F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 2 October 2012, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, V, from country S as Claimant against the club, Club X, from country Z as Respondent regarding an employment-related dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 2 October 2012, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, V, from country S as Claimant against the club, Club X, from country Z as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 7 September 2009, the country S player, V (hereinafter: the Claimant), and the country Z club, club X (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from the date of signature until 30 June 2011. 2. According to art. 5 of the contract, the Claimant was entitled to receive, inter alia: - EUR 17,000 as a signing-on fee; - EUR 3,000 as a monthly salary payable on the 15th of every month 3. On 8 July 2010, the Claimant lodged a claim in front of FIFA against the Respondent indicating that he received the signing-on fee as well his salaries for September and October 2009, but that, on 21 November 2009, he was informed by the Respondent that his services were no longer needed, that his visa expired and that he, thus, should leave the country immediately. 4. The Claimant explains that on 26 November 2009 he had left country Z and that on 14 January 2010 the Respondent informed him that it terminated the contract as from 7 September 2009 due to the Claimant’s “non-excused exemption of trainings and matches”. 5. On account of the above, the Claimant is of the opinion that the Respondent unilaterally terminated the contract without just cause on 14 January 2010 and requests to be awarded with the following amounts: EUR 7,400 as outstanding remuneration: - EUR 6,000 for the salaries of November and December 2009; - EUR 1,400 for 14 days of January 2010 EUR 52,600 as compensation: - EUR 1,600 for 16 days of January 2010 - EUR 51,000 for the remaining 17 salaries of EUR 3,000 each; 6. Furthermore, the Claimant requests 5% interest on the amount of EUR 60,000 as from 14 January 2010. 7. Finally, the Claimant requests an indemnity of EUR 16,500 for the period between 14 January 2010 and 30 June 2010, since he was not able to find a new club before the new summer transfer period. 8. In spite of having been invited by FIFA to do so, the Respondent failed to provide its position to the Claimant’s claim, although it was informed that in absence of a reply, a decision would be taken upon the basis of the documents on file. 9. Upon FIFA’s request, the Claimant indicated that he had signed a new contract with the country S club, club Y , valid as from 1 September 2010 until 30 June 2011 with a monthly salary of 50,000 (note: approximately EUR 473 on 1 September 2010) and added that the contract between him and the latter club was mutually terminated in October 2010 and that he received the total amount of “EUR 6,102 (641,818) instead of the agreed EUR 17,000 until June 2011”. Finally, the player added that “he was not in the club since the end of October 2010, but the contract was terminated on 7 February 2011, retroactively per 31 January 2011”. The player stated that “Thus, he should earn the total amount of 738,126, but he was paid only the total amount of 641,818, resulting to EUR 6,102. We kindly ask to consider only paid amount of EUR 6,102 for the formal decision”. Finally, the Claimant indicated that as from 31 January 2011 until 30 June 2011 he was not able to find new employment. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 8 July 2010. Consequently, the DRC judge concluded that 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 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a player and a club. 3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2009 and 2010) and considering that the present claim was lodged in front of FIFA on 8 July 2010, the 2009 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts of the case as well as the documentation contained in the file. 5. First of all, the DRC judge acknowledged that, on 7 September 2009, the Claimant and the Respondent had concluded an employment contract valid as from the date of signature until 30 June 2011, in accordance with which the Respondent would pay the Claimant a sign-on fee of EUR 17,000 as well as a monthly salary of EUR 3,000. 6. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent indicating that the Respondent had informed him in November 2009 that his services were no longer needed, that his visa expired and that he should therefore immediately leave the country. The Claimant outlined that, on 26 November 2009, he left the country and that, thereafter, on 14 January 2010, the Respondent informed him in writing that his contract was terminated due to his non-authorized absence. The Claimant stated that, in view of the foregoing, it is evident that the Respondent unilaterally terminated the employment contract without just cause. 7. The DRC judge duly noted that, on account of the above, the Claimant is seeking payment of the amount of EUR 7,400 corresponding to his outstanding salaries of November and December 2009 as well as 14 days of January 2010. Equally, the DRC judge noted that the Claimant is requesting compensation for breach of the employment contract in the amount of EUR 52,600. 8. What is more, the DRC judge observed that the Respondent failed to present its response to the claim of the Claimant, despite having been invited to do so. In this way, so the DRC judge deemed, the Respondent renounced to its right of defence and, thus, accepted the allegations of the Claimant. 9. As a consequence, the DRC judge established that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents on file. 10. Having taken into consideration all the previous considerations, the DRC judge decided that it could be established that the Respondent had seriously neglected its contractual obligations and, therefore, had terminated the employment contract without just cause on 21 November 2009, i.e. the date on which it informed the Claimant that his services were no longer needed. Consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause. 11. Bearing in mind the preceding consideration, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 12. First of all, the DRC judge noted the Claimant’s request regarding the outstanding salaries at the time of the unilateral termination of the contract by the Respondent. In this regard, the DRC judge stressed that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of EUR 3,000, corresponding to the salary of November 2009. 13. In continuation, the DRC judge decided that, taking into consideration the Claimant’s respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 14. In this context, the DRC judge outlined that, in accordance with said provision, 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. 15. In application of the relevant provision, the DRC judge held that he first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 16. Subsequently, the DRC judge noted that the remaining value of the employment contract as from the date of the termination until the original expiry of the employment contract amounted to EUR 57,000, i.e. nineteen monthly salaries amounting to EUR 3,000 each. Consequently, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounted to EUR 57,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 17. In continuation, the DRC judge remarked that the Claimant had concluded a new employment with the country S club, club Y, which ran from 1 September 2010 until 30 June 2011, in accordance with which the Claimant would receive the total amount of EUR 17,000. 18. Consequently, and bearing in mind the provision of art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account for the calculation of the amount of compensation for breach of contract. In this respect, the DRC judge deemed that the Respondent could not be reproached for the early termination of the contract between the player and his new club, club Y, this being a separate matter between the player and said club. 19. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR 40,000 to the Claimant, which is considered by the DRC judge to be a reasonable and justified amount as compensation for breach of contract. 20. For all the above considerations, the DRC judge decided to partially accept the Claimant’s claim and held that the Respondent is liable to pay the total amount of EUR 43,000 to the Claimant, consisting of the amount of EUR 3,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract without just cause by the Respondent and the amount of EUR 40,000 corresponding to the compensation for the unilateral breach of contract without just cause by the Respondent. 21. The DRC judge concluded his deliberations in the present matter by establishing that any further claim of the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, V, is partially accepted. 2. The Respondent, Club X, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 3,000, plus 5% interest p.a. on said amount as from 14 January 2010 until the date of effective payment. 3. The Respondent has to pay to the Claimant within 30 days as from the date of notification of this decision, compensation for breach of contract amounting to EUR 40,000 plus 5% interest p.a. on said amount as from 14 January 2010 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the DRC judge of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 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 DRC judge: Markus Kattner Deputy Secretary General Encl. CAS Directives