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 matter between the player, Player V, from country C as 1st Claimant / 2nd Respondent and the club, Club U, from country K as 2nd Claimant / 1st Respondent and the club, Club N, from country A as Intervening Party 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 matter between the player, Player V, from country C as 1st Claimant / 2nd Respondent and the club, Club U, from country K as 2nd Claimant / 1st Respondent and the club, Club N, from country A as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 12 January 2010, Player V, from country C (hereinafter: the player), and Club U, from country K, concluded an employment contract (hereinafter: the contract) valid from 1 January 2010 until 31 December 2012. 2. Clause 3 of the contract provided for a monthly remuneration of USD 17,000. 3. Clause 4.2 of the contract stipulated that “the Club shall immediately provide an appropriate doctor’s examination and treatment regarding the Player’s injuries and/or illness rising out of performance of this Contract and shall cover the expenses incurred from such injuries or illness; provided, however, that if such injuries and/or illness have arisen as a result of a cause attributable to the Player, the Player shall undertake all responsibility and expense therefore”. 4. According to clause 7.2 and 7.3 of the contract, “[2] If the Player’s illness or/and injury requires treatment while the Player is participating in the Player Activities or Non-Player Activities, such illness or injury shall be treated at the hospital specified by the Club. In case there is any difference in the medical expenses incurred by a hospital other than the hospital specified by the Club, the Player shall pay the difference. The Club, however, shall not pay medical expenses arising from any injuries or illness due to reasons attributable to the Player, or any activities other than the Player Activities and Non-Player Activities which are stipulated by the Club [3] Upon executing this Contract, the club shall purchase an insurance policy in order to prepare for a situation where the Player may suffer injury or death in connection with the performance of this Contract”. 5. Clause 11.1 of the contract stated that “the Club and the Player may cancel or terminate the whole or a part of this Contract by written notice in the event the other party fails to perform the obligations as prescribed in this Contract”. Furthermore, according to clause 11.3 of the contract, “in the event this Contract is terminated due to reasons attributable to the Club, the remainder of the Basic Annual Compensation prescribed in this Contract shall be paid to the Player. In the event the Contract is terminated due to the reasons attributable to the Player, the Club shall pay the Basic Annual Compensation such that for the month the date of termination (the “Month”) the days the Month plus the remaining number of days after the Basic Annual Compensation is paid in the month immediately preceding to the Termination Month shall be calculated basis”. 6. On 8 March 2011, the player lodged a complaint before FIFA requesting the total amount of USD 408,000 plus currency of country P 5,500,000 as set out below: • USD 17,000 corresponding to the outstanding salary of January 2011; • USD 391,000 corresponding to the residual value of the contract (23 x USD 17,000) as compensation for breach of contract; • Currency of country C 5,500,000 for the costs of the surgery (based on clause 4.2 of the contract). 7. In particular, the player explained that he had suffered a knee injury. In this respect, the player had, on an unspecified date, allegedly informed Club U by e-mail that he would not be able to participate in the trainings of the pre-season because he had been injured for the last four months. Thereafter, the player appeared at Club U in order to undergo medical tests. However, Club U told the player that he did not have any injury, but rather mental problems and that he should continue with his work and that if he wished further examinations, he would have to pay for them. The player then contacted his doctor to have confirmed the results of Club U. 8. On 22 January 2011, the player contacted Club U via e-mail informing the latter about the results of further examinations and a MRI, according to which he had a knee injury, was not able to do any sports and would need surgery. 9. On 1 February 2011, the player sent a communication to Club U terminating the contract due to Club U’s non-compliance with the contract and the “rules of FIFA” to provide him with health insurance. In particular, the player terminated the contract on the basis of its art. 4 par. 2 and reproached to Club U its negligence with regard to his injury. Additionally, in the letter of termination, the player referred to the e-mail, allegedly sent to Club U, in which he informed the club about his impossibility to attend the pre-season trainings and indicated that Club U had replied with an e-mail on 29 January 2011 informing him that he had been fined with currency of country K 10,000,000 for “disobedience and bad behaviour”. 10. On 3 May 2011, Club U, independently of the player’s claim, lodged a claim against the latter in front of FIFA stating that the player had breached the contract and requesting disciplinary sanctions as well as the total amount of USD 1,368,175 plus 5% interest p.a. “as from the original date of payment established in the contract” as set out below: • USD 391,000 as the value of the player’s services (residual value of the contract); • USD 479,167 for fees and expenses paid, i.e. the paid amount of transfer compensation for the transfer of the player from the country C club Nacional to Club U, this is, USD 750,000 (proportional amount corresponding to 23 months); • USD 396,008 for extra replacement costs (USD 200,000 sign-on fee plus USD 400,000 annual salary for a period between 10 March 2011 and 9 March 2012, of which only the difference to the player’s salary was taken into account, i.e. USD 16,334 per month); • USD 102,000 for the specificity of sport equal to six monthly salaries (further sporting damages suffered by Club U). 11. In this respect, Club U explained that on 6 October 2010, the player had complained about a pain in his knee. Thereafter, the player was submitted to a physical examination; however, the doctor could not find any problem with his knee. Nevertheless, on 12 October 2010, a MRI was made, in which was found “a minor chondral lesion and subchondral cyst on the anterior aspect of the medial femoral condyle”. After a short period of rehabilitation, the player returned to his normal activities. At the end of the year and after his return from vacation, the player allegedly asked Club U to be released, since he was not satisfied with the salary, he did not have many opportunities to play for the team and his family could not adapt to the life in country K. During the training camp, which had started on 3 January 2011, the player complained again about pain in his right knee. Therefore, a second MRI was made and “a small osteochondral lesion less than 5mm in diameter on the anterior aspect of the medial femoral condyle” was found. According to Club U’s doctor, a conservative treatment with rehabilitation was recommended for the player, since the injury was small and a surgery may not fully improve his symptoms. However, the personal doctor of the player, after having analysed the MRI, came to the conclusion that the player was no longer able to practice football and that a surgery, including a rehabilitation of about six months, was needed. At this point, Club U confirmed having received the e-mails dated 22 January and 1 February 2011 from the player. 12. On 28 February 2011, Club U requested the player in writing to return to country K within five days, however, the letter allegedly remained unanswered. Therefore, on 10 March 2011, Club U sent a letter to the player terminating the contract due to the breach of the player. 13. In his response, the player rejected Club U’s claim. Furthermore, the player stated that Club U’s claim would prove that the latter had failed to pay the medical costs and that he could not count on future health service, reason why he terminated the contract. 14. Club U, in its response, insisted on its claim stating that the player’s claim was baseless and would not correspond to the real events that occurred. At this point, referring to its claim, Club U underlined having complied with the contract and the FIFA Regulations, i.e. it had provided the player with medical exams and treatment. However, the player went on his own discretion to his personal doctor; “Yet, the Player preferred to follow his personal doctor’s instructions and without any legal basis he terminated the employment contract […]”. In this respect, Club U alleged that the player took advantage of his injury to create a false scenario, which could enable his departure from country K. 15. With regard to his contractual situation after the departure from country K, the player informed FIFA that he was without contract until 15 July 2011 when he signed an employment contract with the Club N, form country A, for the period between 15 July 2011 and 30 June 2012. The player was entitled to receive a monthly salary of currency of country A 41,990. On the same date, the parties concluded a contract concerning the “cesión temporal de derechos federativos con opción de compra”. According to said contract, the player was entitled to receive the amount of USD 189,000 for his “inscripción federativa”. In case Club N made use of the “opción de compra”, the player would be entitled to receive the amount of USD 300,000 for the first year of contract, USD 350,000 for the second year and USD 400,000 for the third year. 16. Upon request of FIFA to provide its position as to the present matter, Club N provided its statement confirming having signed an employment contract and an agreement with the player on 15 July 2011, however, declaring that it did not make use of the “opción de compra”. Furthermore, Club N explained having prematurely terminated the contract with the player by mutual agreement on 18 January 2012. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 8 March 2011 and 3 May 2011. Consequently, the previous edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 edition 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 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. In continuation, 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, it referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2012), and, on the other hand, to the fact that the present claims were lodged in front of FIFA on 8 March 2011 and 3 May 2011. Therefore, the DRC concluded that the 2010 edition of the Regulations on the Status and Transfer of Players (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 members of the Chamber entered into the substance of the matter. In doing so, it started by acknowledging the facts of the case as well as the documents contained in the file. 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 DRC acknowledged that the player and Club U were bound by an employment contract, which was signed on 12 January 2010 and was valid as from 1 January 2010 until 31 December 2012. 6. Furthermore, the members of the Chamber pointed out that the player and Club U have antagonistic positions in relation to which party was responsible for the termination of the contract. In fact, while the player considers that he had just cause to unilaterally terminate the contract, Club U, on the other hand, sustains that, the player did not have just cause to terminate the contract since it had fully complied with its contractual obligations. 7. At this point, the members of the Chamber highlighted that the underlying issue in this dispute, considering the conflicting positions of the parties, was to determine whether the employment contract had been prematurely and unilaterally terminated with or without just cause by one of the parties. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties with or without just cause, it would be necessary to determine the consequences of such breach. 8. In continuation, the Chamber, first and foremost, acknowledged that it has remained undisputed that the player was absent from the club as from February 2011. 9. Subsequently, the Chamber noted that the player maintains that he did not receive the suitable medical treatment and that, apparently, his injury was not seriously considered by the doctors of Club U. Therefore, he decided to leave the country and terminate the contract due to the breach of Club U of its contractual obligations, in particular, due to the non-compliance and negligence of Club U in treating the player’s injury and in providing him with the adequate health services. 10. Club U, on the other hand, stated that the player breached the relevant employment contract by leaving the club and the country without authorization and by following a different medical treatment from the one prescribed by the doctors appointed by Club U. 11. At this stage, the members of the Chamber deemed appropriate to remark the general principle that the contracts are concluded to be respected, otherwise, consequences have to be assumed by the relevant party. 12. Furthermore, the Chamber emphasised that 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 fulfillment of his contractual duties, and vice versa, 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. 13. With due consideration to the above, the members of the Chamber acknowledged that, essentially, the player and the club had divergent position on how the injury of the player had to be treated. In this context, it was for the Chamber to examine whether the decision of the player to leave country K was justified, considering the circumstances of the present matter. More specifically, the Chamber had to examine whether the club had violated its contractual obligations, as alleged by the player, and, in the affirmative, whether the violations of the contract were that severe that the player had a just cause to terminate the contract. 14. The Chamber was well aware that, in order to answer the above-mentioned questions, it had to consider all the relevant circumstances of this specific matter. In doing so, the Chamber first turned its attention to the drafting of the employment contract and took note of its clause 7.2, by means of which it is stipulated that in case the player would need medical treatment due to injuries or illnesses, he should be treated at the hospital appointed by Club U and that the extra medical expenses derived from a treatment in a different hospital than the one appointed by Club U, would be covered by the player. 15. Furthermore, the Chamber noted that it could be established from the information and documentation on file that the player had started complaining about pain in his knee on 6 October 2010. Following said complaints, the club immediately scheduled a physical examination by the club’s doctor. Notwithstanding that the club’s doctor did not detect an injury during such examination, the club scheduled a MRI following which an injury was found. Thereafter, the player underwent a short period of rehabilitation and he returned to his normal activities. The Chamber concluded that the club’s actions in October 2010 were in compliance with the contract, i.e. it had provided the necessary medical assistance to the player. 16. As to the events occurring in January 2011, the Chamber recalled that the player complained again about pain in his knee in the beginning of January following which another MRI was performed. The Chamber duly acknowledged that whereas Club U’s doctor believed that the injury was small and that no surgery was necessary, the personal doctor of the player held that the player needed a surgery and could not play for 6 months. As a result, the player held that the doctor of Club U did not seriously consider the injury and that the club had not provided suitable medical treatment and therefore terminated the contract invoking just cause. 17. After a thorough examination of all the given circumstances, the Chamber did not concur with the conclusion of the player. In particular, the Chamber deemed that the sole fact that the doctor of the club and the doctor of the player had a different medical opinion does not lead to the conclusion that the club’s doctor had not taken the injury serious; the club’s doctor simply had a different opinion on how to treat the player’s injury. As a result, the player’s decision to leave the club and terminate the contract was considered by the Chamber as a disproportionate measure in light of the circumstances. 18. Hence, the Chamber deemed that, based on the documentation contained in the file, it could not be established that Club U neglected its contractual obligations with regard to the medical treatment of the player. In fact, Club U offered the player a medical treatment following the recommendations of the doctor appointed by it and, by supporting the position that the player’s injury did not need surgery, Club U only put forward a different point of view on how to deal with the injury. 19. On account of the above and, in particular, considering that Club U complied with its contractual obligations with regard to its financial duties as well as regarding the medical assistance, and taking into consideration that the player left Club U and the country without authorisation, the Chamber decided that terminating the contract was a disproportional reaction of the player. The Chamber finds that Club U was not in breach of the terms of the employment contract and determined that the player had no valid reason not to appear at the work place. Therefore, the Chamber concluded that the player had terminated the employment contract without just cause on 1 February 2011 and that, consequently, the player is to be held liable for the early termination of the employment contact without just cause. 20. Having established that the player is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that Club U is entitled to receive from the player an amount of money as compensation for breach of contract. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the Regulations, the Chamber established that the new club of the player, Club N, shall be jointly and severally liable for the payment of compensation. 21. Having said that, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract payable by the player and Club N to Club U in the case at stake. In this respect, the members of 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 player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the club (amortised over the term of the contract), and depending on whether the contractual breach falls within the protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party. 22. 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 in relation to the situation in which the player was found to have terminated the contract without just cause. 23. Bearing in mind the foregoing, in order to calculate the amount of compensation due to Club U in the present case, the Chamber firstly turned its attention to the remuneration and other benefits due to the player under the existing contract and the new contract(s), which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasize that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the new contract(s) in the calculation of the amount of compensation, thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s). 24. In this regard, the DRC established, on the one hand, that the employment contract between the player and Club U, signed on 12 January 2010, provided for the player a monthly remuneration of USD 17,000 payable until 31 December 2012. Therefore, and considering that the contract was terminated as of 1 February 2011, the members of the Chamber deemed that the total value of the player’s employment agreement with Club U for the remaining contractual period of twenty-three months resulted in the amount of USD 391,000. 25. In continuation, the Chamber noted that in accordance with the pertinent employment contract signed between the player and Club N, valid as of 15 July 2011 until 30 June 2012, the player was entitled to receive a monthly salary of currency of country A 41,990, corresponding to approximately USD 10,000 as well as a signing fee in the amount of USD 189,000. Consequently, the Chamber established that the value of the new employment contract concluded between the player and Club N for the corresponding period as from July 2011 until and including December 2012 amounted to USD 419,000. 26. Taking into account the preceding paragraphs, the Chamber concluded that the average total salary for the remaining period of time of the two employments contract corresponded to an amount of approximately USD 405,000. 27. Having stated the above, the DRC recalled that the player was unemployed for the period of six months, as of 1 February 2011 until 15 July 2011. In this regard the Chamber was of the opinion that it should take into consideration the loss of salary during this period of time and decided to deduct the amount of USD 60,000, resulting in an aggregate amount of USD 345,000. 28. In continuation, and referring to art. 12 par. 3 of the Procedural Rules, bearing in mind that Club U had specifically included these costs in its claim, the Chamber established that Club U had provided enough evidence of the fees and expenses paid or incurred by Club U for the acquisition of the player and that, therefore and, whereas according to article 17 par. 1 of the Regulations such fees and expenses may be included as one of the criteria to be taken into account in the calculation of compensation, the Chamber should take into account the non-amortised amount of the transfer fee paid by Club U to the player’s former club for his acquisition. In this respect, the Chamber determined that these expenses, after amortization, corresponded to USD 479,167 as rightly claimed by Club U. 29. The Chamber further noted that in its calculation of the amount of compensation, Club U had included costs relating to the acquisition of a new substitute player that allegedly replaced the player. In this regard, the Chamber concluded that it had not been proven to its satisfaction that these expenses should be included in the calculation of the amount of compensation for breach of contract. 30. Finally, the Chamber established that it was undisputed that the player’s salary for January 2011 in the amount of USD 17,000 had not yet been paid by Club U, another element that should be taken into consideration. 31. At this point, the members of the Chamber agreed that, given the very specific particularities of the matter at hand, attenuating circumstances are applicable taking into consideration the health situation of the player and the opinion of the player’s doctor that he indeed needed surgery. For these reasons, the Chamber decided to set the compensation for breach of contract at the total amount of USD 400,000, which is considered by the Chamber to be a fair and justified amount of compensation for breach of contract in the present matter. 32. All in all, on account of the aforementioned considerations, the Chamber decided that the player is liable to pay compensation for breach of contract to Club U in the amount of USD 400,000. Furthermore, in accordance with art. 17 par. 2 of the Regulations, Club N is jointly and severally liable for the payment of the relevant compensation. 33. In addition, taking into account Club U’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that Club U is entitled to interest of 5% p.a. on the amount of compensation as of 4 October 2013. 34. Furthermore, the members of the Chamber decided to reject any further claim lodged by Club U. 35. The Chamber concluded its deliberations in the present matter by rejecting the claim lodged by the player. III. Decision of the Dispute Resolution Chamber 1. The claim of the 1st Claimant / 2nd Respondent, Player V, is rejected. 2. The claim of the 2nd Claimant / 1st Respondent, Club U Football Club, is partially accepted. 3. The 1st Claimant / 2nd Respondent, Player V, has to pay to the 2nd Claimant / 1st Respondent, Club U Football Club, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 400,000 plus 5% interest p.a. on said amount as from 4 October 2013 until the date of effective payment. 4. The Intervening Party, Club N, is jointly and severally liable for the payment of the aforementioned amount. 5. In the event that the amount due to the 2nd Claimant / 1st Respondent, Club U, is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the 2nd Claimant / 1st Respondent, Club U, is rejected. 7. The 2nd Claimant / 1st Respondent, Club U, is directed to inform the 1st Claimant / 2nd Respondent, Player V and the Intervening Party, 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