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 23 September 2013, by Mr Theo van Seggelen (The Netherlands), DRC judge, on the claim presented by the player Player J, from country A as Claimant against the club Club L, 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 23 September 2013, by Mr Theo van Seggelen (The Netherlands), DRC judge, on the claim presented by the player Player J, from country A as Claimant against the club Club L, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 31 July 2009, Player J, from country A (hereinafter: the Claimant), and Club L, from country C (hereinafter: the Respondent), concluded an employment contract (hereafter: the first contract), valid as from the date of signature until 31 May 2011. 2. The first contract provided, inter alia, the following benefits towards the Claimant: - EUR 45,000 for the season 2009/2010 payable in ten equal monthly instalments of EUR 4,500 each, due on the last day of each consecutive month, the first instalment becoming due on 30 August 2009; - EUR 65,000 for season 2010/2011 payable in ten equal monthly instalments of EUR 6,500 each, due on the last day of each consecutive month, the first instalment becoming due on 30 August 2010; - bonus payments “according to the internal regulations of the club”; - accommodation; - one flight ticket per year for the Claimant and for two members of his family “connecting country A – country C – country A”; - health insurance for the Claimant’s wife and son (clause handwritten in the contract). 3. On 31 July 2009, both parties signed a second employment contract (hereinafter: the second contract), as well as an agreement. Article 2 of the second contract provided that the Claimant “shall be employed by the Club for season 2009/2011, thus from the date of signing of the present until 31/5/2011 or after the last game of the Championship (2009-2011), whichever is the latest. Further it is agreed by both parties that the first 12 month’s of the Player’s contract are considered as probation according to the Termination Law of 1967”. 4. Furthermore, art. 30 of the second contract provided that the Claimant would be entitled to the following remuneration: Season 2009/2010: EUR 10,000 gross, payable in ten equal instalments of EUR 1,000 each, “the first instalment payable on 30 August 2009 and the next on the last day of each consecutive month”; Season 2010/2011: EUR 10,000 gross, payable in ten equal instalments of EUR 1,000 each, “the first instalment payable on 30 August 2010 and the next on the last day of each consecutive month”. 5. Moreover, art. 38 of the second contract provided that “Any modifications or amendments to this contract become valid only if they are in written form and signed by both parties. Any previous agreement between the club and the player is null and void”. 6. Art. 1 of the agreement established the following remuneration: Season 2009/2010: EUR 35,000 divided in ten equal instalments as from 30 August 2009 until 31 May 2010. Season 2010/2011: EUR 55,000 divided in ten equal instalments as from 30 August 2010 until 31 May 2011. 7. On 2 July 2010, the Respondent sent the Claimant “by personal service” a letter by means of which it terminated the second contract referring to art. 2 of the second contract (cf. point I. 3). 8. On 7 July 2010, the Claimant lodged a complaint against the Respondent for terminating the contract without just cause before FIFA and, after amending his claim, requested EUR 78,094 plus 5% interest as from 2 July 2010, composed of the following amounts: - EUR 9,000 as outstanding salary for May and June 2010 in virtue of the first contract; - EUR 214 as rent allowance for May 2010 and health insurance; - EUR 1,900 as bonus payments in accordance to the club’s internal regulations; - EUR 720 composed of “EUR 260 as stamp duties” for the first contract and “EUR 460 for submission” of the first contract with the country C Football Association; - EUR 1,260 for one flight ticket to country A, as per the first contract; - EUR 65,000 as compensation, for the remaining season 2010/2011, in accordance with the first contract. The Claimant further requested costs and legal expenses and sporting sanctions to be imposed on the Respondent. 9. In this respect, the Claimant held, inter alia, that the Respondent induced him to sign the second contract and the agreement, affirming that he was told that their contents were the same as the first contract, but that they had to be submitted to the country C Football Association. Furthermore, the Claimant alleged that it did not agree to a 12 month probation period. 10. Consequently, the Claimant claimed that the sole valid contract is the first contract, since the second contract and the agreement were signed based on an alleged fraud and misrepresentation committed by the Respondent. 11. In this respect, the Claimant held that the last salary he received from the Respondent was in April 2010 and provided all payment receipts of salaries received as from August 2009 until April 2010 composed as follows: EUR 1,500 dated 6 August 2009; EUR 3,500 dated 25 August 2009; EUR 4,000 dated 1 September 2009; EUR 5,414 dated 29 September 2009; EUR 5,414 dated 30 October 2009; EUR 5,514 dated 30 November 2009; EUR 4,714 dated 17 December 2009; EUR 100 dated 5 January 2010; EUR 4,714 dated 28 January 2010; EUR 4,714 dated 26 February 2010; EUR 600 as rent dated 30 March 2010; EUR 114 as “insurance for wife” dated 30 March 2010; EUR 4,000 dated 30 March 2010; EUR 4,714 dated 29 April 2010. 12. In continuation, the Claimant stated not having received EUR 1,900, amount allegedly due in the event the Respondent wins the country C Football Association 2nd Division Championship accounting to the internal rules of the Respondent composed as follows: EUR 100 for a victory in the regular season and EUR 150 for a victory during the playoff, as per match list provided on file. 13. In its reply, the Respondent asserted having agreed to sign with the Claimant an employment contract and agreement dated 31 July 2009 and that any previous contracts and agreements between the parties are null and void as per art. 38 of the second contract. 14. Furthermore, the Respondent asserted having paid the Claimant all salaries and that the contract was terminated as per correspondence dated 2 July 2010 notified to the Claimant. Finally the Respondent requested the claim to be dismissed as well as alleged “that both of the valid agreements and/or contracts were submitted to country C Football Association and therefore it has no responsibility and/or liability for the submission of any other cancelled and/or void agreement by the player”. 15. In his replica, the Claimant alleged that the first contract was registered with the country C Football Association, referring to the stamp in the first contract, and thus, has an exact date, while the second contract was not stamped. Furthermore, the Claimant asserted that the Respondent did not prove that the second contract was registered. Moreover, the Claimant states that the probation period of one year listed in the second contract is invalid. 16. Despite being invited to do so, the Respondent did not provide its final position. 17. On 25 August 2010, the Claimant signed a new employment contract with Club D, from country A, valid as from 1 August 2010 until 30 June 2011. According to the new employment contract, the Claimant is entitled to a monthly salary of currency of country A 4,000 as well as currency of country A 157 as bonus. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 7 July 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 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 the DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country C club. 3. Furthermore, the DRC judge 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, he 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 claim was lodged on 7 July 2010, the 2009 edition of the said regulations is applicable to the matter at hand as to the substance (hereinafter: the Regulations). 4. The competence of the DRC judge and the applicable regulations having been established and entering into the substance of the matter, the DRC judge acknowledged the above-mentioned facts as well as the documentation contained in the file. 5. First and foremost, the DRC judge took note that it remained uncontested that the Claimant and the Respondent signed on 31 July 2009 two contracts and an agreement (cf. points I.1 and I.3). The first contract specified, inter alia, that the Claimant would be entitled to EUR 45,000 for the season 2009/2010 and EUR 65,000 for the season 2010/2011. The second contract specified that that the Claimant would be entitled to EUR 10,000 for the season 2009/2010 and EUR 10,000 for the season 2010/2011. However, the second contract provided in its art. 2 that “the first 12 month’s of the Player’s contract are considered as probation according to the Termination Law of 1967”. 6. Subsequently, the DRC judge acknowledged that the Claimant lodged a claim against the Respondent for terminating the first contract without just cause and requested the payments by the Respondent of the total amount of EUR 78,094 on the basis of the first contract plus default interest of 5% as well as costs and legal expenses. 7. In this regard, the DRC judge noted that the Claimant based his claim on the first contract, affirming that it was the only contract valid between the parties, and requested outstanding remuneration in the total amount of EUR 13,094, which is composed of EUR 9,000 as outstanding salary for May and June 2010; EUR 214 as rent allowance for May 2010 and health insurance; EUR 1,900 as bonus payments; EUR 720 as costs for stamp duties and the contractual submission to the country C Football Association and EUR 1,260 for one flight ticket to country A. In addition, the DRC judge acknowledged that the Claimant requested the amount of EUR 65,000 as compensation for the remaining season, i.e. season 2010/2011. 8. After having analysed the aforementioned contracts and agreement, the DRC judge highlighted that the Claimant considered that the only valid contract is the first contract, which was registered with the country C Football Association, and that the second contract and agreement were signed based on an alleged fraud committed by the Respondent since the Claimant did not agree with a 12 month probation period established in its contents. Furthermore, the judge took note that the Claimant provided receipts of payments made by the Respondent to the Claimant. 9. On the other hand, the DRC judge acknowledged that the Respondent rejected the Claimant’s claim by alleging that the valid contracts would be the second contract as well as the agreement, in accordance with art. 38 of the second contract that specified that “Any modifications or amendments to this contract become valid only if they are in written form and signed by both parties. Any previous agreement between the club and the player is null and void”. Additionally, the Respondent held that the valid contracts were allegedly terminated in writing on 2 July 2010, in conformity with art. 2 of the second contract that specified a probation period of 12 months. 10. Finally, the DRC judge took into account that the Claimant insisted that the first contract was the only valid between the parties and the Respondent, even though invited to provide its final comments, did not submit further comments or evidence. 11. Considering the opposite position of the parties, the DRC deemed that it had to establish, first and foremost, whether the first contract, on the basis of which the Claimant lodged his claim, was valid and binding between the parties. 12. Having stated the aforementioned, the Chamber wished to highlight that in order for an employment contract to be considered as valid and binding, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both the employer and the employee. After careful study of the contract presented by the Claimant, the Chamber concluded that all such essential elements are included in the pertinent employment contract, in particular, the fact that the contract establishes that the Claimant has to render his services towards the Respondent, which in counterpart has to pay to the Claimant a monthly remuneration. 13. In this respect, the DRC judge highlighted that the Respondent did not provide any comments after the Claimant insisted that the first contract was the only one valid and thus, the latter argument remained uncontested by the Respondent. 14. In continuation, the DRC judge referred the parties to the legal principle of the burden of proof (cf. 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, and considered that the club had failed to submit any evidence to demonstrate that the first contract was not valid as well as that it did not provide enough substantial evidence that the second contract should be considered as the valid employment contract. 15. Additionally, the DRC judge highlighted that the first contract was duly signed by both parties as well as that the Claimant was able to provide substantial proof that the Respondent made payments in accordance with the amounts established in the first contract, providing payment receipts (cf. point I.11). 16. For the sake of good order, the DRC judge referred to art. 38 of the second contract that specified inter alia that “Any previous agreement between the club and the player is null and void” and considered that both contracts had the same date, i.e. 31 July 2009. Therefore, the first contract remained valid. 17. In conclusion, the DRC judge considered that the first contract was valid and binding between the parties. 18. In continuation, the DRC judge emphasized that it remained unanswered that the Respondent had unilaterally terminated the contract in writing, on 2 July 2010. 19. Having established the aforementioned, the Chamber deemed that it was necessary to determine whether the first contract had been unilaterally terminated with or without just cause by the Respondent, and which party was responsible for the early termination of the contractual relationship in question. The DRC judge also underlined that, subsequently, if it were found that the employment contract was terminated by the Respondent without just cause, it would be necessary to determine the financial consequences for the party that caused the breach of the relevant employment contract. 20. In view of the above, the DRC judge firstly noted that the Respondent justified the termination of the employment relationship on art. 2 of the second contract. 21. In this respect, the DRC judge recalled the wording of art. 2 of the second contract, which stipulates that, “[…] the first 12 months of the player’s contract are considered as probation according to Termination Law of 1967”. 22. Subsequently, the DRC judge deemed appropriate to analyse the question of whether such clause inserted in an employment contract could be considered valid. In that regard, the DRC judge deemed that the application of the above-mentioned rule was arbitrary, since it leads to an unacceptable result based on non-objective criteria, which entitled the Respondent to unilaterally terminate the contract during the first 12 months of the contract. The DRC judge emphasized that the lack of objective criteria by the application of the relevant rule leads to an unjustified disadvantage of the Claimant’s financial rights. 23. In this regard, the DRC judge considered that the possibility granted to the Respondent to prematurely terminate the contract within its first year, without the need to indicate any reasons for it and only based on the fact that such period is to be considered as a probation period, appeared to be of a highly subjective nature, entailing that, de facto, it is left to the complete and utter discretion of the Respondent whether or not it was willing to continue the contractual relationship. 24. In view of the foregoing, the DRC judge was of the opinion that art. 2 of the second contract, invoked by the Respondent in order to put an end to the employment contract, was clearly potestative and is not acceptable: Consequently, the respective argumentation of the Respondent could not be upheld by the DRC judge. 25. Therefore the DRC judge rejected the arguments provided by the Respondent and considered it had terminated the contract without just cause. 26. Having established that the Respondent was to be held liable for breach of the employment relationship without just cause, the DRC judge focused its attention on the consequences of such breach of contract. 27. 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 payments on the basis of the relevant employment contract. 28. On account of the above, the DRC judge held that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the employment contract concluded with the Claimant and, consequently, pay the outstanding remuneration, which is due to the latter. 29. In this respect, the DRC judge noted that the Claimant had honoured the contract until the premature termination by the Respondent on 2 July 2010 and that, according to the Claimant, he had not received the monthly salaries for May and June 2010. In this context, the DRC judge recalled the contents of art. 12 par. 3 of the Procedural Rules and considered that the Respondent had failed to demonstrate having paid the salaries claimed, since it did not provide documentary evidence. As a consequence, the DRC judge deemed that, on the basis of the documents on file, the Respondent had not honoured the salaries of May and June 2010 of EUR 4,500 each. Furthermore, relating to the other outstanding amounts, the DRC judge rejected such requests, since the amounts requested were neither specified in the contract nor did the Claimant provide enough documental evidence that he was actually entitled to them. 30. On account of all of the above, the DRC judge considered that the Respondent had not paid the Claimant the total amount of EUR 9,000 as outstanding salaries. 31. In continuation, the DRC judge noted that the Claimant furthermore claimed 5% interest p.a. as of 2 July 2010, i.e. date of the premature contractual termination by the Respondent. 32. Concerning the interests claimed by the Claimant, the DRC judge noted that the first contract did not provide for any specific interest rate in case of late payment. Consequently, the DRC judge decided to award, in accordance with the constant practice of the Dispute Resolution Chamber, default interest at a rate of 5% p.a. as of 2 July 2010, as requested by the Claimant. 33. In conclusion, the DRC judge decided that the Respondent has to pay the total amount of EUR 9,000 as outstanding remuneration plus 5 % interest p.a. on said amount as of 2 July 2010 until the date of effective payment. 34. In continuation, the DRC judge analysed the request of the Claimant for compensation. 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. 35. In application of the relevant provision, the DRC judge held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. In this respect, the Chamber established that no such compensation clause was included in the employment contract. 36. As a consequence, the DRC judge 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 DRC judge recalled that the 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 DRC judge. 37. In order to evaluate the compensation to be paid by the Respondent, the DRC judge took into account, inter alia, in line with art. 17 par. 1 of the Regulations, the remuneration due to the Claimant in accordance with the employment contract and the time remaining on the same contract, as well as the professional situation of the Claimant as from the early termination of the employment contract, i.e. 2 July 2010 until 31 May 2011. 38. In continuation, the DRC judge noted that the Claimant, for his part, claims compensation for breach of contract until the expiry of the contract in the amount of EUR 65,000, as well as a flight ticket in the amount of EUR 1,260. 39. Considering the above, the DRC judge recalled that the remaining value of the first contract was EUR 65,000 as well as that the first contract specified that the Claimant would have been entitled to a flight ticket back to his homeland country A. 40. In addition, the DRC judge took into account that the Claimant entered into a new employment contract valid as from 1 August 2010 until 30 June 2011 with Club D, from country A, for a monthly salary of currency of country A 4,000 and currency of country A 157 as bonus. 41. As a consequence and on account of all the above-mentioned considerations and the specificities of the matter at hand, the DRC judge decided that the Respondent must pay the Claimant for breach of contract the amount of EUR 58,200 as compensation plus 5% interest p.a. as of the date of the decision. 42. Furthermore, the DRC judge decided that the Claimant’s claim for legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution Chamber’s respective longstanding jurisprudence 43. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. ******** III. Decision of the DRC judge 1. The claim of the Claimant, Player J, is partially accepted. 2. The Respondent, Club L, has to pay to the Claimant, Player J, within 30 days as from the date of notification of this decision, the outstanding amount of EUR 9,000 plus 5 % interest p.a. on said amount as of 2 July 2010 until the date of effective payment. 3. The Respondent, Club L, has to pay to the Claimant, Player J, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 58,200 plus 5% interest p.a. on said amount as of the date of this decision until the date of effective payment. 4. If the aforementioned amounts plus interest (cf. points 2 and 3) are not paid, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claims lodged by the Claimant, Player J, are rejected. 6. The Claimant, Player J, is directed to inform the Respondent, Club L, immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge of every payment received. **** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the DRC judge Markus Kattner Deputy Secretary General Encl. CAS directives