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 30 August 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player S, from country R as Claimant against the club, Club L, from country A as Respondent regarding an employment-related dispute arisen 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 30 August 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player S, from country R as Claimant against the club, Club L, from country A as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 29 July 2010, Player S, from country R (hereinafter: the player or Claimant), and Club L, from country A (hereinafter: the club or Respondent), signed an employment contract valid as from the date of its signature until “31 June 2012” [sic] (hereinafter: the contract). 2. In accordance with “ARTICLE THREE: A)” of the contract, the player was entitled to receive the total amount of USD 120,000 for the period 2010 - 2011 to be paid as follows: a. USD 30,000 on the date of signing the contract (29 July 2010); b. USD 65,000 in 10 monthly instalments as of 1 August 2010 (i.e. USD 6,500 each month); c. USD 25,000 in March 2011. 3. Furthermore, in accordance with “ARTICLE THREE: B)” of the contract, the player was entitled to receive the total amount of USD 150,000 for the period 2011 – 2012 to be paid as follows: a. USD 50,000 in August 2011; b. USD 70,000 as salaries in 10 monthly instalments as of 1 August 2011 (i.e. USD 7,000 each month); c. USD 30,000 in March 2012. 4. The employment contract does not contain a compensation clause. 5. On 26 September 2011, the player lodged a claim against the club in front of FIFA. In particular, the player asked to be awarded the payment of the following amounts plus 5% interest p.a.: a. Outstanding salaries: USD 5,445 [USD 6,500 – currency of country A 830, which is equivalent to approx. USD 1,038 on 29 July 2010] for the month of May 2011; USD 50,000 matured in August 2011; USD 5,945 (USD 7,000 – 830 currency of country A) for the month of August 2011. b. Compensation: USD 63,000 as of 1 September 2011 in 9 monthly instalments (i.e. each month USD 7,000); USD 30,000 to be paid in March 2012. In addition, the player asks that sporting sanctions be imposed on the club and requests from the club to be paid its “defence fees and costs” amounting to the sum of EUR 20,500. 6. In this respect, the player argued that by letter dated 1 September 2011 addressed to the club, he unilaterally terminated the relevant employment contract with just cause. The player pointed out that since May 2011, the club stopped paying the salary as agreed in the contract but that he only received currency of country A 830 (instead of USD 6,500 and USD 7,000 respectively) for the months of May and August 2011. The player asserted that he had contacted the club on several occasions requesting the outstanding salaries. With a letter dated 28 July 2011, the player reminded the club that the salary for May 2011 was due and that soon he would also be entitled to receive the amount of USD 50,000 during the month of August 2011. Subsequently, with a letter dated 3 August 2011 the player reminded once again the club that the salary of May 2011 was overdue and also requested the payment of USD 50,000. On 17 August 2011 the player formally notified an ultimatum to the club referring to the two aforementioned letters and giving the latter a deadline of 7 days to make the relevant payments. 7. Furthermore, the player stated that he was released of his duties by the club and permitted to attend trials and trainings with other clubs on 2 June 2011. Therefore, he left country A in order to find a new club where to play and to be transferred to. The player added that the club failed to renew his residence permit upon expiry and that by a letter of 22 September 2011 he reminded the club that his temporary residence permit issued by the Republic of country A had expired. 8. On 26 October 2011, the club explained in its reply to the claim that they have always fulfilled their obligations mentioned in the relevant contract. 9. In particular, the club clarified that it was obliged to remunerate the player for his services, but not for his absence. The club stated that after the end of the season 2010/2011, the coaching staff of the club decided to transfer the player, which was also announced on their official website and in the media. Subsequently, they allowed the player to attend trials with other clubs, but not to sign a contract. According to the club, the letter dated 2 June 2011 cannot be interpreted as a document of “release”. In this respect, the club highlighted that there had not been another request from another club for the transfer of the player and therefore the latter had to return to the club. 10. Furthermore, the club mentioned that all residence permits for foreign players playing for them had been renewed “till” the beginning of the football season in country A, i.e. 6 August 2011, and that the player’s residence permit expired on 21 September 2011. Consequently, the player had demonstrated an unserious attitude and did not fulfil his contractual obligation by not coming back to the club after the summer break. The club stressed that the player instead of coming to country A within the period between 1 September 2011 and 21 September 2011, demanded a payment of instalments for the season 2011/2012, which seems to be absurd, because the player demands the amount of money for the season, during which “he has not even appeared in the team”. 11. The club held that with a letter dated 23 September 2011, they reminded the player that he had not arrived until after the transfer window was closed (i.e. 31 August 2011) and this was considered as a huge breach of the player’s contractual obligations. 12. On 28 January 2013, the player informed FIFA that, following the termination of his contract with the club, he has signed an employment contract with Club P on 23 March 2012 for a period of three months, i.e. valid until 30 June 2012. Said employment contract refers to an agreement concluded by the parties with Ref. no. 103 of 15 September 2011. According to art. 5.1.1 and art. 5.1.2 of said contract, the player is entitled to receive a net monthly salary of EUR 2,500 provided that he participated in minimum 70% of the total cumulated number of minutes of matches. If the mentioned percentage is not reached, the monthly fee will be determined by considering the number of minutes effectively played compared to the total cumulated number of minutes of the matches scheduled monthly in the official competitions (x% of 100%) but without being less than 30% of EUR 2,500, i.e. EUR 750. According to the player, he was entitled to receive a monthly salary amounting to EUR 750, because he had participated in less than 70% of the matches of the club. 13. According to information contained in the Transfer Matching System (TMS 47618), the player apparently signed an employment contract (version in country R language) with Club P on 15 September 2011 with validity as from the date of the signature until 30 June 2012. According to the translation of the contract into English, provided by the country R Football Federation during the procedure regarding the issuance of the international transfer certificate (ITC), the contract in question runs from 15 September 2011 until 30 June 2012 and contains the same remuneration clause as in the abovementioned contract (cf. point I.12.). II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 26 September 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, 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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: Regulations; edition 2010), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country R player and an country A club. 3. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2012 and 2010) and considering that the present matter was submitted to FIFA on 26 September 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. In this respect, the DRC acknowledged that the Claimant and the Respondent signed an employment contract setting out a period of validity as from 29 July 2010 until “31 June 2012”, in accordance with which the Respondent would, inter alia, pay the Claimant a monthly salary of USD 6,500 for the period from 1 August 2010 until 31 May 2011, a monthly salary of USD 7,000 for the period from 1 August 2011 until 31 May 2012 as well as lump sums of USD 50,000 due in August 2011 and USD 30,000 due in March 2012. The DRC further noted that the Claimant maintains that the Respondent is to be held liable for the early termination of the employment contract by having failed to (fully) pay his remuneration due for the months of May 2011 and August 2011. In particular, the DRC observed that the Claimant, after allegedly not having received the said monies, had terminated his contract with the Respondent on 1 September 2011 invoking just cause. 5. The DRC duly noted that, on account of the above, the Claimant is seeking payment of outstanding remuneration of USD 61,390, i.e. USD 5,445 and USD 5,945 pertaining to the months of May 2011 and August 2011 and USD 50,000 relating to the instalment matured in August 2011 in accordance with the employment contract, plus 5% interest p.a. Equally, the DRC noted that the Claimant is requesting compensation for breach of contract in the amount of USD 93,000, plus 5% interest p.a. 6. In this respect, the Chamber took note of the Claimant’s default notices for the respectively due amounts dated 28 July 2011, 3 August 2011 and 17 August 2011 addressed to the Respondent as well as of his correspondence dated 1 September 2011, by means of which the Claimant informed the Respondent in writing about his unilateral termination of the employment contract at the club’s fault since they stopped paying his salary as contractually agreed. The Chamber also noted that the Claimant mentioned that he was released of his duties by the Respondent and permitted to attend trials and trainings as of 2 June 2011. 7. Subsequently, the DRC acknowledged that the Respondent, who fully rejects the claim put forward by the Claimant, alleges that it has always fulfilled its obligations mentioned in the relevant contract. In particular, the Chamber observed that the Respondent points out that the Claimant breached his contractual obligations by not coming back to the club until after the transfer window was closed, i.e. 31 August 2011. In this respect, the Chamber noted that the Respondent stated being obliged to remunerate the player for his services, but not for his absence as of June 2011. 8. Having said that, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 9. In view of the above, the DRC concluded that the Respondent shall carry the burden of proof that the entire salary of May 2011 had indeed been paid. In this respect, the DRC acknowledged that the Respo 0u7ndent was not able to corroborate that it had paid the contractually agreed salary of May 2011. In particular, the DRC established that the Respondent did not present any documentary evidence at all for the payment of the amount of USD 5,445 for the month of May 2011. 10. Moreover, and with regard to the allegedly outstanding remuneration for August 2011, the Chamber took note that it is undisputed by the parties that the player’s absence as of June 2011 had in principle been authorised by the Respondent by means of a letter dated 2 June 2011. In this regard, the DRC recalled that the Respondent had only reminded the Claimant on 23 September 2011 that – after having allowed the Claimant to attend trials with other clubs but not to sign a contract – he had not come back until after the transfer window was closed, i.e. 31 August 2011. In other words, the Respondent had only requested the Claimant’s return as of 1 September 2011. Consequently, the Chamber deemed that the absence of the player between June and August 2011 had been permitted by the Respondent and the Claimant had thus not been obliged to return to the Respondent during said period. As a result, the Chamber concluded that the Respondent had no justification for not fulfilling its contractual obligations towards the player for the period between June and August 2011. 11. In this regard, the Chamber noted that the Respondent did not contest that the predominant part of the salary for August 2011 as well as the instalment for August 2011 were still outstanding. 12. On account of the above circumstances, the Chamber established that the Respondent had almost entirely failed to remit the contractually agreed salaries without any valid reason during a considerable period of time (from May 2011 until August 2011). The Chamber therefore concurred that the Claimant had just cause to unilaterally terminate the employment contract on 1 September 2011. 13. Bearing in mind the previous considerations, the DRC went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 14. First of all, with regard to the Claimant’s request for outstanding salaries at the time of the unilateral termination of the contract, the DRC recalled that the Respondent had no justification for the non-payment of the relevant remuneration for the months of May and August 2011. 15. In view of the above, the DRC stressed 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 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 amount of USD 61,390. 16. In addition and with regard to the Claimant's request for interest, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 26 September 2011 until the date of effective payment. 17. In continuation, the DRC decided that, taking into consideration the Claimant’s 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. 18. In this context, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 20. Subsequently, the DRC noted that the remaining value of the employment contract as from the date of the termination until the original expiry of the employment contract amounted to USD 93,000, i.e. nine monthly salaries amounting to USD 7,000 each and the installment due in March 2012. Consequently, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until regular expiry of the contract amounting to USD 93,000 shall serve as the basis for the final determination of the amount of compensation for breach of contract. 21. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, 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. 22. Subsequently, the Chamber took note of the fact that the Claimant claims to have signed a new employment contract with Club P, from country R, valid as from 23 March 2012 until 30 June 2012, being entitled to remuneration in the total amount of EUR 2,250 (monthly salary of EUR 750) since he had participated in less than 70% of the matches of the club. Nevertheless, the members of the Chamber noted that according to the employment contract, which was uploaded by Club P in TMS and the translation of it into English, provided by the country R Football Federation during the ITC procedure, the contract in question actually runs from 15 September 2011 until 30 June 2012. 23. On account of the above circumstances, and taking into consideration that the employment contract provided by the Claimant in the present procedure even refers to the contract uploaded in TMS, the members of the Chamber established that the Claimant signed an employment contract with Club P, from country R from 15 September 2011 until 30 June 2012. In accordance with the pertinent employment contract, the Claimant was entitled to receive a monthly salary of EUR 2,500. In this context, whilst referring to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber deemed it fit to highlight that the Claimant had not presented any documentary evidence corroborating that he had played only in a few matches. Consequently, the Chamber had no alternative but to establish that the value of the new employment contract concluded between the Claimant and the new club for the period as from 15 September 2011 until and including June 2012 amounted to USD 32,000 (EUR 23,750). 24. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 61,000 to the Claimant, which is considered to be a reasonable and justified amount as compensation for breach of contract. 25. Furthermore, taking into account the Claimant’s petition and the constant practice of the DRC, the Chamber decided to award the Claimant interest at the rate of 5% p.a. over the amount of compensation, as from 30 August 2013 until the date of effective payment. 26. Furthermore, the DRC held that the Claimant’s claim pertaining to legal costs has to be rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 27. For all the above considerations, the DRC decided to partially accept the Claimant’s claim and held that the Respondent is liable to pay the total amount of USD 122,390 to the Claimant, consisting of the amount of USD 61,390 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract with just cause by the Claimant and the amount of USD 61,000 corresponding to the compensation for the unilateral breach of contract, plus 5% interest p.a. as of 26 September 2011 and 30 August 2013 on the respective amounts until the date of effective payment. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player S, is partially accepted. 2. The Respondent, Club L, is ordered to pay to the Claimant, Player S, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 61,390, plus 5% interest p.a. as of 26 September 2011 until the date of effective payment. 3. The Respondent, Club L, is ordered to pay to the Claimant, Player S, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 61,000, plus interest of 5% p.a. as of 30 August 2013 until the date of effective payment. 4. If the aforementioned sums plus interest are not paid within the above-mentioned time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further claims lodged by the Claimant, Player S, are rejected. 6. The Claimant, Player S, is directed to inform the Respondent, Club L, immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives