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 theDispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 18 December 2012, by Mr Philippe Diallo (France), DRC judge, on the claim presented by the player Player A, from country S as Claimant against the club Club V, from country H 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 theDispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 18 December 2012, by Mr Philippe Diallo (France), DRC judge, on the claim presented by the player Player A, from country S as Claimant against the club Club V, from country H as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 1 July 2010, Player A, from country S (hereinafter: the Claimant) and Club V, from country H (hereinafter: the Respondent) concluded an employment contract and an additional agreement, supplementing the financial terms provided for in the employment contract, (hereinafter: the contract) both valid as of 1 July 2010 until 30 June 2012. 2. According to the contract and the agreement, the Claimant was entitled to receive for his services a monthly salary made up of the following amounts: currency of country H 73,500 and EUR 2,500. 3. On 28 November 2011, the Claimant lodged before FIFA a petition against the Respondent for breach of contract. In particular, the Claimant asserted that in March 2011 the Respondent had stopped paying to him the agreed monthly salary. In addition, according to the Claimant, since the beginning of July 2011, the Respondent had failed to provide the Claimant with appropriate training conditions and medical care. Therefore, on 11 September 2011, the Claimant sent a letter to the Respondent by means of which he unilaterally terminated the contract due to the latter’s breach. 4. The Claimant reported that, following the letter of 11 September 2011, the Respondent requested him, by letter dated 5 October 2011, to send a financial statement setting out the exact amounts due. Further, the Claimant stated that, in response to the Respondent’s letter, on 17 October 2011, he made, via fax, a proposal to settle the matter amicably. However, the Claimant asserted that the Respondent never replied to his letter. 5. In view of the foregoing, the Claimant requested that the Respondent would be ordered to pay the following amounts: i) Currency of country H 220,500 as outstanding salaries for the months of June, July and August 2011; ii) EUR 15,500 as outstanding salaries for a proportion of March 2011 and the full salaries for the months of April, May, June, July and August 2011; iii) Currency of country H 735,000 as compensation for the monthly salaries for the remaining term of the contract, that is from September 2011 until June 2012; and iv) EUR 25,000 as compensation for the monthly salaries for the remaining term of the agreement, that is from September 2011 until June 2012. Further, the Claimant requested 5% interest p.a. on the following overall sums: EUR 40,500 as of March 2011; and currency of country H 955’500 as of June 2011. In addition, the player requested that disciplinary sanctions against the Respondent would be considered. 6. In spite of having been asked to do so, the Respondent never responded to the claim lodged against it, although it was informed by FIFA that, in absence of a reply, a decision would be taken on the basis of the information and evidence at disposal. 7. Inquired about the Claimant’s labour situation during the period between 11 September 2011 and 30 June 2012, the Claimant reported that, following the termination of the contract with the Respondent, he had not concluded a contract with a new club before 30 June 2012. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, he firstly took note that the present matter was submitted to FIFA on 28 November 2011. Therefore, 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 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 and in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the DRC judge is competent to decide on the present litigation, concerning an employment-related dispute of an international dimension between a country S player and a country H club. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players (edition 2012), the DRC judge confirmed that he may adjudicate in the present dispute, which value does not exceed currency of country C 100,000. 4. In continuation, the DRC judge 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 (editions 2010 and 2012) and also considering that the present claim was lodged in front of FIFA on 28 November 2011, the 2010 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. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. He started by acknowledging that the parties to the dispute had signed an employment contract as well as an additional agreement both valid as from 1 July 2010 until 30 June 2012. 6. Equally, the DRC judge observed that the parties had agreed an overall remuneration for the term of the contract and agreement amounting to currency of country H 1,764,000 and EUR 60,000, respectively. Further, the DRC judge noted that the remuneration was to be paid in equal monthly instalments of currency of country H 73,500 and EUR 2,500 each. 7. In continuation, the DRC judge noted that the Claimant lodged a claim against the Respondent requesting the payment of the following outstanding amounts: currency of country H 220,500 for the salaries of June, July and August 2011; and EUR 15,500 for a proportion of the March 2011 salary and the full salary for the months of April, May, June, July and August 2011. Furthermore, the DRC judge took note of the Claimant’s request for compensation for the remaining term of the contract and the agreement, ie from September 2011 until June 2012, amounting to currency of country H 735,000 and EUR 25,000. 8. In addition, the DRC judge observed that the Claimant requested 5% interest p.a. as of March 2011 on the sum claimed in euros, ie EUR 40,500, and 5% interest p.a. as of June 2011 on the amount claimed in currency of country H, that is currency of country H 955,500. 9. Finally, the DRC judged noted that the Respondent, for its part, failed to present its response to the petition of the Claimant, in spite of having been invited to do so. In this way, the DRC judge concluded that the Respondent renounced to its right to defence and, thus, accepted the allegations of the Claimant. 10. As a consequence of the aforementioned consideration, 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 already on file, in other words, upon the statements and documents presented by the Claimant. 11. With due consideration to the above, the DRC judge went on to assess whether the contract had been breached and, in the affirmative, which party is to be held liable for breach of contract. 12. In doing so, the DRC judge took into account that, according to the Claimant, the Respondent failed to partially meet its financial obligations under the contract as from March 2011 and had even stopped paying the player salaries altogether as of June 2011. In addition, the DRC judge noted that, according to the Claimant’s petition, since the beginning of July 2011, the Respondent failed to provide the Claimant with appropriate training conditions and medical care. The DRC judge also observed that the notice of termination was sent by the Claimant six months after the Respondent started neglecting its financial obligations under the contract and three months after the Respondent stopped paying salaries at all to the Claimant. 13. On account of the above circumstances, in particular, taking into account that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, the DRC judge decided that the Claimant had just cause to terminate the employment contract on 11 September 2011 and that the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 14. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC judge focussed on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge 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. 15. First of all, the DRC judge acknowledged that, as stated above, in accordance with the employment contract presented by the Claimant, the Respondent was obliged to pay to the Claimant the total amount of EUR 2,500 and currency of country H 73,500 on a monthly basis during the term of the contract. 16. Subsequently, the DRC judge reverted to the Claimant’s financial claim, which includes outstanding remuneration of currency of country H 220,500 for the salaries of June, July and August 2011; and EUR 15,500 for a proportion of the March 2011 salary and the full salary for the months of April, May, June, July and August 2011. However, 17. Taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had substantiated his claim pertaining to outstanding salaries with sufficient documentary evidence. However, at the same time, the DRC judge outlined that the partial outstanding salary for the month of March 2011 as well as the full salaries for the months of April to August 2011 only amounted to the sum of EUR 13,000 and thus not to the sum of EUR 15,500. 18. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s monthly salaries in the total amount of EUR 13,000 and currency of country H 220,500. 19. Consequently, the DRC judge decided that the Respondent, in accordance with the general legal principle of pacta sunt servanda, is liable to pay to the Claimant outstanding salaries in the total amount of EUR 13,000 and currency of country H 220,500. 20. In addition, taking into account the Claimant’s request as well as the constant practice of the DRC, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the outstanding monthly salaries as of the day following the day on which such salaries had fallen due. 21. In continuation, the DRC judge turned his attention to the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge 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. 22. In application of the relevant provision, the DRC judge held that he 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. 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. 23. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2012, taking into account that the player’s remuneration until August 2011 is included in the calculation of the outstanding remuneration (cf. no. II./19. above). Consequently, the DRC judge concluded that the amounts of currency of country H 735,000 and EUR 25,000 (i.e. salaries as from September 2011 until June 2012) serve as the basis for the final determination of the amount of compensation for breach of contract. 24. In continuation, the DRC judge 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 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. 25. The DRC judge noted however that the Claimant indicated that he had not signed any other employment contract with a new club in the period between September 2011 and 30 June 2012. 26. Consequently, on account of all of the above-mentioned considerations and taking into consideration the specificities of the case at hand, the DRC judge decided that the Respondent must pay the amount of currency of country H 735,000 and EUR 25,000 to the Claimant as compensation for breach of contract. 27. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount set as compensation as of 18 December 2012 until the date of effective payment. 28. The DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber (DRC) judge 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club V, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of currency of country H 220,500 and EUR 13,000, plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 July 2011 on the amount of currency of country H 73,500; b. 5% p.a. as of 1 August 2011 on the amount of currency of country H 73,500; c. 5% p.a. as of 1 September 2011 on the amount of currency of country H 73,500; d. 5% p.a. as of 1 April 2011 on the amount of EUR 500; e. 5% p.a. as of 1 May 2011 on the amount of EUR 2,500; f. 5% p.a. as of 1 June 2011 on the amount of EUR 2,500; g. 5% p.a. as of 1 July 2011 on the amount of EUR 2,500; h. 5% p.a. as of 1 August 2011 on the amount of EUR 2,500; a. 5% p.a. as of 1 September 2011 on the amount of EUR 2,500; 3. The Respondent, Club V, 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 currency of country H 735,000 and EUR 25,000, plus 5% interest p.a. on said amounts as of 18 December 2012 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned number 2 and 3 are not paid by the Respondent within the stated time limit, 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 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 DRC judge: Jérôme Valcke Secretary General Encl. CAS directives