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: on the claim presented by the player, player A, from country M against the club, Club F, from country S, 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: on the claim presented by the player, player A, from country M against the club, Club F, from country S, regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 10 January 2010, the player A (hereinafter: the Claimant), and the, Club F (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from 1 January 2010 until 31 May 2011. 2. According to art. 30 of the contract, the Respondent undertook to provide the Claimant, inter alia, with the following amounts: - EUR 100,000 net as global remuneration for the 2009/2010 season, payable in 5 equal installments of EUR 20,000, as from 31 January 2010 and always on the last day of each consecutive month, with a period of grace of 30 days for each installment; - EUR 200,000 net as global remuneration for the 2010/2011 season, payable in 10 equal installments of EUR 20,000, as from 30 August 2010 and always on the last day of each consecutive month, with a period of grace of 30 days for each installment. 3. Article 4 of the contract further establishes that “The player agrees to use his best endeavours to attend at any reasonable place for the purpose of training in accordance with instructions given by (any duly authorised official of) the club”. 4. In addition, art. 17 of the contract stipulates that “If the player shall be guilty of serious misconduct of the disciplinary rules of the club or the terms and condition of this agreement, the club may, on giving notice to the player by recorded delivery letter, stating the full reasons for the action taken, terminate this agreement […]”. 5. Also on 10 January 2010, the parties signed an image rights agreement (hereinafter: the agreement), valid for the same period of time as the contract, and according to which the Respondent undertook to provide the Claimant, inter alia, with the following amounts: - EUR 100,000 net for the 2009/2010 season, payable in 5 equal installments of EUR 20,000, as from 31 January 2010 until 31 May 2010, with a period of grace of 30 days for each installment; - EUR 200,000 net for the 2010/2011 season, payable in 10 equal installments of EUR 20,000, as from 30 August 2010 until 31 May 2011, with a period of grace of 30 days for each installment; - EUR 1,000 per month as rent expenses, for the entire duration of the contract; - 2 air tickets for the player and his family; - the use of a car; - bonuses in the following amounts: EUR 60,000 net in case the club wins the First Division Championship in country S, EUR 30,000 net in case the club wins the Cup, EUR 125,000 in case the club qualifies for the UEFA Champions’ League group stage, and EUR 100,000 in case the club qualifies for the UEFA Europa League group stage. 6. In addition, art. 1 of the agreement stipulates that “The parties agree that the Player will assign and the player assigns with the present agreement all his image rights for commercial exploitation to the club from January 1st 2010 for the seasons 2009/2010 and 2010/2011 […]”. 7. By means of his letter of 31 May 2010, the Claimant reminded the Respondent of its salary arrears towards him, for April 2010, and explained that, in view of the absence of such payments, he became unable to acquit his fiscal obligations towards the tax of country M authorities. The Claimant further explains that, due to scheduled appointments with the tax department of country M, he would not be able to attend training as from 31 May 2010 until 3 June 2010. In this respect, the Claimant also provided FIFA with a copy of a letter of the General Director of Public Finances of country M addressed to him on 18 February 2010, as per which he was granted an extension of deadline for the payment of the taxes due for the year 2009. 8. On the same day, the Respondent replied to the Claimant’s letter, taking note of his absences, while reminding him of the fact that the preparation for the following season would start on 31 May 2010. The Respondent equally reminded the Claimant that “absence without leave from scheduled training and schedules obligations of the team consists serious breach of the contract of employment […]”. In addition, the Respondent stated that, in case the Claimant should not attend the trainings on 2 June 2010, “the club will have no alternative but to terminate your contracts of employment with just cause”. 9. On 1 June 2010, the Respondent sent the Claimant another letter, taking note of his absence from training on 31 May 2010 and stating that his eventual absence from training on 2 June 2010 would “consist of very serious gross misconduct and will be treated as such by the club”. Finally, the Respondent also states that, if the Claimant had attended training on 31 May 2010, he would have “received the outstanding payments promptly and according to the provisions of your contract” and that “any outstanding personal obligations towards any authority should have been sorted out during the time off you were provided”. 10. By means of its letter of 2 June 2010, the Respondent terminated both the contract and the agreement signed with the Claimant, with immediate effect, based on his unauthorized absence from training and to the consequent violation of art. 4 and 17 of the contract, as well as of art. 5 of the agreement. 11. On 3 June 2010, the Claimant sent the Respondent a letter, through which he expressed his surprise regarding the termination of the contract, stated his intention to resume his activities with the Respondent as soon as possible, reminded it of its arrears towards him and requested the club to confirm whether the termination was not the result of a possible oversight from their side. 12. On 4 June 2010, the Respondent, in writing, confirmed the termination of the contract with just cause, due to the Claimant’s alleged severe breach of contract. In addition, the Respondent states that the Claimant’s fiscal issues with the tax of country M authorities concern his former employer and not the Respondent. The Respondent further states that, due to the grace period of 30 days established in the contract, the Claimant’s salary for April 2010 was only due on 31 May 2010 and would have been paid to him, had he been present at training on that day. 13. On the same day, the Claimant responded to the Respondent’s letter, inter alia, rejecting its accusations and reminding it once again of the existence of outstanding remuneration towards him. 14. On 6 August 2010, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract without just cause, requesting the payment of the total amount of EUR 502,000, made up of: - EUR 40,000 corresponding to his monthly remuneration for April and May 2010, as per the contract; - EUR 40,000 corresponding to his monthly remuneration for April and May 2010, as per the agreement; - EUR 2,000 corresponding to rent expenses for April and May 2010, as per the agreement; - EUR 400,000 as compensation, corresponding to the residual values of the contract (EUR 200,000) and of the agreement (EUR 200,000); - EUR 20,000 as moral damages. 15. In his arguments, the Claimant explains that, while he was on holiday in country M, by the end of May 2010, he was contacted by the tax of country M authorities with regard to the payment of taxes for the year 2009, the payment of which was to be made in scheduled instalments between 15 March and 15 November 2010, taking into account the payment of the Claimant’s salaries by the Respondent. 16. The Claimant claims that, in spite of his correspondence to the club dated 31 May 2010, regarding the Respondent’s delay in paying his remuneration for April 2010 as well as his absence from training from 31 May to 3 June 2010, due to scheduled meetings with the tax of country M authorities, the Respondent unilaterally terminated the contract and the agreement without just cause on 2 June 2010. 17. Despite the unilateral termination of the contract by the Respondent, the Claimant allegedly met the club’s representatives in country S, on 7 and 9 June 2010, in order to reassert his will to resume his activities with the Respondent and find an amicable solution to the matter at hand. However, an amicable settlement could not be found, the Respondent insisted on the termination and the Claimant returned to country M on 10 June 2010. 18. Subsequently, on 21 June 2010, the Claimant once again reminded the Respondent of its arrears towards him in the total amount of EUR 80,000, corresponding to his remuneration for April and May 2010, as per the contract and the agreement, but received no payment or answer whatsoever from the Respondent. 19. Thus, the Claimant claims that the contract was terminated in an abusive manner and without just cause by the Respondent, as well as in violation of the formalities stipulated in art. 17 of the contract. 20. In its reply, the Respondent claims that by the end of the 2009/2010 season, as the club had qualified for European competitions, training was scheduled to be resumed on 31 May 2010, which was communicated to all players. In this respect, the Respondent allegedly provided the Claimant with an air ticket dated 30 May 2010 from country M to country S. The Claimant, however, did not return to the club on the stipulated date, as stated in his letter of 31 May 2010. 21. The Respondent further refers to the content of its letters dated 31 May, 1, 2 and 4 June 2010 (cf. points I.8., I.9., I.10. and I.12. above) and, due to the violation of the contract by the Claimant, who failed to resume his activities with the Respondent on the stipulated date, it terminated the contract with just cause on 2 June 2010. 22. Moreover, the Respondent insists on the fact that the Claimant’s request for the payment of his salary for April 2010 was unfounded, since a period of grace of 30 days had been stipulated in the contract. 23. In addition, the Respondent states that the claim of the Claimant based on the image rights agreement is not admissible, since it falls out of the jurisdiction of the DRC. The Respondent further states that, on 24 June 2010, the Claimant joined the club R, and therefore suffered no damages from the termination of the contract. Therefore, the Claimant’s claim should be entirely rejected. 24. In spite of having been invited by FIFA to do so, the Claimant did not submit its comments to the Respondent’s reply. 25. Finally, the Claimant states having signed a new employment contract with club R , valid as from 1 July 2010 until the end of the 2011/2012 season, for a monthly salary of EUR 20,000 gross. ll. 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 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 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; editions 2009, 2010 and 2012), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a player from country M and a club from country S. 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 (editions 2009, 2010 and 2012) and considering that the present matter was submitted to FIFA on 6 August 2010, the 2009 edition of said Regulations is applicable to the present matter as to the substance. 4. In continuation, with regard to the claimed payments in connection to the image rights agreement apparently signed by the parties, the Chamber also had to verify whether, for formal reasons, it was competent to deal with this specific component or not. In fact it remains that this part of the claim could possibly not be considered due to the Chamber lacking competence to deal with disputes related to image rights. 5. While analysing whether it was competent to hear this part of the claim, the Chamber, without entering into any discussion regarding the actual wording of art. 1 of the agreement, which undoubtedly defines the agreement as an image rights agreement, wished to highlight that said agreement contained further elements which led to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract, i.e. directly linked to the services of the Claimant as a player. 6. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. In the case at hand, such elements appear to exist. In particular, the agreement contains inter alia stipulations regarding bonuses, the use of a car and flights tickets, which are typical for employment contracts and not for image rights agreements. Consequently, the Chamber decided not to consider the image rights agreement as such, but determined that said agreement was in fact an additional agreement to the employment contract instead. 7. In view of all the above, the Chamber established that the image rights agreement is to be considered, meaning that it is in a position to take it into consideration when assessing the Claimant’s claim. 8. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered the substance of the present matter. In doing so, the DRC acknowledged that it was undisputed by the parties that they had signed an employment contract as well as an agreement, both dated 10 January 2010, in accordance with which the player was entitled to receive, inter alia, the total amount of EUR 600,000 as remuneration for the period of January 2010 to May 2011, as well as monthly rent expenses in the amount of EUR 1,000. 9. In continuation, the Chamber also took note that it is uncontested by the Respondent that the contractual relationship between the parties to the present dispute was terminated by the Respondent on 2 June 2010, when the Respondent submitted its termination letter to the Claimant. 10. In this regard, the Chamber took due note that the Claimant, on the one hand, argued that the Respondent had unilaterally terminated the contractual relationship without just cause pointing out inter alia that the Respondent was in delay of payment of his salary and rent expenses for the months of April and May 2010, in the total amount of EUR 82,000. Equally, the Claimant pointed out that the Respondent terminated the employment relationship based on his failure to resume training on 31 May 2010, in spite of the fact that he had previously notified the Respondent of his absence until 3 June 2010 due to scheduled appointments with the tax department of country M, by means of his correspondence of 31 May 2010. Finally, the Chamber noted the Claimant’s argument that the termination by the Respondent did not comply with the formal requisites of art. 17 of the contract. 11. The Chamber further took note of the argumentation of the Respondent, which insists on having terminated the employment relation with the Claimant with just cause, based on the fact that, in spite of having been warned of its consequences, the Claimant did not resume training on 31 May 2010, incurring in “very serious gross misconduct”. In addition, the Respondent claims that the Claimant would have received his salary for April 2010 had he been present at training on 31 May 2010; and the salary for May 2010, due to the grace period of 30 days, was not due by the time of termination. As the Claimant joined a new club on 24 June 2010, he suffered no damages from the termination and, thus, his claim should be entirely rejected. 12. 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 Respondent, 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 was 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. 13. In view of the above, the Chamber subsequently went on to deliberate as to whether the player’s alleged serious misconduct, which is invoked by the Respondent in its defence, can be considered as a just cause for the Respondent to prematurely terminate the employment relationship. 14. In this context, whilst referring to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber deemed it fit to highlight that the Claimant had presented substantial documentary evidence corroborating his allegations regarding the reasons for his delay of 3 days in resuming training with the Respondent as well as of the timely notification thereof to the Respondent. In this respect, the DRC acknowledged the content of the Claimant’s correspondence of 31 May 2010 to the Respondent (cf. point I.7. above) as well as of the letter of the General Director of country M of Public Finances addressed to the Claimant on 18 February 2010, confirming the Claimant’s allegations. In addition, the Chamber equally noted that the Respondent did not report any similar incidents regarding the Claimant’s absence before the one leading to the termination of the contract on 2 June 2010. 15. In view of the foregoing considerations, the Chamber pointed out that the player’s alleged misconduct, i.e. his absence for 3 days which he duly notified to the Respondent, could not constitute, per se, a valid reason for the termination of an employment contract. Only a breach or misconduct which is of certain severity would justify the termination of a contract. 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 only ever be an ultima ratio measure. 16. In view of all the above, the Chamber was of the opinion that the objective circumstances at the time did not provide the Respondent with just cause to prematurely terminate the employment contract and the agreement with the Claimant, since there would have been more lenient and proportionate measures to be taken, in order to sanction the alleged misconduct, which was apparently at the basis of the termination of the employment relationship by the Respondent. 17. Overall, the Chamber decided that there was no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and that, therefore, the Respondent had breached the employment contract and agreement without just cause. 18. In view of the above, and for the sake of completeness, the Chamber deemed it unnecessary to examine the question as to whether the Respondent had complied with the formal requisites of art. 17 of the contract when notifying its termination, since irrespective of this question it had been established that the termination had occurred without just cause. 19. Having established that the Respondent is to be held liable for the early termination of the employment contract and the agreement without just cause, the Chamber focused 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 any outstanding payments on the basis of the relevant employment contract and the agreement. 20. First of all, the Chamber reverted to the Claimant’s financial claim, which includes outstanding remuneration of EUR 40,000 relating to his monthly salaries for April and May 2010 under the contract, EUR 40,000 relating to his monthly salaries for April and May 2010 under the agreement and EUR 2,000 relating to unpaid rent expenses for the aforementioned months. 21. In this respect, the members of the Chamber recalled that the Respondent does not dispute the fact that the Claimant’s remuneration for April 2010 has not been paid, does not submit any proof of payment of the aforementioned rent expenses and alleges that the Claimant’s remuneration for May 2010 was not due by the time of the termination, due to a period of grace of 30 days for its payment established in the contract and the agreement. 22. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim, the lack of documentary evidence provided by the Respondent, the fact that both the employment contract and the agreement were considered terminated as of 2 June 2010, as well as the stipulation of a 30-day grace period for the payment of remuneration, the Chamber decided that the Respondent is liable to pay the Claimant, the amount of EUR 42,000 corresponding to his monthly salary for April 2010 under the agreement and the contract and rent expenses for April and May 2010. 23. In continuation, 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. 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 contained 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. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 26. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of both the employment contract and the agreement until 31 May 2011, taking into account that the player’s remuneration up until April 2010 is included in the calculation of the outstanding remuneration (cf. point II.22. above). Consequently the Chamber concluded that the amount of EUR 440,000 (i.e. salary as from May 2010 until May 2011 under the contract and the agreement) serves as the basis for the determination of the amount of compensation for breach of contract. 27. 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 able 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. 28. Indeed, the Claimant signed a new employment contract with the Club R from country M. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid as from 1 July 2010 until the end of the 2011/2012 season, the Claimant was entitled to receive a monthly salary of EUR 20,000. 29. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and club R for the period as from July 2010 until and including May 2011 amounted to EUR 220,000. 30. In this respect and bearing in mind 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 220,000 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter, in addition to the amount of EUR 42,000 as outstanding remuneration (cf. point II.22. above). 31. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected. ** I. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, player A, is partially accepted. 2. The Respondent, Club F, is ordered to pay to the Claimant, player A, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 42,000. 3. The Respondent, Club M, has to pay to the Claimant, player A, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 220,000. 4. If the aforementioned sums are not paid within the above-mentioned time limits, an interest rate of 5% p.a. will apply on said amounts as of expiry of the above-mentioned time limits and 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 A, are rejected. 6. The Claimant, player A, is directed to inform the Respondent, Club M, 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 Jérôme Valcke Secretary General Encl. CAS directives