, a first agreement as well as an additional agreement, both entering into force as from an unspecified date and valid until 31 May 2010. 6. Additionally, the Chamber noted that according to the Respondent, on 15 July 2008, the Claimant and the Respondent signed a third agreement, valid as from its signature date until 31 May 2010, the purpose of which was to replace the two above-mentioned agreements that are, anyhow, according to the Respondent, void under country C law. 7. Furthermore, the Chamber took into account that the Claimant denied having signed the third agreement dated 15 July 2008 submitted by the Respondent. 8. In continuation, the Chamber further took into account that by means of its correspondence dated 5 June 2009, which the player declared having been informed of on 15 June 2009, the Respondent terminated the employment relation with the Claimant. 9. Subsequently, the Chamber acknowledged that ,on 30 June 2009, the Claimant lodged a claim before FIFA against the Respondent, holding that the latter unilaterally terminated the first two agreements signed by and between them without just cause and consequently claimed payment of outstanding remuneration as well as compensation for breach of contract based on the first and on the additional agreement. 10. The Respondent, for its part, rejected the Claimant’s claim maintaining that it validly terminated the employment relation with the Claimant on the basis of art. 14 of the third agreement. 11. With this in mind, the Chamber concurred that the circumstances leading to the early termination of the employment relation at stake by the Respondent had to be examined in greater detail, in order for the Chamber to be in a position to determine as to the whether the employment relation between the parties has been terminated with or without just cause, and which party is to be held responsible for the early termination of the employment relation in question. 12. The Chamber also underlined that, if it was found that the employment relation was terminated by one of the parties without just cause, it would be necessary to determine the consequences for the party that is to be held liable for the termination of the employment relation without just cause. 13. In this context, and bearing in mind the parties’ divergent position, the members of the Chamber unanimously agreed that it, first and foremost, had to determine which of the various agreements at stake represented the legal basis of the parties’ employment relation regulating the parties’ respective rights and obligations. 14. In continuation, the Chamber first focussed its attention on the third agreement presented by the Respondent while emphasising that the original of the agreement at stake was on file. 15. After having analysed the stipulations of the third agreement, the Chamber found that they are fully similar to the terms stipulated in the first agreement, with the difference that the third agreement bears a signature date and a stamp. 16. Following its analysis, the Chamber reverted to the Claimant’s statement that, as opposed to the first and the additional agreement, the validity of the third agreement would be doubtful since he was not in country C on the date of the alleged signature of the third agreement. 17. In this regard, bearing in mind the Claimant’s implicit allegation of forgery, the DRC emphasized that, as a general rule, it is not the competent body to decide upon matters of criminal law, such as allegedly falsified signatures or documents, but that such affairs fall within the jurisdiction of national penal courts. 18. In continuation, the DRC pointed out that all documentation remitted shall be considered with free discretion and, therefore, focused its attention on the three agreements available on file as well as other documents containing the Claimant’s signature. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures, the Chamber had no other option but to conclude that for a layman, the Claimant’s signatures on the various documents available, including the challenged document, seem to be alike. 19. Consequently, on account of the above, the Chamber concluded that the third agreement must be considered a legally binding agreement. 20. The members of the Chamber then turned their attention to clause 26 of the third agreement, according to which any previous agreements, which would thus include the first and the additional agreement, are cancelled. 21. Yet, the Chamber highlighted that in fact, the Respondent, for the duration of an entire season, had remunerated the player in accordance with the first and the additional agreements. 22. In this respect, the DRC was eager to underline that, whereas on the basis of the third agreement the player was entitled to receive EUR 15,000 as from August 2008 until April 2009, the Respondent itself had specified having paid to the Claimant the amount of EUR 56,500 between the months of August 2008 and April 2009, and that it had transmitted documentary evidence corroborating this assertion, which had anyhow not been contested by the Claimant. 23. In continuation, the Chamber established that the Respondent had not presented any plausible explanation for having allegedly paid the Claimant in excess of his entitlements on the basis of the third agreement with such considerable amount. 24. In view of the above, the DRC established that the parties had de facto carried out the financial terms of the first agreement and of the additional agreement. 25. As a result, the Chamber rejected the Respondent’s assertion that the parties’ employment relation was only ruled by the stipulations contained in the third agreement dated 15 July 2008 and that the first two agreements were void. Accordingly, the members of the Chamber concluded that the parties’ respective contractual rights and obligations were to be analysed on the basis of the terms stipulated in the first agreement in combination with the additional agreement. 26. Having so found, the Chamber reverted to the contents of the Respondent’s termination letter dated 5 June 2009 and noted that the Respondent referred in said letter to contractual clauses as well as to reported misconducts and breaches by the Claimant in order to justify the unilateral termination of the employment relation. Furthermore, the Chamber noted that the Respondent reiterated in its reply to the player’s statement of claim that it deemed that it was in a position to terminate the employment relation on the basis of terms stipulated in the contractual clauses. 27. In continuation, the Chamber noted that the Claimant, for his part, asserted that the termination of the employment relation is unjustified, since, first of all, it is not correct that the club was relegated and that, in addition, even if it had been the case, quod non, said contractual clause is illegal due to its potestative nature. 28. Furthermore, the Chamber noted that the Claimant denied having ever been guilty of any persistent misconducts or breaches of his obligations as alleged by the Respondent. In this respect, the DRC noted that the Claimant asserted that he was never sanctioned or warned by the Respondent in relation to such alleged misbehaviours and that the Respondent did not present any documentation corroborating its allegations in this regard. 29. In this context, the Chamber deemed it relevant to recall the legal principle set forth in art. 12 par. 3 of the Procedural Rules in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 30. Furthermore, and after having reviewed the Respondent’s submissions, the Chamber found that the Respondent had not submitted any evidence in support of its allegation that the club would have been relegated to a lower division, allegedly allowing it to terminate the employment contract on the basis of said clause 14. 31. In view of the above, the Chamber concluded that the Respondent’s argument that it would have been in a position to terminate the employment relation with the Claimant on such basis had to be rejected. 32. Having so found, the Chamber deemed that it was not necessary for it to proceed to a more in depth analysis of the alleged potestative nature of art. 14 of the first agreement. 33. In continuation, the Chamber turned its attention to the Respondent’s additional statement that the early termination of the employment relation with the Claimant would have been justified by the Claimant’s “persistent misconduct and/or breach” of the regulations or, more generally, of his contractual obligations towards the Respondent. 34. In this respect, as stated above, the DRC held that the Respondent had failed to corroborate its position in this regard with any documentary evidence. 35. As a result thereof, the Chamber concluded that the Respondent’s argument that the termination of the employment relation was justified on the basis of the Claimant’s alleged misconduct or breach of his obligations also had to be rejected. 36. As a result of all the above considerations, the members of the Chamber unanimously decided that the Respondent unilaterally terminated the employment relation with the Claimant on 5 June 2009 without just cause. 37. Having established that the Respondent is to be held liable for the early termination of the employment relation without just cause, the Chamber stated that it, therefore, had to assess the consequences of this unilateral termination of the contractual relation with the Claimant in accordance with the provisions provided for by Chapter IV of the Regulations. 38. Taking into consideration art. 17 par. 1 of the Regulations, the DRC 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 first two agreements signed between the parties. 39. As to the question of the possible existence of outstanding salaries, the Chamber deemed it relevant to recall that it had previously established that the parties’ respective contractual rights and obligations were to be analysed on the basis of the stipulations contained in the first agreement in combination with the additional agreement (cf. point II./25. above). 40. In this context, the Chamber took into consideration that at the time of the termination of the employment relation, i.e. 5 June 2009, on the basis of the first and the additional agreement the Claimant should have received the total amount of EUR 66,000; The Claimant had admitted having received from the Respondent the amount of EUR 56,500, therefore, leaving a balance in the Claimant’s favour in the amount of EUR 9,500, which amount the Claimant could not prove to have paid to the Claimant. 41. Consequently, the DRC decided that the Respondent has to pay to the Claimant outstanding remuneration in the amount of EUR 9,500, consisting of EUR 4,500 for April 2009 and EUR 5,000 (including EUR 500 for accommodation) for May 2009. 42. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the outstanding monthly remuneration as of the day following the day on which such remuneration had fallen due. 43. In continuation, the Chamber focussed its attention on the calculation of the amount of compensation payable by the Respondent for breach of contract without just cause 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 provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years and whether the contractual breach falls within the protected period. 44. 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 which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the first agreement or in the additional agreement. 45. As a result thereof, the DRC determined that the amount of compensation payable by the Respondent to the Claimant as compensation for breach of contract 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. In this regard, the DRC emphasised beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter. 46. In order to establish the amount of compensation due to the Claimant in the present matter, the DRC first turned its attention to the remuneration due to the Claimant under the existing agreements and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 47. Bearing in mind the foregoing, the Chamber first proceeded with the calculation of the salaries payable to the Claimant under the terms of the first and the additional agreement until 31 May 2010 and concluded that the amount of EUR 80,000, i.e. the total salaries as from the moment the breach occurred until 31 May 2010 was payable to the Claimant. In this respect, the Chamber took into account that the aforementioned amount corresponds to the amount claimed as compensation for breach of contract without just cause by the Claimant on the basis of the first and the additional agreement. 48. 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. 49. Indeed, on 14 July 2009, the Claimant signed an employment contract with the country N club, Club R, valid as from 1 July 2009 until 30 June 2012, in accordance with which the Claimant was entitled to receive from Club R the total amount of EUR 54,000 until 30 June 2010. On this basis, the Claimant was able to reduce his loss of income with the total amount of EUR 54,000. 50. For all the above considerations, the DRC decided to partially accept the Claimant’s claim and that the Respondent must pay to the Claimant the amount of EUR 26,000 as compensation for the unilateral breach of contract without just cause. 51. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on said amount of compensation for breach of contract as of the date of the present decision, i.e., 15 March 2013, until the date of effective payment. 52. The Chamber concluded its deliberations in the present matter by establishing that any further claims of the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player T, is partially accepted. 2. The Respondent, Club S, 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 9,500 plus interest at 5% p.a. until the date of effective payment as follows: a) 5% p.a. as of 1 May 2009 over the amount of EUR 4,500; b) 5% p.a. as of 1 June 2009 over the amount of EUR 5,000. 3. The Respondent, Club S, has to pay to the Claimant compensation for breach of contract in the amount of EUR 26,000 within 30 days as from the date of notification of this decision plus interest at the rate of 5% p.a. as of 15 March 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated deadlines, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and 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: Jérôme Valcke Secretary General Encl. CAS directives