F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 31 July 2013, in the following composition: on the claim presented by the player, Player A, from country M as Claimant / Counter-Respondent against the club, Club F, from country R as Respondent / Counter-Claimant regarding an employment-related dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 31 July 2013, in the following composition: on the claim presented by the player, Player A, from country M as Claimant / Counter-Respondent against the club, Club F, from country R as Respondent / Counter-Claimant regarding an employment-related dispute between the parties I. Facts of the case 1. On 7 July 2009, the player form country M (hereinafter: the Claimant / Counter-Respondent), and the club from country R (hereinafter: the Respondent / Counter-Claimant) concluded an employment contract (hereinafter: the contract) valid as from 15 July 2009 until 14 July 2010. 2. According to the contract, the Claimant / Counter-Respondent was to receive, inter alia, a total remuneration of EUR 800,000 made up of: - EUR 300,000 payable on 15 July 2009; - EUR 500,000 divided into 12 equal monthly salary instalments of EUR 41,666 to be “paid on the first week of each month”. 3. Clause 2 of the contract provided, inter alia, the following relevant duties to be performed by the Claimant / Counter-Respondent: a) Participation in all matches, training sessions and all related activities, unless otherwise required by the Respondent / Counter-Claimant or due to any health condition that prevents him in doing so advised by a medical report; b) To “exert every possible participation effort and capability to achieve perfect performance and results as provided for Clause 2/A above and compliance with football rules”; d) Compliance with all decisions issued by the Claimant / Counter-Respondent and the Association; f) To be a role model in conduct as well as to represent Respondent / Counter-Claimant in the best possible manner; j) Compliance “with performance of training programs decided by the technical staff at any time during the day”; l) “Not to depart the country without written permission from the club. If the Player’s return is beyond the agreed date, the player will be fined (5,000) euro (five Thousands) EURO for each day delayed, and two month salary if he delays more than five days”. 4. Clause 9 of the contract listed the following penalties in the event Claimant / Counter-Respondent was to violate the contract: a) “If the player is absent from a training session without an acceptable reason, he will be fined Euro 5,000 per session. This fine is subject to multiply at each absence repetition”; b) “If the player is absent from an official match without an acceptable reason, he will be fined a whole three monthly salaries”. 5. Finally, the contract provided in its Clause 12 lit. j), that “if any party wishes to terminate the contract before its expiry date: The wishing party must pay the rest of the contract value to the other party”. 6. On 23 September 2010, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant for breach of contract before FIFA requesting EUR 291,662 as outstanding remuneration which corresponds to outstanding monthly salaries of January until July 2010 plus 5% p.a. of interest. 7. In its reply, the Respondent / Counter-Claimant provided a correspondence dated 10 April 2010 allegedly sent to the Claimant / Counter-Respondent, in which the Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent was absent from training sessions as of 16 January 2010 until to date and left the country as from 18 until 23 January 2010 and as from 12 until 21 February 2010. Therefore, the Respondent / Counter-Claimant asserted that it was entitled to deduct 50% from the basic salary for the months of January until March 2010 as fines from the Claimant / Counter-Respondent’s salary. 8. Furthermore, the Respondent / Counter-Claimant provided on file a letter sent to the Football Association of country R on 29 April 2010 stating that the Respondent / Counter-Claimant had given a warning to the Claimant / Counter-Respondent regarding “his commitment to the team training by express mail” dated 10 April 2010 and received by the Claimant / Counter-Respondent on 15 April 2010. 9. The Respondent / Counter-Claimant once again made reference to its correspondence dated 10 April 2010 and alleged having tried contacting the Claimant / Counter-Respondent in order to have him perform his contractual obligations and “to play in the Official Tournaments of the Association of country R but all attempts of the Club were in vain, thus the club was forced to play these matches with insufficient players” and forced to register another professional since the whereabouts of the Claimant / Counter-Respondent where unknown. 10. Consequently, the Respondent / Counter-Claimant alleged that the Claimant / Counter-Respondent violated clause 2 of the contract, as well as clause 13 of the regulation of players’ conditions and transfers issued by the UAE Football Federation, and therefore was entitled to deduct from the Claimant / Counter-Respondent’s salaries the following remuneration: - half of the salaries of January, February and March 2010, pursuant to the notice of compliance with trainings given by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent with its correspondence dated 10 April 2010 (EUR 62,499); - the salary of two months (EUR 83,332), because the Claimant / Counter-Respondent delayed travel from 18 January to 23 January (6 days) and 12 February to 21 February (9 days), in accordance with art. 2 lit. l) of the contract; - the salaries of April, May, June and July 2010 (EUR 124,998) the period remaining from the term of the contract because the Claimant / Counter-Respondent was absent from training and failed to inform to the Respondent / Counter-Claimant. 11. In his replica, the Claimant / Counter-Respondent alleged that the Respondent / Counter-Claimant’s allegations were not based upon good faith, since he had fulfilled all obligations in relation to the contract. Moreover, the Respondent / Counter-Claimant did not provide any evidence for said allegations, since he allegedly never received the correspondence of the Respondent / Counter-Claimant dated 10 April 2010. Furthermore, he asserted to have been “sacked by the coach from the first team” in January 2010, once the Respondent / Counter-Claimant had four foreign players even though the limit was three. From that moment on, the Claimant / Counter-Respondent stated to have trained separately from the other players, and consequently his next seven monthly salaries were not paid by the Respondent / Counter-Claimant. 12. Moreover, no club would accept a player to be absent seven months from training without unilaterally terminating said employment with just cause and he had always fulfilled the trainings by the Respondent / Counter-Claimant and had never left the country without at least a verbal authorisation. 13. In its reply, the Respondent / Counter-Claimant lodged a counter-claim against the Claimant / Counter-Respondent and after amending its counter-claim, claims EUR 1,433,338 as compensation composed of: - EUR 700,000 for the Claimant / Counter-Respondent’s absence to the training sessions. The Respondent / Counter-Claimant made reference to art. 2 lit. l), as well as art. 9 lit. a) of the contract and stated that the Claimant / Counter-Respondent had been absent from the 5 training sessions held per week, for the period of 7 months (i.e. EUR 5,000 fine x per absent training for the season); - EUR 249,996 for the Claimant / Counter-Respondent’s absence of two official matches allegedly held on 25 December 2009 and 17 January 2010, according to art. 9 lit. b) of the contract (i.e. EUR 41,666 as monthly salary x 6 monthly salaries fine); - EUR 83,332 corresponding to two monthly salaries in case the absence is of more than 5 days as per art. 2 lit. l) of the contract; - EUR 400,000 as penalty clause (cf. Clause 12 lit. j) of the contract); - legal expenses. 14. In this respect, the Respondent / Counter-Claimant asserted that the Claimant / Counter-Respondent terminated the contract without just cause on 20 December 2009, which was the date he played the last match for the Respondent / Counter-Claimant. Moreover, the Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent stayed in the country until 18 January 2010, leaving the country without authorized permission from the Respondent / Counter-Claimant. In this regard, the Respondent / Counter-Claimant provided an Immigration Statement of the Ministry of Interior of the country R confirming that the Claimant / Counter- Respondent entered the country on 19 November 2009 and exited on 18 January 2010, re-entered the country on 23 January 2010 and exited on 12 February 2010, re-entered again on 21 April 2010 and leaving on the same day until 30 April 2010 and finally leaving the country on 25 May 2010. 15. In order to prove the Claimant / Counter-Respondent’s absence, the Respondent / Counter-Claimant has requested the Claimant / Counter-Respondent to present a copy of his passport. 16. Moreover, the Respondent / Counter-Claimant informed having received an e-mail on 26 August 2010, from the Claimant / Counter-Respondent’s agent requesting that the ITC of the Claimant / Counter-Respondent be issued. In this respect, the Respondent / Counter-Claimant replied on the same day that “the status of the Player should be settled with the Club and that the Club would like to discuss the same” and that the Claimant / Counter-Respondent did not comply with Clause 2 of the contract and therefore the Respondent / Counter-Claimant was “deducting 2 month’s salary for the delay” and was also “deducting 3 months and a half as 50% from the salary amount”. Furthermore, the Respondent / Counter-Claimant asserted that “we will pay the amount the club should pay after deducting the mentioned above which equal (51,000) EURO”. 17. The Respondent / Counter-Claimant further alleged that due to the Claimant / Counter-Respondent’s absence, it had to register another player before the expiration of the transfer period on 24 January 2010, once the Claimant / Counter-Respondent apparently “came after the end of registration period, dated 21 February 2010”. 18. The Respondent / Counter-Claimant further indicated that “there is no clause in the Contract explicitly stipulating that the Player should be registered in the Association of country in order for the Contract to be valid and that non registration of the Player shall make the Contract invalid and this claim is rejected and according to the Sports Custom the Club may desire to retain the Player without registration and without termination of his Contract and this is what happened when the Club retained the Player without registration although the Player is not present”. In this regard, the Respondent / Counter-Claimant insisted that it has not terminated the contract and that it has paid the Claimant / Counter-Respondent a huge amount, despite the fact that the Claimant / Counter-Respondent has acted in a way to induce the Respondent / Counter-Claimant to terminate the contract. 19. In his position, the Claimant / Counter-Respondent stated that the Respondent / Counter-Claimant has failed to provide the necessary evidence regarding the Claimant / Counter-Respondent’s absence from the trainings between January 2010 and June 2010. Furthermore, the Claimant / Counter-Respondent alleged not having received any of the notifications mentioned by the Respondent / Counter-Claimant and stressed that once the alleged disciplinary infringements occurred, the Respondent / Counter-Claimant should have immediately contacted the Claimant / Counter-Respondent and not waited to allegedly try to notify him on 10 April 2010. The Claimant / Counter-Respondent further referred that the aforementioned correspondence “was used as the legal basis to discount 100% from the Player’s salaries of January, February and March 2010, the Club has not supplied any reason nor legal basis at all, to discount again 100 % of the Player’s salaries of April, May, June and July 2010”. 20. Furthermore, the Claimant / Counter-Respondent asserted that the clauses and the disciplinary compensations established in the contract are not valid, since it puts the Claimant / Counter-Respondent in an unjustified disadvantage compared to his financial rights. Regarding the Immigration Statement provided by the Respondent / Counter-Claimant, the Claimant / Counter-Respondent alleged that said document is neither dated nor signed and should not serve as evidence. 21. In its final position, the Respondent / Counter-Claimant maintained its previous arguments. 22. In the Claimant / Counter-Respondent’s final position as to the counter-claim, the Claimant / Counter-Respondent maintained his position insisting that the receipt of delivery presented by the Respondent / Counter-Claimant referring to the letter dated 10 April 2010 is forged since the Claimant / Counter-Respondent never received any notification. The Claimant / Counter-Respondent also rejected the alleged contractual termination since the Respondent / Counter-Claimant never contacted or informed the Claimant / Counter-Respondent on 20 December 2009 of any contractual termination. 23. The Claimant / Counter-Respondent stated not to have signed any new employment contract until the expiry of the present contract. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the present matter. In this respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) and took note that the present matter was submitted to FIFA on 23 September 2010, thus after 1 July 2008. Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. Subsequently, the members of the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2009), the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player of an international dimension. As a consequence, the Dispute Resolution Chamber confirmed to be competent to deal with the matter at stake, which concerns an employment-related dispute between a player A and an club F. 3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2010 and 2009) and, on the other hand, to the fact that the present claim was lodged on 23 September 2010. In view of the aforementioned, the Dispute Resolution Chamber concluded that the 2009 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 Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the Chamber started to acknowledge the facts of the case as well as the documents on the file. 5. In this respect, the Dispute Resolution Chamber started by acknowledging that the parties to the dispute had signed an employment contract valid as from 15 July 2009 until 14 July 2010 which provided that the Claimant / Counter-Respondent would be entitled, inter alia, to a total remuneration of EUR 800,000 composed of EUR 300,000 due on 15 July 2009 and EUR 500,000 divided into 12 monthly instalments of EUR 41,666 each. 6. Furthermore, the DRC noted that in accordance to clause 2 of the contract the Claimant / Counter-Respondent was not allowed to depart from the country without having written permission from the Respondent / Counter-Claimant, and in case of absence beyond the agreed date, the Claimant / Counter-Respondent would be fined EUR 5,000 per day, and he would be deducted two monthly salaries if the absence were for longer than five days. 7. After specifying the contents of the employment contract, the DRC further acknowledged that the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant for breach of contract, requesting the total outstanding amount of EUR 291,662 corresponding to the monthly salaries of January until July 2010, plus 5% p.a. of interest. 8. On the other hand, the Chamber acknowledged that the Respondent / Counter-Claimant rejected the Claimant / Counter-Respondent’s claim, since the latter allegedly did not fulfill his contractual obligations due to his absences and based on clause 2 of the contract lodged a counter-claim against the Claimant / Counter-Respondent claiming EUR 1,433,338 as compensation for the Claimant / Counter-Respondent’s absence. 9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant / Counter-Respondent and the counter-claim of the Respondent / Counter-Claimant, was to determine whether the employment contract had been unilaterally terminated with or without just cause by any of the parties, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract was terminated without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 10. In this regard, the Chamber referred to the basic principle of burden of proof, according to which a party claiming a right based on an alleged fact shall carry the respective burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 11. First and foremost, the Chamber noted that the Respondent / Counter-Claimant alleged that the Claimant / Counter-Respondent was absent for the period between 18 until 23 January 2010 as well as from 12 until 21 February 2010 and was absent from training session as from 16 January 2010. Furthermore, the Respondent alleged that the Claimant / Counter-Respondent was warned about his unjustified absences by a correspondence dated 10 April 2010. 12. After carefully analysing the arguments provided, the Chamber acknowledged it was uncontested by the parties that the Claimant / Counter-Respondent’s last match played for the Respondent / Counter-Claimant was on 20 December 2009. 13. In continuation, this piece of information is not contested by the parties, but also corroborated by a statement issued by the Immigration Statement of the Ministry of Interior of the country R which was provided on file by the Respondent / Counter-Claimant. In this regard, from said document it was noted that the Claimant / Counter-Respondent was half of the time outside the country during the period of January 2010 until 25 May 2010, based that said document stated that the Claimant / Counter-Respondent entered the country on 19 November 2009 and exited on 18 January 2010, re-entered the country on 23 January 2010 and exited on 12 February 2010, re-entered again on 21 April 2010 and exited on the same day, re-entering on 30 April 2010 and finally leaving the country on 25 May 2010. 14. In this context, the Chamber observed that the employment contract signed between the parties was valid as from 15 July 2009 until 14 July 2010. 15. In view of the aforementioned information provided on the Immigration Statement, the Chamber pointed out that it can be concluded that during the period of January 2010 until the expiry of the contract on 14 July 2010, i.e. a total period of 180 days, the Claimant / Counter-Respondent was absent from the country for an approximate total of 133 days. 16. In this regard, the Chamber observed that the Claimant / Counter-Respondent contested the validity of the Immigration Statement provided, however did not proceed to submit any evidence contrary to said statement (cf. art. 12 par. 3 of the Procedural Rules). 17. In continuation, the DRC noted that despite the Claimant / Counter-Respondent’s absence during the aforementioned period of approximate 133 days, the Respondent / Counter-Claimant only allegedly contacted the Claimant / Counter-Respondent once, that is, on 10 April 2010. 18. In this respect and based on the aforementioned facts, the Chamber noted that the Respondent / Counter-Claimant did not provide sufficient documental evidence which would prove its interest in having the Claimant / Counter-Respondent’s services, or his return in order to resume his duties, since the Respondent / Counter-Claimant did not provide any other proof that it had tried further contact with the Claimant / Counter-Respondent. 19. In continuation, the Chamber recalled that the Respondent / Counter-Claimant acknowledged having registered another player before the expiration of the transfer period on 24 January 2010, which is, before having properly warned the Claimant / Counter-Respondent of his absences or of any possible contractual breach committed by him during the validity of the contract. 20. Therefore, based on the aforementioned argumentation, the Chamber understood that the counter-claim lodged against the Claimant / Counter-Respondent should be rejected. 21. Moreover, the Chamber proceeded to analyse the Claimant / Counter-Respondent’s claim for outstanding salaries and noted that the same disinterest could as well be observed from the Claimant / Counter-Respondent’s side. According to the Claimant / Counter-Respondent, he did not receive the salaries due for January until July 2010, however, the Chamber deemed appropriate to recall the Claimant / Counter-Respondent’s absence of 133 days during that period as well as to point out that in accordance to the documentation provided, the Claimant / Counter-Respondent did not proceed to contact the Respondent / Counter-Claimant once the salaries fell due nor did he warn the Respondent / Counter-Claimant of any contractual breach prior to lodging the present claim. 22. In this respect, the Chamber found proper to acknowledge that both parties committed contractual breaches which were not warned upon prior to lodging the claim nor the counter-claim. 23. At this point, the DRC deemed it appropriate to remind the parties of the basic elements of a contract, namely an offer and an acceptance of said offer. Moreover, the DRC recalled that the parties to an agreement must necessarily intend to enter a legally binding relationship, which they shall either state explicitly or which can, in certain cases, be inferred from the circumstances under which the agreement was made. 24. Bearing in mind the aforementioned principles, as well as the particular circumstances of the present case, the members of the Chamber observed that neither the Claimant / Counter-Respondent nor the Respondent / Counter-Claimant, were able to prove based on substantial evidence, their legitimate intention and interest to pursue a contractual obligation with their counterparties. 25. In this regard, the Dispute Resolution Chamber rejected the claim of the Claimant / Counter-Respondent as well as the counter-claim of the Respondent / Counter-Claimant. 26. In addition, the members of the Chamber decided that the Respondent / Counter-Claimant’s request for legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and its respective longstanding jurisprudence. **** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is rejected. 2. The counter-claim of the Respondent / Counter-Claimant, Club F, is rejected. **** 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 Markus Kattner Deputy Secretary General Encl. CAS Directives