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 Jon Newman (USA), member Eirik Monsen (Norway), member on the claim presented by the player, Player M, from country S as Claimant against the club, Club B, from country R 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 Jon Newman (USA), member Eirik Monsen (Norway), member on the claim presented by the player, Player M, from country S as Claimant against the club, Club B, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. The country S player, Player M (hereinafter: the player), and Club B, from country R (hereinafter: the club), concluded an undated employment contract (hereinafter: the contract), valid from 14 July 2009 until 30 June 2012, i.e. for 3 years. 2. Article 3 of the contract provided towards the player the following remuneration: Period 14 July 2009 – 30 June 2010: - EUR 85,000 composed of EUR 25,000 payable at the start of the season and the remaining remuneration payable in 12 monthly instalments of EUR 5,000 each. Period 01 July 2010 – 30 June 2011: - EUR 90,000 composed of EUR 24,000 payable at the start of the season and the remaining remuneration payable in 12 monthly instalments of EUR 5,500 each. Period 01 July 2011 – 30 June 2012: - EUR 95,000 composed of EUR 23,000 payable at the start of the season and the remaining remuneration payable in 12 monthly instalments of EUR 6,000 each. 3. In addition to the aforementioned remuneration, the player was entitled to: - EUR 500 for monthly rent of a furnished apartment payable by the club; - 3 economic class flight tickets per year routing “country B – country S – country R”; - a car. 4. Article 9.1 of the contract specified that “Any dispute between parties arising from or in connection with this contract, including disputes regarding its validity, interpretation, execution or termination shall be settled amicably. Should the parties hereto fail in their attempt of amicable settlement, disputes shall be subject to settlement by the competent bodies of the country R Football Federation and of the Professional Football League”. 5. On 30 August 2010, the player terminated the contract in writing “based on the fact that the club failed to comply with its contractual obligations towards him despite several warnings dated 18 and 23 August 2010”. 6. On 2 September 2010, the player lodged a complaint against the club for breach of contract before FIFA, claiming the total remuneration of EUR 219,500 net plus interest as well as sporting sanctions, as follows: Outstanding (total EUR 47,500): - EUR 15,000 as outstanding monthly remuneration for the season 2009/2010; - EUR 24,000 due at the start of the season 2010/2011; - EUR 5,500 regarding the month of August 2010; - EUR 2,000 regarding unpaid monthly rents of EUR 500 each due for “March onwards”; - EUR 1,000 regarding two flight tickets to Ljubljana. Compensation (total: EUR 172,500): - EUR 60,500 as remaining value for season 2010/11; - EUR 95,000 as remaining value for season 2011/2012; - EUR 16,500 for breach of contract, corresponding to 3 monthly salaries according to the Swiss Code of Obligations. 7. The player explained that on 1 July 2010 the club expressed its intention to find him a new club. Consequently, on behalf of the club’s proposal, he was sent for a test trial to country C from 4 July 2010 until 14 July 2010, which proved to be unsuccessful. Afterwards, he was not able to reach the club. Considering that the club owed him more than three months’ salary and still had not fulfilled the contract, he had “no choice but to end the contract” with his termination letter. 8. In its reply, the club disputed the jurisdiction of FIFA’s Dispute Resolution Chamber, since the claim should have been addressed to the “specialized committees of the League of Professional Football in country R / country R Football Federation Sports committees (art. 25 section 25.5 of the Regulation on the Statute Football Player and Transfer)”. 9. In this respect, the club did not provide any documents regarding the National Dispute Resolution Chamber, but only referred to art. 57 of the country R Football Federation Statute that provided that the “Litigation hereunder or in connection with football activity in country R, which are geared affiliate clubs and or agents of matches to be handled only by commissions jurisdictional powers of the country R Football Federation” and art. 29 of the Regulations of the country R Football Federation Statute that provided that “To ensure implementation of art. 51 paragraph I of the Statute, clubs must enter in their own statutes provide that they and their members, except players and coaches assume the Obligation not to resort to common law courts to resolve disputes and to obey any of these disputes AJF jurisdiction, AMFB, Professional Football League, or country R Football Federation, if necessary, and only after exhausting all stages nationally sports jurisdiction, to seek jurisdiction provided in the FIFA statute…”. 10. Regarding the substance of the matter, the club argued that the player was summoned to country S’s national team and as of 18 May 2010 had not participated in any activities of the club and therefore has “unduly applied for payment of salaries”. Furthermore, the club asserted that the player contacted them in order to request the International Transfer Certificate (ITC) and did not seek to reach an amicable settlement. The club concluded that due to the player’s absence, they “would be entitled to damages as a result of the absence of the player Player M in training and official games”. 11. In his replica, the player asserted that the FIFA is competent, since in country R there is not a valid arbitration tribunal with fair proceedings respecting the principle of equal representation of players and clubs. 12. Furthermore, the player alleged that if he had not honoured his duties, the club should have initiated disciplinary proceedings, which has not been done. In particular, the player asserted that the club added him on a transfer list dated 15 June 2010 and that he contacted the club in order to continue training via email, on 16 June 2010, however the club remained silent. In addition, the player asserted that, on 6 September 2010, an ITC request was apparently made and the club allegedly offered to accept the request, if the player signed a convention, which provided that the player would renounce all claims towards the club. However, the player refused to sign said document. 13. Regarding his training absence, the player affirmed to have been summoned by the country S national team mid of May 2010 and, consequently, was released on 1 July 2010, this however, “does not constitute a breach of contract by the player, nor does it absolve the club from fulfilment of all obligations from the contract”. 14. In its final position, the club asserted to have paid the player all amounts due for the 2009/2010 season (i.e. EUR 85,000), and provided on file the translation of the bank receipts in local currency. Equally, the club explained that since the player terminated the contract on 30 August 2010 it paid in March 2012 an additional amount of EUR 15,000 for the season 2010/2011 to cover July and August 2010, although the player was not present. 15. The player did not contest the final position of the club and upon FIFA’s request he mentioned that “all future contract signed by the player, were agreed for the same or higher salaries than the contract with” the club. **** II. Considerations of the Dispute Resolution Chamber 1. First, 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 2 September 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are 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 shall, in principle, adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country S player and a country R club regarding an alleged breach of the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 9.1 of the employment contract and alleging that the claim should have been addressed to the specialized committees of the League of Professional Football in country R. 5. In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the Association and/or a collective bargaining agreement. 6. While analysing whether it was competent to decide on the matter, the Chamber first referred to clause 9.1 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. Said clause stipulates that if the parties are not able to find an amicable agreement, the dispute should be submitted to the competent bodies of the country R Football Association and the Professional Football League. The members of the Chamber outlined that the content of clause 9.1 is rather vague, differs between different unspecified judicial bodies and that it does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. In view of the foregoing, the Chamber held that the jurisdiction of the specialized committees of the League of Professional Football in country R do not derive from a clear reference in the employment contract. 7. As a result, and taking into consideration that the contract at the basis of the present dispute does not contain a clear arbitration clause in favour of a national body, the Dispute Resolution Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 8. In continuation, the Chamber analysed which edition of the 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 2008 2009, 2010, 2012) and considering that the present claim was lodged on 2 September 2010, the 2009 edition of said Regulations is applicable to the present matter as to the substance. 9. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the matter as well as the documentation contained in the file. 10. In this respect, the members of the Chamber acknowledged that the parties had signed an employment contract valid from 14 July 2009 until 30 June 2012. 16. In continuation, the Chamber noted that the Claimant, inter alia, alleged that the Respondent had failed to fulfil its contractual obligations. In particular, the Claimant explained that on 1 July 2010 the club expressed its intention to find him a new club. Consequently, on behalf of the club’s proposal, he was sent for a test trial to country C from 4 July 2010 until 14 July 2010, which proved to be unsuccessful. Afterwards, he was not able to reach the club. Considering that the club owed him more than three months’ salary and still had not fulfilled the contract, he terminated the contract in writing on 30 August 2010. 17. Consequently, the Claimant asked to be awarded with the payment of outstanding remuneration of EUR 47,500. In particular, EUR 15,000 as outstanding monthly remuneration for the season 2009/2010; EUR 24,000 due at the start of the season 2010/2011; EUR 5,500 regarding the month of August 2010; EUR 2,000 regarding unpaid monthly rents of EUR 500 each due for “March onwards”; EUR 1,000 regarding two flight tickets to Ljubljana. As well as compensation in the total amount of EUR 172,500, equivalent to the remaining value of the contract until season 2011/2012 as well as EUR 16,500 for breach of contract, corresponding to 3 monthly salaries according to the Swiss Code of Obligations. 18. Equally, the Chamber took note of the reply of the Respondent, which, inter alia, asserted that the Claimant was summoned to country S’s national team and as of 18 May 2010 had not participated in any activities of the club. Moreover, in its final position the Respondent highlighted that the Claimant was not willing to solve the matter in an amicable way, although it had paid him all amounts due for the 2009/2010 season i.e. EUR 85,000. Equally, the Respondent explained that since the Claimant terminated the contract on 30 August 2010 it paid in March 2012 an additional amount of EUR 15,000 for the season 2010/2011 to cover July and August 2010, although the player was not present. 19. Finally, the Chamber took due note of the fact that the Claimant did not contest the final position of the club and upon FIFA’s request he mentioned that “all future contract signed by the player, were agreed for the same or higher salaries than the contract with” the club. 20. With due consideration to all of the above, the Chamber started its deliberations by acknowledging that the Claimant terminated the contract in writing on 30 August 2010, after having put the Respondent in default twice, for the payment of outstanding remuneration since April 2010. In this respect, the Chamber took due note that the Respondent deems that the Claimant is not entitled to any remuneration as claimed since he had been absent as of 18 May 2010. In this context, the Chamber noted that the Claimant explained that he was with the country S national team, in preparation for the World Cup. As to this the Chamber emphasised that on the one side, the Respondent did not contest this fact, and on the other side, the Chamber deemed appropriate to underline that if a player is authorized to be absent from a club in connection with his national team duties and such absence is not contested, a club is still obliged to fulfil its contractual obligations. Therefore, the Chamber concluded that in view of the documentation and positions of the parties the Claimant’s absence does not justify the non-payment of his remuneration by the Respondent. 21. In view of the above, the Chamber concluded that the Respondent has failed to fulfil its contractual obligation, consequently, and due to the Respondent’s persistent noncompliance of its contractual obligations the Chamber unanimously concluded that the Claimant had a just cause to terminate the contract on 30 August 2011 and the Respondent is to be held liable for the premature termination. 22. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is, in principle, entitled to any outstanding payments on the basis of the relevant employment contract as well as to compensation. 23. The members of the Chamber then turned their attention to the Claimant’s claim in connection with any outstanding remuneration. In this respect, the Chamber took due note that the Claimant claims the amount of EUR 15,000 as outstanding monthly remuneration for the season 2009/2010; EUR 24,000 due at the start of the season 2010/2011; EUR 5,500 regarding the month of August 2010; EUR 2,000 regarding unpaid monthly rents of EUR 500 each due for “March onwards”; EUR 1,000 regarding two flight tickets to country S. 24. In this respect, the Chamber first emphasised that in virtue of the general legal principle of “pacta sunt servanda”, the Claimant is entitled to receive the contractual remuneration up until the termination of the contract. In particular, the Chamber highlighted that in connection with the season 2010/2011 the player rendered his services to the Respondent during two months, consequently and in view of the players’ claim, he is entitled to two monthly salaries of EUR 5,500 each plus the prorata amount for the sum due at the start of the relevant season amounting to EUR 4,000, in total EUR 15,000. 25. In this respect, the Chamber took due note that the Respondent explained that it had paid the entire contractual remuneration for the season 2009/2010, i.e. EUR 85,000 as well as an additional amount of EUR 15,000 for the season 2010/2011 to cover July and August 2010. Moreover, the Chamber took due note that the Respondent’s position has remained uncontested by the Claimant. 26. Taking into account all of the above as well as the documentation on file the DRC concluded that in connection with any claimed outstanding remuneration the Respondent had failed to pay the Claimant EUR 2,000 regarding unpaid monthly rents. Equally, as regards the Claimant’s claim pertaining to air tickets, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract, the Chamber decided that the Respondent must pay to the Claimant the amount of EUR 1,000 regarding two flight tickets to country S. 27. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in accordance with 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. 28. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contracts and/or the new contract, 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 the new contract in the calculation of the amount of compensation. 29. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the guaranteed remuneration payable to the player under the terms of the contract as from its date of early termination i.e. 30 August 2010, until 30 June 2012, and concluded that the Claimant would have received in total EUR 155,000 as remuneration had the contracts been executed until its expiry date. 30. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 31. Indeed, the Claimant found employment with a new club, in particular, the Chamber took due note that upon FIFA’s request the Claimant mentioned that “all future contract signed by the player, were agreed for the same or higher salaries than the contract with” the Respondent. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player 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. 32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Dispute Resolution Chamber decided that, even though the Respondent is considered liable for the breach of the relevant employment contract, the Claimant did not suffer any financial loss from the violation of the contractual obligations by the Respondent and, therefore, the Chamber decided that there is no amount that should be awarded to the Claimant as compensation for breach of contract in the matter at hand. 33. Finally, 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 outstanding remuneration as of the date on which the claim was lodged, i.e. 2 September 2010, until the date of effective payment. 34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. **** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player M, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 3,000 plus 5% interest p.a. as from 2 September 2010 until the date of effective payment. 4. In the event that the amount due to the Claimant is not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives