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 theDispute Resolution Chamber passed in Zurich, Switzerland, on 4 October 2013, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member on the claim presented by the player, Player S, from country B 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 theDispute Resolution Chamber passed in Zurich, Switzerland, on 4 October 2013, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Theodoros Giannikos (Greece), member on the claim presented by the player, Player S, from country B 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 27 August 2010, Club S, from country B (hereinafter: Club S), and Club K, from country T (hereinafter: the Respondent), concluded a loan agreement for the country B player, Player G (hereinafter: the Claimant), valid as from the date of signature until 31 May 2011, i.e. for 9 months. 2. On the same date, Respondent and the Claimant signed an employment contract (hereinafter: the contract), valid for the same period as the loan contract. 3. According to art. 2.1 of the loan agreement, the Respondent undertakes to provide the Claimant with: - a monthly salary of USD 15,000 net; - bonus per win and for promotion to the 1st Division of the country T Championship; - an apartment; - a car; - flight tickets to country B – country T – country B 4. Art. 3 of the employment contract establishes that the Claimant is entitled, inter alia, to the total amount of USD 185,000 net, for the season 2010/2011, payable in one instalment of USD 50,000, on 27 August 2010, and in 9 instalments of USD 15,000 each, payable on 10 September 2010, 10 October 2010, 10 November 2010, 10 December 2010, 10 January 2011, 10 February 2011, 10 March 2011, 10 April 2011 and 10 May 2011. 5. On 4 January 2011, following a written warning dated 29 November 2010, Club S unilaterally terminated the loan agreement with the Respondent, in writing, and requested the return of the Claimant to country B, since the Respondent had not paid the Claimant’s salaries of September until December 2011, nor provided him with a car or an apartment. 6. On 10 January 2011, the Respondent terminated the contract with the Claimant, in writing, alleging that he breached the employment contract, by not participating in the club’s trainings, in spite of the warnings sent on 28 December 2010 and 3 January 2011. 7. On 4 March 2011, the Single Judge of the Players’ Status Committee authorized the Claimant’s registration with Club S. 8. On 1 April 2011, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract without just cause, requesting the total amount of USD 139,402.54, plus interests of 5% p.a. as from August 2010, made up of: - USD 65,000, corresponding to the partial salary of September 2010 (USD 5,000) and the full salaries of October 2010 until January 2011 (4 x USD 15,000); - USD 60,000 of compensation, consisting of the remaining salaries from February 2011 to May 2011 (4 x USD 15,000); - USD 5,200 in bonuses per win, for three matches; - USD 9,202.54 corresponding to car rental expenses; - procedural costs. 9. In his claim, the Claimant states only having received the first instalment, due on 27 August 2010 (USD 50,000) and part of the second one, due on 10 September 2010 (USD 10,000). 10. Moreover, the Claimant participated in three matches won by the Respondent, but did not receive the corresponding bonus, which by then allegedly corresponded to USD 1,300 per win. Based on the aforementioned facts, the Claimant requests the payment of USD 5,200. 11. In addition, the Claimant states never having been provided a car, as established in the contract. 12. In its reply, the Respondent rejects all the Claimant’s allegations and states that the amounts of USD 60,000 and currency of country T 3,000 (USD 2,008) had already been paid to the Claimant. The following bank statements were enclosed by the Respondent to its response: - Currency of country T 15,200 on 2 December 2010; - Currency of country T 3,000 on 2 December 2010, on behalf of the Claimant, for rent expenses; - USD 50,000 or currency of country T 75,650 paid on 2 September 2010, on behalf of Club D; - Currency of country T 1,000 on 12 December 2010, on behalf of the Claimant, for the match bonus against Club E; - Currency of country T 4,000 on 30 November 2010, on behalf of the Claimant, for the match bonuses against Club H; - Currency of country T 2,000 on 11 November 2010, on behalf of the Claimant, for the match bonus for the XY Cup. 13. Furthermore, the Respondent considers the Claimant responsible for the breach of contract and points out that he had not been attending the trainings, in spite of having been warned by the Respondent on 28 December 2010 and 3 January 2011. In this respect the Respondent has provided FIFA with a copy of several documents issued by a notary public, attesting the absence of the Claimant from training, dated between 20 December 2010 and 7 January 2011. Mentioning the aforementioned reasons, the Respondent terminated the contract with the Claimant on 10 January 2011. 14. The Respondent claims never having received any warnings from the Claimant, regarding the payment of late salaries. Since the contract was terminated on 10 January 2011 and since before that the Claimant had not been complying with his contractual obligations, the Respondent deems that he is not entitled to his salary of January 2011. 15. With regard to the payment of bonuses, the Respondent asserted that no specific amount was defined. Furthermore, currency of country T 7,000 had already been paid in bonuses to the Claimant, as listed above. 16. The Respondent also deems that the Claimant is not entitled to the amount corresponding to car expenses for the entire duration of the contract. For the period during which he was registered with him, he was provided with a rental car. 17. In his replica, the Claimant states that the Respondent did not present satisfactory evidence in support of its allegations, since they consist basically of declarations issued by a notary public and do not evidence the correct payment of the Claimant’s salaries, bonuses and car expenses. In addition, the Claimant claims that it was verbally agreed between the parties that, for each match won by the Respondent, the Claimant would receive the amount of USD 1,300. 18. The Claimant denies having failed to comply with his contractual obligations towards the Respondent and states having tried to find, in vain, an amicable solution for his problems with the Respondent with help from Club S. 19. Finally, the Claimant points out that the first absence notification presented by the Respondent is dated 28 December 2010, that is, a month after Club S had notified Respondent of its arrears towards him. 20. In its final position, the Respondent maintains its previous argumentation and claims never having received a termination letter from the Claimant. 21. According to the Claimant, after the termination of the contract with Club K, as from 4 January 2011, he resumed his employment contract with Club S, as per which he was entitled to a monthly salary of currency of country B 8,500, until he was transferred to Club Y, from country X, in August 2011. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or the DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 1 April 2011. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 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 B player and a country T club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2012), and considering that the present claim was lodged on 1 April 2011, the 2010 edition of said 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, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 27 August 2010, Club S and the Respondent signed a loan agreement for the Claimant valid as from the date of signature until 31 May 2011. Furthermore, the Chamber noted that it was also undisputed by the parties that they signed, on the same date, an employment contract valid for the same period as the loan contract. Finally the parties did not contest that the Respondent terminated the contract with the Claimant in writing on 10 January 2011. 6. The DRC noted that, on the one hand, the Claimant claims that the Respondent failed to pay him several contractual instalments from September 2010 until January 2011. The Claimant further states having participated to three victories of his team and is entitled to receive a bonus accordingly. In addition, the player states never having been provided a car, as stipulated in the contract. Furthermore, the Claimant maintains that he first tried to find an amicable solution with the club without success and holds that he has not failed to comply with his contractual obligations toward the Respondent. 7. Subsequently, the DRC noted that, on the other hand, the Respondent claims that the Claimant violated his contractual obligations, in particular, by not attending the trainings in spite of warnings, sent to him on 28 December 2010 and 03 January 2011, and therefore considers the Claimant responsible for the breach of contract. With regard to the payment of the bonuses, the club asserted that no amount was defined and that the player had already been paid the due bonuses. Moreover, the Respondent holds that he provided the Claimant with a rental car for the period during which he was registered. Furthermore, the Respondent states the he neither received a warning from the Claimant regarding the payment of late salaries nor a termination letter. For these reasons the Respondent deems that it terminated the contract with just cause on 10 January 2011 and that the Claimant’s claim should be rejected. 8. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment 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 also underlined that, subsequently, if it were found that the employment contract had been breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 9. In this context, the Chamber acknowledged that it first had to examine whether the reasons put forward by the Respondent could justify the termination of the contract in the present matter. 10. In this respect, the Chamber deemed it appropriate to remind the parties of its well established jurisprudence, according to which only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 11. In view of the above, the Chamber first of all observed that the Respondent terminated the contract with the Claimant alleging unjustified absence for training between 28 December 2010 and 3 January 2011. Therefore, the termination was based on an absence of 7 days only, over Christmas and New Year. Even though the Respondent allegedly sent the Claimant two warnings during the absences, the Chamber deemed that the measure is clearly disproportional. Thus, the Chamber was of the opinion that the Respondent did not have just cause to prematurely terminate the employment contract with the Claimant, since such breach could not legitimately be considered as being severe enough to justify the termination of the contract, and that there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine) in order to sanction the absence of the Claimant for one week of training, what is more, during the period of Christmas and New Year. 12. On account of the above, the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 10 January 2011. 13. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 14. Prior to establishing the amount of compensation for breach of contract due to the Claimant by the Respondent, the DRC proceeded with the calculation of the outstanding monies payable to the Claimant under the terms of the employment contract until the date of termination, i.e. on 10 January 2011, in accordance with the general legal principle of “pacta sunt servanda”. 15. At this point and for the sake of good order, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. In this regard, the Chamber pointed out that, on the one hand, the Claimant claims that his remuneration for the months of September 2010 to January 2011 remains outstanding and provides a copy of a reminder sent by Club S to the Respondent on 29 November 2010, by means of which the payment of such amounts, inter alia, was requested. On the other hand, the Chamber noted that the Respondent failed to provide any consistent evidence of the payment of the relevant salaries. In fact, the receipts provided by the Respondent are in accordance with the allegations of the Claimant. 16. 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 USD 65,000, consisting of USD 5000 as partial salary for September 2010 and four monthly salaries of USD 15,000 each corresponding to the salaries of October 2010 to January 2011. 17. In continuation, the Chamber focused its attention on the Claimant’s request for allegedly outstanding bonuses. In this context, the Chamber deemed that the Claimant bore the burden of proof regarding its claim concerning the bonuses per win and the expenses for the rental car. Indeed, on one hand, the Claimant states that it was verbally agreed between the parties that, for each match won by the club, the player would receive the amount of USD 1,300. On the other hand, the Respondent holds that no specific amount was defined in the contract and that he already paid all due bonuses to the player. After a careful study of the documents that were presented by the parties, the Chamber concluded that in absence of any monetary value in the contract relating to a victory bonus as well as any other evidence provided in this regard, the Chamber had to reject the Claimant’s claim amounting to USD 5,200 in bonuses per win. 18. Turning its attention to the request of the Claimant to be awarded the amount of USD 9,202.54 for his car rental expenses, and bearing in mind the principle of burden of proof, the DRC noted that the Respondent holds that during the period which the Claimant was registered with him, a car has been rented for the Claimant’s use. In this respect, the DRC noted that the Respondent provided the DRC with a car rental contract on behalf of the club whereas the Claimant failed to provide FIFA with any type of receipt proving that the amount requested indeed corresponds to a real cost borne by the Claimant. On account of the aforesaid, in view of the lack of consistent evidence supporting the Claimant’s request, the Chamber decided to reject this part of the Claimant’s claim. 19. Thus, taking into consideration the Claimant’s claim as well as the reasons previously exposed, the DRC concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the employment contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding remuneration due to the latter in the total amount of USD 65,000. 20. The Chamber further established that an interest rate of 5 % p.a. would apply over the aforementioned amount, in the following manner: - 5% p.a. as of 11 September 2010 over the amount of USD 5,000; - 5% p.a. as of 11 October 2010 over the amount of USD 15,000; - 5% p.a. as of 11 November 2010 over the amount of USD 15,000; - 5% p.a. as of 11 December 2010 over the amount of USD 15,000; - 5% p.a. as of 11 January 2011 over the amount of USD 15,000. 21. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. 22. In this context, the Chamber outlined 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. 23. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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. 24. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the employment contract on 10 January 2011, the contract would run until 31 May 2011, for four other months. Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to USD 60,000 (4 salaries of USD 15,000 each) and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 25. In continuation, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute the Claimant resumed his employment contract with his former club in accordance with which he was entitled to a monthly salary of currency of country B 8,500 (equivalent to USD 4,175) until he was transferred to another club in August 2011. 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. 26. In view of all of the above, the Chamber decided that the Respondent must pay the amount of USD 43,300 to the Claimant as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation. Furthermore, the member of the Chamber established that an interest rate of 5% p.a. would apply over the aforementioned amount, as from 6 May 2011, as per the Claimant’s claim. 27. In conclusion, the DRC decided that the Respondent is liable to pay to the Claimant the amount of USD 65,000, plus 5% interests as from each due date corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract without just cause by the Respondent, as well as the amount of USD 43,300, plus 5% interests as from the date of claim, corresponding to compensation for breach of contract without just cause. 28. The DRC Chamber further decided that the Claimant’s claim for legal costs is rejected, in accordance with ar. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the Dispute Resolution Chamber. 29. 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 G, is partially accepted. 2. The Respondent, Club K, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 65,000, plus 5% interest p.a. until the date of effective payment, as follows: - 5% p.a. as of 11 September 2010 over the amount of USD 5,000; - 5% p.a. as of 11 October 2010 over the amount of USD 15,000; - 5% p.a. as of 11 November 2010 over the amount of USD 15,000; - 5% p.a. as of 11 December 2010 over the amount of USD 15,000; - 5% p.a. as of 11 January 2011 over the amount of USD 15,000. 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 USD 43,300, plus interest of 5% p.a. as of 4 October 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 are rejected. 6. The Claimant is directed to inform the Respondent 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 article 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber Markus Kattner Deputy Secretary General Encl. CAS Directives