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 (DRC) judge passed in Zurich, Switzerland, on 14 August 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player B, from country E as Claimant against the club, Club O, from country C as Respondent 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 (DRC) judge passed in Zurich, Switzerland, on 14 August 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player B, from country E as Claimant against the club, Club O, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 1 July 2008, Player B, from country E (hereinafter: player or Claimant) and Club O, from country C (hereinafter: club or Respondent) signed an employment contract valid as from the date of signature until 30 June 2010 (hereinafter: contract). 2. On the same day, the player and the club signed an annex to the contract, also valid as from the date of signature until 30 June 2010 (hereinafter: annex). 3. In accordance with the contract and the annex, the player was entitled to receive inter alia the following remuneration: a. Season 2008-2009: EUR 15,000 as from 1 July 2008 until 30 June 2009: i. Contract: EUR 6,000 net payable in ten monthly equal installments of EUR 600, “between the months of August to June”. ii. Annex: EUR 9,000 net payable in ten monthly equal installments of EUR 900, “between the months of August to June” b. Season 2009-2010: EUR 19,000 as from 1 July 2009 until 30 June 2010 : i. Contract: EUR 7,000 net payable in ten monthly equal installments of EUR 700, “between the months of August to June”. ii. Annex: EUR 12,000 net payable in ten monthly equal installments of EUR 1,200, “between the months of August to June”. 4. The contract further specified that there was a 90 day grace period on each payment. 5. Furthermore, and according to the annex, the club undertook to provide the player with accommodation, a salon car and one return flight ticket home. 6. In addition, art. 13 of the contract established that “in case of any financial dispute between the player and the Club such dispute shall be brought exclusively to the attention of the board of the country C Football Association for the purpose of finding a settlement”. 7. On 23 December 2010, the player lodged a claim against the club in front of FIFA claiming that the club had breached the contract without just cause and should, therefore, be held liable for the payment of compensation. 8. According to the player, he only received the following sums, which were apparently paid to him in cash: - EUR 500 on 31 July 2008, - EUR 1,000 on 31 August 2008, - EUR 700 on 22 October 2008, - EUR 800 on 4 November 2008, - EUR 1,500 on 31 December 2008, - EUR 1,000 in March 2009, - EUR 500 on 1 April 2009, and - EUR 100 on 5 May 2009. 9. At the end of the 2008/2009 season, prior to the start of pre-season training, the player was allegedly informed by the club that his services were no longer required for the subsequent season and that the club would not honour the remainder of his employment contract. 10. In reaction, on 20 July 2009, the player formally notified the club, seeking clarification as to when his pre-season training was to begin whilst also requesting the payment of his outstanding salaries; however no reply was apparently received from the club. 11. In line with the above-mentioned facts, the player is requesting to be awarded the following amounts, plus interest as well as sporting sanctions to be applied on the club: 1) Outstanding salary: EUR 8,900 The player claims to have received for the period of 1 July 2008 until 30 June 2009, the total amount of EUR 6,100, i.e. EUR 8,900 less than he was contractually entitled to receive for that period. 2) Compensation: EUR 45,200 - EUR 19,000 corresponding to the residual value of the contract for the period 1 July 2009 until 30 June 2010. - EUR 26,200 corresponding to other benefits, such as annual rental accommodation, annual car hire and return flight ticket. 12. In its reply, the club rejects the player´s allegations and principally claims that FIFA has no competence or jurisdiction in the matter at hand on the basis of art. 13 of the contract. In particular, the club held that the parties had agreed on the exclusive jurisdiction of the Dispute Resolution Committee of the country C Football Association. 13. Upon FIFA’s request to provide the pertinent regulations as well as the procedural rules, the country C Football Association provided part of the “Regulations for the registration and transfer of football players” (edition 2005; hereinafter: the Regulations of the country C Football Association), which entered into force on 15 June 2005. a. With regard to the jurisdiction of the Dispute Resolution Committee (hereinafter: the Committee): According to art. 22.11 of the Regulations of the country C Football Association, the Committee is competent to “adjudicate and/or resolve any financial or other disputes which may arise: a) between clubs and non-amateur players […]”. b. as to the composition: Art. 22.1 par. 1 and par. 3 of the Regulations of the country C Football Association establishes that the Committee consists of five members (Chairman, Vice-Chairman and three members). The Chairman, Vice-Chairman and one of the three members are elected by the Executive Committee of the country C Football Association, whereas the two remaining members are nominated by the country C Football Players’ Association. c. finally, with respect to the possibility of an appeal: Concerning the possibility of an appeal against a decision taken by the Committee, art. 22.10 stipulates that “any decision of the [Committee] may be appealed to the Disciplinary Authority of the [country C Football Association]. The Disciplinary Authority shall finally decide on the appeals referred thereto”. 14. Moreover, and without prejudice to the above, the club claims that, upon the contract termination, it had fulfilled all its financial obligations towards the player. 15. The club maintains that the last game of the 2008/2009 season was on 5 April 2009 and subsequently after said game, the players were released on summer vacation. Moreover, after the last game and prior to the player leaving the club, the latter informed the player that his services were no longer required and was thus free to look for a new club. 16. In this respect, the club sustains to have paid the player, until the end of March 2009, the total amount of EUR 6,700 (later amended to EUR 7,400), whilst also stating that the player was aware of the clubs precarious financial situation, reason why both the contract and annex contained the 90 days grace period clause. 17. Subsequently, the club deems that the player cannot claim that the club acted in breach of contract as all his corresponding payments until the end of March 2009, were satisfied within the 90 days grace period. 18. In order to sustain the aforesaid allegation, the club provided the following payment documents: - Payment receipt dated 30.07.2008 – EUR 500; - Payment receipt dated 05.09.2008 – EUR 1,000; - Payment receipt dated 17.10.2008 – EUR 700; - Cheque dated 06.11.2008 – EUR 800; - Payment receipt dated 06.12.2008 – EUR 700; - Payment receipt dated 31.12.2008 – EUR 1,500; - Payment receipt dated 09.02.2009 – EUR 500; - Payment receipt dated 21.02.2009 – EUR 500; - Payment receipt dated 19.03.2009 – EUR 500; - Payment receipt dated 19.03.2009 – EUR 200; - Payment receipt dated 03.04.2009 – EUR 500. 19. Finally, the club maintains that the player is not entitled to any compensation for the 2009/2010 season as he was no longer at the club and assures that the player then signed a professional contract with another club. 20. In its replica dated 18 March 2011, the player first and foremost indicates that the sole competent and qualified organ to resolve the dispute at hand is FIFA´s Dispute Resolution Chamber. 21. Furthermore, and in reply to the club´s defence, the player reverts in totum to his initial claim, whilst contesting some of the documentary evidences’ provided by the club, namely: the payment receipt made on 30 July 2008 for EUR 500 and the payment receipt made on 6 December 2008 for EUR 700; which according to the player do not bear his signature. 22. Moreover, the player reverts to the club´s submission in which it states that “the Player was informed that he was not needed to the club and was asked to find another team”. According to the player, this is a clear admission by the club that it had unilaterally terminated the contract without just cause. 23. In its final comments, the club maintains its initial response. 24. Moreover, and in reply to the player´s allegations regarding the validity of the payment receipts, the club asserts that even though the payment receipts might have been signed by another person than the player, the actual payments were destined to the player. Equally, the payment receipt of 6 December 2008, which was signed by Mr L due to the player´s absence, clearly contained the initials “a/a” in front of the aforesaid name, which, translated into English, means “on his behalf”. 25. Finally, the club rejects the allegations put forward by the player and reiterates itself on the fact that the player received EUR 7,400 during his time at the club. 26. In reply to FIFA´s request, the player indicated that as from July 2009 until July 2010, he had not signed a professional contract with any other club. The player was apparently registered with Club J between July 2009 and October 2009 with the sole aim of improving his fitness and indicated he did not sign a contract with said club. The player later on had a trial with the Glen Hoddle Academy in a further effort to regain fitness; but again no contract was ever signed. 27. In this context and according to the player’s defense that it had not signed a contract with Club J, the club indicated it can only assume that the player was in fact registered as an amateur and therefore had changed his status. In this respect, and on the basis of art. 3.2 of the FIFA Regulations on the Status and Transfer of Players, the club claims that no compensation is payable upon reacquisition of amateur status. ***** II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players´ Status Committee and the Dispute Resolution Chamber (editions 2008 and 2012; hereinafter: Procedural Rules) and took note that the present matter was submitted to FIFA on 23 December 2010, thus, after the 2008 edition entered into force on 1 July 2008, but prior to the 2012 edition entering into force. Consequently, the DRC judge concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. With regard to the competence of the DRC judge, art. 3 par. 1 and par. 2 of the Procedural Rules state that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of the aforementioned Regulations, the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country E player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies alleging that the parties had agreed to submit any dispute arisen between them to the Dispute Resolution Committee of the country C Football Association and, in this respect, it referred to art. 13 of the contract (cf. point I./5 above). 4. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the 2012 edition of the FIFA Regulations, he is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC judge referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 5. While analysing whether he was competent to deal with the present matter, the DRC judge considered that he should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contains a jurisdiction clause. 6. Having said this, the DRC judge turned his attention to art. 13 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said art. 13, “in case of any financial dispute between the player and the Club such dispute shall be brought exclusively to the attention of the board of the country C Football Association for the purpose of finding a settlement”. 7. In view of the aforementioned clause, the DRC judge was of the opinion that art. 13 of the employment contract is rather vague and that said article does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the DRC judge deemed that said clause could not serve as the basis on which the Dispute Resolution Committee of the country Football Association should be declared the arbitration tribunal competent to decide on the present dispute, since the relevant clause did not contain a clear reference granting jurisdiction to said arbitration tribunal. 8. However, the DRC judge wished to stress that, even if the contract at the basis of the present dispute would have included an arbitration clause in favour of national dispute resolution, the Respondent was unable to prove that, in fact, the Dispute Resolution Committee of the country C Football Association meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 9. In this respect, the DRC judge referred to the general principle of equal representation of players and clubs, and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. 10. Indeed, this prerequisite is not only mentioned in the Regulations on the Status and Transfer of Players, but also in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives […]; b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives […].” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal […]. Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.” 11. Subsequently, the DRC judge referred to the ``Regulations for the Registration and Transfer of Football Players country C Football Association (2005)’’ made available by the Respondent and began to analyse its content. In this context, the DRC judge noted that according to the aforementioned country C Regulations, the chairman, a vice-chairman and one member are elected by the Executive Committee of the country C Football Association and two members are elected by the country C Football Players’ Association. 12. In light of the above and in conformity with the jurisprudence of the DRC, the DRC judge decided that the country C Football Association’s ``Regulations for the Registration and Transfer of Football Players (2005)’’ and the Dispute Resolution Committee of the country C Football Association regulated therein do not meet the aforementioned principle. 13. In view of the above, the DRC judge established that, in line with the constant jurisprudence of the DRC, the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that he is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 14. Subsequently, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2010 and 2012) and considering that the claim was lodged in front of FIFA on 23 December 2010, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 15. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. 16. In this respect, the DRC judge acknowledged that it was undisputed by the parties that, on 1 July 2008, they signed an employment contract and an annex to the contract, both valid as from their date of signature until 30 June 2010 and in accordance with which the Claimant was entitled to receive, inter alia, the total amount of EUR 34,000, i.e. EUR 15,000 for the 2008/2009 season and EUR 19,000 for the 2009/2010 season. 17. Equally, the DRC judge noted that it was undisputed by the parties, that on 5 April 2009, after the last game of the 2008/2009 season, the player was informed by the club, even though his contract was still in force until 30 June 2010, that his services were no longer required and that he was free to look for a new club. 18. This said, the DRC judge duly noted that the Claimant asserted that at the time of the premature termination of the contract at the hand of the Respondent, the latter had only paid him the amount of EUR 6,100 out of the corresponding EUR 15,000 for the 2008/2009 season. Consequently, the Claimant asks to be awarded the amount of EUR 8,900 as outstanding remuneration and the amount of EUR 45,200 as compensation for breach of contract. 19. In addition, the DRC judge took note that, the Respondent, for its part, claims to have paid the Claimant EUR 7,400, and thus to have fully complied with all its due payments up until March 2009. 20. At this stage, the DRC judge was eager to recall that in accordance with the general legal principle of the burden of proof mentioned in art. 12 par. 3 of the Procedural Rules, a party claiming a right on the basis of an alleged fact shall carry the burden of proof. Therefore, the DRC judge examined the Respondent´s allegations in light of the aforesaid article and turned his attention to the documentation on file. 21. In this respect, the DRC judge noted that, the Respondent, in support of its allegations, provided ten payment receipts as well as one cheque, totalling EUR 7,400, however, the DRC judge highlighted that the payment receipt dated 30.07.2008 for EUR 500 together with the payment receipt dated 06.12.2008 for EUR 700 could not be taken into consideration as they did not bear the player´s signature. The Respondent failed to prove that they had indeed been signed for by another person on behalf of the Claimant. 22. This said, the DRC judge concluded, in accordance with art. 12 par. 3 of the Procedural Rules, that the Respondent had only provided evidence for the payment to the Claimant of the amount EUR 6,200. 23. Having taken into account all the previous considerations, the DRC judge noted that, for the 2008/2009 season, the Claimant was entitled to the total amount of EUR 15,000. Subsequently, the DRC judge, on the basis of the evidence on file, duly acknowledged that the Claimant had only received from the Respondent, at the time of the early termination of the contract, the amount of EUR 6,200. The Respondent was, therefore, still owing the Claimant, for the 2008/2009 season, the outstanding amount of EUR 8,800. 24. In light of the documentation on file, the DRC judge deemed important to establish that, at the moment of the Claimant’s dismissal, the Respondent had been in default towards the Claimant. Equally, the DRC judge noted that the Respondent had not put forward any justification for the early termination of the contract in April 2009. Consequently, the DRC judge concluded that the Respondent terminated the employment contract as well as the annex to the contract unilaterally and without just cause at the end of the 2008/2009 season. 25. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 26. First of all, the DRC judge decided that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant outstanding remuneration in the amount of EUR 8,800. 27. Furthermore, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payment on the basis of the relevant contracts. 28. In this respect, the DRC judge focussed 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. 29. 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 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. In this regard, the DRC judge established that no such compensation clause was included in either the employment contract or the annex at the basis of the matter at stake. 30. Having established the above, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge took into account, in line with art. 17 par.1 of the Regulations, the remuneration due to the Claimant in accordance with the contract and annex as well as the time remaining on the same contracts, as well as the professional situation of the Claimant after the early termination occurred. 31. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract and annex until 30 June 2010. Consequently, the DRC judge concluded that the amount of EUR 19,000 corresponding to the player’s monthly salaries for the 2009/2010 season, falling due as of August 2009, until the end of the contract, i.e. June 2010, serves as the basis for the final determination of the amount of compensation for breach of contract. 32. In continuation, the DRC judge verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player´s general obligation to mitigate his damages. 33. In this respect and bearing in mind that the Claimant had not been able to sign an employment contract with another club, the DRC judge decided that the entire remaining value of the contract, corresponding to the player’s remuneration as from August 2009 up until June 2010, amounting to EUR 19,000, was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 34. In addition, the DRC judge took due note of the Claimant´s claim regarding compensation for one return flight ticket. In this regard, the DRC judge underlined that the annex to the contract states that the Respondent will provide for one return flight ticket home. Therefore, and after consulting the FIFA Travel Department, the DRC judge decided that Respondent must compensate the Claimant with the amount of EUR 200 in order to cover the cost of his flight ticket. 35. For all the above reasons, the DRC judge decided to partially accept the Claimant´s claim and determined that the Respondent must pay to the Claimant the amount of EUR 8,800 as outstanding remuneration and EUR 19,000 as compensation for breach of contract, plus interest of 5% p.a. as follows: - 5% p.a. as of 18 March 2011 on the amount of EUR 8,800; - 5% p.a. as of 14 August 2013 on the amount of EUR 19,000; 36. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player B, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club O, 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 8,800 plus 5% interest p.a. on said amount as of 18 March 2011 until the date of effective payment. 4. The Respondent 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 19,000 plus 5% interest p.a. on said amount as of 14 August 2013 until the date of effective payment. 5. The Respondent has to pay to the Claimant the amount of EUR 200 relating to the airfare within 30 days as from the date of notification of this decision. In the event that this amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned 30 days’ time limit until the date of effective payment. 6. In the event that the amounts due to the Claimant are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 7. Any further claim lodged by the Claimant is rejected. 8. 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: Jérôme Valcke Secretary General Encl. CAS directives