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 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the player, J, from country R, as Claimant against the club, Club L, 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 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the player, J, from country R, as Claimant against the club, Club L, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 22 June 2010, the country R player J (hereinafter: the player or the Claimant), and the country C club, club L (hereinafter: the club or the Respondent), entered into an employment contract (hereinafter: the contract), valid from the date of signature until 30 May 2012. 2. According to the contract, the club agreed to pay the player, inter alia: • For the 2010/2011 season, a total amount of EUR 20,000 paid in ten equal monthly instalments of EUR 2,000 “on the 31st day of each month”, starting on 31 August 2010; • For the 2011/2012 season, a total amount of EUR 25,000 paid in ten equal monthly instalments of EUR 2,500 “on the 31st day of each month”, starting on 31 August 2011. Clause 13 of the contract provided that “all player emoluments, salary and bonuses are tax-free”. 3. Clause 3 of the contract stipulated that “the [player] hereby acknowledges, agrees and understands that he will pass all the medical examinations and tests as per the request of the [club] and in case the report of any of the said examinations and/or tests provide that the [player] cannot offer his services then the [club] shall have the right to cancel the [contract] without any consequences and the [player] shall be obliged to refund immediately to the [club] any amounts already received.” In addition, said clause 3 also provided that “[H]owever, the above football player has done surgery intervention into the Anche lion tendon of his left leg and due to the fact that he has not recuperated yet, the above parties agreed that if the football player will not be ready until 20/08/2010, after an examination of the above football club doctor, then the employer has the right to terminate this agreement and the football player will not be able to claim any damages.” 4. Finally, clause 6 of the contract stipulated that “at the end of the period i.e. 30/5/2011, the [club] will have the right to end the [contract] with the [player] by notifying the latter by correspondence, and the [player] will have no right to damages or claims.” 5. On the same date, i.e. 22 June 2010, the club and the player also signed a supplementary agreement (hereinafter: the supplementary agreement) for the same period as the contract; i.e. valid until 30 May 2012. 6. Clause 1 of the supplementary agreement provide that “despite the agreement dated the 22/06/2010, the Club agrees to pay the [player] the amount of Euro 30.000 for the period 2010-2011 as follows: • Euro 2.000 by signed this agreement. • Euro 28.000 payable by 10 equal monthly instalments of Euro 2.800 each payable on the 31st day of each month, the first one being payable on the 31st of August 2010. (…)” 7. According to clause 2 of the supplementary agreement, for the season 2011/2012, the club agreed to pay to the player a total amount of EUR 35,000, to be paid in ten equal monthly instalments of EUR 3,500. 8. The supplementary agreement further established that “(…) in the event of any wrongful termination of this [supplementary agreement] at the behest of the [club], the [supplementary agreement] can be terminated forthwith at the election of the [player] by written communication to the [club], and the [club] shall be responsible for payment of all damages suffered by the [player] which in any event shall be no less than the maximum amount the [player] would have received from the [club], had this contract been fully executed, including all bonuses agreed herein.” 9. By letter dated 19 August 2010, the club terminated the contract unilaterally on the basis that, in the club’s opinion, the player had not yet recovered from his Achilles tendon injury and that, after a medical examination by the team’s doctor, the decision was to terminate the contract according to its clause 3 (cf. point I. 3 above). The club also stated in such letter that it “considered [the player’s] absence from the preparation of the team to the country A and also [the player’s] absenteeism from the training of the B team when the A team was to country A for preparation.” 10. By letter dated 20 August 2010, the player informed the club that he considered that the contract had been terminated without just cause and requested that the club reconsider such termination given that he was ready to continue his contractual relationship with the club. The player stated that he had passed the medical examination conducted by the club’s doctor, on 17 August 2010, and was in perfect condition to participate in football matches. The player further denied having missed any training sessions with the club. The player further informed the club that, according to the FIFA Regulations on the Status and Transfer of Players, employment contracts cannot be subject to any medical examination. 11. By letter dated 27 August 2010 addressed to the player, the club replied that the parties had agreed to include a provision in the contract related to the player’s specific injury, because, at the time of the signature, the player was not yet fully recovered. The club further stated that on 17 August 2010, the player had been examined by a surgeon that had concluded that the he had not fully recovered from the injury and was not ready to resume training. In continuation, the club alleged that it had already paid the amount of EUR 2,800 which it did not intend to claim if the player did not claim for damages against the club. 12. On 18 July 2011, the player filed a claim with FIFA against the club, subsequently amended on 18 August 2011, alleging that the unilateral termination of the contract had been conducted without just cause and requesting the payment of compensation in the aggregate amount of EUR 108,000, as follows: a) Salary for the season 2010/2011 in the amount of EUR 20,000 pursuant to the contract; b) Salary for the season 2011/2012 in the amount of EUR 25,000 pursuant to the contract; c) Salary for the season 2010/2011 in the amount of EUR 28,000 pursuant to the supplementary agreement; d) Salary for the season 2011/2012 in the amount of EUR 35,000 pursuant to the supplementary agreement. 13. According to the player, he passed the medical exam performed by the club’s doctor on 17 August 2010 and, in fact, the result of such exam was that he was allegedly ready to actively and professionally play football and to participate in football matches. The player did not submit any document in this regard. 14. The player asserted that his good condition “[w]as confirmed also in the patient’s card as of 17th August 2010 in which the doctor of the player Mr. J confirmed that the player Mr. J started full training for 5 days already and that he was fit”, enclosing a copy of the patient’s card. 15. In continuation, the player stated that his healthy physical condition was also confirmed by a medical examination, on 27 August 2010, in which the doctor allegedly confirmed that the player had been subject to full strain activities for two weeks without marked difficulties and that the strain could be increased without restriction. In this respect, the player submitted a copy of the relevant medical examination. 16. The player went on to state that, in his opinion, according to the FIFA Regulations on the Status and Transfer of Players an unsuccessful medical examination may not be a reason for the termination of an employment contract and that, accordingly, the failure by the club to respect the contract represents an unconditional breach of its obligations. 17. Moreover, the player disputed the allegation that he did not participate in the training of the team leading up to the trip to country A, holding that the club instructed him not to go to country A. The player further claimed that he was never instructed to train with the “B” team of the club. 18. On 6 October 2011, the club presented its response to the player’s claim. According to the club, the unilateral termination was lawful pursuant to clause 3 of the contract. Moreover, the club asserted that when the player signed the contract, he knew the seriousness of his injury as well as the risk of having a relapse and not being ready to compete by 20 August 2010. The club maintained that it accepted to sign the contract, because the player agreed that, in case he was not ready and did not have the doctor’s approval to begin training with the team, he would not have any claim towards the club. 19. The club rejected the player’s allegation that the doctor of the club had confirmed on 17 August 2010 that he was in good condition to play. To the contrary, the club declared that the club’s doctor stated that the player did not get over his injury and was not ready to compete, enclosing a copy of doctor’s statement. 20. Concerning the validity of the clause 3 of the contract, the club maintained that article 18 par. 4 of the FIFA Regulations is not applicable to this case, since the parties had agreed terms in relation to a pre-existing specific medical issue and the contractual provision “is neither general or vague but specific and explicit”. In fact, the club alleged that the validity of the contract in this case did not depend on the fact of the player passing a medical examination (as provided by such article of the FIFA Regulations on the Status and Transfer of Players), but rather on the circumstance of the player overcoming, by a specific date, his medical issue and be ready for competition. 21. In addition, the club asserted that the reason why the parties had agreed that 20 August 2010 was the date by which the player had to be ready to compete was precisely to give time for the club to find a replacement and for the player to find another team for that season, if needed. 22. The club rejected the player’s allegation that it did not allow him to travel with the team for the basic training. It stated that the reason why the player did not travel was because the club’s doctor advised him, after examination, that the injury was not fully overcome and that there was a risk of relapsing. The club stated that the doctor’s suggestion was for the player to train lightly and this was the reason why the club had asked the player to train with the “B” team until the “A” team came back from abroad. The club stated, moreover, that it had been the player’s decision not to participate in the basic training of the team since the club’s doctor determined that he was still injured and there was a risk of relapse. 23. Finally, the club maintained that, according to clause 6 of the contract (cf. point I. 4 above), it was entitled to terminate the latter for the 2011/2012 season and that, as such, the player has no right to claim any amounts with regards to that season. 24. The player informed FIFA that he had entered into an employment agreement with the country R football club Z, valid from 1 September 2010 until 31 August 2011. According to this contract, the player was to receive, inter alia, a monthly remuneration of 35,000. The contract provided that both parties agreed on the possibility of early termination of the contract at 30 June 2011 and, consequently, without the player having the right to collect remuneration for July and August 2011. 25. Furthermore, the player informed FIFA that on 1 July 2011 he signed an employment contract with country G club, club X, which specifies that it is a contract for amateur players, establishing a monthly remuneration of EUR 250 and compensation for travel expenses at a rate of EUR 0,30/km. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The present matter was submitted to FIFA on 18 July 2011, thus after 1 July 2008. Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 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 player and a club. 3. Furthermore, the DRC analysed which regulations 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 on the Status and Transfer of Players (edition 2010) and also considering that the present claim was lodged in front of FIFA on 18 July 2011, the edition 2010 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 Chamber and the applicable regulations having been established, the Dispute Resolution Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. 5. In this respect, the DRC examined the documentation presented by the parties throughout the proceedings and took note that the parties to the dispute had signed, on 22 June 2010, the contract and the supplementary agreement valid both from that date until 30 May 2012, according to which the Claimant was entitled to a total remuneration of EUR 108,000 for the duration of the employment relationship. 6. Furthermore, the Chamber acknowledged that Claimant lodged a claim against the club for breaching the contract, requesting the payment of compensation in the aggregate amount of EUR 108,000. 7. The Chamber wished to point out, from the outset, that it had remained undisputed that, by letter dated 19 August 2010, the Respondent had unilaterally terminated the contract invoking just cause. The members of the Chamber considered, therefore, that what needed to be assessed in the current proceedings is whether the Claimant did have just cause or not to unilaterally terminate the contract. 8. The Chamber then entered into the substance of the matter and, in doing so, started by noting that, the parties appeared to have diametrically opposed positions regarding the dispute at stake. According to the submissions of the parties, the DRC noted that in essence, on the one hand, the Respondent sustained that clause 3 of the contract entitled it to unilaterally terminate the contract in light of the fact that the Claimant had not overcome his injury, whereas, on the other hand, the Claimant maintained that said clause was contrary to the Regulations and that, in any case, he had overcome the injury at stake before the agreed deadline. 9. In light of the above, the members of the Chamber wished to emphasize that the central issue to the present dispute would be to determine the validity and enforcement of clause 3 of the contract, which apparently did seem to entitle the Respondent to unilaterally terminate the contract in case the Claimant did not overcome a specific injury by a pre-determined deadline. 10. In that respect, the Chamber acknowledged the Claimant’s argument that, according to art. 18 par. 4 of the Regulations, the validity of a contract may not be made subject to a successful medical examination, which, according to him, is precisely the object and purpose of clause 3 of the contract. 11. The Chamber then reverted to the Respondent’s position in this respect and noted the latter’s allegation that art. 18 par. 4 of the Regulations is not applicable in the present case, as the parties agreed terms in relation to a pre-existing specific medical condition was, precisely, assessed by means of a medical examination. The DRC further acknowledged the Respondent’s claim that the validity of the contract in this case did not depend on the circumstance of the Claimant passing a medical examination, but rather on the circumstance of the latter overcoming, until a pre-determined date, his medical condition, which, according to the Respondent, implied that said clause is neither general or vague, but specific and explicit. 12. In view of the foregoing, the members of the Chamber recalled the wording of clause 3 of the contract and wished to underline that, from a legal standpoint, such clause effectively provides for a unilateral termination right in favour of the Respondent in case the Claimant would not overcome his injury before a specified deadline. 13. In continuation, the Chamber reminded that, according to art. 14 of the Regulations, employment contracts may only be unilaterally terminated where there is just cause. In light of this, the Chamber concluded that, by enabling the Respondent to unilaterally terminate the contract in case the Claimant did not overcome his injury, clause 3 of the contract is, in essence, providing that the failure to overcome the injury by the Claimant constitutes just cause for the termination of the contract. 14. In this context, the Chamber was eager to emphasize that, according to its well-established jurisprudence, and as a general rule, an injury of a player does not constitute a just cause in the sense of art. 14 of the Regulations for a club to terminate a contract. Therefore, a clause which would consider an injury as just cause to terminate the contract unilaterally cannot be recognized. 15. In light of the above, the members of the DRC were of the unanimous opinion that clause 3 of the contract invoked by the Respondent in order to put an end to the contract is invalid and cannot be considered. As a consequence, the Chamber concluded that the Respondent had terminated the contract unilaterally and without just cause. 16. On account of the foregoing, the members of the Chamber also held that the Respondent was liable to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 17. Before proceeding to assess the amount of compensation to be paid, the Chamber considered important to note that the Respondent had argued that, because according to clause 6 of the contract (cf. point I. 4), it was entitled to unilaterally terminate the contract at the end of the 2010/2011 season, the Claimant did not have any contractual basis to claim any amounts with regards to the following season. 18. In this respect, the Chamber wished to point out, first of all, that the aforementioned clause 6 appeared to give the Respondent the possibility of terminating the contract at its complete and utter discretion. The members of the Chamber considered that said clause was, thus, clearly unilateral and potestative and provided for an unacceptable unbalanced employment relationship and that, according to its well established jurisprudence, could not be accepted. 19. Moreover, the Chamber considered important to note that, even if clause 6 of the contract were to be considered, said clause merely provided for an option for the Respondent to elect to terminate the contract at the end of the first season. The DRC noted, therefore, that, at the moment of termination of the contract, its validity was for two seasons and that, at that time, the exercise of such option was a mere possibility. The Chamber decided, therefore, to reject the Respondent’s argument in this respect. 20. 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 recalled 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. 21. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the 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 contract at the basis of the matter at stake. 22. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract and the supplementary agreement until 30 May 2012 and concluded that the Claimant would have received EUR 108,000 as salaries had the contract been executed until its expiry date. 23. 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 able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract(s) 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. 26. The Chamber noted that the Claimant had entered into an employment agreement with the country R football club Z valid from 1 September 2010 until 31 August 2011, where he was entitled to receive, inter alia, a monthly remuneration of 35,000. The Chamber also noted that the player signed an employment contract with the country G club, club X, on 1 July 2011, establishing a monthly remuneration of EUR 250 and compensation for travel expenses at a rate of EUR 0,30/km. 24. 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 70,000 to the Claimant as compensation for breach of contract. 25. The Dispute Resolution Chamber 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, J, is partially accepted. 2. The Respondent, Club L, has to pay to the Claimant the amount of EUR 70,000, within 30 days as from the date of notification of this decision. 3. In the event that the aforementioned amount is 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 and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further request filed by the Claimant is 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 Enclosed: CAS directives