F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 30 August 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player O, from country B as Claimant against the club, Club G, from country I as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 30 August 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player O, from country B as Claimant against the club, Club G, from country I as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. In January 2010, Club G, from country I (hereinafter: the Respondent), Club N, from country P (hereinafter: Club N), and the country B player, Player O (hereinafter: the Claimant), signed a “Preliminary Transfer Agreement” (hereinafter: the transfer agreement), for the transfer of the Claimant with effects 1 July 2010. 2. Clause 1 of the transfer agreement states that “the Player’s [the Claimant] sports rights are definitely transferred to Club G [the Respondent], which commits to duly register him by applying to the competent country I Football Federation organs”. 3. Consequently, on 18 May 2010, the Claimant and the Respondent concluded a “preliminary employment contract” (hereinafter: the contract) valid as of 1 July 2010 until 30 June 2015, i.e. 5 seasons. 4. According to the contract, the Claimant was entitled to receive EUR 500,000 net for each season as remuneration. In addition, according to the contract, the Claimant was also entitled, for each sporting season, to the following bonuses: - EUR 50,000 net “at the fifteenth game appearance for at least 45 minutes in official matches of the senior men’s first team of Club G in the national league championship of series “A””; - EUR 50,000 net “at the twenty-fifth game appearance for at least 45 minutes in official matches of the senior men’s first team of Club G in the national league championship of series “A””; - EUR 50,000 net “at the thirtieth game appearance for at least 45 minutes in official matches of the senior men’s first team of Club G in the national league championship of series “A””. 5. Clause 3 of the contract provides that “the parties, by executing this employment contract, acknowledge and undertake to abide by all the regulations set forth in the Collective Bargaining Agreement in force (its content and relevant attachments), among which, (…) art 3.1.-3.3. (duty to deposit the Contract and the other Agreements); art. 3.4 and 3.6. (necessity of the approval of the Contract and of the other Agreements; effects and indemnity in the absence) […]”. 6. Clause 4 of the contract states that “all claims concerning the interpretation, performance or termination of this Contract or of the other agreements, as well as any other dispute arising out of the employment relationship between the Player and the Club will be submitted to the Arbitration Panel, that will issue its decision according to the modalities, deadlines and provisions of the relevant Regulations, which constitute annex to the Collective Bargaining Agreement”. 7. Clause 5 stipulates: “By executing this contract, the parties undertake: (…) -to abide by the rules of the Statutes and of the Football Association; -to accept the full and definitive effect of any decision issued by the country I Football Federation, its Bodies and delegated entities (…) as well as the decisions rendered by the Arbitration Panel, by declaring in particular that they accept without limitations the arbitration clause set forth under art. 30 of the country I Football Federation Statutes”. 8. On 6 August 2010, the Claimant lodged a claim against the Respondent in front of FIFA alleging the failure of the Respondent to deposit the contract in the country I Football League and so breaching its contractual obligations. According to the Claimant, this failure of the Respondent resulted in the impossibility for him to be duly registered with the Respondent along with the consequent concerns for the Claimant. 9. Based on the previous considerations, the Claimant requested to be awarded with the following: - EUR 3,250,000 for the whole value of the contract (salaries in the amount of EUR 2,500,000 plus bonuses in the amount of EUR 750,000); - EUR 1,000,000 as moral damages; - legal costs. 10. The Claimant declared that since the signing of the contract, he himself and his representatives, repeatedly asked the Respondent for confirmation of the proper registration of the contract in the country I Football League, however, the Respondent never replied concerning this issue. In addition, the Claimant informed FIFA that during a meeting held between his agents and representatives and the Respondent, the latter acknowledged their breach of contract. 11. The Respondent, in its response, first challenged FIFA’s competence to deal with this matter on the basis of clause 4 of the contract and alleging that the Court of Arbitration of the country I Football Federation had the exclusive jurisdiction over this matter. Upon FIFA’s request to the Respondent to send all the pertinent regulations of the country I NDRC, the Respondent only provided the translation to English of the Collective Bargaining Agreement concluded on 1 July 2005 (hereinafter: the CBA), together with a document named “Arbitration Committee Regulations” of which only art. 1 was translated. After another request of FIFA to provide all the pertinent regulations including the original versions, the Respondent submitted again only the translation of the CBA as well as the English translation of the “Arbitration Committee Regulations”. 12. According to the abovementioned regulations, the LNP and the AIC provide the Committee’s secretary with a list of arbitrators appointed by the clubs, a list of arbitrators appointed by the players and an approved list of presidents. When an arbitration procedure is lodged before this Committee, the parties to the procedure appoint the arbitrators from the abovementioned lists. The appointed arbitrators then choose the president also from the approved list. 13. Article 10 of the regulations states that the decision will be approved by the majority of the Committee. However, the regulations do not establish a clear appeal procedure, once the decision is passed. Article 10.8 states “whenever a challenge is requested” but does not specify in front of which body. 14. The Respondent stressed that the CBA covers all the matters involving the labour contract, “including a possible lack of the relevant deposit.” This is, according to the Respondent, confirmed by the aforementioned regulations which establish that these regulations apply to all the disputes relevant to the contract concluded in the scope of the CBA, also the “deposit of the preliminary contracts” which is provided for under the CBA. 15. As to the substance, the Respondent alleged that, according to article 3.2 of the CBA, if the Respondent does not register the contract under the relevant body within five days following its signing, the Claimant can do it directly within sixty days following the date of its signing. According to the Respondent, the Claimant had to be aware of this possibility. 16. Furthermore, the Respondent provided a statement from the legal director of the LNP assuring that every “employment-related disputes pursuant contracts stipulated until June 30, 2010, even in case they arose after such date” are subject to be dealt with by the abovementioned Arbitration Committee. 17. Finally, the Respondent argued that the transfer agreement only gave them an option right on the Claimant, and that the Respondent decided not to exercise such option. According to the Respondent, the employment contract between the Claimant and Club N was still valid when the club decided not to exercise its option over the Claimant, therefore the employment relationship between the Claimant and Club N was never interrupted. 18. In his replica, the Claimant insisted on the competence of FIFA to deal with the matter arguing that (i) due to the lack of registration with the LNP, the contract “is null, and void and has no effect, hence, the player is not entitled to seek redress before the Arbitration Committee, and that (ii) the CBA, which integrates the regulations of the Arbitration Committee, expired on 30 June 2010 and was not renewed, so “the Collegio Arbitrale is only dealing with the disputes concerning employment relationships which were already existing prior to the above date”. 19. In addition, the Claimant remitted a further submission by means of which he stressed that the CBA establishes the obligation for clubs to register and deposit the contract, while for players it is a mere faculty. In this respect, the Claimant indicated that the Respondent’s attitude demonstrates a “blatant breach” of its contractual obligations and of the principle of good faith and, hence, deemed he should be awarded with the relevant compensation. 20. In response to the above-mentioned Claimant’s statements, the Respondent reiterated its previous arguments and referred to its previous statements. Moreover, the Respondent insisted on the competence of the relevant bodies under the Italian Football Federation. 21. Upon request of FIFA, the Claimant confirmed that he signed a new employment contract with the Club E, from country E, on 11 August 2010. The Claimant was first loaned by Club N to Club E, after which the latter later on executed the purchase option. According to the execution of the purchase option by the country T club, the contract was valid as from 11 August 2010 until 31 May 2013 and later on extended until 31 May 2017. In accordance with the relevant employment contracts, the Claimant would receive as remuneration for the period between 11 August 2010 and 30 June 2015, the amount of EUR 3,800,000 (EUR 600,000 per season through seasons 2010-2011, 2011-2012 and 2012-2013 and EUR 1,000,000 per season through seasons 2013- 2014 and 2014-2015). 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, it took note that the present matter was submitted to FIFA on 6 August 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 members of the Chamber referred to art. 3 par. 1 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) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country B player and an country I club regarding an alleged breach of the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 4 of the employment contract and alleging that the Arbitration Committee of the country I Football Federation had the exclusive jurisdiction over this matter. In particular, the Chamber took note that the Respondent argued that the Collective Bargaining Agreement concluded on 1 July 2005 is applicable and, in consequence, the Arbitration Committee of the country I Football Federation should be the competent body to hear the matter at stake. 5. In this regard, the Chamber acknowledged that the Claimant insisted on the fact that FIFA has jurisdiction to deal with the present matter. 6. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. While analysing whether it was competent to decide on the present matter, the Chamber first referred to the fact that the Claimant had never been registered with the country I Football Federation. The Chamber held that, as a consequence of the fact that the player had never been registered with the country I Football Federation, the player had evidently also never fallen under the jurisdiction of the country I Football Federation. The foregoing fact was, in the Chamber’s view, the first basis on which it could be established that the relevant arbitration bodies in country I were not competent to adjudicate on the matter between the Claimant and Respondent. 8. What is more, the Chamber referred to the abovementioned Collective Bargaining Agreement, which was concluded on 1 July 2005 by and between the country I Football Federation, the country I Football League and the country I Footballer’s Association and, in particular, the Chamber focused its attention on article 23 of such agreement provided by the Respondent, which reads: “This agreement shall run from 1 July 2005 until 30 June 2006 and is not tacitly renewable or extendable”. Hence, considering that the employment contract at the basis of the dispute was signed on 18 May 2010 and that it would start to run as from 1 July 2010, that the relevant claim was lodged on 6 August 2010 by the Claimant in front of FIFA and that the version of the Collective Bargaining Agreement provided by the Respondent had already expired on 30 June 2006, the Chamber determined that such version of the pertinent regulations did not correspond in time with the event giving rise to the dispute, and, therefore, said edition could not be applicable, in any case, to the matter at stake. Likewise, even if, as mentioned by the legal director of the LNP, the Collective Bargaining Agreement would run until 30 June 2010, which was however not supported by the provided set of rules by the Respondent, then still the Collective Bargaining Agreement would not be applicable, considering that the relevant employment contract would start running as from 1 July 2010 only. 9. As a result, and taking into consideration the above circumstances, the Dispute Resolution Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 10. In continuation, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber 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 6 August 2010. The Dispute Resolution Chamber concluded that the 2009 edition of the Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 11. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the members of the Chamber started by acknowledging that the parties to the dispute had signed an employment contract on 18 May 2010 in accordance with which the Respondent would pay the Claimant a salary in the amount of EUR 500,000 net per season, as well as several bonuses conditioned to the appearance of the Claimant in the pertinent football games. 12. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had breached the employment contract by failing to register such contract in the country I Football League, with the consequent damages for the Claimant. 13. Thereafter, the members of the Chamber took note of the reply of the Respondent, which acknowledged that the employment contract had not been registered with the country I Football League but that, conversely and according to article 3.2 of the Collective Bargaining Agreement, the Claimant could have proceeded with the registration within sixty days following the date of its signing in case that the Respondent did not register it. 14. In this context, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which is the sole responsibility of a club and on which a player has no influence. As regards the matter at stake, the Respondent acknowledged that it did not proceed to the registration of the contract and asserted that the Claimant could have done it himself. In this regard, the Chamber emphasized that, in accordance with art. 2 par. 1 of Annexe 3 of the Regulations, an application to register a professional shall be accompanied by a copy of the contract between the new club and the professional. For these reasons and whilst emphasizing once more that it is the responsibility of the club to register a player’s contract with its national association, the members of the Chamber decided to reject the Respondent’s arguments in this regard. 15. On account of the above, in particular, by not carrying out the relevant steps for the registration procedure of the employment contract although this being the responsibility of the Respondent, the Chamber established that the Respondent had refused to accept the Claimant’s services without any valid reason. Such conduct constitutes, in the Chamber’s view, a clear breach of contract without just cause. Accordingly, the Chamber concurred that the Respondent is to be held liable for the early termination of the employment contact without just cause. 16. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, 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 would, in principle, be entitled to receive from the Respondent an amount of money as compensation for breach of contract. 17. Subsequently, the Chamber focused 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. 18. 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. 19. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2015 and concluded that the Claimant would have received a total remuneration of EUR 2,500,000 plus potential bonuses in the maximum amount of EUR 750,000 had the contract been executed until its expiry date. 20. 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. 21. Indeed, on 11 August 2010, the Claimant found employment with Club E, from country T. In accordance with the pertinent employment contracts, which have been made available by the Claimant, valid until 31 May 2017, the Claimant was entitled to receive a salary in the amount of EUR 600,000 per season for the first three seasons and in the sum of EUR 1,000,000 per season for the seasons 2013-2014 and 2014-2015. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and the new club for the period as from August 2010 until and including June 2015 amounted to EUR 3,800,000. 22. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 23. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Dispute Resolution Chamber decided that, even though the Respondent is considered liable for the breach of the relevant employment contract, the Claimant did not suffer any financial loss from the violation of the contractual obligations by the Respondent and, therefore, the Chamber decided that there is no amount that should be awarded to the Claimant as compensation for breach of contract in the matter at hand. 24. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of EUR 1,000,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. In this regard, the members of the Chamber reiterated their previous consideration and outlined that the Claimant had not suffered any financial loss from the early termination of the employment contract. Therefore, the Chamber decided that the request for compensation related to moral damages shall be rejected. 25. Finally, the Dispute Resolution Chamber held that the Claimant’s claim for legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. ** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player O, is admissible. 2. The claim of the Claimant is rejected. ** 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