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 28 March 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theodore Giannikos (Greece), member Mario Gallavotti (Italy), member Eirik Monsen (Norway), member Jon Newman (USA), member on the claim presented by the player, Player S, from country M as Claimant against the club, Club D, from country M 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 28 March 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theodore Giannikos (Greece), member Mario Gallavotti (Italy), member Eirik Monsen (Norway), member Jon Newman (USA), member on the claim presented by the player, Player S, from country M as Claimant against the club, Club D, from country M as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 19 August 2010, the player, Player S (hereinafter: the Claimant) from country M, and Club D, from country N (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 1 July 2012. 2. In accordance with the contract, the Claimant was entitled to receive as remuneration the amount of 3,000 currency of country N within the first 15 days of each month “(in cash)”. 3. Moreover, also on 19 August 2010, the parties entered into a private agreement titled “Protocole” (hereinafter: the agreement) valid as from the date of signature until 1 July 2012. 4. In accordance with the agreement, the Claimant was entitled to receive, inter alia, the amount of USD 10,000 per month. 5. On 24 January 2011, the Claimant lodged a claim against the Respondent in front of FIFA requesting the following amounts: a. USD 190,000 for “19 salaries – from December 2010 until 30 June 2012 x 10.000,oo USD”. b. EUR 3,600 for “18 salaries – from January 2011 until 30 June 2012 x 3000 lei (200 EUR)”. 6. In particular, the Claimant argued that the Respondent had not paid his salaries for the months of December 2010 and January 2011. 7. The Claimant further explained that on 19 January 2011, while being with the Respondent in country T for a pre-season camp, he was informed by the Director of the Respondent and one of the assistant coaches that he had to leave country T and go back to Club D since the President of the Respondent and the coach had taken the decision “to release the player from the [Respondent] duties”. 8. The Claimant claimed that the Director of the Respondent also gave him a document to sign, which stated that the Respondent had fulfilled all its obligations towards the Claimant, that the Claimant “would like to break the contract with the club” and that he will not “claim against the club for the rest of the contract” (hereinafter: the document). The Claimant argued that he refused to sign the document since he “would like to finish this contract in the club” and also it was “against his rights and his wishes”. 9. In continuation, the Claimant stated that, after he refused to sign the document, the Director of the Respondent cancelled his hotel room in country T and arranged a flight ticket for him to go back to country N, to have a meeting with the Respondent’s President in order to “break the contract with the player”. The Claimant alleged that after he refused to leave country T, the Director of the Respondent “attacked [the Claimant] with several punches with boxing and dragging, with several visible injuries on his body”. 10. The Claimant stressed that on 20 January 2011, right after his arrival to country N, he was summoned to the Respondent’s premises where he was again pressured to sign the document, to which he again refused. 11. In addition, the Claimant explained that also on 20 January 2011, the Respondent sent him an individual training program, which began on 22 January 2011 and which included everyday runs of 12 and 14 km and “run 100 times sprint on 100m”. He also stated that no equipment, water nor balls were provided to him. 12. With a further correspondence dated 7 February 2011, the Claimant alleged that, on that day, another meeting took place with the Director and President of the Respondent in which he was again attacked and threatened “to be killed” if he did not sign the document. Therefore, he stated that on 8 February 2011 he would return to country M. 13. In its reply, the Respondent acknowledged having signed the contract with the Claimant, however, in a letter sent to the latter on 5 February 2011, it stated, inter alia, that it had fulfilled all its financial obligations and that “[the Claimant’s] trainings are not held on an empty stadium, but on the running tracks of the Dinamo stadium in country N with a personal coach and according to a personal program that is set by the physical coach of the [Respondent]. This decision was taken by the technical staff of the [Respondent] as your physical condition needed to be improved”, and that “We inform you that you are included in the club transfer list and this fact does not mean we do not wish to collaborate. We are ready to cooperate until the end of the contract signed on the 19.08.2010 and registered at the FA of country N on the 26.08.2010. We assure you that we will honor all the contract provisions and the financial aspects as well”. 14. The Respondent claimed that on 17 December 2010 a meeting took place in which it was announced that the team will be on vacation until 8 January 2011. In this respect, it alleged that the Claimant arrived only on 13 January 2011, i.e. 5 days late, and despite arguing that it was because the airport in country M was closed, he did not provide the Respondent with any evidence. 15. In continuation, the Respondent argued that during the pre-season camp in country T, the Respondent’s technical staff was not happy with the physical condition of the Claimant and therefore, on 19 January 2011, he was informed that he will temporary attend individual training sessions in order to improve his physical state. In this respect, the Respondent explained that the Claimant did not accept such training and requested a meeting with the President of the Respondent. 16. The Respondent further stressed that on 20 January 2011, the Claimant left the preseason camp in country T “without the permission of the management or technical staff”. In this regard, the Respondent acknowledged that a meeting on 20 January 2011 between the Claimant and some representatives of the Respondent took place, however, it stated that “…none of the Respondent’s officials (manager, director, coaches and others) did force Player S to sign any documents of any purpose or did physically attack him”. Furthermore, it alleged that there is no evidence whatsoever in this respect and only the word of the Claimant. 17. The Respondent further stated that after such meeting, it immediately contacted the physical training coach and requested an individual program for the Claimant. In this respect, the Respondent argued that on 21 January 2011, it tried to provide the Claimant with the training schedule, however, the latter refused to sign receipt of such. 18. Regarding the alleged assault committed to the Claimant by the Respondent’s Director, the Respondent questioned the fact that the Claimant did neither go to the police nor to the competent bodies to leave a record of such incident. 19. In continuation, the Respondent stated that in the meeting that took place on 7 February 2011, the Executive Director, Mr G, was present and that “[the discussions] were honest and without insulting words, threats and without any physic attack using a bottle of water”. 20. Subsequently, the Respondent claimed that on 8 February 2011 the Claimant left, closed his bank account and by doing so, prevented the Respondent from paying his salaries. In this regard, on 9 February 2011, the Respondent sent a letter to the Football Association of country N informing the latter of the Claimant’s leaving. 21. In his replica, the Claimant firstly stressed that he did not leave the pre-season camp in country T without the permission of the Respondent. In this respect, he points out that the Respondent paid his hotel room for the night of 20 January 2011 in country N i.e. after he supposedly left country T and it provided him with a personal coach for his physical training sessions. 22. Finally, the Claimant reiterated his previous arguments and stated that after he left country N he was not able to find a new club since the transfer period was closed in most countries. 23. Despite having been asked to do so, the Respondent did not make any further comments. 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 24 January 2011. Consequently, the 2008 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 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 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 player from country M and a country N club. 3. Furthermore, the Chamber analysed which regulations 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 (editions 2010 and 2012), and considering that the claim was lodged in front of FIFA on 24 January 2011, the 2010 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. 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. First of all, the members of the Chamber acknowledged that, on 19 August 2010, the Claimant and the Respondent concluded an employment contract as well as an agreement both valid as from 19 August 2010 until 1 July 2012. 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 currency of country N 3,000. Moreover, the Chamber took note that in accordance with the agreement the Claimant was entitled to receive from the Respondent a monthly salary of USD 10,000. 6. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent asserting that the latter 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 December 2010 and January 2011. 7. Likewise, the Chamber acknowledged the assertions of the Claimant in which the latter states that the Respondent apparently tried to force him to sign a document in which it was stated that he would like to “break the contract” with the Respondent and that he would not claim anything from the latter. Equally, the Chamber took note that the Claimant asserts that after he refused to sign the said document, the Respondent cancelled his hotel in country T during the pre-season camp and sent him back to country N. 8. In addition, the members of the Chamber took note of the Claimant statements regarding the alleged physical and mental aggression he supposedly suffered from some of the representatives of the club and that the Respondent separated him from the team and sent him to train individually without a proper training schedule. 9. The DRC then turned its attention to the arguments of the Respondent and acknowledged that according to the latter, on 17 December 2010 all its players were released on vacation until 8 January 2011 and that the player returned 5 days late i.e. on 13 January 2011. 10. Furthermore, the Chamber took note that the Respondent rejects the statements of the Claimant regarding the alleged aggressive behaviour. In this respect, the Respondent stresses that the meetings with the Claimant were always carried out in absolute respect and that, contrary to what the Claimant asserts, on 20 January 2011, the latter left the pre-season camp in country T without its permission. Moreover, the Respondent stresses that it never tried to force the Claimant to sign any document nor that it ever threatened the Claimant. 11. In relation to the above, the Chamber noted that the Respondent questions the fact that the Claimant did not report the alleged aggressive behaviour to the police. 12. In addition, the Chamber acknowledged that both parties recognized that the Claimant was separated from the team and was provided with an individual training program. However, there is a discrepancy in how said training sessions were carried out. Whereas the Claimant asserts that the training sessions included everyday runs of 12 and 14 km and “run 100 times sprint on 100m” and that no equipment, water nor balls were provided to him, the Respondent alleges that said training sessions were provided by its physical coach, especially in order for the player to improve his physical state. 13. Also, the Chamber noted that it was undisputed between the parties that on 8 February 2011, the Claimant left country N and did not come back to the Respondent. 14. 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 Claimant, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, it would be necessary to determine the consequences for the party that caused the breach of the relevant employment contract. 15. First and foremost, the Chamber wished to emphasise that, in the present matter, it was faced with a lack of evidence that could corroborate both parties’ positions as to what exactly happened in the period of time between 13 January 2011 and 8 February 2011. In this respect, the Chamber pointed out that no well-founded evidence was brought in support of either of the parties’ allegations. 16. In this context, the DRC recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 17. On account of the above, the Chamber deemed that in order to reach a decision in the present matter, it would only take into consideration the allegations and statements actually proved to its satisfaction and undisputed by the parties. 18. Bearing in mind the previous considerations, the Chamber reiterated that it is undisputed that the Claimant left the Respondent on 8 February 2011 and never returned. Therefore, the members of the Chamber considered that 8 February 2011 is to be considered the date that the Claimant terminated his contract with the Respondent. In this context, the Chamber further noted that the Claimant held that the salaries for December 2010 and January 2011 were outstanding at that time and that the Respondent did not provide any documentary evidence that it had paid the aforementioned salaries. In view of the foregoing, the Chamber concluded that the Respondent had not met its burden of proof and determined that the Respondent had failed to pay to the Claimant one outstanding salary as to the contract in the total amount of currency of country N 3,000 and two outstanding salaries as to the agreement in the total amount of USD 20,000 i.e. a total of three outstanding salaries. 19. Furthermore, the Chamber noted that, despite the distant statements of the parties on how the individual trainings of the Claimant were carried out, it is undisputed that the Respondent separated the Claimant from the team and sent him to train individually. 20. The Chamber further observed that the Claimant’s exclusion from the first team occurred for at least the period comprised between 20 January 2011 and 7 February 2011, as it can be inferred from the documentation contained in the file. In addition, the Chamber noted that the player was separated from the team during the pre-season camp and that, on 21 January 2011, the Claimant had i) requested the Respondent in writing to provide him with accommodation and proper training and ii) had requested the Respondent to fulfil its financial obligations. The Chamber observed that the Respondent had not contested having received this notification. 21. Moreover, the Chamber noted that the Claimant had provided a receipt of the payment the Respondent had made to a hotel in country N for the Claimant’s stay on the night of the 20 th of January 2011. Faced with this document, the Chamber did not found it plausible that the Claimant had left the Respondent without the latter’s permission and that it was more probable that the Respondent had requested the Claimant to leave country T, as asserted by the Claimant. 22. Additionally, the Chamber acknowledged the letter sent by the Respondent to the Claimant dated 5 February 2011, in which the Respondent stated that “We inform you that you are included in the club transfer list and this fact does not mean we do not wish to collaborate”. 23. In view of all the preceding facts, the DRC was of the opinion that the Claimant had justified reasons to believe that the Respondent was no longer interested in his services. 24. As a consequence of all the aforementioned considerations, the Chamber considered that the Claimant could reasonably assume that the Respondent was no longer interested in complying with its contractual obligations due to the following three reasons combined: i) he was excluded from trainings in a decisive phase of preparation for the upcoming season, ii) the Respondent’s non-payment of three salaries, and iii) the fact that he was put on the club’s transfer list. Consequently, the Chamber concluded that the Claimant had terminated his contractual relationship with the Respondent with just cause on 8 February 2011. 25. Having established the aforementioned, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 26. 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 USD 20,000 corresponding to outstanding salaries for December 2010 and January 2011 as to the agreement and currency of country N 3,000 as salary for January 2011 as to the contract. 27. 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. 28. 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. 29. 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. 30. Having recalled the aforementioned, 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 both the contract and the agreement, these would run for another nineteen months. Consequently, the Chamber concluded that the remaining value of the agreement as from its early termination by the Claimant until its regular expiry amounts to USD 170,000 and the remaining value of the contract as from its early termination by the Claimant until its regular expiry amounts to currency of country N 51,000. 31. In view of the above, and considering that the Claimant did not have another employment relationship with a new club until June 2011, the Chamber decided that the Respondent must pay the Claimant the amount of USD 170,000 as to the agreement and currency of country N 51,000 as to the contract, as compensation for breach of contract. 32. As a consequence, the DRC decided that the Respondent is liable to pay the total amount of USD 190,000 and currency of country N 54,000 to the Claimant, consisting of the amount of USD 20,000 and currency of country N 3,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of both the agreement and the contract by the Claimant and the amount of USD 170,000 and currency of country N 51,000 corresponding to compensation for breach of contract. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player S, is accepted. 2. The Respondent, Club D, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 20,000 and currency of country N 3,000. 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 170,000 and c 51,000. 4. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. 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 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