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 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player O, from country C as Claimant against the club, Club L, from country Z as Respondent regarding an employment-related dispute arisen 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 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player O, from country C as Claimant against the club, Club L, from country Z as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 June 2008, Club L, from country Z (hereinafter: the Respondent), and Player O, from country C (hereinafter: the Claimant), concluded an employment contract valid from the date of signature until 31 May 2011 (hereinafter: the contract). Further, on 2 June 2008, the Respondent and the Claimant entered into a supplementary agreement valid for the same contractual period (hereinafter: the supplementary agreement). 2. According to the contract, the Claimant was entitled to receive a salary amounting to EUR 40,000 for each of the following periods: 2008-2009, 2009-2010, and 2010-2011, payable in ten equal monthly installments per season, the first of which was due on 31 August of the first year of the relevant period. In addition, the Claimant was, inter alia, entitled to receive the following benefits: i) the use, as a tenant, of a furnished house for a rent value of up to EUR 600/month; ii) two return plane tickets country Z - country C for the Claimant as well as for his wife and children; and iii) school fees, in a private school, for the Claimant’s children. 3. Pursuant to the supplementary agreement, the clause of the contract providing for the salary to be paid to the Claimant was amended as follows: i) in the period 2008-2009, an amount of EUR 30,000 was to be paid to the Claimant upon execution of the supplementary agreement, and the monthly instalments as foreseen in the contract were increased to EUR 5,000; and ii) in the period 2009-2010, an amount of EUR 20,000 was to be paid to the Claimant on 1 June 2009, and the monthly instalments as foreseen in the contract were increased to EUR 6,000. 4. On 3 August 2009, the Claimant lodged a claim before FIFA against the Respondent for the latter’s failure to respect its obligation to ensure the maintenance of contractual stability. The Claimant reported that on 8 July 2009 the contract was terminated by the Respondent without just cause on the grounds that the Claimant had failed to attend the training sessions scheduled on 6, 7, and 8 (morning) July 2009. While the Claimant was informed of the termination of his employment contract only orally upon his return to country Z on 20 July 2009, prior to this the Respondent had addressed two letters on this subject, respectively: i) to Mr K, on 7 July 2009, who was regarded by the Respondent as the Claimant’s agent, warning that, following the Claimant’s absence at the training session of 6 July 2009, the Claimant’s failure to attend the training session of 7 July 2009 would result in the termination of the contract by the Respondent, effective as of 8 July 2009; and ii) to the country Z Football Association, on 8 July 2009, informing the country Z Football Federation that it terminated the contract with the Claimant due to his unjustified absence from training on 6, 7 and 8 July 2009. 5. In this regard, the Claimant stated in his claim that, firstly, he was never duly notified of the termination of the contract, as such notification never reached him but did reach instead a third party, Mr K, who the Claimant did not recognise as his agent. 6. Secondly, the Claimant contested the grounds put forward by the Respondent in order to justify the termination of the contract with just cause. According to the Claimant, a number of reasons explained why he was unable to attend the training sessions of 7 and 8 July 2009, namely: a) The Respondent failed to provide the Claimant with the return plane tickets country Z – country C in accordance with the contract. Indeed, the Claimant stated that he was only provided with a return plane ticket country Z – country F (outbound flight scheduled for 28 June 2009 and inbound flight on 4 July 2009) on 27 June 2009, while the agreed return ticket should have been provided to him at the beginning of his holidays, ie 1 June 2009. As a consequence, the Claimant left on holidays only on 28 June 2009. b) Prior to leaving country Z, the Claimant informed the Respondent, on 27 June 2009, that his residence permit covering the first year of his contract, originally provided by the Respondent, had expired on 31 May 2009 and that his visa to enter country Z was valid only until 30 June 2009. According to the Claimant, while he was reassured by the Respondent that the necessary steps in order to renew the said documents would be taken, neither a new residence permit was provided to him nor the required documents to issue a new visa were sent to the country Z Embassy in country F before 4 July 2009, date of the plane ticket country F - country Z provided by the Respondent. In this regard, the Claimant stated that he had been told at the country Z Embassy in country F that only his employer could submit the documentation required in order to renew the visa. However, as the Respondent did not address any documents to the country Z Embassy in country F, the Claimant finally decided to provide the Embassy with a copy of his contract, on the basis of which a 30-day visa was issued. 7. Thirdly, the Claimant claimed that the Respondent failed to fulfil its obligations under the contract in a number of ways and in so doing did not respect its obligation to ensure the maintenance of contractual stability. In particular, in the Claimant’s view, the Respondent: i) failed to pay the amount of EUR 20,000 that fell due on 1 June 2009, according to the supplementary agreement; ii) stopped, from 12 June 2009, paying the rent (EUR 1,300/month) for the house provided to the Claimant, in breach of the contract; iii) failed to complete the required formalities in order to obtain a residence permit for the Claimant’s wife and children, while having kept, to the date of submission of the claim, the Claimant’s children’s passports; iv) failed to provide the return plane tickets country Z – country C for the Claimant’s wife and children and the return plane ticket country F – country C for the Claimant himself, in breach of the contract; and v) failed to pay the school fees in the private school attended by the Claimant’s children, in breach of the contract. In addition, the Claimant accused the Respondent of preventing him from practising his profession as a footballer because the Claimant was excluded from the team and prevented from taking part in the training sessions. 8. In view of the foregoing, the Claimant requested the Dispute Resolution Chamber: - To award him: a) Payment of the following outstanding amounts: i) EUR 20,000 that fell due on 1 June 2009; ii) EUR 10,000 for the failure of the Respondent to provide the agreed return plane tickets; iii) EUR 2,600 for the house rent corresponding to the period from 12 June 2009 to 11 August 2009; and iv) EUR 2,698 for the school fees corresponding to the period from 10 February 2009 to 1 March 2009. b) Compensation in the amount of: i) EUR 120,000 in salaries due for the remaining term of the contract; ii) EUR 16,900 for the house rent until 31 May 2010; iii) EUR 100,000 as moral damages caused by the Respondent’s fraudulent conduct; and iv) EUR 30,000 for the proceedings-related costs incurred by the Claimant. - To order the Respondent: a) To respect the contractual arrangements between the Respondent and the Claimant in order to ensure the maintenance of contractual stability until 31 May 2010. b) To impose the relevant sporting sanctions that the Respondent’s fraudulent conduct may deserve. 9. In its position in reply to the claim, the Respondent firstly stated that Mr E was indeed the agent of the Claimant as in this capacity Mr E co-signed the contract and the supplementary agreement. Also, the Respondent claimed that it would always contact Mr E for any matters concerning the Claimant. Therefore, since it was not possible to reach the Claimant, the Respondent addressed to Mr E the letter of 7 July 2009 urging the Claimant to attend the scheduled trainings. In addition, the Respondent held that the termination of the contract was legal since it was based on the failure of the Claimant to attend the training sessions. Moreover, the Respondent claimed that the Claimant did not object to the said termination. As a consequence of the termination, the Respondent first of all argued that the Claimant’s request for compensation for the house rent between 6 July 2009 and May 2010 must be rejected. In this regard, the Respondent stated that the Claimant did not pay any rent during the period for which payment of the rent was requested. In support of its claim, the Respondent stressed that the Claimant had not provided any proof of house rent payments. Similarly, according to the Respondent, the requested compensation for plane tickets had to be rejected as the Claimant flew back to country Z alone and no proof of payment of plane tickets had been submitted. 10. Furthermore, the Respondent argued that the amounts of EUR 120,000 and EUR 100,000 for loss of income and compensation for damages, respectively, had to be rejected because, in the Respondent’s view, they are groundless and not based on FIFA’s regulations. Also, the Respondent held that the EUR 30,000 request for compensation for the proceedings-related costs incurred by the Claimant must be rejected for lacking a legal basis and for its abusive and excessive nature. 11. As to the Claimant’s allegations regarding the new visa, the Respondent claimed that they were unfounded and constituted only an excuse to justify his failure to attend the training sessions. In support of its argument, the Respondent argued that: i) the Claimant was not diligent as, in the first place, he neither contacted nor informed the Respondent of his situation and, then, as the situation worsened, he did not involve his agent or legal representative; and ii) in the Respondent’s view, since the contract had been filed with the country Z Football Association and was in force until 31 May 2010, the Claimant should not have had any problems to travel back to country Z. 12. In turn, the Claimant reiterated that Mr E should not be regarded as the Claimant’s agent. Furthermore, the Claimant stated that he did contest the termination of the contract by the Respondent. As a matter of fact, the Claimant claimed that, in the days following the notification of the termination, his legal representative at the time travelled to country Z in order to precisely oppose the termination. Further, the Claimant stressed that a voluntary absence from training session, as the Respondent claimed, must be rejected. This is so because the Respondent prevented the Claimant from returning to country Z by never providing the country Z Embassy in country F with the required documentation enabling the issuance of a new visa and, in doing so, neglected its obligation to complete the necessary formalities in this regard, that shall in no event fall on the Claimant. 13. In its duplica, the Respondent merely reiterated its statement that Mr E was the agent of the Claimant. 14. Finally, the Claimant informed FIFA that, following the termination of his contract with the Respondent, he has been under contract with Club P from 1 July 2010 to 15 June 2012. During the period as from 1 July 2007 until 30 June 2011, the Claimant received a monthly salary amounting to EUR 8,000. Equally, the Claimant received a signing bonus of EUR 5,000 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, the Chamber took note that the present matter was submitted to FIFA on 3 August 2009. Therefore, the DRC 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 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 2012) the Dispute Resolution Chamber is competent to decide on the present litigation, concerning an employment-related dispute of an international dimension between a country C player and a country Z club. 3. In continuation, the DRC analysed which edition of 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 on the Status and Transfer of Players (editions 2009, 2010 and 2012) and also considering that the present claim was lodged in front of FIFA on 3 August 2009, the 2008 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 Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The DRC started by acknowledging that the parties to the dispute had signed an employment contract as well as a supplementary agreement valid as from 1 June 2008 until 31 May 2011. 5. Equally, the Dispute Resolution Chamber observed that the contract and supplementary agreement concluded between the parties stipulated an overall remuneration of EUR 200,000 to be paid as follows: an advanced payment of EUR 30,000, as signing fee, and ten monthly instalments of EUR 5,000 each for the 2008-2009 season; and an advance payment of EUR 20,000, due on 1 June 2009, and ten monthly instalments of EUR 6,000 each for the 2009-2010 season; and ten monthly instalments of EUR 4,000 each for the 2010-2011 season. In addition, the contract provided for the following benefits: i) the use by the Claimant, as a tenant, of a furnished house for a monthly rent value of up to EUR 600; ii) two return plane tickets from country Z to country C for the Claimant as well as for his wife and children; and iii) school fees, in a private school, for the Claimant’s children. 6. In continuation, the Dispute Resolution Chamber noted that the Claimant lodged a claim against the Respondent requesting the payment of an outstanding amount of EUR 35,298 as well as compensation totalling EUR 266,900. In particular, the DRC observed that the outstanding amount requested was made up of the following: an advance payment of EUR 20,000, due on 1 June 2009; EUR 10,000 for return plane tickets; EUR 2,600 for the rent between 12 June 2009 and 11 August 2009; and EUR 2,698 for the school fees for the Claimant’s children corresponding to the period from 10 February 2009 to 1 March 2009. As for the compensation requested, the Chamber noted that the Claimant had requested the salaries due for the remaining term of the contract, totalling EUR 120,000; the house rent until 31 May 2010, amounting to EUR 16,900; EUR 100,000 for moral damages; and EUR 30,000 compensation for the proceedings-related costs incurred. 7. Furthermore, the Dispute Resolution Chamber noted that the Claimant had requested disciplinary sanctions against the Respondent. 8. Having said this, the Chamber turned its attention to the arguments of the Respondent and took note of the fact that the contract had been terminated by the Respondent by means of a letter dated 8 July 2009 sent only to the country Z Football Association in order to inform the country Z Football Association that it terminated the contract with the Claimant due to the Claimant’s unjustified absence from training on 6, 7 and 8 July 2009. Equally, the Chamber noted that on 7 July 2009, the Respondent had addressed a letter to Mr E, who, according to the Respondent, was the Claimant’s agent at the time, by means of which the Respondent had warned the Claimant that should the latter not attend the training scheduled on 8 July 2009, the employment contract would be terminated with immediate effect. 9. In this context, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 10. In view of the above, the DRC firstly concluded that the Respondent shall carry the burden of proof as regards the due notification of the abovementioned letters to the Claimant as well as in relation to the other arguments put forward by the Respondent in the present matter. 11. In this respect, the Dispute Resolution Chamber ascertained that the Respondent was unable to prove that the relevant letters had been duly notified to the Claimant. Further, in relation to the arguments put forward by the Respondent as the basis for the termination of the contract, that is the Claimant’s failure to attend a number of training sessions, the DRC stated that it could be drawn from the submissions of the parties during the investigation that the Respondent had not sufficiently proved the unjustified nature of the Claimant’s absence from the training sessions scheduled for 6, 7, and 8 July 2009. 12. In continuation, the Chamber was eager to emphasise that in any event only a breach or misconduct which is of a certain severity justifies the termination of a contract. 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. 13. In view of the above, the Chamber was of the opinion that the Respondent, despite the undisputed absence of the Claimant from the training sessions of 6, 7, and 8 July 2009, did not have just cause to prematurely terminate the employment contract with the Claimant, since there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine), in order to sanction the absence, which is at the basis of the termination of the employment contract by the Respondent. 14. Overall, the Chamber decided that there was no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, that the Respondent had breached the employment contract without just cause. 15. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber 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 of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract. 16. First of all, the Chamber reverted to the Claimant’s financial claim, which includes outstanding remuneration amounting to EUR 35,298, namely: an advance payment of EUR 20,000; EUR 10,000 for return plane tickets; EUR 2,600 for the rent from 12 June 2009 to 11 August 2009; and EUR 2,698 for the school fees for the Claimant’s children corresponding to the period from 10 February 2009 to 1 March 2009. 17. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim and the fact that the employment contract was considered terminated on 8 July 2009, the Chamber decided that the Respondent is liable to pay to the Claimant the following monies, totaling EUR 26,191: EUR 20,000 relating to the one-off payment that fell due on 1 June 2009; rent for June 2009 in the amount of EUR 600; EUR 2,893 for four return plane tickets country F – country C, as established by the FIFA Travel Department; and EUR 2,698 for school fees. 18. 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 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. 19. 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. 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. 20. 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 until 31 May 2011, taking into account that the Claimant’s remuneration until June 2009 is included in the calculation of the outstanding remuneration (cf. no. II./17. above). Consequently, the Chamber concluded that the amount of EUR 106,600 (i.e. salary for the 2009-2010 and 2010-2011 seasons) serves as the basis for the final determination of the amount of compensation for breach of contract. 21. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time for the present case, by means of which he would have been enabled to mitigate 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 Claimant’s general obligation to mitigate his damages. 22. The Chamber noted that the Claimant had been registered as a professional with the Romanian club, Club P, from 1 July 2010 to 15 June 2012. Furthermore, the Chamber observed that during the period relevant for the present matter, the Claimant received a signing bonus of EUR 5,000 and a monthly salary amounting to EUR 8,000. 23. 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 66,600 to the Claimant as compensation for breach of contract. 24. Furthermore, as regards the Claimant’s claim pertaining to moral damages, which was not at all specified by the Claimant, the Chamber agreed that such claim is to be rejected due to a lack of legal basis. 25. In addition, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 26. Finally, the DRC concluded its deliberations in the present matter by rejecting any further claim of the Claimant. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player O, is partially accepted. 2. The Respondent, Club L, 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 26,191. 3. The Respondent, Club L, 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 66,600. 4. In the event that the amounts due to . 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 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