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 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player J, from country G as Claimant against the club, Club B, from country T as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player J, from country G as Claimant against the club, Club B, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 6 January 2011, Player J, from country G (hereinafter: the player or Claimant), and Club B, from country T (hereinafter: the club or Respondent), signed an employment contract valid as from the date of its signature until 31 May 2013. 2. In accordance with the employment contract, the Claimant was, inter alia, entitled to receive the following amounts: - USD 80,000 “guarantee money” payable on 7 January 2011; - 6 monthly installments of USD 5,000 between December 2010 and May 2011; - USD 50,000 when he played 10 games until the end of the 2010/2011 season; - USD 20,000 when he played 15 games until the end of the 2010/2011 season; - USD 100,000 “guarantee money” payable on 30 August 2011; - 10 monthly installments of USD 5,000 between August 2011 and May 2012; 3. Art. 9 of the employment contract stipulates: “The authority to settle the disputes arising from the present contract belongs exclusively to Dispute Settlement Board. The parties may only apply to country T Football Federation Arbitration Board to object the decisions of the Dispute Settlement Board, provided the application is made on time.” 4. On 19 August 2011, the parties signed an “amendment contract”, in accordance with which the Claimant was, inter alia, entitled to the following: 2011/2012 season: - USD 100,000 as a “guaranteed amount (…) and such amount has already been paid”; - 10 monthly installments of USD 10,000 between August 2011 and May 2012; - USD 100,000 as “per-match wage for the whole of the season and each per-match wage shall be calculated by dividing USD 100,000 by the number of the matches in the division. Such per-match payments shall be effected every 8th match. Of such per-match payments, the player shall be entitled to 100% if he plays in the starting eleven; 75% if he is included in the starting 18 but is taken in as a substitute later; 50% if he is included in the starting 18 but is not taken in as a substitute; The player shall not be entitled to per-match wage if is fails to enter the starting 18.” - USD 100,000 if the player is included in 30 matches during the 2011/2012 season. 2012/2013 season: - USD 100,000 as a “guaranteed amount” payable on 30 August 2012; - 10 monthly installments of USD 10,000 between August 2012 and May 2013; - USD 100,000 as “per-match wage for the whole of the season and each per-match wage shall be calculated by dividing USD 100,000 by the number of the matches in the division. Such per-match payments shall be effected every 8th match. Of such per-match payments, the player shall be entitled to 100% if he plays in the starting eleven; 75% if he is included in the starting 18 but is taken in as a substitute later; 50% if he is included in the starting 18 but is not taken in as a substitute; The player shall not be entitled to per-match wage if is fails to enter the starting 18.” - USD 100,000 if the player is included in 30 matches during the 2012/2013 season. 5. Art. 4 par. 3 of the amendment contract stipulates: “The country T Football Federation Dispute Adjudication Board shall have jurisdiction in the settlement of any disputes arising from or in connection with this present contract and any decisions made by this board may be appealed with the country T Football Federation Arbitration Board. In any disputes in connection with the enforcement of the decisions of the country T Football Federation DAB and/or Arbitration Board, the Courts and Bailiff’s Offices of Izmir shall have jurisdiction”. 6. On 29 December 2011, the Claimant lodged a claim against the Respondent in front of FIFA, indicating that his wages were not paid since 15 July 2011 and that, therefore, on 21 November 2011, he unilaterally terminated the contract via a “notary public notice”, invoking just cause. The Claimant explained that immediately after the termination of the contract and upon receiving a verbal statement of the Respondent that it would pay its debts, the latter was given a 5 day period to pay “otherwise legal remedies against your club will be sought”. However, the Claimant indicated that the Respondent failed to pay its debts. 7. According to the Claimant, he was entitled to the amount of USD 300,000 per season and, as from August 2011 until the date of the termination, he was supposed to receive the amount of USD 172,351, as follows: - USD 100,000 as the guaranteed payment; - USD 40,000 as salary for the months of August to November 2011; - USD 32,351 as bonuses for matches played. 8. Nevertheless, the Claimant indicated that he only received the amount of USD 90,000 “under the name of 2011-2012 season guaranteed payment” (USD 20,000 received on 23 June 2011, USD 35,000 on 12 July 2011 and USD 35,000 received on 15 July 2011), leaving a balance of USD 82,351 for the 2011/2012 season. 9. Therefore, the Claimant held that he terminated the contract with just cause and requested payment of the following amounts: USD 89,351 as outstanding remuneration plus 5% interest: - USD 10,000 as the remaining part of the guaranteed payment; - USD 40,000 as salary for the months of August to November 2011; - USD 32,351 as bonuses for matches played; - USD 7,000 as “unpaid receivables” for the 2010/2011 season. USD 420,000 as compensation for breach of contract. 10. In reply to the claim lodged against it, the Respondent, while referring to art. 9 of the employment contract signed on 6 January 2011, contested FIFA’s competence to decide on the matter alleging that the Dispute Resolution Board and the Arbitration Board of the country T Football Federation are the bodies competent to adjudicate on any dispute between the player and club. The Respondent stressed that the country T Football Federation is an autonomous football federation. 11. In this respect, the Respondent indicated that, on 12 December 2011, it lodged a claim in front of the Dispute Resolution Chamber of the country T Football Federation (hereafter: the country T Football Federation NDRC), because the Claimant “acted against the agreement and revoked it unjustly”. 12. Having been requested by FIFA to provide the claim apparently lodged in front of the country T Football Federation NDRC and to submit all documentary evidence that would prove that the arbitration bodies of the country T Football Federation are independent and respect the principle of equal representation, the Respondent submitted its claim dated 12 December 2011 addressed to the “Head of Conflict Resolution Board of the country T Football Federation”. The Respondent however did not provide any of the regulations of the country T Football Federation. 13. As to the substance, the Respondent held that, in accordance with art. 5 lit. c and k of the employment contract, the parties had to obey “Status and arrangements of FIFA, UEFA and the country T Football Federation” and the Claimant had to fulfill his obligations “given to him by the Status and Transfer Directives of Professional Football Players”. In this respect, the Respondent asserted that, in accordance with art. 28/1 of said directives, a player first has to give a written warning to a club providing a 30 days period for the payment of debts. If within the 30 days period the payment has not been made, a player has the right to terminate the contract. The Respondent therefore deems that the termination by the Claimant was unjust as he did not give the club a 30 days warning in compliance with the directives of the country T Football Federation. 14. What is more, the Respondent stressed that the guaranteed money, the monthly payments of the 2010/2011 season as well as the salaries for August and September 2011, “although not fully deserved, they were paid before the written warning”. In this respect, the Respondent provided various payment receipts written in the country T language. 15. Furthermore, the Respondent held that the Claimant was “completely malevolent” and that he only considered his own interests. The Respondent outlined that by means of the amendment contract, the Claimant’s salaries were doubled and if “these alterations had not been made in the contract of the football player (…) we would not have had any debt to the football player”. 16. Also, the Respondent stated that it brought the Claimant’s girlfriend to country T, paying for her flight ticket and private school in the total amount of currency of country T 30,129.50. The Respondent asserted that this sum was paid on the condition that it would be deducted from the Claimant’s future salaries and, in this respect, provided a list of payments written in the country T language. Equally, the Respondent stated that it provided the Claimant with accommodation and a car, although not being obliged to in accordance with the contract. 17. The Respondent concluded that it relied on the Claimant and had done everything for him; the termination by the Claimant was unjust and therefore it “keeps the right to ask the plaintiff football player pay indemnity for unjust revocation and a sportive penalty be given (…)”. 18. In his replica, the Claimant reiterated that he had not been paid for approximately 5 months and that no payment had been made after 15 July 2011. Therefore, the termination of the contract became unavoidable on 21 November 2011 and, on 22 November 2011, the Respondent had been given 5 days to pay its debts, however, to no avail. 19. The Claimant indicated that he had received the total amount of USD 113,000 in the 2010/2011 season and stressed that all the receipts submitted by the Respondent correspond to the salaries of the 2010/2011 season. Therefore, the Claimant repeated his request for the outstanding amount of USD 89,351 as well as interest and added a request for legal costs. 20. As to the 30 days warning, the Claimant holds that this provision is created by the country T Football Federation to protect their clubs, and stressed that the “FIFA Rules” are to be taken into consideration when adjudicating on the present dispute. 21. Finally, the Claimant indicated that he had made an “objection to the country T Football Federation Arbitration Board against the application that the Defendant party has made to country T Football Federation Dispute Resolution Council and the country T Football Federation Arbitration Board has accepted our application” In this respect, the Claimant provided a decision dated 28 March 2013 issued by the “Arbitration Committee” which established to “refuse the hearing demand (…).” 22. In its duplica, the Respondent insisted on the competence of the country T Football Federation NDRC and stated that the country T Football Federation still “did not officially notify its opinion on the case”. 23. Upon request, the Claimant indicated that he had signed a new contract with the Club E, from country T, on 5 January 2012 valid until the 2015/2016 season, in accordance with which he would receive, until May 2012, the amount of EUR 90,000 as salary plus EUR 60,000 in match bonuses “by dividing 24 official matches that he plays with A team as conditional match attendance fee”. On 5 July 2012, the Claimant was loaned to the Club F, from country T, until 31 May 2013 where he would be entitled to the amount of EUR 180,000 as salary plus EUR 120,000 in match bonuses. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also 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 29 December 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 editions 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 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute Resolution Chamber shall 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 G player and a country T 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 art. 9 of the employment contract signed on 6 January 2011, which, according to the Respondent, excludes the competence of FIFA’s Dispute Resolution Chamber to adjudicate on the present matter. 5. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition 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. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. Having said this, the DRC turned its attention to the principles of fair proceedings and equal representation of players and clubs and underlined that these principles are fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. 7. In this respect, the Chamber noted that, despite having been asked to do so by letter dated 2 July 2013, the Respondent failed to provide the DRC with any documentary evidence which could prove that the national arbitration bodies of the country T Football Federation meet the requirements established in art. 22 lit. b) of the Regulations on the Status and Transfer of Players. 8. On account of the above, and referring to the principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 9. 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 2010 and 2012) and considering that the present claim was lodged in front of FIFA on 29 December 2011, the 2010 edition of said regulations is applicable to the present matter as to the substance. 10. 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. 11. First of all, the members of the Chamber acknowledged that, on 6 January 2011, the Claimant and the Respondent concluded an employment contract which was amended – and extended - by the conclusion of an amendment contract on 19 August 2011. In accordance with the amendment contract, the Claimant was, during the 2011/2012 season, entitled to inter alia USD 10,000 per month between August 2011 and May 2012, match bonuses as well as the guaranteed payment of USD 100,000. 12. In continuation, the members of the Chamber noted that it was undisputed between the parties that, on 21 November 2011, the Claimant terminated the above-mentioned contract on the basis of the alleged outstanding remuneration in the amount of USD 82,351, consisting of i) USD 10,000 for the guaranteed payment, ii) 4 monthly salaries corresponding to USD 10,000 each and iii) USD 32,351 for match bonuses. 13. In this respect, the Chamber noted that the Respondent, for its part, is of the opinion that the Claimant had no just cause to terminate the contract, since according to art. 28/1 of the directives of the country T Football Federation, the Claimant was compelled to give to Respondent a 30 days notice of any outstanding payment. 14. What is more, the Respondent held that it had in fact paid the guaranteed payment as well as the salaries for August and September 2011, and submitted payment receipts in the country T language only. 15. On account of the above, the Chamber deemed that the underlying issue in the present 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. 16. At this point, and in relation to the payments the Respondent sustained it had made to the Claimant, the Chamber first reminded the parties that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and translated into one of the official FIFA languages. Bearing in mind the wording of the aforementioned provision, the Chamber concluded that the payment receipts submitted by the Respondent without the translated version could not be taken into account by the Chamber. Consequently, the members of the DRC deemed that no evidence had been provided by the Respondent with regard to the payments it alleged to have made to the Claimant. 17. Moreover, the Chamber noted that the Respondent’s further defense is primarily based on alleged formalities relating to the question as to whether the Claimant duly put the Respondent in default of its contractual obligations in the context of art. 28/1 of the directives of the country T Football Federation. 18. In this context, the DRC wished to recall 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 carries the burden of proof. 19. With those considerations in mind, the DRC found that the Respondent had not submitted any evidence that could corroborate the actual content of art. 28/1 of the directives of the country T Football Federation. What is more, the members of the Chamber wished to point out that no such termination procedure was stipulated in the employment contract, reason for which the Chamber deemed that the aforementioned art. 28/1 was not directly applicable to the contractual relationship between the Claimant and the Respondent. 20. Finally, the Chamber noted that the Respondent stated that it brought the Claimant’s girlfriend to country T, paying for her flight ticket and private school in the total amount of currency of country T 30,129.50 and that this amount should be deducted from the Claimant’s salary. In this respect, the Chamber stressed however that also this payment list had been provided by the Respondent in the country T language only and that, therefore, the Chamber could not take into consideration this particular document. As a consequence, the Chamber also rejected this part of the Respondent’s defense. 21. On account of all of the above considerations, the Chamber decided to reject the arguments put forward by the Respondent and concluded that it could be established that the Respondent had seriously neglected its contractual obligations towards the Claimant in a continuous and repeated manner, i.e. the Respondent had failed to remunerate the Claimant for a substantial period of time, and therefore the Claimant had a just cause to unilaterally terminate the employment contract on 21 November 2011. Consequently, the Chamber decided that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant. 22. 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. 23. First of all, the members of the Chamber concurred that the Respondent must fulfill 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 69,351 consisting of i) USD 40,000 as outstanding salaries for the months of August to November 2011, ii) USD 32,351 for match bonuses and iii) USD 7,000 as “unpaid receivables” for the 2010/2011 season, the latter amount of USD 7,000 having remained uncontested by the Respondent. 24. As to the Claimant’s request for USD 10,000 regarding the guaranteed payment, the Chamber underlined that in the amendment contract it had been stipulated that the amount of USD 100,000 “has already been paid.” Therefore, the Chamber decided to reject this part of the Claimant’s claim. 25. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest on the above-mentioned amount at the rate of 5% p.a. as of the date of the claim, i.e. as from 29 December 2011. 26. In continuation, the Chamber recalled that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is, in principle, 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. 27. 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. 28. 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. 29. 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 concluded that the remaining value of the contract as from its early termination by the Claimant until its regular expiry amounts to USD 260,000, i.e. the salary from December 2011 until May 2012 in the amount of USD 60,000 as well as the salary for the complete 2012/2013 season in the amount of USD 200,000. Therefore, the Chamber established that the amount of USD 260,000 shall serve as the basis for the final determination of the amount of compensation for breach of contract. 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, on 5 January 2012, the Claimant found employment with Club E. In accordance with the pertinent employment contract, which had been made available by the Claimant, valid until the 2015/2016 season, the Claimant was entitled to receive a salary in the amount of EUR 90,000 until May 2012, which corresponds to USD 120,000. On 5 July 2012, the Claimant was loaned to 1461 Club F until 31 May 2013 where he would be entitled to the amount of EUR 180,000, which corresponds to USD 226,000. Consequently, the Chamber established that the value of the new employment contracts concluded between the Claimant and his new clubs amounted to USD 346,000. 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 apart from the outstanding remuneration. 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, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 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 J, 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 USD 69,351, plus 5% interest p.a. on said amount as from 29 December 2011 until the date of effective payment. 4. In the event that the amount due to the Claimant in accordance with the above-mentioned number 3. 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. 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. 6. Any further claim lodged by the Claimant is rejected. ***** 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