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 31 October 2013, in the following composition: Geoff Thompson (England), Chairman Ivan Gazidis (England), member Joaquim Evangelista (Portugal), member on the claim presented by the player, Player C, from country B as Claimant against the club, Club A, from country Q 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 31 October 2013, in the following composition: Geoff Thompson (England), Chairman Ivan Gazidis (England), member Joaquim Evangelista (Portugal), member on the claim presented by the player, Player C, from country B as Claimant against the club, Club A, from country Q as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 25 July 2010, Player C, from country B (hereinafter: the Claimant or the player), and Club A, from country Q (hereinafter: the Respondent), signed a “settlement agreement” (hereinafter: the agreement), by means of which the parties agreed that “the contract starts on first August 2010 for three years”. 2. According to articles 2 to 4 of the agreement, the Respondent undertakes to provide the Claimant with the following amounts: - USD 450,000 as global remuneration per season, USD 200,000 of which are payable “upon the signature” and USD 250,000 payable in 10 equal instalments of USD 25,000, as from 1 August 2010; - economy air tickets country B-country Q-country B, for the player and his family; - a furnished apartment; - a car; - medical treatment in country Q hospitals; - win bonuses. 3. On 1 August 2010, the Claimant and the Respondent signed an employment contract (hereinafter: the contract) and a “Football Player Contract Schedule” (hereinafter: the annex), both valid as from the date of signature until 30 June 2013. 4. According to art. 2 of the annex, the Respondent undertakes to pay the Claimant USD 450,000 as global salary per season, USD 250,000 of which are payable “upon the signature” and USD 200,000 payable in 10 equal instalments of USD 20,000, from 1 August until 1 May of the following year. 5. Furthermore, art. 4 par. 2 lit. c) of the contract stipulates that “During the contractual period, the Club A [the club] will make the following elements available to the player: c) Sports-oriented medical and therapeutic care”. 6. Article 7 paragraphs 3 to 5 of the contract establish that “3. In the event that the player shall become incapacitated by reason of sickness or injury for a period between three and six months, establish by independent medical examination, the Club A shall be entitled to reduce the player’s monthly salaries for a percentage of 50% of their amount. 4. In the event that the player shall become incapacitated by reason of sickness or injury for a period between higher than six months, established by independent medical examination, the Club A shall be entitled to terminate this contract upon on month’s written notice to player. 5. Country Q legislation regarding sickness and accidents applies to both parties to the contract. Any provisions in the Regulations of the country Q Football Association and country Q Stars League Management governing this matter also apply”. 7. In addition, art. 10 of the contract, entitled “termination by the club or the player”, stipulates that “The Club A [the club] may terminate this contract before its expiring term and the first party [the club] will by to the second party [the player] amount of two month salary only”. 8. On 24 May 2011, by means of its “Professional athlete clearance form”, the Respondent informed that “Player C has ended his services on 31 May 2011”. 9. On 2 June 2011, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract without just cause, requesting the payment of compensation in the total amount of USD 1,596,000, made up of: - USD 900,000 corresponding to the remaining value of the contract; - USD 336,000 corresponding to the loss of all benefits due as per the contract, i.e. air tickets (USD 60,000), a car (USD 60,000), a furnished apartment (USD 144,000), medical treatment (USD 12,000) and match bonuses (USD 60,000); - USD 270,000 corresponding to additional compensation in the minimum amount of 30% of the remaining value of the contract, as the breach occurred in the protected period; - USD 90,000 corresponding to additional compensation in the minimum amount of 10% of the remaining value of the contract, as the player had to interrupt his recovery treatment. 10. In addition, the Claimant requests that sporting sanctions be imposed on the Respondent. 11. The Claimant alleges that, after being injured during a match on 25 March 2011, he was sent by the Respondent for treatment and, while still in treatment, the club unilaterally terminated his employment contract, on 25 May 2011, without giving him any explanation for having taken such decision. As a consequence, the Claimant had to interrupt his treatment and his recovery was delayed; therefore, he was not able to find new employment after the alleged breach. 12. According to the Claimant, based on art. 10 of the contract, the Respondent proposed to pay him compensation in the amount of 2 monthly salaries. The Claimant, however, considers the aforementioned article as an abusive clause, drafted in favour of the Respondent only, and therefore it should not be taken into account for the calculation of the amount of compensation due to the Claimant for the Respondent’s unilateral breach. Moreover, the Claimant points out that the breach occurred during the protected period. 13. In its reply to the Claimant’s claim, the Respondent rejected all the allegations of the player. The Respondent claims having always complied with its obligations as per the contract and having terminated the latter with just cause. In this regard, the Respondent claims that the parties agreed upon the inclusion in the contract of a compensation clause valid for both parties, as indicated the title of art. 10: “termination by the club or the player”. Therefore, such clause should be considered as valid and binding. 14. In particular, the Respondent claims having acted in accordance with art. 4 par. 2 lit. c) and art. 7 par. 3 to 5 of the contract. 15. In addition, the Respondent states to have made a major investment by hiring the Claimant and paying his former club the total amount of USD 500,000. The Claimant, however, got injured on 25 March 2011 and was prevented from rendering his services to the Respondent for the remaining sporting season. As a consequence, the Claimant was, according to the Respondent, provided with high quality treatment in the country Q Hospital, officially credited by F-MARC as a FIFA Medical Centre of Excellence, equipped with “state of art facilities” and “staffed by some to the world’s leading sports medicine practitioners and researchers”. 16. According to the medical report dated 19 May 2011, “Player C [the player] has right knee distal MCL strain grade 2-3 and he is now 8 weeks post- injury and progressing as expected. He should continue physiotherapy rehabilitation for knee ROM and start to increase weightbearing function including straight line running and cycling. He is not to return to the club training until he has complete sport-specific rehabilitation”. In view of said circumstances, the Respondent was no longer interested in the services of the Claimant and contacted him in view of proposing the amicable termination of the contract, upon the payment of 2 monthly salaries, in accordance with art. 10 of the contract. According to the Respondent, the Claimant did not contest having received its proposal and having subsequently rejected it. Therefore, it decided to submit the relevant clearance form to the Professional Player’s Committee, dated 24 May 2011 (cf. point I.8. above). 17. The Respondent further claims that, as per art. 7 par. 3 of the contract, it would have been entitled to reduce the Claimant’s salary by 50% during his treatment. Nonetheless, acting in good faith towards him, it never proceeded to any reduction in that regard. The Claimant, however, lodged a claim against the Respondent in front of FIFA, requesting an excessive amount of compensation. 18. In view of the aforementioned, the Respondent claims having terminated the contract with just cause, based on art. 10 of the contract, which is fully reciprocal and was freely accepted by both parties, as they are allowed to include a specific compensation clause in the contract. The Respondent emphasizes that the title of art. 10 makes it clear that both parties are entitled to unilaterally terminate the contract upon the payment of compensation to the other party and points out that, by mistake, the expression “the player” was not added after “the Club A”, i.e. the Respondent. According to the Respondent, the aforementioned article is in line with both the FIFA Regulations and the country Q Football Association Regulations. 19. Furthermore, the Respondent claims that it terminated the contract before the end of season 2010/2011 and that the Claimant found new employment with the county B club, Club S, in July 2011. Therefore, the termination has not caused any harm to the Claimant’s career. 20. In the event that the Dispute Resolution Chamber considers art. 10 of the contract as non-applicable, the club claims that the amount of compensation due to the Claimant should be calculated taking into account his new salary with Club S. 21. Finally, the Respondent claims that the Claimant’s claim for compensation and sporting sanctions should be entirely rejected. 22. In his replica, the Claimant rejects the Respondent’s argumentation related to art. 10 of the contract, since this article explicitly mentions that the Respondent only is entitled to unilaterally terminate the contract upon the payment of compensation, in spite of the article’s title. 23. In this case, the aforementioned article cannot be applied, since it violates the principles of the social role of the contract, of the objective good faith and of the equal rights of the parties. 24. According to the Claimant, the Respondent admits that the termination was not mutually agreed by the parties and asserts that he would like to have maintained the contract. By unilaterally terminating the contract, the Respondent violated the principle of contractual stability, during the protected period and, therefore, is liable to pay compensation and suffer sporting sanctions, according to art. 17 of the FIFA Regulations. 25. The Claimant further claims that, not having the financial means to bear himself the costs of his rehabilitation treatment, he turned to his former club, Club S for support in this regard. The Claimant was in treatment as from 11 June 2011 until 23 July 2011 and on 20 June 2011 he signed a new employment contract with Club S, valid as from the date of signature until 19 June 2013, for a monthly salary of currency of country B 5,000. 26. In this respect, the Claimant claims having suffered considerable damages to his career and to his finances, since he only participated in very few official matches during the season 2011/2012 and had his annual income reduced from USD 450,000, plus extra benefits, to approximately USD 40,000. Moreover, in August 2012, Club S informed the Claimant that it was no longer interested in his services and would transfer him on a loan basis to Club T, as from 22 August 2012 until 15 December 2012, also for a monthly salary of currency of country B 5,000. Even though the Claimant returned to Club S after the end of his loan, his future with such club and in football is uncertain. Therefore, the Claimant reinstates the entire content of his claim. 27. In its final position, the Respondent maintains its previous argumentation and insists on the validity of art. 10 of the contract, in accordance with art. 17 par. 1 and 2 of the FIFA Regulations. Furthermore, the Respondent claims that it is not disputed by the Claimant that the Respondent respected all of its contractual obligations during its employment with the latter. 28. In addition, it states that already on 20 June 2011 the Claimant found new employment with Club S, immediately after the termination of the contract with the Respondent, and was subsequently transferred to another country B club, Club T, in August 2012. The Respondent denies being in any way responsible for any damages to the Claimant’s career subsequent to the termination of the contract with it. 29. The Respondent further points out that, combining the medical report of 19 May 2011 of country B Hospital and the undated medical report of Club S’s medical department, the Claimant’s injury had already ameliorated to a significant extent when the termination occurred. In this respect, the Respondent refers to the medical report of Club S, in which it is stated that “the athlete evolved satisfactorily in four weeks, who was release without restriction to physical technical conditioning work on 23 July 2012”. Thus, the Respondent denies that the termination of the contract has been triggered by the Claimant’s injury, since by the time of termination the Claimant was almost completely recovered from his injury. 30. Consequently, the fact that the Claimant did not take part in many official matches during the season 2011/2012 has no relation to his injury whatsoever, but was a technical decision of Club S. The Respondent further claims that, as per several publications on well trusted football databases, it can be noted that the Claimant was regularly fielded with Club S as from 26 January 2012 until 13 May 2012 and as from 1 February 2013 up to date, i.e. 18 matches, and with Club T as from 26 August 2012 until 21 October 2012, i.e. 9 matches. 31. Finally, the Respondent requests the Dispute Resolution Chamber to reject the Claimant’s claim in its entirety, to establish that the Respondent has not breached the contract without just cause, to order that, in case the Claimant is considered entitled to compensation, that this amount should not exceed USD 40,000, and to order the Claimant to bear all costs of proceedings. 32. The Claimant informed FIFA that he has been subsequently registered with the following country B clubs: - Club S, as from 20 June 2011 to 21 August 2012, for a monthly salary of currency of country B 5,000; - Club T, as from 22 August 2012 until 15 December 2012, for a monthly salary of currency of country B 5,000; - Club S, as from 16 December 2012 until 13 February 2013, for a monthly salary of currency of country B 5,000; - Club F, as from 14 February 2013 until 1 May 2013, for a monthly salary of currency of country B 1,300; - Club L, as from 2 May 2013 until present, for a monthly salary of currency of country B 1,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) 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 2 June 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 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country B player and a country Q club. 3. Furthermore, the DRC analysed which edition of the Regulations on the Status and Transfer of Players (hereinafter: 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 2010 and 2012) and considering that the present matter was submitted to FIFA on 2 June 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 substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 5. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 25 July 2010, they signed an agreement valid as from 1 August 2010 for three years, in accordance with which the Claimant was entitled to receive USD 450,000 as global remuneration per season, of which USD 200,000 are payable “upon the signature” and USD 250,000 in 10 equal instalments of USD 25,000, as from 1 August 2010; economy air tickets country B-country Q-country B, for the player and his family; a furnished apartment; a car; medical treatment in country Q hospitals; and win bonuses. 6. The DRC further acknowledged that it was also undisputed by the parties that, on 1 August 2010, they signed an employment contract and a “Football Player Contract Schedule”, both valid as from the date of signature until 30 June 2013, and according to which the Respondent undertook to pay the Claimant USD 450,000 as global salary per season, USD 250,000 of which are payable “upon the signature” and USD 200,000 payable in 10 equal instalments of USD 20,000, from 1 August until 1 May of the following year. 7. The DRC noted that, on the one hand, the Claimant claims that on 24 May 2011 the Respondent unilaterally terminated the contractual relation in writing with effect as from 31 May 2011, while the Claimant was undergoing therapy, due to an injury sustained during a match. The Claimant further maintains that, based on art. 10 of the contract, the Respondent proposed him the payment of compensation in the amount of 2 monthly salaries, which he refused. The Claimant considers art. 10 of the contract as abusive and advantageous for the club only. Therefore, he deems that such article is not applicable. 8. Based on the aforementioned, on 2 June 2011, the Claimant lodged a claim against the Respondent for having terminated the contract unilaterally and without just cause, requesting the payment of compensation in the total amount of USD 1,596,000, as broken down in point I.9. above. 9. Subsequently, the DRC noted that, on the other hand, the Respondent rejects the Claimant’s allegations and insists on the fact that it terminated the contract with just cause, based on its art. 10, which was agreed upon by the parties. In addition, the Respondent points out that, in spite of its wording, the aforementioned article grants both parties equal and reciprocal conditions to terminate the contract, as established in its title: “termination by the club or by the player”. 10. Moreover, the Respondent explains that in March 2011 the Claimant suffered an injury, subsequent to which high quality medical treatment was offered to him by the club. In spite of having been allowed to reduce the Claimant’s salaries by 50%, as per art. 7 par. 3 of the contract, the Respondent continued paying his full salary. In view of the fact that the Claimant would not anymore be able to play during that season, the Respondent proposed the termination of their cooperation in exchange of 2 monthly salaries, as per art. 10 of the contract. As the Claimant refused it, the Respondent claims having had no other choice but to terminate the contract unilaterally on 24 May 2011. The Respondent asserts that the Claimant’s injury was not the reason for the termination. In fact, according to the Respondent, the termination of the contract did not harm the Claimant’s career in any way, since shortly after that he found new employment with the Club S, from country B. 11. In view of the aforementioned, the Respondent deems to have terminated the employment contract with just cause on 24 May 2011, based on art. 10 of the contract, and requests that the DRC reject the Claimant’s claim entirely or, alternatively, that it reduces the amount of compensation due to him taking into account his new salary with Club S. 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 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. 13. In view of the aforementioned arguments of both parties, the Chamber decided to first focus its attention on the analysis of the contents of art. 10 of the contract, upon which the Respondent bases the termination and which the Claimant considers invalid. 14. In this respect, the DRC deemed it important to recall the wording of art. 10 of the contract, which stipulates that “The Club A may terminate this contract before its expiring term and the first party will by to the second party amount of two month salary only”. In addition, the Chamber acknowledged that the aforementioned article bears the title “termination by the club or the player”. 15. In this regard, the members of the DRC considered that the possibility granted to the Respondent to prematurely terminate the contract by paying the Claimant a relatively insignificant amount of compensation appeared to be of a highly arbitrary nature, entailing that, de facto, it is left to the complete and utter discretion of the Respondent whether or not it was willing to continue the contractual relationship with the Claimant. 16. Furthermore, the Chamber was eager to emphasize that, even though the aforementioned art. 10 bears the title “termination by the club or the player”, its wording clearly only refers to the entitlement of the Respondent to terminate the contract, by paying the Claimant the amount of two monthly salaries. 17. In view of the foregoing, the Chamber was of the opinion that art. 10 of the contract invoked by the Respondent in order to terminate the contract on 24 May 2011 was clearly potestative and that, consequently, the respective argumentation of the Respondent in this respect could not be upheld by the DRC. 18. In continuation, the Chamber acknowledged that both parties mentioned in their argumentation the fact that the Claimant, due to an injury sustained while playing, was undergoing therapy by the time the contract was terminated. In addition, the DRC equally took note of the Respondent’s argument, according to which it continued paying the Claimant his full salary, in spite of the fact that it could have reduced it by 50%, as per art. 7 par. 3 of the contract. 19. In this regard, and regardless of the fact that the Respondent maintains that the Claimant’s injury was not the reason for the termination of the contract, the Chamber deemed it appropriate to remind the parties of its well-established jurisprudence, according to which an injury or health condition of a player cannot be considered as a valid reason to cease the payment of a player’s remuneration and even less so to terminate an employment contract. 20. Furthermore, the Chamber took note of the fact that both the Claimant and the Respondent declare that the player, having been offered the termination of the contract in exchange of the payment of compensation in the amount of 2 monthly salaries, based on art. 10 of the contract, clearly refused the Respondent’s proposal. In spite of the Claimant’s clear refusal, the Respondent submitted the relevant “clearance form” to the Professional Player’s Committee on 24 May 2011 and, thereby, unilaterally terminated the contract with the Claimant, with effect as from 31 May 2011. 21. In view of the foregoing, the Chamber concluded that the Respondent did not have a just cause to unilaterally terminate the employment contract and, therefore, decided that the Respondent is to be held responsible for the breach of contract without just cause. 22. 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. 23. In continuation, after having established that no payments for services rendered by the Claimant remained outstanding, 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. 25. In this regard, the Chamber referred to its previous considerations with regard to art. 10 of the contract and unanimously concluded that due to its unilateral and potestative character such article could not be validly applied. 26. 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 with the Respondent, as from 1 June 2011 until 30 June 2013. The Chamber concluded that the amount of USD 900,000, i.e. USD 450,000 per remaining season, serves as the basis for the final 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 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. 28. In this regard, the Chamber noted that, after the termination of his contract with the Respondent, the Claimant signed several new employment contracts with the country B clubs, Club S, Club T, Club F and Club L, as detailed in point I.32. above, in accordance with which the Claimant earned an income of approximately USD 57,000, and that according to the Chamber’s current jurisprudence, the total remuneration the Claimant received under such contracts would be used to mitigate the amount of compensation due to him by the Respondent. 29. In addition, and taking into account the specific circumstances of the case at hand, the Chamber equally wished to take into consideration the fact that, in spite of the fact that art. 10 of the contract is invalid, the Claimant, by signing the contract containing the aforementioned clause, created for the Respondent the expectation that it would actually be allowed to terminate the contract at any time, by paying the Claimant only the amount of 2 monthly salaries. In this respect, the Chamber wished to remind the parties that a party signing a document of legal importance, as a general rule, does so on its own responsibility and shall thus be aware of and bear the possible consequences thereof. 30. For all the above reasons, the DRC decided to partially accept the claim of the Claimant and to hold the Respondent liable to pay the Claimant the amount of USD 700,000 as compensation for breach of contract. 31. The Dispute Resolution Chamber concluded 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 C, is partially accepted. 2. The Respondent, Club A, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 700,000 as compensation for breach of contract. 3. If the aforementioned sum is not paid within the above-mentioned time limit, an interest rate of 5% p.a. will apply on said amount as of expiry of the above-mentioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further claims lodged by the Claimant are rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber 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