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 7 June 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member Johan van Gaalen (South Africa), member Mario Gallavotti (Italy), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player Player X, from country B as Claimant against the club Club H, from country I as Respondent regarding a contractual 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 7 June 2013, in the following composition: Geoff Thompson (England), Chairman Philippe Piat (France), member Johan van Gaalen (South Africa), member Mario Gallavotti (Italy), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player Player X, from country B as Claimant against the club Club H, from country I as Respondent regarding a contractual dispute arisen between the parties. I. Facts of the case 1. On 2 July 2006, Player X, from country B (hereinafter: the Claimant) and Club H, from country I (hereinafter: the Respondent) concluded a four-year employment contract valid for the seasons 2006/2007, 2007/2008, 2008/2009 and 2009/2010. 2. According to art. 2.1. of the employment contract, the Claimant was entitled to receive as salary:  for the season 2006/2007: • Currency of country I 1,186,005 (EUR 208,884), in twelve monthly instalments of currency of country I 98,834 (EUR 17,407) each, payable on the 9th of the following month, • a special bonus in the amount of currency of country I 1,186,005 payable 3 days after the Respondent receives an official confirmation of the Claimant’s registration from the country I Football Association,  for the seasons 2007/2008 to 2009/2010: • Currency of country I 1,779,008 (EUR 308,490) for each season, in twelve monthly instalments of currency of country I 148,251 (EUR 25,707) each, payable on the 9th of the following month, • a special bonus in the amount of currency of country I 593,003 (EUR 102,830) for each season. 3. Art. 4.1 of the employment contract provides that “Should the Player suffer an injury and/or fall ill as a result of a football match and/or team training, the Player will receive in full the sums that are prescribed in [art. 2] and/or [art. 6 of the contract], including the basic salary, the bonuses and all other payments until the Player recovers and returns to be fully active but not beyond the season in which the Player was injured or after three months have elapsed from the date of the injury, whichever is the later, but in no case shall this be beyond the Period of this Agreement”. 4. In July 2007, the Claimant was loaned to the Club G, from country B (hereinafter: Club G) until 31 May 2008. 5. On 12 May 2008 and 21 May 2008, the Claimant contacted the Respondent in order to find out what would be the schedule for his return to country I, since the loan would expire at the end of May 2008. 6. On 27 May 2008, the Respondent informed the Claimant that it was looking for a club in country I which the Claimant could join upon expiry of the loan to Club G, and that it would inform the Claimant of any developments in due course. 7. On 26 June 2008, the Claimant again contacted the Respondent regarding any developments, and requested a flight ticket to country I. 8. On 24 September 2008, the Claimant, having finally received flight tickets, travelled back to country I. 9. On 10 and 16 October 2008, the Claimant sent default notice letters to the Respondent, requesting payment of his salaries as from June until September 2008, to be provided with an apartment, as well as the special bonus for the season 2008/2009. 10. On 16 October 2008, the Respondent replied that the Claimant is not entitled to any amounts from the Respondent, after which the Claimant, on 19 October 2008, terminated the employment contract in writing, invoking just cause. 11. On 28 November 2008, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, claiming the following:  outstanding salaries in the total amount of currency of country I 593,002.64 corresponding to the salaries for the months of June to September 2008,  compensation in the amount of currency of country I 2,965,013.40 corresponding to the remaining value of the contract (20 X currency of country I 148,251),  “the corresponding interest rate”,  sporting sanctions. 12. In support of his claim, the Claimant argued that he was entitled to terminate the contract due to the Respondent’s fault, the latter having refused to allow him to render his services following the expiry of his loan to Club G. The Claimant further indicated that the Respondent refused to pay his salaries from June to September 2008 due to the fact that he sustained an injury while playing for Club G, based on art. 4.1 of the employment contract, a clause which the Claimant considers to be invalid. 13. Finally, the Claimant alleged that while awaiting further instructions from the Respondent between June and September 2008, he had been contacted by the Club S, from country B, but that ultimately, as the Respondent did not reach any agreement with Club S, and as the registration period came to an end in country B, the transfer never transpired. 14. In its reply to the claim, the Respondent rejected the Claimant’s claim entirely, insisting on the fact that it had always performed its obligations towards the Claimant by having paid all of his salaries during the season 2006/2007. Furthermore, the Respondent explained that following the expiry of the loan to Club G and failed attempts to loan the Claimant to another club, the Respondent honoured the contract with the Claimant by providing him with flight tickets in order to return to country I in September 2008, and had planned to reintegrate him into the team. 15. However, upon the Claimant’s return, a medical examination was performed on the Claimant, which revealed that he had suffered an injury during the period of the loan to Club G. Simultaneously, the Respondent allegedly discovered that the Claimant had not been playing for more than six months, nor did he receive adequate treatment or make any efforts to maintain his shape. 16. In the Respondent’s opinion, the Claimant himself was to blame for the extent of his injury through his negligent behaviour towards his treatment, which he apparently had terminated early. In addition, the Respondent maintained that the Claimant had never informed the Respondent of the injury prior to his return to country I and thus did not act in a professional manner. 17. The Respondent therefore deems that it is the Claimant who has breached the contract; nevertheless, the latter decided to put an end to the contract on 19 October 2008. 18. As to the non-payment of the Claimant’s salaries as from the expiry of the loan to Club G, the Respondent stated that, on the one hand, the negligent behaviour of the Claimant justified it and, on the other hand, it was entitled not to pay the Claimant in accordance with art. 4.1 of the contract, which stipulates that the Claimant shall not receive his salary beyond the season in which he was injured. As to the validity of the said clause, the Respondent deems that the Claimant had agreed to its contents when signing the employment contract. 19. Furthermore, the Respondent referred to its obligation under art. 6 of the contract to insure the Claimant against any injury sustained during training and/or a match of the Respondent and stated that, while on loan with Club G, the latter Respondent should have undertaken the same obligation. 20. Therefore, according to the Respondent, any claims of the Claimant pertaining to the period during which he was injured and the implementation of such injury should be directed against Club G. 21. Finally, as to the Claimant’s allegations pertaining to his failed transfer to Club S, the Respondent insisted that it had made some persistent efforts to loan the Claimant to Club S, but that the negotiations eventually failed due to the Claimant’s own fault, since he had allegedly refused to go to Club S, fact which, in the Respondent’s opinion, is clearly linked to the Claimant’s injury, of which the Respondent had no knowledge at the time. 22. In his replica, the Claimant indicated that he never denied having been injured and having received treatment at Club G. However, he underlined that the Respondent had, since the expiry of the loan to Club G, showed no interest whatsoever in his services, having issued him flight tickets to return to country I almost three months after the expiry of the loan. 23. The Claimant further argued that in fact, the Respondent wished to reduce his salary by 50% since, allegedly, the Respondent could not afford to pay the agreed salary as per the employment contract. The Claimant had refused such offer since, at the time, the Respondent was already in default of payment of his salary for 4 months. 24. The Claimant also asserted that since his return to country I until the termination of the employment contract, he had continued to train with the team and was at the Respondent’s disposal. 25. Finally, the Claimant reiterated that art. 4.1 of the employment contract should be considered as null and void and underlined that, although on loan with Club G at the time of his injury, he was still, at that time, contractually bound to the Respondent, and that in any case an injury cannot be considered as a valid cause for a unilateral termination of an employment contract. Moreover, the Claimant challenged the credibility of the medical report presented by the Respondent since it was established by the Respondent’s own medical staff. 26. Regarding the Respondent’s allegations in relation to insurance coverage in case of injury, the Claimant highlighted that it was clearly the Respondent’s responsibility to ensure that it had a proper insurance coverage in case of injury throughout the contract, and that the Respondent failed to secure such insurance coverage. In this regard, the Claimant noted that the Respondent had allegedly never complained to Vasco da Gama regarding this issue. 27. In its final position, the Respondent maintained its previous position and noted from the Claimant’s replica that i) he acknowledged having been injured during the time spent at Club G; ii) he did not provide any evidence of any medical treatment having been performed by Club G. 28. Regarding the Claimant’s delayed return to country I, the Respondent emphasized that during that time, several clubs in country B had expressed their interest in the Claimant, and thus it decided not to call back the Claimant immediately in order to explore the chances of the Claimant being transferred to another club. Equally, the Respondent stressed that both parties had been interested in finding the Claimant a new club, thus it finds the Claimant’s allegation that it was only the Respondent that had no interest in him somewhat surprising. 29. Additionally, the Respondent acknowledged the fact that it offered to keep the Claimant and to take care of his medical treatment “beyond the letter of the law and without being obliged to do so”, but only in consideration of a reduced salary. However, the Claimant’s response to such proposal was that “he prefer[red] to sit in the tribune with the fans and not playing during the entire season, then receiving the Respondent’s offer”. In this regard, the Respondent stated that it did not have any financial difficulties and could have paid the Claimant’s salary in full, however, due to the Claimant having, in their opinion, breached the contract, “and in light of the club’s good will”, it offered the Claimant to reduce his salary. 30. The Respondent also denied the Claimant’s argument that it never sought damages from Club G due to the Claimant’s injury, since it filed a claim with FIFA regarding this specific issue on 2 September 2009, however FIFA replied that such matters, i.e. insurance-related matters, do not fall within FIFA’s competence. The Respondent specified that it reserves all its rights to seek redress in front of other instances against Club G in this respect. 31. The Respondent asserted that it had properly insured the Claimant for the season 2006/2007, but that such obligation was shifted to Club G and that this is expressly mentioned in the loan agreement between the two clubs. 32. Finally, the Respondent underlined that it had purchased the Claimant for EUR 750,000, expecting him to remain at the club for four seasons and/or to be compensated when releasing him to another Respondent. However, it finds itself suffering an enormous damage and managing the Claimant’s claim, all this being a direct consequence of Club G’s behaviour during the period of the loan. 33. The Claimant informed FIFA that after the termination of the employment contract with the Respondent, he had signed the following contracts:  Club E: March to December 2009 – salary of currency of country B 15,000 per month, terminated after two months,  Club J: September to December 2009 – salary of currency of country B 15,000 per month,  Club B: from 22 September until 22 December 2010 – salary of currency of country B 3,500. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 28 November 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. art. 21 par. 1 and par. 2 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 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 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 (editions 2012, 2010 and 2009), and considering that the present claim was lodged on 28 November 2008, the 2008 edition of 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 this respect, the Chamber started by acknowledging all the facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the present matter. 5. The DRC firstly noted that on 2 July 2006 the parties concluded a four-year employment contract valid for the seasons 2006/2007, 2007/2008, 2008/2009 and 2009/2010. 6. The Chamber further pointed out that following the expiry of the loan of the Claimant to the Club G, from country B, as from July 2007 until 31 May 2008, the parties exchanged some correspondence during the summer of 2008 regarding the Claimant’s employment situation; the Claimant, on the one hand, sought to resume duty with the Respondent and requested the latter to provide him with a flight ticket to return to country I, while the Respondent, on the other hand, was exploring the possibility of loaning the Claimant once again to another club. 7. It is apparently following some failed attempts to loan the Claimant that the Respondent finally sent the Claimant a flight ticket to return to country I on 24 September 2008. 8. On 19 October 2008, the Claimant terminated the employment contract in writing, invoking just cause, after having put the Respondent in default on two occasions of its arrears in payment of his salary as from June until September 2008. 9. The Claimant thus lodged a claim in front of FIFA against the Respondent, alleging that he had just cause to terminate the employment contract concluded between the parties, and requesting outstanding remuneration, compensation for breach of contract and sporting sanctions against the Respondent. 10. The Claimant deems that the Respondent had shown little interest in pursuing their employment relationship, having neglected to finalize his transfer to Club S and sent him a flight ticket to return to country I more than 3 months after the expiry of his loan to Club G. 11. Furthermore, the Claimant asserts that the Respondent could not invoke art. 4.1 of the employment contract to justify the non-payment of his salary from June to September 2008, as such contractual clause is to be considered as null and void. 12. Finally, the Claimant acknowledges having sustained an injury during his loan to Club G but denies having been negligent towards his treatment or having disguised his injury in any way. He points out that in any case, an injury does not constitute a valid cause to terminate an employment contract. 13. The Respondent, for its part, rejected the Claimant’s claim entirely, stating that during the summer of 2008 it had looked for some opportunities to loan the Claimant and that as soon as it turned out that it was not possible to loan him, the Respondent issued the Claimant a flight ticket and was intending to honour the contract. However, upon the Claimant’s arrival in country I and after having performed a medical examination on him, the Respondent became aware that the Claimant had sustained an injury during his loan to Club G. In the Respondent’s opinion, it was entitled, in accordance with art. 4.1. of the contract, not to pay the Claimant’s salary beyond the season during which the injury occurred. Furthermore, the Respondent alleged that the Claimant had acted in a negligent way by not maintaining his physical shape after his injury, and that any claims of the Claimant in relation to the period during which he was injured should be directed at Club G, which had, according to the loan agreement concluded between the two clubs, undertaken to insure the Claimant during the period of the loan. 14. The DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to terminate the contract on 19 October 2008. 15. In this context, the Chamber first of all analysed the contents of art. 4.1. of the contract on which the Respondent bases its alleged right not to pay the Claimant’s salary beyond the season during which the Claimant sustained an injury. In the Chamber’s view, such contractual clause is not valid as a player’s injury cannot be a valid reason not to pay a player’s salary. In this regard, the Chamber referred to its constant jurisprudence, in accordance with which a player’s injury is not a just cause to terminate an employment contract; all the more so, a club is expected either to pay a player’s salary during the time where the latter suffers an injury, or to have a proper insurance coverage. 16. Furthermore, the circumstance that the Claimant’s injury occurred during the time that the latter was on loan to Club G does not justify the Respondent’s failure to pay the Claimant’s salary after the said loan expired. Equally, the Chamber rejected the Respondent’s argument that any claims of the Claimant should be directed against Club G, since it is established that the reason for the termination of the contract was the non-payment of the Claimant’s salary since June 2008, i.e. after the period of his loan to Club G. 17. Thus, the Chamber reasoned that it remained uncontested that at the time that the Claimant terminated the contract on 19 October 2008, the Respondent had not paid the Claimant’s salary for four months, i.e. the months as of June to September 2008. Equally, the DRC found no other valid reason why the Respondent would not have paid such salary to the Claimant. 18. In this regard, the Chamber referred to its well-established jurisprudence in accordance with which, the non-payment of a player’s salary, without any valid reason, over a substantial period of time, and where the player has duly put the club in default of the payment of the salary prior to the contract termination, entitles a player to put an end prematurely to the contractual relationship. The Chamber wished to stress that, in casu, the Claimant had indeed put the Respondent in default by means of two letters dated 10 and 16 October 2008. 19. In view of the above considerations, the Chamber came to the uninamous conclusion that the Claimant terminated the contract with the Respondent with just cause on 19 October 2008. 20. In continuation, the Chamber turned its attention to the question of the consequences of the Respondent’s breach of the contract without just cause. 21. 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 Chamber focussed its attention on the consequences of such termination. 22. First of all, the DRC took note of the Claimant’s request regarding the outstanding salaries at the time of the unilateral termination of the contract and reiterated that the Respondent had not given any valid explanations or justifications for the non-payment of the relevant salaries. 23. In view of the above, the DRC held that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of pacta sunt servanda, and decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the early termination of the employment contract by the Claimant, i.e. the salary for the months from June to September 2008 in the total amount of currency of country I 593,002.64 as claimed. Furthermore, the DRC decided to grant the Claimant’s claim interest, i.e., in accordance with the Chamber’s practice, 5% interest per annum on the aforementioned amount as from 12 December 2008 until the date of effective payment. 24. In continuation, the DRC decided that, taking into consideration the Claimant’s respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 25. In this context, the Chamber outlined that, in accordance with said provision, 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. 26. 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. The members of the Chamber assured themselves that no such compensation clause was included in the employment contract at the basis of the matter at stake. 27. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasized beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 28. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 29. In accordance with the contract signed by the Claimant and the Respondent, which was to run for 20 months more, i.e. until 30 June 2010, after the termination occurred, the Claimant was to receive the total amount of currency of country I 2,965,013.40 as claimed. Such amount shall serve as a basis for the calculation of the compensation for breach of contract. 30. Subsequently, the Chamber took note of the fact that the Claimant claims to have signed the following contracts with three country B clubs after the termination of the contract with the Respondent:  with Club V: March to December 2009 – salary of currency of country B 15,000 per month, terminated after two months,  with Club J: September to December 2009 – salary of currency of country B 15,000 per month,  with Club B: from 22 September until 22 December 2010 – salary of currency of country B 3,500. 31. In this regard, the Chamber deemed important to note that the alleged circumstance that the contract with Club V was terminated after two months cannot be held against the Respondent, and that consequently the Claimant’s entire remuneration with the said country B club as from March to September 2009 (when he concluded a contract with Club J) had to be taken into account in terms of mitigation of the Claimant’s damage. 32. Equally, in the context of the Claimant’s obligation to mitigate damages, the Chamber highlighted that the Claimant had remained remained unemployed as from January until June 2010. This is, the Claimant could have found employment during the open registration period in January 2010 and thus mitigate his damages. Consequently, the members of the Chamber agreed that the amount of currency of country I 900,000, which represents the income which the Claimant would have earned with the Respondent as from January until June 2010, shall be taken deducted from the amount of compensation for breach of contract payable by the Respondent to the Claimant in the present matter. 33. Thus, the Chamber established that it must deduct the amount of currency of country B 150,000 corresponding to the remuneration as per the contracts with Club V and Club J, equivalent to currency of country I 240,000 from the basis of the compensation. Furthermore, it must deduct also the amount of currency of country I 900,000 corresponding to the last six months under the contract with the Respondent. 34. Taking into account all the aforementioned objective elements as well as the specificities in the matter at hand, the Dispute Resolution Chamber decided that the total amount of currency of country I 1,825,013 was to be considered reasonable and justified as compensation for breach of contract to be paid by the Respondent to the Claimant in the case at hand. Furthermore and light of the Claimant’s respective request, the Chamber decided to apply interest of 5% per annum on the said amount as from the date of the decision, i.e. 30 June 2013, until effective payment. 35. In conclusion, the DRC decided to partially accept the claim of the Claimant and holds the Respondent liable to pay the Claimant the amount of currency of country I 593,002.64 plus 5% interest as from 12 December 2008 on the said amount until the date of effective payment, as well as currency of country I 1,825,013 as compensation for breach of contract, plus 5% interest as from 7 June 2013 on the said amount until the date of effective payment. 36. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player X, is partially accepted. 2. The Respondent, Club H, has to pay to the Claimant, Player X, within 30 days as from the date of notification of this decision, outstanding salaries in the amount of currency of country I 593,002.64 as well as 5% interest per annum on the said amount as from 12 December 2008. 3. The Respondent, Club H, has to pay to the Claimant, Player X, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of currency of country I 1,825,013 as well as 5% interest per annum on the said amount as from 7 June 2013. 4. Any further claims lodged by the Claimant, Player X, are rejected. 5. If the aforementioned sums plus interest are not paid within the above-mentioned time limits, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 6. The Claimant, Player X, is directed to inform the Respondent, Club H, 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 article 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: Markus Kattner Deputy Secretary General Encl. CAS Directives