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 27 May 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Phillipe Piat (France), member Mario Gallavotti (Italy), member on the claim presented by the player, Player B, from country P as Claimant against the club, Club S, from country B 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 27 May 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Phillipe Piat (France), member Mario Gallavotti (Italy), member on the claim presented by the player, Player B, from country P as Claimant against the club, Club S, from country B as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 22 June 2012, Player B, from country P (hereinafter: the player or the Claimant), and Club S, from country B (hereinafter: the club or the Respondent), signed an employment contract (hereinafter: the contract) valid as from 1 July 2012 until 30 June 2015. The contract is also signed by an agent, Mr R (hereinafter: Mr R). 2. In accordance with the contract, the Claimant was entitled to a monthly salary of: -EUR 8,333 in the 2012/2013 season (12 X EUR 8,333 = EUR 99,996) -EUR 9,167 in the 2013/2014 season (12 X EUR 9,167 = EUR 110,004); -EUR 10,000 in the 2014/2015 season (12 X EUR 10,000 = EUR 120,000). 3. The monthly salaries were to be paid no later than the 25th day of the following month. 4. Art. X of the contract stipulates that the Respondent would provide the Claimant with 3 return flight tickets country B-country P per season. 5. On 22 May 2013, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract without just cause. In support of his claim, the player indicated that his salary for the months of July, August and September 2012 were paid only after he had sent a default letter on 4 October 2012. Thereafter, the Respondent did not proceed with the payment of the salary of October, November and December 2012. 6. The Claimant explained that on 10 December 2012, all players received a document from the club outlining the team’s program as well as fixing holidays as from 16 December 2012 until 4 January 2013. 7. In continuation, the Claimant asserted that until mid-December, he continuously asked the Respondent to pay the relevant salaries and to provide him a ticket country B – country P, however to no avail. 8. On 17 December 2012, the Respondent allegedly proposed to the Claimant to terminate the contract upon the payment of two salaries, however, the Claimant did not wish to do so as he intended to fulfill his contractual obligations. 9. Following the above, the Respondent allegedly told the Claimant that it would not pay him his salaries nor his flight tickets, after which the Claimant informed the Respondent that he would not leave until his salaries and flight tickets were paid. According to the Claimant, the Respondent then “in act of truly humiliation of the player, the Club Direction, with help of two other elements of the club, coercively pulled the Claimant player of the club facilities. Giving immediate orders for the player not to enter again in his office and the club facilities (…) being automatically unable to provide work. Verifying on that date the verbal rupture of the work relationship by the Club’s initiative.” 10. As a result, the Claimant contacted the country P embassy in country B which advised him to send a fax to the club giving accounts of his claims. In continuation, the Claimant visited the club every day as from 19 December 2012 until 4 January 2013 together with another country P player, Mr T, and an official of the country P Embassy. 11. In the meantime, by means of two letters dated 21 and 23 December 2012, the Claimant requested his salaries for October 2012 as well as the flight tickets. On 27 December 2012, 29 December 2012 and 3 January 2013, the Claimant also claimed the salary for November 2012. 12. On 5 January 2013, “as well as on day 6” the Claimant presented himself at the stadium where “to be able to train, having serious difficulties to obtain the practice equipment, being put, by the coach (who received order of the club), to perform physical exercises at the side of the normal group work”. 13. On 7 and 8 January 2013, the Claimant was not allowed to train and on 9 January 2013 he was given a list with players who would attend the club’s training camp in Turkey, and he was not among them. 14. Also on 9 January 2013, the Claimant was allegedly called into the office of the club, where he was requested to sign a document and was told that he had been dismissed due to his absence from work. The Claimant indicated that he refused to sign the document. 15. In the following days, the Claimant, together with two teammates, continued to present themselves at the stadium to train, however, on 18 January 2013, he received an “order of dismissal”. In this respect, the Claimant submitted the “order of dismissal”, which is dated 11 January 2013, and which stipulates that the Claimant was not at work from 18 December 2012 until 6 January 2013 as well as that, on 11 January 2013, he was invited to “reunite with the club where was requested an oral or written justification about his non-attendance. Player B folded to offer whatever explanations (…)” and that, therefore, the contract was terminated. 16. On 28 January 2013, the Claimant replied to the club stating that he did not accept the termination of the contract. 17. On account of all the above, the Claimant holds that the termination of the contract was without just cause and requests the following amounts: - EUR 24,999 as outstanding salaries for October to December 2012; - EUR 280,002 as compensation for breach of contract; - EUR 50,000 as patrimonial damages and non-patrimonial damages. 18. In its reply to the claim, the Respondent outlined that the Claimant lodged his claim on 22 May 2013 requesting outstanding remuneration for the months of October to December 2012. However, the Respondent referred to a “Mandate” dated 25 March 2013 apparently issued by the player to Mr R, by means of which, according to the Respondent, the Claimant authorized the agent to receive his outstanding remuneration. What is more, the Respondent provided a “Declaration” signed by Mr R and dated 27 March 2013 which, in the Respondent’s view, proves that the salaries for October 2012 to January 2013 were paid. 19. In this respect, the Respondent submitted the relevant “Mandate” by means of which the Claimant allegedly authorized the agent to “receive the transfer from Club S according his work relations with the mentioned club”. Also, the Respondent submitted the “Declaration” signed by the agent confirming that he received, on 27 March 2013, the amount of EUR 47,000 for the salaries of October 2012 until part of January 2013 for the Claimant as well as for the salaries of November 2012 until part of January 2013 for the player T. 20. The Respondent stressed that the above-mentioned documents prove that it no longer owes the Claimant any money and that he has recognized and accepted the unilateral termination of the contract without having any further claims towards the club. 21. What is more, the Respondent indicated that the Claimant entered into a contract with the country P Club, Club P, immediately after the termination of the contract and, therefore, the claim for remuneration until the end of the contract is irrelevant. 22. As to the Claimant’s statement that he visited the stadium between 19 December 2012 and 4 January 2013, the Respondent pointed out that this period of time was declared as holidays. Therefore, the Claimant could not expect that someone of the club was present to meet him. 23. Finally, as to the unilateral termination of the contract, the Respondent deemed that such termination was justified since the Claimant “refused to execute his contractual obligations and was absent from work without being able to provide the club with any reasonable explanations or excuse.” 24. In his replica, the Claimant held that he never signed the “Mandate” and that such document is forged and contains a fake signature. The Claimant stated he did not receive any salary or compensation on his account. As to the “Declaration”, the Claimant stressed that it is unknown to him whether this is true or false, because “he had nothing to do with this subject and the beneficiary of this alleged bank transfer is totally unknown”. 25. Equally, the Claimant indicated that Mr R is not his agent and denied having signed a contract with Club P. 26. In its duplica, and after having been requested by the FIFA administration to provide the original version of the “Mandate”, the Respondent emphasized that the Claimant was not present in country B when signing the “Mandate”, therefore he could “not possibly have signed the original document in the club’s offices or even in its country but this could have been done only by fax (…). The player is deliberately demanding for the original of the Mandate to be provided by the club because he is fully aware of the fact that the club could not possibly be in its possession because of the facts described above. Moreover, the explicit demand of the original document as well as the fact that it has been declared by the player as forged makes us believe that the only original document is still in the possession of the player or has been destroyed as part of the plan to committee fraud (…)”. 27. Nevertheless, the Respondent submitted the alleged original “Declaration” as well as a copy of the “Mandate” which contain the apparent original signature of Mr R and a copy of the signature of the Claimant. In this context, the Respondent insisted that it made the payments to Mr R. 28. Furthermore, the allegation that the Claimant does not know Mr R is false, since Mr R signed the contract acting as his agent. In this respect, the Respondent also provided a claim of the lawyer of the player, in which he represents Mr R in front of FIFA against the Respondent in relation to the transfer of the player. Therefore, the Respondent deems that it is obvious that the Claimant, the lawyer and the agent have a relationship and that they are trying to commit financial fraud. 29. On 17 January 2014, the Claimant signed a contract with Club D, from country C, valid as from the day of signing until 31 May 2015. In accordance with the contract, the Claimant would receive for the 2013/2014 season the total amount of EUR 5,000 and for the 2014/2015 season the total amount of EUR 14,000. 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 22 May 2013. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and par. 3 of the 2012 edition of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 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 P player and a country B club. 3. In this respect, the Chamber first wished to clarify that contrary to the information contained in FIFA’s letter dated 22 May 2014 by means of which the parties were informed of the composition of the Chamber, the members Joaquim Evangelista and Mr M refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr E has the same nationality as a party involved in the present proceedings. In order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr M refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in the presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players. 4. 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 2 of the Regulations on the Status and Transfer of Players (editions 2012) and considering that the present claim was lodged on 22 May 2013, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. 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. 6. Following the above, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the latter had terminated the employment contract without just cause on 18 January 2013, when he received a letter from the Respondent that his contract was terminated due to the fact that he had been absent from the club. Also, the Claimant held that at the time of the termination, several monthly salaries were outstanding, and that he had been denied access to the club’s facilities and thus unable to perform his contractual obligations. 7. Furthermore, the Chamber observed that the Respondent, for its part, was of the opinion that the Claimant accepted the termination of the contract referring to the “Declaration” and the “Mandate”. Equally, the Respondent stressed that the Claimant had failed to provide his services under the contract by being absent without any valid reason. What is more, the Respondent indicated that the Claimant’s visits to the stadium between 19 December 2012 and 4 January 2013 were pointless since the aforementioned period of time was declared as holidays. 8. In this context, the Chamber acknowledged that it had to examine whether the reasons put forward by the Respondent could justify the termination of the contract on 18 January 2013. 9. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfillment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 10. In view of the above, the Chamber thoroughly examined the “order of dismissal” dated 11 January 2013, which was handed to the Claimant on 18 January 2013, and by means of which the latter was informed about the termination of the contract. The Chamber pointed out that said document stipulates that the Claimant was dismissed since he “didn’t appear in his work place from 18.12.2012 until 06.01.2013, including. His absence is duly confirmed by Notary no. 594, with activity area of the Regional Court of country S the constative minutes of the dates 18, 19 and 20 December 2012 and 2 and 3 January 2013. Player B wasn’t found during all the mentioned absence period despite several attempts by the Club S (…), contacting him. Until 11.01.2013 Player B didn’t present in Club S justifiable evidence for his absence.” 11. Therefore, it is clear for the Chamber that the actual reason for the termination of the contract was the Claimant’s absence from the Respondent between 18 December 2012 and 4 January 2013. Having established the foregoing, the Chamber turned its attention to the document submitted by the Claimant concerning the Respondent’s “program” for the period between 16 December 2012 and 4 January 2013. Said document clearly indicates that the period between 16 December 2012 until and including 4 January 2013 were declared as holidays. What is more, the Chamber stressed that the Respondent, in its reply to the claim, had confirmed that the Claimant’s visits to the stadium between 19 December 2012 and 4 January 2013 could not be taken into consideration since the aforementioned period of time had been declared as holidays. Hence, the Chamber came to the unanimous conclusion that the Claimant was in fact authorized to be absent from the club between 18 December 2012 and 3 January 2013, i.e. on the dates that, in the “order of dismissal”, were indicated as the dates on which the Claimant was absent from the club without a valid reason and which lay at the basis of the dismissal. 12. As a result, the Chamber concluded that the Respondent did not have a just cause to prematurely terminate the employment contract with the Claimant, since the latter was authorized to be absent from the club in view of the fact that the relevant period was declared as holidays. 13. Having established the aforementioned, the Chamber went on to deliberate as to whether, as alleged by the Claimant, the Respondent had, prior to the termination of the contract, failed to fulfil its financial obligations towards the Claimant. In this regard, the Chamber pointed out that the Respondent had not contested that it had not made payment of the Claimant’s salaries for the months of October to November 2012. Indeed, the Respondent had indirectly confirmed such fact by alleging having paid the salaries in March 2013, i.e. after having terminated the contract. 14. Consequently, the Chamber came to the unanimous conclusion that the Respondent had breached the contract by failing to pay the Claimant’s salaries for the months of October and November 2012. 15. On account of the above, the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 18 January 2013. Equally, the Chamber reiterated that, prior to terminating the contract, the Respondent had breached its contractual obligations by failing to pay 2 monthly salaries to the Claimant. Consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause. 16. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 17. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. In this respect, the Chamber noted that the Respondent indicated that, in March 2013, it had already paid the outstanding salaries claimed by the Claimant to his agent, Mr R, which could be adduced by the “Mandate” and the “Declaration.” The Chamber noted as well that the Claimant however contested the validity of the relevant documents stating that his signature on the “Mandate” was falsified and that he therefore never authorized the Respondent to make any payments to Mr R. 18. On account of the above, the Chamber duly noted that it had to examine if the Claimant’s remuneration for the period between October and December 2012 was still outstanding. In this regard, the Chamber referred to the rule of the burden of proof mentioned in art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 19. With due consideration to the above and while examining the content of the “Mandate”, the Chamber established that it did not have to enter into the question whether or not the signature of the Claimant on the “Mandate” was forged. The Chamber stressed that the content of the “Mandate” could not be interpreted in the sense that the Claimant had authorized the Respondent to pay his remuneration to Mr R. Indeed, the “Mandate” merely stipulates that the agent could “receive the transfer from Club S according his work relations with the mentioned club”. In the Chamber’s view, the aforementioned statement does not specifically refer to the Claimant’s salaries and, as a consequence, the Chamber decided that the Respondent had not provided any documentation from which it could unambiguously be established that the Claimant had authorised the Respondent to pay his outstanding salaries to Mr R. In other words, the Respondent had not proved to the Chamber’s satisfaction that, with the alleged payment transferred to the agent, it had in fact settled the debt it had towards the Claimant. 20. As a result, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration for the months during which the Claimant was employed by the Respondent but had not yet been paid at the time of the termination i.e. the amount of EUR 24,999, consisting of the three monthly salaries of EUR 8,333 for the months of October, November and December 2012. In this respect, the Chamber clarified that although the salary for December 2012 only fell due on 25 January 2013, it should be included in the calculation for the outstanding remuneration since the relevant payment corresponded to the remuneration earned in a month prior to the termination of the contract. 21. 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. 22. 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. 23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 24. As a consequence, the members of the Chamber determined that 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 non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 25. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2015, taking into account that the player´s remuneration until December 2012 is included in the calculation of the outstanding remuneration (cf. no. II./20. above). Consequently, the Chamber concluded that the amount of EUR 280,002 (i.e. the remuneration as from January 2013 until 20 June 2015) serves as the basis for the determination of the amount of compensation for breach of contract. 26. 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. 27. Indeed, on 17 January 2014, the Claimant found employment with Club D, from country C. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 31 May 2015, the Claimant was entitled to receive a total salary of EUR 19,000. 28. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 261,002 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 29. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant´s claim and that the Respondent must pay to the Claimant the amount of EUR 24,999 as outstanding remuneration and the amount of EUR 261,002 as compensation for breach of contract. 30. As to the Claimant’s request for EUR 50,000 as patrimonial damages and nonpatrimonial damages, the Chamber decided to reject such request due to the lack of a legal basis. 31. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates inter alia that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on a club found to be in breach of contract during the protected period. 32. Subsequently, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this respect, the Chamber took note that the breach of the employment contract by the Respondent had occurred on 18 January 2013, i.e. just 6 months following the entry into force of the contract at the basis of the dispute. Therefore, the Chamber concluded that, irrespective of the player’s age, such breach of contract by the Respondent had occurred within the protected period. 33. As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the Respondent had been found in breach of an employment contract without just cause, the Chamber decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. In this regard, the Chamber emphasized that apart from the Respondent having clearly acted in breach of the contract within the protected period, the Respondent was also found to have breached the contract with the player T (case ref. nr. 13-02461/XXX), having terminated the contract under similar circumstances. 34. 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 B, is partially accepted. 2. The Respondent, Club S, 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 24,999. 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 EUR 261,002. 4. In the event that the aforementioned amounts are not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further request filed 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. 7. The Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. ***** 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