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 (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by DRC judge, on the claim presented by the player, Player S, country R as Claimant against the club, Club M, country L 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 (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by DRC judge, on the claim presented by the player, Player S, country R as Claimant against the club, Club M, country L as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 31 August 2009, the club M from country L (hereinafter: the Respondent), the club F from country R (hereinafter: club F), and the player S from country R, (hereinafter: the Claimant), signed a “Temporary Transfer Agreement” (hereinafter: the agreement), valid as from the date of signature until 31 May 2010 (i.e. 9 months), by means of which the Claimant was loaned to the Respondent free of payment. 2. Clause 4 of the agreement specified that the Claimant and the Respondent would sign an employment contract valid as from 31 August 2009 until 31 May 2010, according to the following statements: “§1° During this loan CAP [club F] will keep paying the player, in country R, the salary fixed on the Labour Contract between CAP and the PLAYER. §2° club M [the Respondent] will be responsible to pay to the PLAYER, in country L, a complementary salary which will be agreed according to the Labour Contract between club M and the Player and according to FIFA and country L laws”. § 4° During the temporary transfer period, club M and the PLAYER will not be able to anticipate the breach of this contract by sending the PLAYER back to CAP before the date of expiry of this temporary transfer agreement, without previous and express authorization from CAP. If it occurs without CAP’s authorization, then club M shall pay the value mentioned in §5° below. §5° in case that the PLAYER becomes a free agent, in consequence of any act or omission of responsibility from club M, including, but not limited to the lack of wage payment and benefits, then club M is forced to pay CAP the net amount of EUR 2.000.000 (two million euros) in cash no later than 30 Thirty) days from the date that the PLAYER becomes a free agent”. 3. On the same date, the Claimant and the Respondent concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2010, i.e. 9 months. 4. According to clause 1 of the contract, the Claimant was entitled inter alia to the following: - monthly salary of the net amount of USD 5,000, payable by no later than “10 banking days from the beginning of each month”; - three return flight tickets in business class “city C - city P” for the Claimant and “his family (wife and child)’s arrival on the beginning of the contract and departure on the end of the contract”; - three return flight tickets in business class “city P - city C” between December 2009 and January 2010 “for the player, his wife and child’s vacation”. 5. On 1 July 2010, the Claimant lodged a claim against the Respondent in front of FIFA. After amending his claim, he requested the total amount of USD 37,808,59 according to the following breakdown: - USD 35,000 as outstanding salaries for the months of November 2009 until May 2010, of USD 5,000 each; - USD 2,808.59 regarding the flight ticket paid by the Claimant from city P of country L to city C to country R. 6. The Claimant alleged that the Respondent should have paid for his flight ticket to country R, and since his vacation was approaching and the Respondent had not proceeded to do so, he had to pay for it himself. Furthermore, the Respondent allegedly did not provide him with a return ticket. 7. In this regard, the Claimant further stated that club F proceeded to contact the Respondent and asked them to send a return flight ticket as well as to fulfil the contract. However, on 12 January 2010, the Respondent informed Club F that “the football players Z, Player R and player A has free player status, as club M have no interest to further cooperation with them”. According to the Claimant, Club F was aware that the Respondent was not complying with the contract and, therefore, requested the Respondent to release the Claimant “on the TMS and on the Federation of country L”. According to the Claimant, this was not done and consequently he was still registered with the Respondent, not being able to train neither return to Club F, which caused damages to his carrier. Moreover, the Claimant declared that the Respondent did not pay his monthly salary as from November 2009 until May 2010. 8. In response to the claim, the Respondent asserted that the contract was terminated because the Claimant had left the Respondent without its consent on 10 December 2009 and consequently did not participate in an official match held on 12 December 2009. Furthermore, the Respondent stated that neither the Claimant nor Club F tried contacting them in order to obtain the return flight ticket and only proceeded to contact the Respondent after the contract expired on 30 May 2010, and that there was no proof to the contrary. 9. In his replica, the Claimant affirmed that he never left the Respondent without the latter’s consent. Furthermore, he stated that if the contract was terminated in December, as the Respondent holds, why did the Respondent not make it official then and never changed his status in the Transfer Matching System (TMS), forcing him “to inactivity until the end of his contract”. 10. Despite having been invited by FIFA to provide its final position to the present matter, the Respondent did not answer. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 1 July 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 editions of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 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 DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country R and a club from country L. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute which value does not exceed CHF 100,000. 4. Subsequently, the DRC judge analysed which edition of the FIFA Regulations should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009, 2010 and 2012), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 1 July 2010. The DRC judge concluded that therefore the 2009 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), is applicable to the matter at hand as to the substance. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 6. In this respect, the DRC judge acknowledged that the parties had signed a valid employment contract in August 2009, in accordance with which the Respondent would pay the Claimant a monthly salary of USD 5,000 for the period of nine months as well as the flight tickets of the Claimant and his family for the route city C - city P - city C at the beginning and the end of the contract as well as for the vacation period. 7. In continuation, the DRC judge noted that the Claimant maintains that the Respondent is to be held liable for the early termination of the employment contract towards the beginning of January 2010 by having failed to remit his remuneration as from November 2009 and by not releasing the Claimant as a free agent once the Respondent had already showed no further interest in the Claimant’s services. 8. In this context, the DRC judge took note of the letter provided by the Claimant, dated 12 January 2010 and addressed to Club F, by means of which the Respondent informed said club about its lack of interest in several players, among which the Claimant was included. 9. The DRC judge further noted that according to the Respondent, which rejects the claim put forward by the Claimant, the employment contract was terminated by the Claimant on 10 December 2009, when he left the country without authorization of the Respondent. 10. In this regard, the DRC judge, first and foremost, highlighted that the underlying issue in this dispute, considering the claim and the arguments of the parties, was to determine whether the employment contract had been unilaterally terminated with or without just cause and, which party was responsible for the early termination of the contractual relationship in question. 11. In doing so, the DRC judge took into account that, according to the Claimant, his salaries as from November 2009 had remained unpaid and that also the flight tickets to which he was entitled to as per the contract, were not booked or paid by the Respondent. The DRC judge noted that the Respondent has not contested such particular allegations. 12. Additionally, the DRC judge took note that the Respondent argues that the contract was terminated on 10 December 2009, the day the Claimant left the club without permission and that the Claimant did not contact it in relation to the relevant flight tickets, the first notice the Respondent received from the Claimant in this respect being on 30 May 2010, after the contract had expired. In this respect, the DRC judge observed that the Respondent did not provide any evidence which could establish that the Claimant could not leave the country on 10 December 2009. Indeed, the DRC judge noticed that the employment contract established the obligation for the Respondent to provide the Claimant with flight tickets “in the middle of the employment contract (December 2009, January 2010)”. 13. On account of the above circumstances, the DRC judge established that the Respondent had no longer been interested in the Claimant’s services by failing to remit his salaries without any valid reason during a considerable amount of time and informing him that it had no interest in a further cooperation with him. Moreover, the DRC judge determined that the Respondent had not fulfilled its contractual obligations by failing to remit the Claimant’s flight tickets to which he was entitled to as per the contract. Accordingly, and taking into account the particularities of the present matter, in particular, the unpaid salaries, the unpaid flight tickets and the explicit lack of interest of the Respondent in the Claimant’s services, the DRC judge decided that the employment contract was unilaterally terminated by the Respondent without just cause on 12 January 2010 and that, consequently, the Respondent is to be held liable for such termination of the employment contact without just cause. 14. Having established that the Respondent terminated the employment contract without just cause, the DRC judge focussed his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract. 15. First of all, the DRC judge reverted to the Claimant’s financial claim, which includes outstanding remuneration of USD 35,000 for the months as from November 2009 until May 2010, i.e. USD 5,000 per month in accordance with the employment contract. The DRC judge recalled that the Respondent failed to demonstrate that it had in fact paid such remuneration. In addition, the Claimant asked to be awarded with the flight tickets dated 10 December 2009 and paid by him, in the amount of USD 2,808.59. The DRC judge noted in this regard that the employment contract provided the payment by the club of three flight tickets for the player and his family for the period between December 2009 and January 2010 and, furthermore, the DRC judge observed that the Respondent had also failed to demonstrate that it had paid the relevant amount for this concept. 16. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim and the fact that the employment contract was considered terminated as of 12 January 2010, the DRC judge decided that the Respondent is liable to pay to the Claimant the amount of USD 15,000 relating to payments due to him for the months of November and December 2009 and January 2010 as well as the amount of USD 2,808.59 corresponding to flight tickets, in accordance with the employment contract. 17. In continuation, the DRC judge focussed his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge 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. 18. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 19. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 31 May 2010, taking into account that the player’s remuneration for the period between November 2009 and January 2010 is included in the calculation of the outstanding remuneration (cf. no. II./15. above). Consequently, the DRC judge concluded that the amount of USD 20,000 (i.e. salary as from February until May 2010) serves as the basis for the final determination of the amount of compensation for breach of contract. 20. In continuation, the DRC judge 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. 21. The DRC judge noted that the Claimant had not signed any other employment contract. 22. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided that the Respondent must pay the amount of USD 20,000 to the Claimant as compensation for breach of contract. III. Decision of the DRC judge 1. The claim of the Claimant, Player S, is accepted. 2. The Respondent, Club F, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 17,808.59. 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 USD 20,000. 4. If the aforementioned sums 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 limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. 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 DRC judge 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 DRC judge: Markus Kattner Deputy Secretary General Encl. CAS directives