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 B as Claimant against the club, Club J, from country C 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 B as Claimant against the club, Club J, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On an unspecified date, Player S, from country B (hereinafter: the Claimant), and Club J, from country C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1 March 2013 until 30 November 2014. 2. In accordance with the contract, the Claimant was entitled to receive as remuneration from the Respondent, inter alia, the total amount of USD 929,930 payable as follows: a. USD 100,000 as signing fee payable within 5 days following the signing of the contract; b. USD 50,000 before 30 June 2013; c. USD 300,000 as salaries for the season 2013, payable in 10 equal instalments of USD 30,000; d. USD 479,930 as salaries for the season 2014, payable in 11 equal instalments of USD 43,630; 3. In continuation, article 7.3 of the contract stated that “When [the Claimant] fails to reach the match times, playing time or ratio required by [the Respondent], [the Respondent] has the right to duly subtract the above salary and the subtract methods shall be specified in the Supplementary Agreement. Subtract the approach: reducing 10% playing time in 70% of full game time (that 20% of 72 minutes), 20% of the monthly wages will be subtracted, thus decreasing, but other than the team doctor confirmed the injury and except for the tactical arrangements of coaching staff. And the [Claimant]’s training and life will be under management by foreign aid Club J Football Respondent regulations”. 4. In addition, article 11.4 of the contract stipulated that “if [the Claimant’s] professional ability cannot be accepted by [the Respondent’s] request in the season 2013 (appearance rate less than 80%), [the Respondent] can cancel the contract with [the Claimant] at the end of the season 2013, and [the Respondent] do not need to make any compensation”. 5. On 11 December 2013, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the total amount of USD 589,960 as follows: a. USD 50,000 for the payment due on 30 June 2013 plus 5% interest p.a. as from the due date; b. USD 60,000 as outstanding salaries of October and November 2013 plus 5% interest p.a. as from the due date; c. USD 479,960 “as compensation for breach of contract (salary of December 2013 and the season 2014)” plus 5% interest p.a. as from the due date; d. Procedural costs. 6. In particular, the Claimant argued that after the non-payment of the USD 50,000 due on 30 June 2013, on 10 July 2013, he notified the Respondent requesting the above-mentioned payment. Another reminder was sent on 31 July 2013, but the Respondent failed to respond to both. 7. Subsequently, the Claimant stressed that the Respondent failed to pay him his salaries for October and November 2013. Furthermore, he claims that the Respondent refused to summon him for the final matches of the 2013 country C season, which ended in November 2013, just to impede him to achieve the 80% of appearances with the Respondent. 8. In view of the foregoing, the Claimant asserted that he “is entitled to terminate the contract unilaterally with just cause”. 9. On 7 January 2014, the Respondent replied to the claim stating that in accordance with article 7.3 of the contract, if the Claimant failed to achieve an 80% rate of “match times”, the Respondent had the right to subtract the former’s salary. 10. In this respect, the Respondent claims that according to the Claimant’s playing time with the Respondent, it deducted USD 75,000 of the Claimant’s salary for the season 2013, nonetheless, and since the Respondent owed the Claimant 2 months’ salary, the Respondent only deducted the amount of USD 60,000. 11. In this regard, the Respondent claims that despite the fact that it owes the Claimant the salaries from October and November 2013 and the payment due on 30 June 2013, because of the above-mentioned deduction, it only needs to pay the Claimant the amount of USD 50,000. 12. The Respondent further argues that on 6 November 2013, the Respondent’s financial staff approached the Claimant in order to pay him the outstanding amounts, however, the Claimant refused to accept the payment, while all the other players of the club received their salaries on time. 13. In addition, the Respondent alleges that on 20 December 2013, it asked the Claimant for his bank account details in order to make what it considered as the outstanding payments but the Claimant never answered. 14. Finally, the Respondent added that according to article 11.4 of the contract, the Respondent has the right to terminate the contract in case the Claimant did not reach a rate of 80% of appearances and since the Claimant’s rate is only 50.5%, the contract was “automatically terminated”. 15. On 12 March 2014, the Claimant informed FIFA that he did not enter into an employment relationship with a new club after December 2013. 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 11 December 2013. Consequently, the 2012 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 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 country B player and a country C 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 (edition 2012), and considering that the claim was lodged in front of FIFA on 11 December 2013, the 2012 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 an unspecified date, the Claimant and the Respondent signed an employment contract valid as from 1 March 2013 until 30 November 2014. The Claimant, on the one hand, maintains that the Respondent breached the contract by failing to remit his salaries in a timely manner and refusing to summon him for the club’s matches. The Respondent, on the other hand, rejects such claim and submits that since the Claimant failed to reach 80% of appearances with it, according to article 7.3, it had the right to subtract the player’s salary and that, in accordance with article 11.4 of the contract, such was automatically terminated. 6. In this context, the Chamber firstly focussed its attention on art. 7.3 of the contract, which reads as follows: “When [the Claimant] fails to reach the match times, playing time or ratio required by [the Respondent], [the Respondent] has the right to duly subtract the above salary and the subtract methods shall be specified in the Supplementary Agreement. Subtract the approach: reducing 10% playing time in 70% of full game time (that 20% of 72 minutes), 20% of the monthly wages will be subtracted, thus decreasing, but other than the team doctor confirmed the injury and except for the tactical arrangements of coaching staff. And the [Claimant]’s training and life will be under management by foreign aid Club J Football Respondent regulations”. 7. Furthermore, the Chamber turned its attention to art. 11.4 of the contract which states that: “if [the Claimant’s] professional ability cannot be accepted by [the Respondent’s] request in the season 2013 (appearance rate less than 80%), [the Respondent] can cancel the contract with [the Claimant] at the end of the season 2013, and [the Respondent] do not need to make any compensation”. 8. Having taken into account the previous considerations, the Chamber deemed that the above-described clauses are unilateral and to the benefit of the Respondent only. In this respect, the members of the Chamber wished to point out that the decision on the lining-up of a player in a match is normally left fully to the discretion of the club. Hence, in view of such potestative character of the pertinent contractual clauses, the members of the Chamber agreed that arts. 7.3 and 11.4 of the contract cannot be accepted and thus, shall not have any effect. 9. In this context and for the sake of completeness, the members of the Chamber wished to highlight that, in general, potestative clauses, i.e. clauses that contain obligations which fulfilment are conditional upon an event that one party entirely controls, cannot be considered since they generally limit the rights of the other contractual party in an excessive manner and lead to an unjustified disadvantage of the latter towards the other. 10. In relation to art. 7.3 of the contract, the Chamber duly noted that the Respondent invoked said provision to justify the complete non-payment of the salaries for October and November 2013. The Chamber was unanimous in its conclusion that such a clause, as well as the execution of it, could not be accepted. 11. Also, the Chamber concurred that said art. 11.4 of the contract does not constitute a reason that can be validly invoked nor a legal basis to unilaterally terminate the contract. Consequently, the Chamber rejected the Respondent’s argument in this respect. 12. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of USD 110,000 corresponding to his outstanding remuneration as well as the amount of USD 479,960 as compensation for breach of contract, asserting that the Respondent had not fulfilled its contractual obligations towards him. More specifically, the Claimant indicated that the Respondent had not paid him the amount due on 30 June 2013 and his salaries for the months of October and November 2013. 13. Likewise, the members of the Chamber noted that the Claimant sent to the Respondent two default letters dated 10 and 31 July 2013 in which the Claimant requested the Respondent to pay him the outstanding remuneration due on 30 June 2013, which remained unanswered. 14. Having taken into account the previous considerations and in view of the conclusion reached in relation to art. 7.3 and art. 11.4 of the contract, the Chamber decided that it could be established that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time and that, on 11 December 2013, by submitting his claim to FIFA, the Claimant terminated the contract with just cause. 15. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 16. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the 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 110,000, corresponding to the payment due on 30 June 2013 in the amount of USD 50,000 and the salaries of October and November 2013 in the amount of USD 60,000. 17. 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. 18. 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. 19. 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. 20. Subsequently and prior to assessing the relevant criteria in determining the amount of compensation due to the Claimant by the Respondent, the Chamber first of all recalled that the Claimant is claiming the amount of “USD 479,960” as compensation, corresponding to “all the salaries that the Claimant should have received until 30 November 2014”. 21. 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 the employment contract, the contract would run for another twelve months. Taking into account the foregoing as well as the claim of the Claimant, the Chamber decided that the amount of USD 479,960 shall serve as the basis for the final determination of the amount of compensation for breach of contract 22. In continuation, the Chamber remarked that the Claimant had not found any new employment contract with another club after the termination of the contract. 23. In continuation, the Chamber pointed out that for the period of time as from March 2014 until November 2014, the Claimant had not yet concluded any employment contract. The Chamber considered that this period of time shall also be taken into consideration when calculating the amount of compensation for breach of contract, since the Claimant will have the opportunity to conclude a new employment contract during said period of time in order to mitigate his damages. 24. In view of all of the above, the Chamber decided that the Respondent must pay the amount of USD 283,595 to the Claimant, which is considered by the Chamber to be reasonable and justified amount as compensation for breach of contract. 25. As a consequence, the DRC decided that the Respondent is liable to pay the total amount of USD 393,595 to the Claimant, consisting of USD 110,000 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract by the Claimant and of USD 283,595 corresponding to compensation for breach of contract. 26. In continuation and with regard to the Claimant's request for interest, the Chamber decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of USD 110,000 as from the respective due dates and on the amount of USD 283,595 as from 11 December 2013. 27. Finally, the DRC decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules. 28. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player S, is partially accepted. 2. The Respondent, Club J, 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 110,000 plus 5% interest until the date of effective payment as follows: a. 5% p.a. as of 30 June 2013 on the amount of USD 50,000; b. 5% p.a. as of 1 November 2013 on the amount of USD 30,000; c. 5% p.a. as of 1 December 2013 on the amount of USD 30,000. 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 283,595 plus 5% interest p.a. on said amount as from 11 December 2013 until the date of effective payment. 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, 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 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