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 Theo van Seggelen (Netherlands), DRC judge on the claim presented by the player, Player A, from country S as Claimant against the club, Club L, 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 (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by Theo van Seggelen (Netherlands), DRC judge on the claim presented by the player, Player A, from country S as Claimant against the club, Club L, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 19 May 2010, the Player A, from country S (hereinafter referred to as player or Claimant) and Club L, from country C (hereinafter referred to as club or Respondent) concluded an employment contract valid for two sporting seasons, i.e. as from 1 July 2010 until 30 May 2012 (hereinafter: contract). 2. According to art. 1 and art. 2 of the contract, the player was inter alia entitled to receive the following amounts: • EUR 45,000 for the first sporting season, to be paid in ten equal installments of EUR 4,500 as from 31 August 2010 until 30 May 2011; • EUR 55,000 for the second sporting season, to be paid in ten equal installments of EUR 5,500 as from 31 August 2011 until 30 May 2012. 3. Art. 5 of the contract stipulates that the club has the right to terminate the contract without paying any damages and/or compensation to the player if the club is relegated to a lower division at the end of either of the sporting seasons. 4. Art. 7 of the contract establishes that due to the player’s injury in the previous season, the club has the right to terminate the contract at any time without paying any damages if the player is injured and unable to offer his services to the club for more than two months as from the day he sustained the injury. 5. According to art. 8 of the contract, the club can terminate the contract at any time for a good cause, i.e. in case “the player does not conduct himself on and off the football pitch in a manner suitable to a non amateur football player, and or if the player shows disrespect an or disobedience to the manager of the club as a professional player and or if he makes statements or actions not suitable to a standard of a professional player deemed by the committee of the club as such at its absolute discretion but not before giving the player the right to defend himself in front of such committee.” 6. Art. 20 of the contract stipulates that “all terms, conditions herein contained herein shall be fundamental terms hereof and of essence any breach or non-performance by either party hereof any of these terms shall render him liable for the payment of damages and or the right to terminate the agreement and claim damages and interest”. 7. By means of a letter dated 23 May 2011 (hereinafter referred to as termination letter), the club informed the player that his conduct on and off the football pitch was not suitable and that he contravened his contractual duties. As a result, the club informed the player that he was in breach of art. 7, 8 and 20 of the contract and that it terminated the contract without prejudice “to sue [the player] for damages for breach of contract.” 8. Furthermore, and in the same letter, the club informed the player that the club’s committee had imposed a fine upon him in the amount of two monthly salaries as a result of his contractual breaches. 9. On 30 December 2011, the player replied to the club rejecting the club’s allegations regarding his behaviour and summoned the club to pay him his full salary until the end of the contract. According to the player, the club never replied to his letter. 10. On 6 June 2012, the player lodged a claim before FIFA against the club for breach of contract without just cause. 11. In this respect, the player denied the club’s allegations relating to his alleged misconduct and pointed out that whilst terminating the contract with him, the club did not comply with the stipulations of art. 8 of the contract, this is, it failed to give him the opportunity to defend himself in front of the club’s committee. According to the player, the club’s immediate termination of the contract by means of the termination letter is not in line with the contractual stipulations, as the player could not defend himself, and the fact that the club did not send him any previous warning not only reveals the club’s breach, but also that its allegations lack any basis. 12. In this context, the player requested the imposition of sporting sanctions upon the club as well as to be awarded the total amount of EUR 64,000 plus 5% interest as from the respective due dates, as follows: • outstanding salaries in the amount of EUR 7,950, corresponding to the full salary of the month of April 2011, i.e. EUR 4,500, plus 23 days calculated pro rata temporis of the salary of the month of May 2011, i.e. EUR 3,450; • compensation for breach of contract in the amount of EUR 56,050 corresponding to the residual value of the contract, i.e. EUR 1,050 corresponding to the last days of the month of May 2011 plus EUR 55,000, corresponding to the full amount payable by the club in relation with the second sporting season. 13. The player concluded by explaining that after having left the club, he played as an amateur player between 9 August 2011 until 1 February 2012 with the Club R and submitted a document issued by said club specifying that he did not receive any salary from this club. 14. In reply to the claim, the club fully rejected the player’s allegations and brought forward that its unilateral termination of the contract by means of the termination letter dated 23 May 2011 was justified by a just cause, i.e. the player’s misconduct and disrespect of crucial articles of the employment contract. 15. Furthermore, the club considered that the termination of the contract dated 23 May 2011 is also justified due to a sporting just cause, since the player, as a result of his misbehaviour, participated in less than 10% of the club’s official matches. 16. With regard to the salaries claimed as outstanding by the player, the club held that it does not owe any amount to the player, since the latter never paid the fine he was imposed upon by the club. Therefore, by having decided not to pay him his last two monthly salaries, the club set off the unpaid fine against the player’s credit. 17. Finally, the club explained that after the player received the termination letter dated 23 May 2011, he left the club and did not react before 30 February 2012. The club held that the player did not react to said letter earlier, because he had no legal grounds for his request. In the club’s point of view, it is the player himself that “gave away his right to be heard by the Committee of the club, although they had given him a chance to do so.” 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 6 June 2012. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) he is 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 C Club. 3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2010), and considering that the present claim was lodged on 6 June 2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. In continuation, and entering into the substance of the matter, the DRC judge firstly acknowledged that, on 19 May 2010, the Claimant and the Respondent concluded an employment contract valid during 2 sporting seasons, i.e. as from 1 July 2010 until 30 May 2012. 5. The DRC judge further noted that the Respondent put an end to the contractual relation with the Claimant by means of its termination letter dated 23 May 2011 and that such fact is undisputed by the parties. 6. However, the DRC judge observed that the Claimant and the Respondent have opposite positions in connection with the reasons that have led the Respondent to terminate the employment contract with the Claimant. 7. In this respect, the DRC judge recalled that, be it in the contents of the termination letter at stake and/or in its reply to the Claimant’s claim lodged before this decision-making body, the Respondent asserted that the just cause it had to terminate the contract resulted from the Claimant’s various breaches of the contract and misconducts. 8. On the other hand, the DRC judge also noted that, be it in the letter dated 30 December 2011 he sent to the club and/or in the contents of his submissions before this decision- making body, the Claimant denied having misbehaved during the execution of the contract and, consequently, he asserted that the Respondent’s termination of the contract is unjustified. 9. In view of the above-mentioned dissenting view of the parties, the DRC judge turned his attention to the fundamental question as to whether the Respondent had just cause to unilaterally terminate the contract. 10. Reverting firstly to the Respondent’s arguments contained in the termination letter dated 23 May 2011, and which are reiterated in the Respondent’s reply to the Claimant’s claim, the DRC judge noted that in said letter, the Respondent held that the Claimant’s behaviour on and off the pitch was in contravention with his contractual duties and it referred to art. 8 and art. 20 of the employment contract. 11. In the Respondent’s opinion, it therefore had a legitimate possibility to unilaterally terminate the contract signed with the Claimant by means of the letter at stake. 12. In this context, the DRC judge wished to recall the general legal principle set forth in art. 12 par. 3 of the Rules and which reads that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 13. However, and after a thorough analysis of the documentation available on file, the DRC judge found that the Respondent had not submitted any documentary evidence demonstrating the Claimant’s alleged misconduct referred to by the Respondent. What is more, the DRC judge highlighted that the Respondent, prior to having terminated the employment contract, had not warned the Claimant of any misconduct. 14. In view of the above, the DRC judge inevitably came to the conclusion that the argument of the Respondent that the termination of the contract was justified by the Claimant’s misconduct and disrespect of his contractual obligations was to be rejected. 15. In this context, the DRC judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 16. In continuation, the DRC judge, due to the lack of a (valid) legal basis, rejected the Respondent’s argument that it could legitimately terminate the contract due to the fact that the Claimant, because of his alleged misconduct, participated in less than 10% of the official matches. 17. In light of all of the above, the DRC judge decided that the Respondent’s early and unilateral termination of the employment contact signed with the Claimant by means of the termination letter dated 23 May 2011 was deprived of just cause. 18. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause on 23 May 2011, the DRC judge focussed his attention on the consequences of such breach of contract. 19. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding payments, if any, on the basis of the employment contract. 20. The DRC judge then reverted to the Claimant’s financial claim, which includes outstanding remuneration amounting to EUR 7,950, corresponding to salaries for the months of April 2011 and May 2011, the amount due in relation to the latter month being calculated pro rata temporis by the Claimant. 21. In this respect, the DRC judge reverted to the contractual terms and noted that according to the employment contract, the Claimant’s salaries were payable by the Respondent in ten equal installments between 31 August 2010 and 30 May 2011, the last installment of the first sporting season falling due on 30 May 2011. 22. In view of the above, the DRC judge considered that at the time of the termination of the contract without just cause by the Respondent, i.e. on 23 May 2011, the monthly salary corresponding to the month of May 2011 had not yet fallen due. Consequently, the DRC judge considered that a priori, only the salary corresponding to the month of April 2011 appeared to be outstanding and had fallen due at the time of the termination of the contract by the Respondent. 23. Continuing his analysis, the DRC judge reverted to the Respondent’s position in relation to the Claimant’s claim for outstanding salaries and noted that according to the Respondent, the two salaries claimed by the Claimant as outstanding salaries were set off by two fines that had been imposed upon the Claimant by the Respondent as a result of the Claimant’s alleged misconducts. 24. In view of the above, the DRC judge came to the conclusion that based on the Respondent’s argumentation, it could be understood that the Respondent had not paid the salaries of April 2011 and May 2011 to the Claimant. 25. What is more, and bearing in mind the aforementioned considerations relating to the Respondent’s termination of the contract, the DRC judge held that as the Respondent failed to prove that the Claimant would have been misbehaving and/or breached his contractual obligations, the fines imposed upon the Claimant on this basis are to be considered as deprived of any justification, let alone the fact that the Respondent neither proved the actual existence of the two fines at stake nor the underlying procedure and/or decision of the club in relation to the imposition of such fines upon the Claimant. 26. As a result, the DRC judge concluded that the two fines referred to by the Respondent were to be disregarded. Irrespective of this conclusion and for the sake of good order, the DRC judge pointed out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligation towards players. 27. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the outstanding amount of USD 4,500 related to the Claimant’s salary of April 2011. 28. In addition, taking into consideration the Claimant’s claim and the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned salary, to be calculated as from the day following the day on which the salary had fallen due. 29. 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. 30. 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. 31. 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 which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. 32. No such provision having been inserted in the contract at the basis of the present matter, the DRC judge 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 DRC judge 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 judge 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. 33. In order to estimate the amount of compensation due to the Claimant in the present case, the DRC judge first turned his attention to the remuneration due to the Claimant under the existing contract and agreement and/or the new contract, which criterion was considered by the DRC judge to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 34. Bearing in mind the foregoing, the DRC judge first proceeded with the calculation of the remuneration payable to the Claimant under the terms of the employment contract until 30 May 2012. 35. Consequently, the DRC judge concluded that the amount of EUR 59,500, i.e. the total remuneration as from 1 May 2011 until 30 May 2012 based on the contract serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 36. Bearing in mind the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate damages, the DRC judge took due note of the employment situation of the Claimant after the termination of the employment contract signed with the Respondent. He noted in this respect that, between 9 August 2011 and 1 February 2012, the player was registered as an amateur player with the club Club R and that the Claimant, as confirmed by the aforementioned club itself, did not receive any salary from said club during this period of time. 37. For all the above considerations, the DRC judge decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 59,500 to the Claimant as compensation for the unilateral breach of contract without just cause by the Respondent. 38. In addition, taking into consideration the Claimant’s claim and the constant practice of the Dispute Resolution Chamber in this respect, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned amount of compensation for breach of contract, to be calculated as from the day of the present decision. 39. The DRC judge concluded his deliberations in the present matter by establishing that any further claims of the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club L, 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 4,500 plus interest at the rate of 5% p.a. as from 1 May 2011 until the date of effective payment. 3. The Respondent, Club L, 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 59,500 plus interest at the rate of 5% p.a. as of 17 May 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 (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