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 October 2013, in the following composition: Geoff Thompson (England), Chairman Ivan Gazidis (England), member Joaquim Evangelista (Portugal), member on the claim presented by the player, Player T, from country C as Claimant against the club, Club K, from country T 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 31 October 2013, in the following composition: Geoff Thompson (England), Chairman Ivan Gazidis (England), member Joaquim Evangelista (Portugal), member on the claim presented by the player, Player T, from country C as Claimant against the club, Club K, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 26 June 2012, Club K, from country T (hereinafter: the club or the Respondent), and Player H, from country C (hereinafter: the player or the Claimant), concluded an employment contract (hereinafter: the contract) valid as from 1 July 2012 until 31 May 2014. 2. According to the contract, the player was to be remunerated in the 2012/2013 season with the total amount of EUR 500,000, payable as follows: - EUR 200,000 as an advance payment; - EUR 30,000 payable on 30 September 2012; - EUR 30,000 payable on 30 October 2012; - EUR 30,000 payable on 30 November 2012; - EUR 35,000 payable on 30 December 2012; - EUR 35,000 payable on 30 January 2013; - EUR 35,000 payable on “30” February 2013; - EUR 35,000 payable on 30 March 2013; - EUR 35,000 payable on 30 April 2013; - EUR 35,000 payable on 30 May 2013. 3. In the 2013/2014 season, the player was entitled to the total amount of EUR 500,000, EUR 200,000 of which payable as an advance payment on 1 August 2013 and the remaining amount of EUR 300,000 payable in 10 equal installments of EUR 30,000 between 30 August 2013 and 30 May 2014. 4. Art. VI lit. b) of the contract stipulated that: “In case of non-payment of “two consecutive salaries” or “the second season’s advance payment” in full or in part, the PLAYER should notify the club in writing. If the CLUB should not pay the notified amount in 30 (thirty) days starting from the due date of the second unpaid salary or the due date of the second season’s advance payment, then the PLAYER shall have the right to unilaterally terminate the CONTRACT with just cause.” 5. Art. VI lit. c) of the contract stipulated that: “In case of termination by the PLAYER due to the delay in payment by the CLUB, the PLAYER shall be entitled to receive as an indemnity due to the breach by the CLUB of its payment obligations, all the amounts established in this CONTRACT including the payments due before and after the termination date, with this situation being treated, as regards its consequences, as the same as that of the unilateral termination without just cause on the part of the CLUB. Being employed of the PLAYER by a new club between the termination date and the actual duration shall affect the amount of the compensation indicated in this clause and in this context the club has his rights to claim the reduction, amortization and / or diminishing of this amount before the judicial bodies. (…).” 6. On 17 June 2013, the Claimant lodged a claim in front of FIFA against the Respondent, explaining that the Respondent had paid him the advance payment of EUR 200,000 for the 2012/2013 season as well as his salary due on 30 September 2012. However, since October 2012, the Respondent had failed to pay him any of his salaries and, as a result, on 16 January 2013, he notified the club of his decision to unilaterally terminate the employment contract. 7. On account of all the above, the Claimant requests to be awarded with the following amounts: - EUR 95,000 as outstanding remuneration corresponding to the salaries of October, November and December 2012 plus 5% interest as from the due dates; - EUR 476,000 as compensation for breach of contract plus 5% interest as from 17 January 2013. 8. The Claimant asserted that he was already entitled to terminate the contract thirty days after the due date of the second unpaid salary in the event that two consecutive monthly salaries were unpaid, thus, thirty days after 30 November 2012. In this respect, and in relation to art. VI lit. b) of the contract, the player held that the lack of notification cannot affect the justification of the termination, because the notification was not stipulated as a mandatory obligation (“should notify”), “but as a guidance he may follow- or not”. In any case, the non-payment of three consecutive salaries is a violation of the contract serious enough to justify the unilateral termination. 9. Finally, the Claimant indicated that, on 1 February 2013, he had concluded an employment contract with Club G, from country T, valid as from 1 February 2013 until 31 May 2013, entitling him to a total remuneration of EUR 199,000. As from 1 June 2013, the Claimant remained unemployed. 10. Although having been invited to provide its position to the claim lodged against it, the Respondent did not reply. 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 case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 17 June 2013. Consequently, the 2012 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 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country C player and a country T club. 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 confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012), and considering that the claim was lodged on 17 June 2013, the 2012 edition of the aforementioned regulations (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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 5. First of all, the members of the Chamber acknowledged that, on 26 June 2012, the Claimant and the Respondent had concluded an employment contract valid as from 1 July 2012 until 31 May 2014. As to the financial terms of said employment contract, the Chamber took note that it had been agreed upon between the parties that the Respondent would remunerate the Claimant with a monthly salary of EUR 30,000 as from 30 September 2012 until 30 November 2012 and with a monthly salary of EUR 35,000 as from 30 December 2012 until 30 May 2013. Furthermore, the Chamber duly noted that the Respondent would remunerate the Claimant with the total amount of EUR 500,000 for the 2013/2014 season. 6. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of EUR 95,000 corresponding to his outstanding remuneration as well as the amount of EUR 476,000 as compensation for breach of contract, asserting that the Respondent had not fulfilled its contractual obligations towards him. More specifically, the Claimant indicated that the Respondent had not paid him his salaries for the months of October, November and December 2012, reason for which, on 16 January 2013, he terminated the contract unilaterally. 7. Furthermore, the Chamber observed that the Respondent failed to present its response to the claim of the Claimant, despite having been invited to do so. In this way, so the Chamber deemed, the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant. 8. As a consequence of the preceding consideration, the Chamber established that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents on file. 9. Having taken into consideration the previous considerations, the Chamber decided that it could be established that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time. Therefore, the Chamber considered that the Respondent was found to be in breach of the employment contract and that the breach was of such seriousness that, in line with the Chamber’s long-standing and well-established jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 16 January 2013. For the sake of good order, the Chamber referred to the Claimant’s argumentation in relation to art. VI lit. b) of the contract and noted that the Claimant asserted that the lack of notification cannot affect the justification of the termination, because the notification was not stipulated as a mandatory obligation “but as a guidance he may follow- or not”. In this respect, once more emphasizing that the Respondent had not contested this particular argument, the Chamber decided to accept the line of argumentation of the Claimant. 10. On account of the above, the Chamber established that the Claimant had terminated the employment contract with just cause on 16 January 2013 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 11. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 12. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of EUR 95,000, consisting of the three monthly salaries of October, November and December 2012. Furthermore and considering the Claimant’s claim for interest, the Respondent must pay 5% interest on the amount of EUR 95,000 as from the day after the respective due dates of the salaries, i.e. as from 31 October 2012, 1 December 2012 and 31 December 2012 until the date of effective payment. 13. In continuation, the Chamber decided that, taking into consideration 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. 14. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 15. In this regard, the Chamber reasoned that the employment contract did contain a clause regarding compensation to be awarded to the player in case of breach of contract, however such clause cannot be considered by this Chamber, in line with its well-established jurisprudence, due to its lack of reciprocity, i.e. it does not provide for compensation in case of breach of contract by the player. 16. On account of the above, the Chamber established that it had to assess the compensation due to the Claimant in accordance with the other criteria under art. 17 of the Regulations. In this respect, the Chamber pointed out that, at the time of the termination of the contractual relationship on 16 January 2013, the contract would run for another 17 months, in which the player would be entitled to 5 instalments of EUR 35,000 for the period as from January 2013 until May 2013 as well as to the amount of EUR 500,000 for the complete 2013/2014 season. Consequently, the Chamber concluded that the remaining value of the contract as from its early termination by the Claimant until the regular expiry of the contract amounted to EUR 675,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 17. In continuation, the Chamber remarked that following the early termination of the contract at the basis of the present dispute the Claimant had found new employment with Club G, from country T, valid as from 1 February 2013 until 31 May 2013, in accordance with which he would be remunerated with a total amount of EUR 199,000. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 18. In view of all of the above, the Chamber decided that the Respondent must pay the amount of EUR 476,000 to the Claimant, which is considered by the Chamber to be reasonable and justified amount as compensation for breach of contract. 19. As a consequence, the DRC concluded that the Respondent is liable to pay the total amount of EUR 571,000 to the Claimant, consisting of the amount of EUR 95,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract by the Claimant and the amount of EUR 476,000 corresponding to compensation for breach of contract. 20. In relation to the Claimants’ request for interest, the Chamber decided that the Respondent had to pay 5% interest on the amount of EUR 95,000 as from the respective due dates and on the amount of EUR 476,000 as from 31 October 2013. 21. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player H, is partially accepted. 2. The Respondent, Club K, 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 95,000 plus 5% interest until the date of effective payment as follows: a. 5% p.a. as of 31 October 2012 on the amount of EUR 30,000; b. 5% p.a. as of 1 December 2012 on the amount of EUR 30,000; c. 5% p.a. as of 31 December 2012 on the amount of EUR 35,000. 3. 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 in the amount of EUR 476,000 plus 5% interest p.a. on said amount as from 31 October 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. 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 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