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 6 March 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player M, from country B as Claimant against the club, Club H, from country I 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 6 March 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player M, from country B as Claimant against the club, Club H, from country I as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 31 October 2009, Player M, from country B (hereinafter: player or Claimant), and Club H, from country I (hereinafter: club or Respondent), concluded an employment contract (hereinafter: contract) valid as from the date of signature “until the end of league championship and cup games of the season 2009/2010”. 2. The country I Football Federation confirmed that the 2009/2010 season ended on 19 May 2010. 3. In accordance with the contract, the player was entitled to receive, inter alia, the total amount of USD 60,000: • USD 12,000 “after signature of the contract and receipt the I.T.C card from country B FOOTBALL FEDERATION and registration in the Football Federation of the country I for the period of 48 hours (…)” • USD 48,000 to be paid in 7 monthly equal instalments of USD 6,858. 4. On 25 November 2009, the player lodged a claim before FIFA maintaining that the club, by failing to fulfil both its administrative and financial obligations, had breached the employment contract without just cause and, in consequence, requested to be awarded the total amount of USD 66,858, plus 5% interest p.a. as of 10 November 2009: • USD 12,000, corresponding to the signing-on fee; • USD 13,716, corresponding to his monthly salary of November and December 2009; • USD 34,284, corresponding to the residual value of the contract as of January 2010 until May 2010; • USD 6,858 as compensation. 5. Upon his arrival in country I on 30 October 2009, the player claims to have been provided with the pertinent visa, valid until 14 November 2009. However, inexplicitly, on 10 November 2009 after the club´s failure to request the pertinent International Transfer Certificate (ITC), the player was apparently informed that his skills no longer fitted with the club´s demands, reason for which, with no apparent written explanation, the club arranged for the player´s imminent return flight home. 6. On 12 November 2009, the player formally contacted the club via the country I Football Federation, requesting a written explanation, as per solving the matter in an amicable manner. 7. On 17 November 2009, after having failed to receive a reply from the club and bearing in mind that his pertinent visa had expired on 14 November 2009, the player, once again, formally notified the club via the country I Football Federation, seeking immediate explanation or in default, compensation for the club´s apparent breach of contract without just cause. 8. Notwithstanding the club´s lack of response, the player is nonetheless adamant that a contract is valid upon signing; the failure of the club to request the ITC does not exempt the club from its duties towards a player. Moreover, the club´s oral excuse regarding his skills upon signing must never be considered a valid reason for not fulfilling its contractual obligations. 9. In its reply, the club claims that the player was first invited to country I for “Technical and Medical Test” and only after participating in one of the club´s training sessions, upon the recommendation of the club´s manager, an “internal contract” was signed with the player “for motivating him to train better”. 10. Moreover, the club informed FIFA that according to country I regulations, contracts must be registered in the Football Association of each city as well as in the country I Football Federation, which in the case at hand was not possible since the player had allegedly left country I before the club could do so. Furthermore, according to the club, during the player´s stay, the city suffered several earthquakes which seemed to frighten the player, eventually forcing him to leave the country without permission. 11. The club finally points out that as a result of the “unavailability of the player” it could neither register the above-mentioned contract in the country I Football Federation nor request the ITC for the player. 12. Finally, the player informed FIFA that on 4 January 2010, he concluded an employment contract with the Club S, from country S, valid as from the date of signature until 7 July 2010, in accordance with which he was entitled to receive the total amount of currency of country B 5,600 to be paid in four monthly instalments of currency of country B 1,400. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 25 November 2009. 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 2008 and 2012 editions of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country B player and an country I club. 3. Furthermore, 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 2009, 2010 and 2012), and considering that the present claim was lodged on 25 November 2009, the 2009 edition of said regulations (hereinafter: Regulations) is applicable to the substance of the matter at hand. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge acknowledged that the Claimant and the Respondent concluded an employment contract on 31 October 2009 valid as from the date of signature “until the end of league championship and cup games of the season 2009/2010”, which according to the country I Football Federation was to end on 19 May 2010. 5. According to said contract, the parties established, among other details, that the Claimant would be entitled to receive, inter alia, a signing-on fee of USD 12,000 and a salary of USD 48,000, providing for a total remuneration of USD 60,000 for the duration of the contract. 6. The DRC judge noted that the Claimant, on the one hand, maintains that after the Respondent´s failure to secure the pertinent ITC, on 10 November 2009, he was arranged with a flight ticket home on the basis of the fact that his skills no longer fitted with the clubs demands. Whilst, the Respondent on the other hand, not contesting the player´s allegations of lack of skills, holds the Claimant responsible for the non-registration and failed ITC request. The Respondent explained that, according to the country I Regulations, contracts must be registered in the Football Association of each city as well as in the country I Football Federation, which in the case at hand, according to the Respondent, was not possible as the Claimant had left the country before it could actually do so. As a result of the “unavailability of the player”, the Respondent assures to have been unable to i) register the employment contract in the country I Football Federation and ii) request the ITC for the player. 7. Consequently, and bearing in mind that the validity of the contract had, as such, not been contested by the parties, the DRC judge firstly focussed his attention on the question as to whether the non-acquisition of the ITC and the non-registration of the player in the pertinent football association, could be deemed as a valid reason not to execute the employment contract concluded by the parties on 31 October 2009. 8. In this respect, the DRC judge first and foremost outlined that as soon as an employment contract is signed between a club and a player, rights and responsibilities ensue on both sides without being subject to any particular condition. Having said this, the DRC judge considered relevant to recall past jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration of the employment contract with the national football association, this being the sole responsibility of a club. 9. As regards the case at stake, the club acknowledged that no ITC was requested. Bearing in mind that according to Annexe 3 of the Regulations an ITC request depends on the new club´s application to the new association to register a professional, the club is actually in the position to prevent the occurrence of the condition precedent of receipt of an ITC by wilfully choosing not to proceed with the application of an ITC request. Moreover, the DRC judge emphasised that, as a general rule, the homologation and/or registration of an employment contract at a federation does not constitute a condition for its validity. In fact, the DRC judge deemed that the validity of an employment contract cannot be linked to the willingness of the association of the club concerned to register the player. 10. Consequently and taking into account that the Respondent did not contest that it had not performed any of its obligations under the employment contract, the DRC judge decided that such conduct constituted a clear breach of contract and, accordingly, decided that the Respondent was responsible for the premature termination without just cause of the employment contract entered into between the parties. 11. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the DRC judge focused his attention 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 this context, the DRC judge wished to outline that although a valid contract was concluded between the parties, such contract was in fact never executed. 12. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge 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. 13. 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. 14. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 19 May 2010 and concluded that the Claimant would have received a total remuneration of USD 60,000 had the contract been executed until its expiry date. 15. 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 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 player’s general obligation to mitigate his damages. 16. Indeed, on 4 January 2010, the DRC judge noted that the Claimant found employment with the Club S, from country B. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid as of the date of signature until 7 July 2010, the Claimant was entitled to receive the total amount of currency of country B 5,600 (approx. USD 3,824). 17. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. What is more, the DRC judge also considered it important to point out that, although the employment contract was fully valid and enforceable, the execution of the contract actually never started, an element which equally should be taken into consideration in the calculation of the amount of compensation. 18. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided that the Respondent must pay to the Claimant the amount of USD 20,000 plus 5% interest p.a. on said amount as of 6 March 2013, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 19. The DRC judge concluded his deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player M, is partially accepted. 2. The Respondent, Club H, has to pay to the Claimant the amount of USD 20,000 plus 5% interest p.a. on said amount as of 6 March 2013 until the date of effective payment. 3. If the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged 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 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: Markus Kattner Deputy Secretary General Encl.: CAS directives