F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 28 August 2014, in the following composition: Geoff Thompson (England), Chairman Philippe Diallo, (France), member Guillermo Saltos Guale (Ecuador), member Jon Newman (USA), member Leonardo Grosso (Italy), member on the claim presented by the player, Player B, from country C as Claimant against the club, Club K, from country T as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 28 August 2014, in the following composition: Geoff Thompson (England), Chairman Philippe Diallo, (France), member Guillermo Saltos Guale (Ecuador), member Jon Newman (USA), member Leonardo Grosso (Italy), member on the claim presented by the player, Player B, from country C as Claimant against the club, Club K, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On an unspecified date, Player B, from country C (hereinafter: the Claimant or player), and Club K, from country T (hereinafter: the Respondent or club), entered into an employment contract (hereinafter: the contract) valid as from 19 July 2013 until 31 May 2015. 2. According to the contract, the Respondent undertook to pay the Claimant: - EUR 165,000 in the 2013/2014 season, payable in 1 installment of EUR 30,000 on 19 July 2013 and 9 equal monthly installments of EUR 15,000, payable on the 15th of each month; - EUR 220,000 in the 2014/2015 season, payable in 1 installment of EUR 40,000 on 31 July 2014 and 9 equal monthly installments of EUR 20,000, payable at the end of each month. 3. On 27 May 2014, the Claimant lodged a claim against the Respondent in front of FIFA, explaining that he had not received his salary for approximately 3,5 months. As a result, the Claimant had sent a default letter to the Respondent on 15 April 2014 asking for the payment of the amount of EUR 55,000 within 30 days. 4. In this respect, the Claimant explained that on 24 April 2014, he and the Respondent signed a “Termination Protocol” (hereinafter: the protocol) by means of which the parties agreed to terminate the contract by mutual consent. 5. Articles 5, 6, 7 and 8 of the protocol stipulate the following: Art. 5: The parties agree and accept that the Club will be obliged to make a payment of 70.000 EUR on 15.05.2014 and the parties agree to mutually put an end to the contractual relation with this protocol. Art. 6: The player accepts to receive 45.000 EUR instead of the remaining amounts stemming from the Contract with the condition that the Club makes the payments stated herein. In case the Club pays EUR 45.000 on the payment dates in full, the Player shall have no right to claim any other payment, compensation and/or penalty and irrevocably waives its remaining receivables. (…). Art. 7: The club is obliged to make the following payments on the stated dates (…): - EUR 10,000 payable on 15 May 2014 - EUR 15,000 payable on 15 June 2014 - EUR 10,000 payable on 15 July 2014 - EUR 10,000 payable on 15 August 2014 Art. 8: “In case the Club does not make any payment within 7 (seven) days from the stated date, the Protocol shall be deemed cancelled and the Club shall make an additional penalty payment of EUR 5,000 in addition to all monetary and compensation obligations stemming from the Contract. In the event that the Player makes a transfer after to any club out of the country C after terminating the Contract with the Club, the Player shall make a penalty payment of EUR 250,000 to the Club.” 6. The Claimant held that the parties had agreed to mutually terminate the contract on the condition that the Respondent would pay EUR 45,000 on the determined dates. Nevertheless, the Respondent did not pay the amount of EUR 10,000 within 7 days of 15 May 2014 and, therefore, the Claimant considered the protocol null and void and “all the monetary obligations from the main Contract have become valid.” 7. As a consequence, the Claimant requested to be awarded the following: i) EUR 70,000 as outstanding remuneration for the months of January 2014 to May 2014, plus interest “from the actual payment dates”; ii) EUR 220,000 as compensation for breach of contract; iii) EUR 5,000 regarding the penalty fee stipulated in the protocol; iv) legal costs. 8. Although having been invited to do so on 28 May 2014, the Respondent did not provide a reply to the claim of the Claimant within the granted deadline. Only after the investigation-phase of the present matter was closed by the FIFA administration on 7 July 2014, the Respondent reverted to FIFA, on 15 July 2014, submitting its reply, indicating that it concluded a termination agreement with the Claimant, reason for which it believed that the Claimant’s claim for any other amount than the EUR 45,000 should be rejected. 9. Upon request of FIFA, the Claimant indicated that on 29 April 2014, he signed a contract with the country C club, Club P, valid as from 1 July 2014 until 30 June 2016, where he is entitled to “the basic monthly remuneration” of currency of country C 200,000 per month. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the 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 27 May 2014. 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 of the 2012 and 2014 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 2014), 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 C player and a country T club. 3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 (edition 2012 and 2014) and considering that the present claim was lodged in front of FIFA on 27 May 2014, the 2012 edition of said regulations (hereinafter: 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 the Claimant and Respondent had concluded an employment contract valid as from 19 July 2013 until 31 May 2015, in accordance with which the Claimant was entitled to the amount of EUR 165,000 in the 2013/2014 season and to the amount of EUR 220,000 in the 2014/2015 season, both payable in 10 monthly instalments. 6. Furthermore, the Chamber took note of the protocol concluded between the Claimant and the Respondent on 24 April 2014 by means of which they had agreed to put an end to their contractual relationship. 7. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent in front of FIFA maintaining that the Respondent had not complied with the payment schedule of art. 7 of the protocol and that therefore in accordance with art. 8 of the protocol, he was entitled to claim his financial dues from the employment contract. 8. Subsequently, the DRC observed that the Respondent, for its part, in spite of having been invited to do so, failed to present its response to the claim of the Claimant within the relevant time-limit. In fact, the reply of the Respondent was only received after the investigation-phase of the matter had already been concluded, thus, clearly outside the granted time limit. As a result, and whilst referring to art. 16 par. 2 and 6 of the Procedural Rules, the DRC decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant. 9. As a consequence of the above consideration, the Chamber first of all established that the Claimant’s statement that the Respondent did not pay him the amounts established in art. 7 of the protocol had remained uncontested. 10. As a result, the Chamber observed that the fundamental issue in the present dispute, considering the claim of the Claimant, is to determine whether the Claimant is entitled to claim the amounts on the basis of the employment contract. 11. After a thorough examination of art. 7 and art. 8 of the protocol, the Chamber came to the unanimous conclusion that due to the Respondent’s failure to pay the Claimant the amounts established in art. 7 of the protocol within the set deadlines, art. 8 of the protocol gave the Claimant the right to claim amounts stemming from the employment contract. Indeed, the first sentence of art. 8 of the protocol clearly established that if the Respondent does not make the relevant payment within 7 days of the due dates “the Protocol shall be deemed cancelled and the [Respondent] shall make an additional penalty payment of EUR 5,000 in addition to all monetary and compensation obligations stemming from the Contract” (emphasis added). In view of the foregoing, the Chamber was satisfied that the Claimant could indeed claim the amounts stemming from the employment contract. 12. In this regard, the Chamber noted that the Claimant requested the amount of EUR 70,000 as outstanding remuneration for the months of January 2014 to May 2014. Considering that such claim had remained uncontested and whilst referring to the general legal principle of “pacta sunt servanda”, the Chamber decided to award the Claimant the amount of EUR 70,000 as outstanding remuneration. 13. Furthermore, and considering the Claimant’s claim for interest, the Chamber ruled that the Respondent must pay 5% interest on the amount of EUR 70,000 as from the respective due dates. 14. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations as well as art. 8 of the protocol, 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. 15. 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. 16. 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. 17. 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. 18. 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 Claimant under the terms of the employment contract until 31 May 2015, taking into account that the Claimant´s remuneration until May 2014 is included in the calculation of the outstanding remuneration (cf. no. II./12. above). Consequently, the Chamber concluded that the amount of EUR 220,000 (i.e. the remuneration for the 2014/2015 season) serves as the basis for the determination of the amount of compensation for breach of contract. 19. In continuation, the Chamber remarked that the Claimant had found new employment with the country C club, Club P. In accordance with the pertinent employment contract, which has been made available by the Claimant, he was entitled to receive a total salary of currency of country C 200,000 per month, which corresponds to a total amount of approximately EUR 80,000 for the corresponding period of time. 20. As a result, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant 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. 21. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of EUR 140,000 to the Claimant as compensation for breach of contract. 22. Furthermore, as regards the Claimant’s claim relating to the penalty fee of EUR 5,000, the members of the Chamber decided to award also this part of the Claimant’s claim, considering that said amount was clearly stipulated in the protocol as a penalty fee in case of the non-fulfilment of the obligations established in the protocol. 23. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant´s claim and determined that the Respondent must pay to the Claimant the amount of EUR 70,000 as outstanding remuneration plus 5% interest as from the due dates, the amount of EUR 140,000 as compensation for breach of contract and the amount of EUR 5,000 as a penalty fee. 24. Finally, as regards the claimed legal costs, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal costs. 25. 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 K, 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 70,000, plus 5% interest until the date of effective payment as follows: a. 5% p.a. as of 16 January 2014 on the amount of EUR 10,000; b. 5% p.a. as of 16 February 2014 on the amount of EUR 15,000; c. 5% p.a. as of 16 March 2014 on the amount of EUR 15,000; d. 5% p.a. as of 16 April 2014 on the amount of EUR 15,000; e. 5% p.a. as of 16 May 2014 on the amount of EUR 15,000. 3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. The Respondent has to pay to the Claimant the amount of EUR 140,000 as compensation for breach of contract, within 30 days as from the date of notification of this decision. 5. The Respondent has to pay to the Claimant the amount of EUR 5,000 as a penalty fee, within 30 days as from the date of notification of this decision. 6. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 4. and 5. are not paid by the Respondent within the stated time limits, 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 consideration and a formal decision. 7. Any further claim lodged by the Claimant is rejected. 8. 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