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 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Jon Newman (USA), member Theodoros Giannikos (Greece), member Essa M. Saleh Al-Housani (UAE), member on the claim presented by the player, Player J, from country P as Claimant against the club, Club F, from country S 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 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Jon Newman (USA), member Theodoros Giannikos (Greece), member Essa M. Saleh Al-Housani (UAE), member on the claim presented by the player, Player J, from country P as Claimant against the club, Club F, from country S as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 16 July 2009, Player J, from country P (hereinafter: the Claimant), born in May 1992, and Club F, from country S (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid from 15 July 2009 until 30 June 2012. 2. According to the contract, the Claimant was entitled to receive as remuneration the following: i) a monthly salary during the first, second, and third years of the contract term amounting to, respectively, EUR 4,000 net, EUR 5,000 net, and EUR 6,000 net, and payable within fifteen days of the following month; ii) a one-off payment in the amount of EUR 125,000 payable on the day of registration of the Claimant with the country S Football Association; and iii) a one-off payment in the amount of EUR 105,000 payable on 31 July 2010. 3. Art. XII Section 1 of the contract stipulates that “1. The contracting Parties agreed that duration of this Contract shall be extended for (2) years if the Club: a. Informs the Player in writing that it is applying the right of option for the Player no later than within three (3) months prior expiration of this Contract; and b. Agrees to pay the Player the monthly Remuneration in: I. Year 4 of performance of sporting activities by the Player in the amount 6 000,-EUR netto, II. Year 5 of performance of sporting activities by the Player in the amount 7 000,- EUR netto. 2. If the Player does not accept extension of the term of validity of this Contract in compliance with the Option Clause, the Contracting Parties agreed that the Player will pay the Club the Contractual Penalty in the amount of 5 times the Player’s income based on this Contract for last twelve (12) months preceding the breech of the secured obligation”. 4. On 7 March 2012, the Respondent informed the Claimant in writing of its proposal to extend the contract for two years pursuant to the contract, specifying the remuneration for each year. 5. On 22 March 2012, the Claimant informed the Respondent in writing that he turned down the Respondent’s proposal. By means of said letter the Claimant also put the Respondent in default of the one-off payment amounting to EUR 125,000 and requested payment within 5 days, while warning the Respondent that failure to settle the due amount would result in the Claimant terminating the contract. 6. On 31 May 2012, the Claimant terminated the contract in writing on the basis of the Respondent’s alleged failure to pay the outstanding amount of EUR 125,000. Further, the Claimant made reference to the outstanding salaries, namely half of the monthly salary for February 2012, and full salaries for March and April 2012. 7. On 22 November 2012, the Claimant lodged a claim before FIFA against the Respondent for breach of contract, requesting the Dispute Resolution Chamber: i. to declare the breach of contract by the Respondent; ii. to order the Respondent to pay to the Claimant an overall amount of EUR 164,705, plus 5% interest p.a. as of 31 May 2012. The amount requested is made up of: a) EUR 125,000 for the outstanding one-off payment that fell due on the date of the Claimant’s registration; b) EUR 39,705 consisting of four and a half monthly salaries in the amount of EUR 6,000 each salary, i.e. half of February plus March, April, May, and June 2012 in the aggregate amount of EUR 27,000, and a gross-up in the amount of EUR 12,705, so that the amounts effectively paid minus 32%, i.e. the income tax allegedly applicable in country Q in 2012, are equivalent to the net monthly salary set out in the contract; and iii. Sporting sanctions on the basis of art. 17.4 of the Regulations on the Status and Transfer of Players for the Respondent’s breach of contract during the protected period. 8. According to the Claimant, the Respondent had failed to meet its financial obligations under the contract. In particular, the Claimant claimed that the Respondent had failed to make the EUR 125,000 payment, due by the date of the Claimant’s registration, as well as half of the salary for February 2012 and whole salaries for March, April, May, and June 2012, totalling EUR 27,000. In this regard, the Claimant explained that the non-payment of salaries was related to the parties’ dispute over the Respondent’s intent to unilaterally extend the contract term (cf. points I.4 and 5). 9. Additionally, regarding the income tax, the Claimant submitted a factsheet from “Deloitte International Tax” that confirms the details about the income tax in country Q, where the Claimant was allegedly residing at the time. 10. In its reply, the Respondent stated that the EUR 125,000 one-off payment had been paid to the Claimant in cash on 4 December 2009 by a vice-chairman of the board of Club F. According to the Respondent, the Claimant signed a payment receipt, which copy was submitted together with its reply. In addition, the Respondent explained that, following the Claimant’s letter dated 22 March 2012, the Claimant allegedly “began to behave improperly towards the officials and management of the club, moreover, he stopped to communicate with the club and its officials, and his reluctance to participate in the training process has been obvious”. The Respondent indicated that it was for this reason that it decided to stop paying the Claimant his monthly payments and paid him only part of his remuneration. 11. Further, the Respondent acknowledged it had outstanding obligations towards the Claimant and stated that it intended to pay the due remuneration to him. In this regard, the Respondent claimed that it had already paid the Claimant the following sums: i) EUR 5,593 corresponding to the salary for February 2012; ii) EUR 4,500 for the salary of March 2012; and iii) EUR 505 corresponding to the salary for April 2012. In order to support its claim, the Respondent submitted the following documents: i) payments for February 2012: receipts in the amount of EUR 3,500 (dated 28 February 2012) and EUR 93,50 (dated 20 March 2012) as well as a bank statement in the amount of EUR 2,000 (dated 22 March 2012); ii) payments for March 2012: receipt in the amount of EUR 2,500 (dated 26 March 2012) as well as a bank statement in the amount of EUR 2,000 (dated 19 April 2012); and iii) payments for April 2012: receipts in the amount of EUR 180 (dated 10 May 2012) and EUR 325 (dated 18 May 2012). Furthermore, the Respondent argued that since the Claimant left the Respondent on 12 June 2012, only a part of the monthly salary, i.e. EUR 2,400, was outstanding. Therefore, the Respondent stated that it was willing to pay to the Claimant outstanding remuneration in the amount of EUR 15,802, made up of: EUR 407 for February 2012; EUR 1,500 for March 2012; EUR 5,495 for April 2012; EUR 6,000 for May 2012; and EUR 2,400 for June 2012. 12. Finally, the Respondent requested the DRC to dismiss the Claimant’s claim. 13. In turn, the Claimant questioned the authenticity of the payment receipt for EUR 125,000 submitted by the Respondent, casting doubt over the fact that such a significant amount would have been paid in cash, and denied having received or signed the payment receipt (note: copy of the original receipt on file). In this regard, the Claimant pointed out the differences between the said payment receipt and all other payment receipts submitted by the Respondent. In addition, the Claimant stated that he was less than eighteen years old, and thus a minor, on the date of signature of the receipt, i.e. 4 December 2009. For this reason, the Claimant argued that just like the contract, that was executed by the Respondent, the Claimant, and the Claimant’s father, the receipt in question should have also been signed by the Claimant’s father. Finally, the Claimant reminded that he had put the Respondent in default of the EUR 125,000 one-off payment and stressed that the Respondent had never replied to his notification. 14. As to the alleged partial payments of the monthly salaries, the Claimant argued that the two bank account statements submitted by the Respondent, each for an amount of EUR 2,000, were incomplete copies and do not prove sufficiently the alleged payments because they lack a reference to the money transfer itself, the recipient bank account, or a confirmation of completion of the transfer. Also, the Claimant pointed out that they do not bear the Claimant’s signature. Further, the Claimant held that the payment receipts for EUR 93,50, EUR 180, and EUR 325 correspond to bonus payments relating to match performance or match results because of their low amount and the fact that they were made within days from matches played by the Respondent, according to the match calendar submitted by the Claimant. Moreover, the receipts were not translated and therefore, there was no information in the memo field as to the reason for payment, i.e. allegedly the monthly salaries. Finally, the Claimant explained that the payment receipt dated 28 February 2012 for EUR 3,500 had already been acknowledged by the Claimant in his claim as partial payment of the monthly salary for February 2012. Also, the Claimant acknowledged the payment of the remaining part of the monthly salary for February 2012, corresponding to the payment receipt dated 26 March 2012 for an amount of EUR 2,500. 15. In light of the above, the Claimant amended his claim as regards outstanding monthly salaries and claimed only the monthly salaries of March, April, May, and June 2012 in the total amount of EUR 24,000 and the corresponding grossing-up equivalent to EUR 11,294 relating to the income tax allegedly applicable (cf. point I.7.ii.b). 16. In its final comments, the Respondent reiterated that it had fulfilled all its financial obligations under the contract, in particular the one-off payment of EUR 125,000. In this regard, the Respondent rejected the Claimant’s allegations questioning the authenticity of the payment receipt for this amount. In order to support its arguments the Respondent submitted a copy of the payment receipt certified by a notary public as well as the original of the EUR 125,000 payment receipt. In addition, the Respondent explained that the EUR 125,000 had been paid by a shareholder of the Respondent and member of the board of directors, a statutory body of the Respondent, who was entitled to pay remuneration to the players. 17. Furthermore, the Respondent stated that cash payments are common in the football industry. Then, the Respondent insisted on the authenticity of the payment receipt. Also, the Respondent stressed that the Claimant was not pressured to sign the receipt and that he was of sufficient and adequate age, considering his long and continuous stay abroad and that as an individual person he was able to act by himself in relation to the payment received. In addition, the acceptance of the payment only took place a few months before he turned eighteen years old. Also, the Respondent explained that it had not reacted to the Claimant’s notification of 22 March 2012 requesting payment of EUR 125,000 because it regarded that amount as settled following the payment allegedly effected on 4 December 2009. 18. Further, the Respondent submitted the translation into English of the payment receipts in the amounts of EUR 3,500 (dated 28 February 2012), EUR 2,500 (dated 26 March 2012), EUR 180 (dated 10 May 2012), and EUR 325 (dated 18 May 2012). In particular, the payment receipts of EUR 180 and EUR 325 indicated that the reason for payment was in both cases “advance payment”. Moreover, the Respondent explained that pursuant to the contract the Claimant was not entitled to receive any bonuses or premiums for matches. In addition, the Respondent held that the bank account statements provided as payment proof contained all the required information, including the bank account number of the recipient. However, the name of the Claimant’s father appears in the relevant bank account statements. 19. Consequently, the Respondent stood by its previous statements regarding the due remuneration and acknowledged outstanding remuneration in favour of the Claimant in the amount of EUR 15,802. 20. On 19 June 2013, the Claimant informed FIFA that his place of residence is country P and that the applicable income tax rate would be 10%, enclosing an internet factsheet from “Doing business” in support of his argument. 21. Regarding the Claimant’s contractual situation, according to the Claimant’s submission, he remained unemployed and without a team from 1 to 30 June 2012. 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 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. The present matter was submitted to FIFA on 22 November 2012, thus, after the aforementioned Rules entered into force on 1 July 2008. Therefore, the Chamber concluded that the edition 2008 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (DRC) (hereinafter: the Procedural Rules) is applicable to the matter at hand. 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 b) of the Regulations on the Status and Transfer of Players (edition 2012; hereinafter: the FIFA Regulations), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country P player and a country S 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 and 2010), and considering that the present claim was lodged on 22 November 2012, the 2010 edition of the 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 signed an employment contract setting out a period of validity as from 15 July 2009 until 30 June 2012, in accordance with which the Claimant was to receive inter alia a net monthly salary during the first, second, and third years of the contract term amounting to, respectively, EUR 4,000, EUR 5,000, and EUR 6,000, each monthly salary to be paid within fifteen days of the following month. In addition, the Claimant was to receive a one-off payment in the amount of EUR 125,000 payable on the day of registration of the Claimant with the country S Football Association and a further one-off payment in the amount of EUR 105,000 on 31 July 2010. 5. In continuation, the Chamber took note that the Claimant, after amending his claim, requested the aggregate amount of EUR 160,294, plus 5% interest p.a. as of 31 May 2012. The DRC further acknowledged that the amount requested is made up of EUR 125,000 regarding the one-off payment that fell due on the date of the Claimant’s registration as well as EUR 35,294 consisting of four monthly salaries regarding March, April, May, and June 2012 in the aggregate amount of EUR 24,000, and a gross-up in the amount of EUR 11,294 regarding taxes. 6. In this respect, the Chamber took note that the Claimant maintains that he had just cause to terminate the contract on 31 May 2012, on the basis of the Respondent’s alleged failure to pay the outstanding EUR 125,000 and a number of outstanding salaries, namely the salaries for March and April 2012. 7. In this respect, the members of the Chamber took note of the Claimant’s default notice dated 22 March 2012 addressed to the Respondent, by means of which the Claimant put the Respondent in default of the one-off payment amounting to EUR 125,000 and requested payment within 5 days, while warning the Respondent that failure to settle the due amount would result in the Claimant terminating the contract. 8. Similarly, the DRC noted the Claimant’s termination letter, dated 31 May 2012, by means of which the Claimant put an end to the contract on the basis of the Respondent’s alleged failure to pay the outstanding EUR 125,000. Further, the Chamber took note that in his termination letter the Claimant made reference to the outstanding salaries, namely half of the monthly salary for February 2012, and full salaries for March and April 2012. 9. At this point, the Chamber first and foremost considered the claim of the Claimant regarding the one-off payment in the amount of EUR 125,000. In this respect, the members of the DRC referred the parties to the contents of art. 25 par. 5 of the Regulations, in accordance with which the decision-making bodies of FIFA shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute and that the application of this time limit shall be examined ex officio in each individual case. 10. In this context, the DRC pointed out that more than two years have elapsed between the date when the one-off payment of EUR 125,000 became due and the date when the claim was lodged, i.e. 22 November 2012. 11. On account of the above, the Chamber came to the conclusion that the Claimant’s claim for the one-off payment of EUR 125,000 is barred by the statute of limitations in application of art. 25 par. 5 of the Regulations, since the claim was lodged after the time limit of 2 years and thus, is considered inadmissible. 12. Subsequently, the DRC recalled that it remained undisputed that the Claimant had terminated the contract in writing on 31 May 2012. Moreover, the Chamber acknowledged that the Claimant alleged having just cause to terminate the contract. 13. In this context, the Chamber highlighted that it was necessary to assess whether the Claimant had just cause to terminate the contract. 14. At this moment, the DRC considered the Claimant’s claim that the monthly salaries from March to June 2012 remained unpaid. On the other hand, the DRC noted that the Respondent does not contest that there were other outstanding obligations towards the Claimant and even stated that it intended to pay the due remuneration to the Claimant. Notwithstanding this, the Chamber also noted that the Respondent held having made several payments to the Claimant and thus the Respondent admitted having to pay EUR 15,802 (cf. point I./11.). 15. In this regard, the DRC recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 16. In view of the above, the Chamber concluded that the Respondent shall carry the burden of proof as to the payments allegedly made to the Claimant. 17. In this respect, the Chamber referred to the payments allegedly made by the Respondent. As to the two bank statements for an amount of EUR 2,000 each submitted by the Respondent, the DRC concluded that the bank statements provided by the Respondent do not clearly corroborate the alleged payments. 18. On the other hand, the Chamber looked into the following partial payments allegedly made by the Respondent: EUR 93.5 for March 2012; and EUR 180 and EUR 325 for April 2012. With regard to these payments, the DRC stated that while the Claimant claimed that said partial payments were bonus payments he did not contest having received the monies. In addition, the DRC pointed out that the Claimant failed to prove that such bonus payments were due on top of the contractual remuneration (cf. art. 12 par. 3 of the Procedural Rules). Therefore, the Chamber concluded that these amounts shall be regarded as paid by the Respondent and thus need to be deducted from any outstanding amounts. 19. On account of the aforementioned considerations, the Chamber established that the Respondent had failed to pay to the Claimant the monthly salaries for March and April totaling EUR 12,000. Moreover, the DRC pointed out that the partial payments made by the Respondent in the aggregate amount of EUR 598.50 (cf. point II./18.) needed to be deducted from said amount. As a consequence, the DRC decided that the Respondent, in accordance with the general legal principle of pacta sunt servanda, is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 11,401.50. 20. Therefore, the DRC concluded that the Claimant had just cause to terminate the contract. 21. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount awarded, i.e. EUR 11,401.50, from 31 May 2012 as claimed. 22. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focussed its attention on 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 an amount of money as compensation for breach of contract in addition to the outstanding amounts awarded on the basis of the relevant contract. 23. In continuation, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract 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 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. 24. 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 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 was included in the employment contract at the basis of the matter at stake. 25. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 31 June 2012, taking into account that the Claimant’s remuneration until April 2012 is included in the calculation of the outstanding remuneration (cf. no. II./19. above). Consequently, the Chamber concluded that the amount of EUR 12,000 (i.e. monthly salaries for May and June 2012) serves as the basis for the final determination of the amount of compensation for breach of contract. 26. 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. 22. The Chamber noted that the Claimant remained unemployed from the date of the termination of the contract, i.e. 31 May 2012 until 30 June 2012. 27. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 12,000 to the Claimant as compensation for breach of contract. 28. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the compensation granted from the date of the present decision, i.e. 28 June 2012. 29. In continuation, the DRC referred to the Claimant’s claim for a gross-up amount equivalent to EUR 11,294 (cf. point I.7.ii and I.15) to ensure that the amounts effectively paid for the months of March, April, May and June 2012 minus 32%, i.e. the income tax allegedly applicable in country Q in 2012, are equivalent to the net monthly salary set out in the contract. 30. In this regard, the DRC first took note that the Claimant informed FIFA that allegedly his new place of residence was country P and that the income tax applicable would be 10%. In this context, the Chamber recalled the principle of the burden of proof (cf. art. 12 par. 3 of the Procedural Rules) and concluded that the Claimant did not prove in a credible manner his place of residence, the income tax applicable and that he was entitled to receive the gross-up amount requested. Therefore, the DRC decided to reject the Claimant’s claim for the amount of EUR 11,294. Comment [JPR1]: The player updated the info about his residence on 19/6/13 and informed FIFA that he was living in country P in which case the gross-up was only 10%. What should we do? 31. 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 J, is partially 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 EUR 11,401.50, plus 5% interest p.a. on said amount as of 31 May 2012 until the date of effective payment. 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 12,000, plus 5% interest p.a. on said amount as of 28 June 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 time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. 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: Markus Kattner Deputy Secretary General Encl.: CAS directives