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 G, from country R as Claimant against the club, Club K, from country A 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 G, from country R as Claimant against the club, Club K, from country A as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 11 August 2010, Player G, from country R (hereinafter: the Claimant), and the Club K, from country A (hereinafter: the Respondent), signed an employment contract in two versions, namely in language of country A and in English. 2. The English version of the contract is valid as from 11 August 2010 until 30 June 2012, i.e. for 1 year and 10 months, and bears the signature of the Claimant only. 3. Articles 3 and 4 of the English contract establish that the Respondent undertakes to pay the Claimant, inter alia, the following amounts: For the 2010/2011 season: - USD 40,000 as sign-on fee, payable on the date of signature; - USD 60,000 as remuneration, payable in 10 monthly instalments as from 1 August 2010; - USD 50,000 payable in April 2011, “when 70% of the held matches completed during the contract period”. For the 2011/2012 season: - USD 60,000 payable in August 2011; - USD 60,000 as remuneration, payable in 10 monthly instalments as from 1 August 2011; - USD 50,000 payable in April 2011, “when 70% of the held matches completed during the contract period”. For the entire duration of the contract: - Furnished accommodation; - Four round-trip air tickets for the player and his family; - medical insurance. 4. The language of country A version is valid as from the date of the contract’s registration with the Professional Football League, i.e. 20 August 2010, until 30 June 2012, i.e. for 1 year and 10 months and is signed by both the Claimant and the Respondent. 5. Article 5 of the country A contract stipulates that the Claimant shall be entitled to a monthly salary of currency of country A 2,500, i.e. approximately USD 3,184. Article 4 of said contract also establishes that “This agreement may be terminated upon the Football Player’s request […] if the club fails to pay in accordance with art. 5.1 the salary entitlements over 2 months”. 6. On 5 July 2011, the Claimant, after having put the Respondent in arrears, terminated the contract with the club in writing, based on the non-compliance of the latter with its contractual obligations based on both contracts, regarding outstanding salaries in the amount of USD 48,000, for September 2010, December 2010 and January to June 2011, as per the English contract, and currency of country A 12,780.45 for August 2010, September 2010, November 2010, December 2010 and January to June 2011. 7. Also on 5 July 2011, the Claimant lodged a claim in front of FIFA, alleging unilateral breach of contract without just cause by the Respondent and requesting, after having amended his claim, the payment of the amounts listed below, plus interest of 5% p.a., as follows: - USD 48,000 corresponding to his monthly salaries for September 2010, December 2010 and January to June 2011, as per the English contract (USD 6,000 x 8); - Currency of country A 12,780.45 corresponding to his monthly salaries for August 2010, September 2010, December 2010 and June 2011 (Currency of country A 2,500 x 4), plus his partially paid salaries for November 2010 (Currency of country A 255,45) and January to May 2011 (Currency of country A 505 x 5 = Currency of country A 2,525), as per the country A contract; - USD 220,000 as compensation for breach of contract, corresponding to his salaries for the residual period of both contracts or currency of country A 30,000 in case the validity of the English contract is not recognized by the DRC, corresponding to his salaries for the residual period of the country A contract; - Currency of country A 20,000 as attorney fees. 8. In addition, the Claimant requests that sporting sanctions should be imposed on the Respondent. 9. In his claim, the Claimant states having signed, on 11 August 2010, two employment contracts, one in English and the other one in language of country A, both valid for the 2010/2011 and 2011/2012 seasons, after having been assured that both contracts had exactly the same content. Equally, he was informed that the original version of both contracts would be brought to the club’s president for signature and subsequently to the Association of Football Federations of country A for registration. A copy of both contracts would later be forwarded to him. 10. The Claimant claims that, even though he repeatedly requested a signed copy of the English contract, the Respondent only provided him with a copy of the country A contract. The Claimant, however, claims having received, in cash, some of the amounts established in the English contract, such as the sign-on fee of USD 40,000 and most of his salaries until December 2010. In this respect, the Claimant provided the DRC with a bank statement showing several transfers in the total amount of USD 25,000 between 20 and 24 August 2010, from the Claimant’s agent, as well as with a bank statement of the Claimant’s fiancée showing a transfer in the amount of USD 6,000 from Mr T, the club’s vice-president, on 17 August 2010. 11. According to the Claimant, as from December 2010 the club stopped paying him his salaries according to the English contract and started paying him only part of the amount established in the country A contract, i.e. currency of country A 1,995 instead of currency of country A 2,500. As per the Claimant’s bank statement on file, payments in the amount of currency of country A 1,995 were made on 22 October 2010, 22 November 2011, 13 January 2011, 18 February 2011, 17 March 2011, 19 April 2011 and 24 May 2011, and in the amount of currency of country A 754.55 on 19 October 2010. 12. On 5 January 2011 and on 3 May 2011, the Respondent informed the Claimant in writing that it had “no objection to the participation of Player G in tries to other clubs training camps. In this regard we kindly ask you to apply to ‘Club K on this player’s transfer issues” and that it “would not object to Player G to attend any other club as a player or trial during the period until his contract with Club K expires on 30 June 2012”. 13. The Claimant further alleges having prematurely terminated his previous employment contract with Club B in country R, as per which he was entitled to a global salary of EUR 95,000 for the 2010/2011 season and EUR 100,000 for the 2011/2012 season, in order to sign a contract with Club K. In this context, he points out that it would be illogical to have terminated such a contract to earn currency of country A 2,500 per month. 14. By means of his correspondence dated 6, 16 and 24 May 2011 the Claimant reminded the Respondent of its arrears towards him as per the English contract in the amount of USD 6,000 for each of the months of September and December 2010, and January to May 2011, as well as of the fact that the amount of currency of country A 2,500 established in the country A contract was to be considered a net amount, and that no discounts should be made. On 13 June 2011, the Respondent responded to the Claimant’s reminders stating that it had never failed to pay him the amount of currency of country A 1,995 as monthly salary - Currency of country A 430 having been deducted as taxes and USD 75 as social security contribution - as provided for in the only binding contract signed between the parties, i.e. the country A contract. Having received no payment or reply after his last reminder of 14 June 2011, the Claimant terminated the contract with the club in writing on 5 July 2011. 15. In its response, the Respondent states that the only contract signed between it and the Claimant is the country A contract, the English contract presented by the player being a counterfeit. In addition, such contract does not bear the stamp and the signature of the club and therefore cannot be considered as binding. 16. The Respondent further states to have always complied with its obligations towards the Claimant as per the country A contract. The Claimant, however, as from December 2010 committed several disciplinary faults, such as arriving late at training, leaving the club’s premises without authorization and refusing to train with the reserve team. In spite of the Respondent’s warnings, the Claimant allegedly did not change his behaviour. 17. Therefore, the Respondent denies having any outstanding amounts towards the Claimant. 18. In his replica, the Claimant points out that the Respondent has not enclosed to its response any documentation substantiating its allegations. Moreover, the Claimant maintains his previous arguments related to the existence and validity of the English contract and encloses to his replica copies of contracts regarding other players of Club K, following the same pattern as the English version of the contract presented by the player. 19. The Claimant strongly denies the accusation of falsification of the contract made by the Respondent as well as the accusation of having committed disciplinary faults. 20. The Claimant further forwarded to FIFA a statement of his agent, Ms R, in which the latter states having “personally assisted and represented the player of the signature of the employment contract with Club K. The conditions agreed between the player and the club were those set forth in the English version of the employment contract. The club assured the player and me that the country A version of the contract was an exact translation of the English version of the contract including the same conditions and terms agreed between the parties. There was no official translator language of country A/English present during the signature of the contracts”. 21. In its final position, the Respondent maintained its previous argumentation. 22. Finally, the Claimant stated having been playing for the country R club, Club M, as from 1 January 2012 until 30 June 2012, with which he was entitled to a monthly salary of EUR 3,000, corresponding to approximately currency of country A 3,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the DRC analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 5 July 2011. 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 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations; edition 2010), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country R player and an country A club. 3. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2010) and considering that the present matter was submitted to FIFA on 5 July 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the matter of examining which document should be considered as the valid and binding legal document at the basis of the present employment relationship, as the parties had divergent positions in this regard. 5. In this context, the members of the Chamber noted that, on the one hand, the Claimant insists on the existence of two valid and binding employment contracts between the parties: an English contract, valid as from 11 August 2010 until 30 June 2012, signed by him only, establishing inter alia remuneration in the amount of USD 60,000 per season, and an country A contract, valid as from 20 August 2010 until 30 June 2012, signed by both the Claimant and the Respondent, stipulating a monthly salary of currency of country A 2,500. The DRC further noted that the Claimant claims having been informed, prior to signing both contracts, that they contained exactly the same stipulations and that a signed copy of the English contract would be returned to him after its registration at the AFFA. In spite of his alleged requests in this regard, the Claimant claims never having received a copy of the English contract signed by the Respondent. 6. In order to prove his allegations concerning the validity of the English contract, the Claimant provided FIFA with two bank statements, mentioned in point I.10. above, which allegedly demonstrate that the Respondent was regularly paying his salaries according to the English contract until November 2010. The Claimant also provided a statement of his agent, Ms R (cf. point I.20. above), who claims inter alia having been present at the moment of the signature of the two contracts, which were supposed to contain the same stipulations. 7. On the other hand, the DRC noted that the Respondent rejects the Claimant’s allegations regarding the validity of the English contract and insists that only the country A contract bears the signature of both parties and should, therefore, be considered as the only legal document at the basis of their employment relationship. 8. At this point, the DRC deemed it appropriate to remind the parties of the legal principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. In the present case, this means that the Claimant bore the burden of demonstrating the validity of the English contract for the parties, in view of the fact that such contract contained the signature of the Claimant only. 9. In this respect, the DRC started by analyzing the content of the bank statements provided by the Claimant (cf. point I.10. above). After a careful examination of the aforementioned documents, the Chamber noted that the payments listed on the bank statements provided by the Claimant were either concluded by the player’s agent in favour of the player or by the club’s president in favour of the Claimant’s fiancée, i.e. no direct payment from the Respondent to the Claimant was displayed in the documentation provided. In addition, it is not possible to identify from said bank statements whether the payments concluded actually corresponded to the Claimant’s salaries as established in the English contract, since the amounts transferred do not correspond one to one to the amounts stipulated in that contract. Therefore, the DRC concluded that the aforementioned documentation was not suitable to prove that the Respondent had ever executed the English contract, let alone being valid and binding for the parties. 10. In continuation, the DRC focused its attention on the statement issued by the player’s agent (cf. point I.20. above). In this regard, the Chamber was also eager to emphasize that the information contained in a personal statement, not supported by any additional documentation whatsoever, is of mainly subjective perception and might be affected by diverse contextual factors; therefore, the credibility of such type of documentation is rather limited. Consequently, the Chamber deemed that the statement of the player’s agent mentioned above is also unfit to establish the validity of the English contract. 11. Finally, the members of the Chamber noted that the Respondent asserts that the only valid contract between the parties is the country A contract. In addition, the DRC noted that the copy of the English contract provided by the Claimant indeed does not bear the signature of the Respondent. 12. In this respect, the Dispute Resolution Chamber deemed important to highlight that, in order to be considered valid and binding, an employment contract should necessarily contain the signature of both the employer and the employee, as the expression of their mutual agreement to a specific set of terms and conditions upon which their legal relationship is based. 13. In view of the aforementioned, the Chamber deemed that the Claimant was not able to provide substantial evidence of the existence of a valid employment contract drafted in English between the parties and, consequently, the country A contract was to be considered the only legal document at the basis of the contractual relationship between the Claimant and the Respondent. Thus, the Chamber concluded that it was not possible for the DRC to enter the question of whether or not the English contract had been violated by either party, since there was no evidence of its validity and that, consequently, the Claimant’s claims based on the English contract would not be analyzed. This is, no further reference to the English contract will be made and any reference to the contract between the parties will relate to the country A contract. 14. That having been established, the Chamber entered into the substance of the matter. In doing so, the Chamber started to acknowledge the facts of the case as well as the documents contained in the file. 15. In this respect, the DRC acknowledged that it was undisputed by the parties that, on 11 August 2010, the Claimant and the Respondent signed an employment contract, valid as from 20 August 2010 until 30 June 2012, according to which the Claimant was entitled to receive a monthly salary of currency of country A 2,500. 16. Moreover, the members of the DRC noticed that it was equally undisputed by the parties that the aforementioned contract was unilaterally terminated by the Claimant on 5 July 2011 in writing. 17. The Chamber further acknowledged that the Claimant claims not having received his salary for the months of August 2010, September 2010, December 2010 and June 2011, and having been paid only part of his salary for November 2010 and for January to May 2011 in the total amount of currency of country A 12,780.45. The Claimant states that, in spite of his reminders dated 6, 16 and 24 May 2011, and 14 June 2011, he did not receive any payments from the Respondent and had no other choice but to unilaterally terminate the employment contract on 5 July 2011. Also on 5 July 2011, the Claimant lodged a claim against the Respondent for breach of contract, requesting the payment of currency of country A 12,780.45 in outstanding salaries and currency of country A 30,000 as compensation, based on the country A contract, as well as currency of country H 20,000 as attorney fees, plus interest of 5% p.a.. 18. Subsequently, the Chamber took note of the main arguments of the Respondent, according to which it had no outstanding debts towards the Claimant. In this context, the Respondent explains that the Claimant committed several disciplinary faults and that, in spite of the club’s warnings, he did not change his behaviour. In addition, the DRC further noted that in its letter of 13 June 2011, a copy of which was provided by the Claimant, the Respondent confirms having paid the amount of currency of country A 1,995 as monthly salary to the player, currency of country A 430 and USD 75 having been deducted from each salary as tax payments and social security contribution, respectively. Therefore, the Respondent entirely rejected the claim of the Claimant. 19. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract had been breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 20. In view of the above, the Chamber noted that the Claimant claims that the Respondent failed to pay his remuneration either partially or entirely for the months of August, September, November and December 2010, and for January to June 2011, in the total amount of currency of country A 12,780.45. In this respect, the Chamber noted that the Claimant provided copies of his reminders dated 6, 16 and 24 May 2011 and 14 June 2011, referring, inter alia, to the unpaid remuneration for the aforementioned months. 21. Subsequently, the Chamber took into account the fact that the Respondent does not contest having paid the player a monthly salary in the amount of currency of country A 1,995 and having made discounts regarding tax payments and social security contribution. In addition, the DRC observed that the Respondent does not present any documentation in support of its allegations of disciplinary breach on the part of the Claimant. 22. In this context, the Chamber referred once again to the basic principle of burden of proof, as mentioned in point II.8. above, and in this respect it deemed that the Respondent bore the burden of proof regarding the fulfilment of all payments mentioned as outstanding by the Claimant, as per the country A contract. 23. In the present case, the Chamber noted that the Claimant, on the one hand, provided substantial supporting documentation of the notifications sent to the Respondent prior to the termination of the contract, regarding the existence of outstanding financial obligations on the part of the club, as well as of the fact that discounts were being made to his monthly salary. 24. On the other hand, the DRC noted that the Respondent not only acknowledged having made discounts to the Claimant’s remuneration, by means of its letter dated 13 June 2011, but also did not provide the DRC with any type of substantial evidence regarding the alleged payment of the salaries claimed as outstanding by the Claimant. 25. In this respect, and always bearing in mind the legal principle of burden of proof and the wording of art. 12 par. 3 of the Procedural Rules, the DRC considered that the Respondent failed to provide any type of documentation related to an alleged obligation to deduct taxes from the amounts payable to the Claimant or of the actual payment of such amounts to the relevant authorities. In addition, the Chamber observed that such deductions were not stipulated in the contract. Thus, the DRC concluded that the aforementioned argument of the Respondent could not be sustained. 26. Subsequently, the Chamber then turned its attention to the Respondent’s argument, according to which the Claimant had committed several disciplinary faults, as from December 2010, and did not change his behaviour in spite of the warnings allegedly addressed to him in this regard. 27. The Chamber, always referring to the principle of burden of proof, wished to point out that such statement of the Respondent is not supported by any evidence in this respect and, therefore, cannot be taken into account. 28. In view of the aforementioned considerations, the Chamber concluded that on the date of termination, i.e. 5 July 2011, the Claimant’s salaries for August, September, November and December 2010, and for January to June 2011, in the total amount of currency of country A 12,780.45, were either partially or entirely outstanding. Therefore, considering the substantial amounts and the extent of the delays and in accordance with its longstanding jurisprudence, the Chamber decided that the Respondent was to be held responsible for the breach of contract without just cause and that, consequently, the contract was terminated by the Claimant with just cause on 5 July 2011. 29. Having established the aforementioned, the Chamber focused its attention on the consequences of the breach of contract without just cause on the part of the Respondent. 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 any outstanding payments on the basis of the relevant contract. 30. Prior to establishing the amount of compensation for breach of contract due to the Claimant by the Respondent, the DRC proceeded with the calculation of the outstanding monies payable to the Claimant under the terms of the employment contract until the date of termination, i.e. on 5 July 2011. 31. Taking into consideration the Claimant’s claim as well as the reasons previously exposed, the DRC concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the country A employment contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding remuneration due to the latter in the total amount of currency of country A 12,780.45, corresponding to monthly salaries for August 2010, September 2010, December 2010 and June 2011, as well as to partially missing salaries for November 2010 and for January to May 2011. 32. The Chamber further established that an interest rate of 5% p.a. would apply over the aforementioned amounts, as from 5 July 2011, as per the Claimant’s claim. 33. 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. 34. 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. 35. 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 2012. The Chamber concluded that the amount of currency of country A 30,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 36. In continuation, the Chamber verified 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 able 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 for the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 37. In this regard, the Chamber noted that the Claimant signed a new employment contract with the Club M, from country R, valid as from 1 January 2012 until 30 June 2012, for a monthly salary of EUR 3,000, i.e. approximately currency of country A 3,000. 38. 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 currency of country A 12,000 as compensation, plus interest of 5% p.a. as of 30 August 2013 until the date of effective payment. 39. For all the above reasons, the DRC decided to partially accept the claim of the Claimant and to conclude its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. ** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player G, is partially accepted. 2. The Respondent, Club K, is ordered to pay to the Claimant, Player G, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of currency of country A 12,780.45, plus 5% interest p.a. as of 5 July 2011 until the date of effective payment. 3. The Respondent, Club K, has to pay to the Claimant, Player G, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of currency of country A 12,000, plus interest of 5% p.a. as of 30 August 2013 until the date of effective payment. 4. If the aforementioned sums plus interest are not paid within the above-mentioned time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further claims lodged by the Claimant, Player G, are rejected. 6. The Claimant, Player G, is directed to inform the Respondent, Club K, 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