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 7 February 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Mr John Bramhall (England), member Santiago Nebot (Spain), member on the claim presented by the player, Player P, from country N 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 7 February 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Mr John Bramhall (England), member Santiago Nebot (Spain), member on the claim presented by the player, Player P, from country N 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 19 January 2009, Player P, from country N (hereinafter: the Claimant), and Club K, from country T (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid for “the 2008-2009 second season, 2009-2010 season and 2010-2011 season”. 2. The contract specified, inter alia, that the Respondent would provide the Claimant with the following remuneration: Season 2008-2009 (second season): - EUR 25,000 payable upon reception of the ITC; - EUR 25,000 payable in 5 monthly instalments of EUR 5,000 each, from February until June. Season 2009-2010: - EUR 50,000 due on 30 August 2009; - EUR 50,000 payable in 10 monthly instalments of EUR 5,000 each, from August until May. Season 2010-2011: - EUR 50,000 due on 30 August 2010; - EUR 50,000 payable in 10 monthly instalments of EUR 5,000 each, from August until May. 3. In addition, the contract provided the following bonuses: - EUR 10,000 in the event that the Claimant scores at least 10 goals in the country T League; - an increase of 25% of his annual salary in the event that the Claimant plays in more than 25 matches in the country T League. 4. On 20 March 2012, the Claimant lodged a complaint before FIFA against the Respondent for breach of contract, requesting a total amount of EUR 125,000, plus 5% interest p.a., due as of the due date of each payment, and composed as follows: - EUR 25,000 as outstanding remuneration for the season 2009-2010; - EUR 100,000 as compensation corresponding to the remuneration for the season 2010-2011. 5. In this respect, the Claimant held having honoured his contract until 2 April 2010, on which date he suffered a severe car accident on his way back from training with the Respondent, which left him paralysed. 6. In this regard, the Claimant stated that despite the Respondent’s alleged promise of respecting the contract, the Respondent terminated the contract on 11 August 2010, making reference to article 27 of the Regulations on Status and Transfer of Players of the country T Football Federation. As per the explanations of the Claimant, said article gives the Respondent the right to terminate the contract whenever “the illness the player suffers from, outside football activities or the period for relaxing, lasts longer than six months”. In this context, and according to the Claimant, the Respondent’s termination was unlawful because it omitted to wait for the compulsory six-month period before terminating the employment contract. In conclusion, and in consideration of art. 27 of the country T Football Federation Regulations, the Claimant submitted an alternative request for compensation, corresponding to the amount of EUR 60,000 corresponding to the amounts due until six months after the occurrence of the disability. 7. In its reply, the Respondent objected to the above-mentioned six-month waiting period and alleged that the car accident suffered by the Claimant was based on his fault and not related to football activity since the latter ignored “RED WARNING LIGHTS, LANE USE SIGN and COMPUSULSORY DIRECTION SIGNS”. Hence the Respondent had a just cause to unilaterally terminate the contract in accordance with art. 27 of the country T Football Federation Regulations. 8. In this respect, the Respondent argues that art. 27 of the country T Football Federation Regulations allows clubs to terminate the relevant employment contract whenever the player will be unable to provide his services for a six-month period. Since it was evident the Claimant would not be fit to play for such a period, the Respondent maintains that its termination was valid. 9. Regarding the remuneration requested, the Respondent alleged having paid to the Claimant “in good faith” a total amount of EUR 175,000. In this respect, the Respondent maintains having paid the Claimant’s entire dues until 2 April 2010 in the amount of EUR 140,000. In addition, the Respondent states having paid the amount of EUR 25,000 as championship bonus, which was not agreed in the contract. Furthermore, the Respondent alleges having provided the Claimant with an insurance “which in turn paid him a total € 50.347.39 – in addition to all expenses of his medical treatment and rehabilitation”. In order to corroborate the payment of EUR 175,000 in total, the club provided receipts of payment. As a result, the Respondent rejects the Claimant’s claim for outstanding salaries as well as for compensation. In addition, the Respondent concluded by requesting the Claimant to bare legal costs regarding the present proceedings. 10. In his final comments, the Claimant maintains that the Respondent had no just cause to terminate the contract and, in particular, asserts that the country T Football Federation Regulations and country T national law are not applicable in the matter at hand, insisting that they are not “in line with the universal principles of employment law”. The Claimant also reiterates his position that art. 27 of the country T Football Federation Regulations provides for a waiting period of six months which has not been respected by the Respondent before terminating the contract. Moreover the Claimant states that the injury was suffered in an activity that is not prohibited by the contract and insists that, as a general rule, the injury of a player does not constitute a just cause for a club to terminate the contract. 11. As for the Respondent’s final comments, it reiterates its position by rejecting all claims of the Claimant, considering that the termination of the contract was justified and that it had paid the total amount of EUR 175,000 to the Claimant. 12. Upon FIFA’s request for information regarding any remuneration or allowance the Claimant might have received after the termination of the contract, he states that neither the Respondent nor any insurance company or state authority made any payment in relation with his injury. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 20 March 2012. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 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 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 employmentrelated dispute with an international dimension between a country N 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2010), and considering that the present claim was lodged on 20 March 2012, 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 the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 5. The members of the Chamber acknowledged that the parties were contractually bound by means of an employment contract valid as from the second part of the season 2008-2009 until the end of the season 2010-2011. 6. Subsequently, the Chamber took into account that, according to the Claimant, the Respondent had prematurely terminated the contract in writing on 11 August 2010. Equally, the DRC observed that said fact was confirmed by the Respondent. 7. In continuation, the Chamber went on to deliberate whether the facts of the case constitute a just cause for the Respondent to prematurely terminate the employment contract. 8. In this respect, the Chamber took due note of the Respondent’s argumentation that it had terminated the contract with just cause on the basis of art. 27 of the country T Football Federation Regulations. The Chamber remarked that according to the Respondent, the Claimant was no longer able to provide his services to the club considering his permanent incapacity since his car accident on 2 April 2010. 9. On the other hand, the members of the DRC noted that the Claimant, although acknowledging his permanent incapacity, contested the validity of the above-mentioned article. 10. In view of the foregoing, the members of the Chamber recalled the wording of art. 27 of the country T Football Federation Regulations which, according to the Respondent, allows clubs to terminate the relevant employment contract whenever the player will be unable to provide his services for a six-month period. 11. In this regard, the DRC deemed it appropriate to analyse the question whether such clause could lawfully be referred to and be considered as valid at all. In that context, the Chamber was eager to emphasize that, according to its well-established jurisprudence, and as a general rule, a player’s injury does not constitute a just cause in the sense of art. 14 of the Regulations for a club to terminate a contract. Moreover, the Chamber, referring to the contents of art. 18 par. 4 of the Regulations, emphasized that once the parties concluded an employment contract, they had the obligation to implement its terms and a club could not unilaterally question the validity of the contract during its course based on the physical state of the player. The Chamber also deemed it important to point out that in any event, the contract does not make reference to any regulations being applicable, meaning that such was never included to the contractual agreement between the parties. 12. In the light of such potestative character of the pertinent contractual clause, the members of the DRC were of the unanimous opinion that art. 27 of the country T Football Federation Regulations invoked by the Respondent in order to put an end to the contract was clearly invalid and that, consequently, the respective argumentation of the Respondent could not be upheld by the Chamber. 13. In continuation, the members of the Chamber highlighted that although permanent incapacity in itself cannot be considered as a valid reason to unilaterally terminate an employment contract, such specific circumstance will however have an effect on the amount of compensation, in the light of the bilateral character of an employment contract and the circumstance that in the event of permanent incapacity to play, a player is no longer in the position to render his services to the club. 14. On account of all of the above, the members of the Chamber unanimously reached the conclusion that the Respondent terminated the contract on 11 August 2010 without just cause. 15. Prior to establishing the consequences of the breach of contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the Respondent. 16. Indeed, in his statement of claim, the Claimant alleges that his remuneration relating to January until May 2010 was to be considered outstanding. The Respondent, for its part, stated that no amounts are outstanding and that it paid to the Claimant a total amount of EUR 175,000 from the beginning of the contractual relationship until its termination. 17. In this respect, 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 on the basis of an alleged fact shall carry the respective burden of proof. 18. The DRC noted that the Respondent did substantiate its defence, as it presented receipts of payment in respect of payments made to the Claimant which amount in total to EUR 175,000. In this context, the DRC referred to content of the contract as well as all other documents at his disposal. Therefore, the Chamber concluded that the player had been entitled to fixed remuneration only and up until the end of the season 2009-2010, i.e. the total amount of EUR 150,000. 19. In view of the above, the DRC concluded that the Respondent has provided evidence of its defence and that, therefore, it could be established that the Respondent paid the Claimant all amounts which had fallen due at the time of the termination of the contract, as agreed upon between the parties in the contract. As a consequence, the Respondent is not to be held liable to pay any outstanding remuneration to the Claimant. Therefore, the DRC partially accepted the Claimant’s claim. 20. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the contract by the Respondent without just cause on 11 August 2010. 21. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation from the Respondent for the termination of the contract without just cause on the basis of the contract. 22. 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 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 determined that since no compensation clause is contained in the contract, 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 Chamber recalled that said provision provides for a nonexhaustive 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 deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 24. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or any other earnings made within the residual contractual period, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any subsequent earnings, if any, in the calculation of the amount of compensation. 25. In accordance with the contract signed by the Claimant and the Respondent, which was to run for another season, i.e. until May 2011, after the breach of contract occurred, the Claimant was to receive remuneration amounting to EUR 100,000. Consequently, the Chamber concluded that the amount of EUR 100,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 26. The Chamber then took due note of the employment situation of the Claimant after the termination of the contract at the basis of the case at stake. Bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such subsequent remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract. In this regard, the members of the Chamber noted that according to the circumstances, the Claimant did not sign any new employment contract as a professional football player after the termination of the contract as he has not been able to play any professional football since then. 27. The Chamber further took into account that the Claimant apparently did not receive any remuneration or allowance by the Respondent or any insurance or state authority in relation with his injury, in spite of the Respondent’s allegation according to which the Claimant had received an insurance allowance amounting to EUR 50,347.39. In this respect, pursuant to art. 12 par. 3 of the Procedural Rules, the Chamber did not take into account such payment in the calculation of the compensation since the Respondent did not substantiate its statement in relation thereto. 28. Likewise, as to the alleged payment of the championship bonus of EUR 25,000, the DRC acknowledged from the Respondent assertions that such payment apparently referred to the previous season, i.e. 2009-2010, and therefore could count as mitigation for compensation. 29. As stated above, the circumstance of permanent incapacity to play professional football is taken into consideration in the determination of the amount of compensation. Indeed, an employment contract is essentially based on a mutual exchange of obligations between the parties involved, i.e. the employer (in football, the club) undertakes the obligation to remunerate the employee (in football, the player) in exchange of his services and the employee undertakes the obligation to render his services to the employer in exchange of the employer’s remuneration, for the duration agreed upon between the parties. In the event of permanent incapacity to play, the player is obviously prevented from fulfilling his main obligations arising from the employment contract, i.e. to render his services to the club. A permanent incapacity of a player thus creates a particular situation, in that the other party, a club, can no longer be expected to continue to fulfil its contractual obligations. 30. Consequently, the Chamber deemed that effects inherent to permanent incapacity to play professional football have to be taken into account in the determination of the amount of compensation. 31. In the present matter, in view of all of the above as well as the particular issue at stake, the members of the Chamber deemed that compensation within the range of 70% to 80% of the final amount of compensation, including any possible mitigation of damages by the player, was considered reasonable and proportionate as compensation for breach of contract in the specific case at hand. 32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and decided that the Respondent must pay the amount of EUR 80,000 as compensation for the unjustified breach of the contract by the Respondent in the specific case at hand. 33. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 20 March 2012, until the date of effective payment. 34. The DRC further decided that the Respondent’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. 35. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant is partially accepted. 2. 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 80,000 plus 5% interest p.a. on said amount as from 20 March 2012 until the date of effective payment. 3. In the event that the abovementioned amount due to the Claimant is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. 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: Markus Kattner Deputy Secretary General Encl: CAS directives