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 passed in Zurich, Switzerland, on 25 October 2012, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member David Mayebi (Cameroon), member Damir Vrbanovic (Croatia), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, Player R, from country S as Claimant against the club, Club N, from country C 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 passed in Zurich, Switzerland, on 25 October 2012, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member David Mayebi (Cameroon), member Damir Vrbanovic (Croatia), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, Player R, from country S as Claimant against the club, Club N, from country C as Respondent regarding an employment-related dispute between the parties I. Facts 1. On 1 July 2010, Player R, from country S (hereinafter: the player or the Claimant), and the Club N, from country C (hereinafter: the club or the Respondent), entered into an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2013. 2. On 2 July 2010, the parties also signed an additional agreement (hereinafter: the private agreement) containing additional financial conditions. 3. According to the contract, the club agreed to pay the player, inter alia, an aggregate remuneration of EUR 750,000, payable in 35 monthly instalments of EUR 21,428 for the duration of the contract, the first payable on 31 July 2010 and the remaining instalments at the end of each month. 4. According to the private agreement, the club agreed to pay the player, inter alia, EUR 700 per month as accommodation expenses. 5. By letter dated 17 August 2011 addressed to the player, the club terminated the contract invoking an alleged misbehaviour of the player in relation to an injury. 6. On 20 April 2012, the player filed a claim with FIFA for unilateral termination of the contract during the protected period without just cause, requesting the payment of a total amount of EUR 508,944, as follows: • EUR 32,142 as outstanding salaries for July 2011 and half of August 2011; • EUR 460,702 as residual value of the contract until its agreed expiry; and • EUR 16,100 as accommodation expenses for such period. 7. The player also requested the application of sporting sanctions against the club. 8. According to the player, on 8 July 2011, during the team’s preparation that took place in country P, he complained of knee pain and, as a result of medical exams carried out, the club suggested that he should undergo surgery. The player maintained that he never refused to visit a doctor to undergo surgery, if such was needed. In this respect, the player explained that he wanted a second opinion before undergoing surgery, and, for that reason he visited a specialist with whom he was already acquainted and whom he trusted. In this regard, the player asserted that he was willing to pay for the eventual expenses himself. 9. Moreover, the player held having informed the club that he wanted to be examined by his doctor in country S, and that the club allegedly refused his request, affirming that it had the contractual obligation to provide medical support and thus, should decide about the operation. 10. The player maintained that the contract does not have any clause stipulating that the club has a contractual obligation to provide medical assistance to the player and that it merely provides that “the employer also agrees to provide the employee with the usual medical expenses (…)”. In this respect, the player considers that the expression “usual medical expenses” should not include surgery. 11. In addition, the player considered that the club’s statement that it has the right to decide on the player’s health is contrary to his right of freedom. The player asserted that any athlete has to have freedom to choose which doctor should perform any surgery (if need be) and to undergo further medical examinations if he deems necessary. 12. The player further stated that the club never replied to his request to be operated in country S and kept insisting that he should be operated in country C or in country F. Furthermore, the player declared that, after the termination of the contract, he ended up visiting the doctor in country S, who, having assessed the injury, recommended him not to operate his knee. 13. The player also asserted that he signed an employment contract with Club X, from country S, on 31 August 2011 valid from that date until 30 June 2013, and that he was cleared by a medical examination at the latter club, which, in his opinion, constitutes evidence that he was fit to play. In fact, the player asserted that he has been regularly playing in official matches and is in perfect shape. 14. The player maintained, therefore, that the club had no legal basis to terminate the contract. 15. Despite having been invited to do so, the club did not present its position. 16. Under the employment contract signed with Club X, the player is to receive a monthly salary of EUR 5,455 until June 2012. The player and the country S club also signed an annexe to the employment contract, whereby they agreed on the remuneration to be paid for the 2012/13 season; i.e. a monthly salary of EUR 6,000, plus a signing-on fee of EUR 38,000, if the country S club kept participating in the country S second division, or a monthly salary of EUR 6,000 plus a signing-on fee of EUR 168,000, if it was promoted to the country S first division. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 20 April 2012, thus after 1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country S player and a country C club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 20 April 2012, the 2010 edition of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the Chamber started to acknowledge the facts of the case as well as the documents contained in the file. 5. In this respect, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract setting out a period of validity as from 1 July 2010 until 31 May 2013, in accordance with which the Claimant was to receive inter alia a monthly salary of EUR 21,428 for the duration of the contract. Also, the DRC acknowledged that the parties signed a private agreement establishing further remuneration. 6. In continuation, the Chamber took note that the Claimant alleged that the Respondent had terminated the contract without just cause and requested the payment of the aggregate amount of EUR 508,944, considering the contract and the private agreement. 7. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. For that reason, the DRC did not have any option other than to consider that the Respondent had renounced its right to defense. 8. In this context, as a consequence of the aforementioned consideration, the members of the Chamber stressed that, in accordance with art. 9 par 3 of the Procedural Rules, any decision would have to be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant. 9. In this context, the members of the Chamber noted that it had remained undisputed that the Respondent had unilaterally terminated the contract on 17 August 2011 invoking just cause, which was demonstrated by the copy of the letter submitted by the Claimant. The DRC stated, therefore, that the central issue to the present dispute was to determine if the Respondent did have just cause or not to terminate the contract. To this end, the Chamber started by paying close attention to the contents of the letter by means of which the Respondent had terminated the contract and understood that the dispute between the parties had been originated by a disagreement on how to address an alleged injury of the Claimant. The DRC duly noted that, before the contract termination, apparently both parties had agreed that a surgery could be needed to overcome the injury, but could not agree on which doctor should perform it. 10. The members of the Chamber then reverted to the specific arguments brought forward by the Claimant and acknowledged, first of all, that the Claimant emphatically claims to have never refused to be treated, but that he simply wished to be operated by a doctor of his personal trust. 11. The Chamber also took note of the Claimant’s view that any athlete must have the right not only of undergoing further medical examinations to confirm what the appropriate course of action should be, but also the right to freely elect who should be performing any applicable surgery. 12. Finally, the members of the Chamber also acknowledged the Claimant’s allegation that, evidence that requesting other medical opinions is an essential procedure, is the fact that the doctor which he ended up visiting recommended against performing any surgery and that, in fact, since then he has been fit for competition. 13. The Chamber decided that, based on the documentation on file, it was clear that the parties had engaged on a discussion regarding the decision of who should perform the surgery on the Claimant and, therefore, where it would take place. 14. The Chamber considered that this was an issue which should have been approached by both parties in a constructive and cooperative manner, so that a mutually beneficial decision could have been reached in the end. 15. However, the Chamber noted that any possibility of cooperation for such mutually beneficial decision was permanently prevented when the Respondent decided to unilaterally terminate the contract. 16. At this point, the Chamber wished to emphasize, as it has done consistently in the past, that, according to the principle of contractual stability, the unilateral termination of a contract must be considered as an absolute last resort, where, given the particularities of the situation at stake, it could not be expected that one of the parties could reasonably continue to be bound by the contractual relationship. 17. In continuation, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. 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 fulfillment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 18. Having analysed the documentation brought forward by the Claimant and in the absence of any position submitted by the Respondent, the members of the Chamber were convinced that the parties’ relationship had not yet come to a disruption point and that there was, certainly, still margin for adopting other conducts in view of reaching a mutually satisfactory solution. In other words, the DRC took the view that the Respondent’s decision to unilaterally terminate the contract was abrupt and radical and was not justified at that point. 19. The Chamber decided, therefore, that the Respondent did not have just cause to unilaterally terminate the contract and that, therefore, the Respondent had breached the employment contract without just cause and must be held liable for such a decision. 20. The Chamber then 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 as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant agreements. 21. As a consequence, the Chamber decided that the Respondent is liable to cancel all outstanding amounts under the relevant employment contract and the private agreement until the date on which the employment contract was terminated, i.e. until 17 August 2011. 22. The Chamber then reverted to the Claimant’s claim, which includes outstanding remuneration of EUR 48,242 as salaries for July 2011 and August 2011 (half a month). In this respect, the members of the DRC emphasised that the monthly salaries were due at the end of each month and, therefore, noted that, at the time of termination, i.e. 17 August 2011, the salary corresponding to August 2011 was not yet due and can, thus, only be considered for purposes of the calculation of compensation. In addition, the DRC also noted that it seems that in relation to the accommodation expenses claimed by the Claimant as compensation for breach of contract, the proportional amount for the month of July 2011 must be considered to have been due at the moment of termination and, therefore, be considered as part of the remuneration outstanding. The members of the Chamber recalled that the Respondent failed to demonstrate that it had in fact paid such remuneration and did not even try to do so. 23. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim and the fact that the employment contract was considered terminated as of 17 August 2011, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of EUR 22,128 as outstanding remuneration, corresponding to the monthly salary and rent for the month of July 2011. 24. 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 reminded 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. 25. 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. 26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until 31 May 2013. Consequently, the Chamber concluded that the amount of EUR 486,816 (i.e. salary and accommodation expenses from August 2011 to May 2013) serves as the basis for the final determination of the amount of compensation for breach of contract. 27. In continuation, the Chamber assessed as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 28. The Chamber noted that the Claimant had signed a new contract with the Club X, from country S, according to which he was to receive a monthly salary of EUR 5,455 until June 2012. The Chamber noted that the player and the country S club also signed an annexe to the employment contract, whereby they agreed on the remuneration to be paid for the 2012/13 season; i.e. a monthly salary of EUR 6,000, plus a signing-on fee of EUR 38,000 since the country S club kept participating in the country S second division. 29. 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 EUR 330,000 to the Claimant as compensation for breach of contract. 30. The DRC concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player R, is partially accepted. 2. The Respondent, Club N, has to pay to the Claimant, within 30 days as of the date of notification of this decision, outstanding remuneration in the amount of EUR 22,128. 3. The Respondent also has to pay to the Claimant, within 30 days as of the date of notification of this decision, compensation for breach of contract in the amount of EUR 330,000. 4. In the event that the aforementioned amounts are not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limit until the date of effective payment and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further request filed by the Claimant is rejected. 6. 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