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 (DRC) judge passed in Zurich, Switzerland, on 27 August 2014, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player B, from country S as Claimant against the club, Club E, from country C as Respondent regarding an employment-related dispute 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 (DRC) judge passed in Zurich, Switzerland, on 27 August 2014, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player B, from country S as Claimant against the club, Club E, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 8 July 2013, Player B, from country S (hereinafter: the Claimant), and Club E, from country C (hereinafter: the Respondent), signed an initial employment contract (hereinafter the “2013/2014 contract”) valid from the date of signature until 30 May 2014. In addition, on 14 August 2013, a further supplementary contract to the 2013/2014 contract was signed. 2. The 2013/2014 contract specified that the player would be entitled to receive from the club the net payment of EUR 15,000 for the 2013/2014 season, to be paid in ten monthly instalments of EUR 1,500 each, with the first payment due on 30 August 2013 and the following payments at the end of each month. 3. The supplementary contract meanwhile stipulated an additional payment to the player of EUR 10,000 to be paid in ten monthly instalments of EUR 1,000 each, with the first payment also due on 30 August 2013. Also included in this supplementary contract was a payment to the player of EUR 300 per month for accommodation costs, to be paid from the start of the rental contract, as well as a return ticket to his country of origin. 4. Both contracts established that “the player agrees to grant the club a period of grace of 45 days”. 5. According to the player, on 8 July 2013, the parties also signed another employment contract (hereinafter the “2014/2015 contract”) valid from 1 June 2014 to 30 May 2015, as well as another supplementary contract to the 2014/2015 contract, with the same financial terms and conditions mentioned in points 1, 2 and 3. 6. On 2 April 2014, the player lodged a claim with FIFA against the club, requesting the payment of the total amount of EUR 51,230 plus 5% annual interest, broken down as follows: a. Pending salary payments under the 2013/2014 contract and the corresponding supplementary agreement, in the amount of EUR 14,630 plus 5% interests since the date of the termination as follows: • EUR 400 net for September 2013; • EUR 2,500 net for October 2013; • EUR 2,500 net for November 2013; • EUR 2,500 net for December 2013; • EUR 2,500 net for January 2014; • EUR 2,500 net for February 2014; • EUR 1,500 net for rent for the months of October, November and December 2013 and for January and February 2014 (EUR 300 x 5); • EUR 230 net for the return flight ticket to his country of origin. b. Compensation for unilateral termination of the contracts in the amount of EUR 37,500: • EUR 7,500 net corresponding to the salary payments that the player should have received from March to May 2014 under the 2013/2014 contract and the corresponding supplementary contract (3 x EUR 2,500); • EUR 30,000 net corresponding to the salary payments that the player should have received from August 2014 to May 2015 under the 2014/2015 contract and the corresponding supplementary contract (10 x EUR 2,500). 7. In his claim, the player asserted that the club had only paid the salary for the month of August 2013 and part of September 2013. 8. Subsequently, the player had initially, on 18 January 2014, sent a letter to the club informing it that it owed him part of the salary for September and the full salary payments for October, November and December 2013 as well as three months of accommodation allowance, and issuing a deadline of seven working days to make the payment, threatening to rescind the contract with just cause if the payments were still not made. 9. Finally, as the club still did not pay the outstanding remuneration, the player sent a letter, on 4 March 2014, notifying the club of the termination of the contract with just cause and of his return to his country of origin. 10. Despite the country C club having been invited to submit a response to the player’s claim and, upon request of the club, an extension to the deadline for submitting its response having been granted, the club sent his reply on 7 August 2014 after the closure of the investigation phase on 5 June 2014. 11. In his reply, the club stated that firstly, the DRC judge is not competent to examine the supplementary contracts as said contracts has not been registered within the country C Football Association and did not concern and employment related dispute. Furthermore, the club asserted that he paid to the player all the outstanding salaries until the leaving of the player and also that he imposed some fines to the player due to his bad behaviour, absence in some training sessions and damages cause to the house and car provided by the club, but without enclosing any evidence in this respect. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 2 April 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2014) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country S player and a country C club,. 3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2014), and considering that the present claim was lodged on 2 April 2014, the 2012 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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. In this respect, the DRC judge acknowledged that the parties to the dispute had signed the 2013/2014 contract as well as the supplementary contract, both valid from 8 July 2013 until 30 May 2014, in accordance with which the Respondent would pay the Claimant a net salary per season of EUR 25,000, payable in ten equal monthly instalments of EUR 2,500 each year as well as the payment of a return flight to his origin country and EUR 300 per month for accommodation costs. 6. The DRC judge further took note that, on 8 July 2013, the parties also signed the 2014/2015 contract as well as the supplementary contract, both valid from 1 June 2014 to 30 May 2015, in accordance with which the Respondent would pay the Claimant a net salary per season of EUR 25,000, as well as the payment of a return flight to his origin country and EUR 300 per month for accommodation costs. 7. The DRC judge further acknowledged that the Claimant lodged a claim against the Respondent, requesting the payment of the total amount of EUR 51,230, regarding outstanding remuneration and compensation for breach of contract. 8. Subsequently, the DRC judge 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. As a result, the DRC judge 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, he 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. Having that in mind, the DRC judge further observed that according to the Claimant, he terminated the contract in writing on 4 March 2014, after having put the club in default also in writing on 18 January 2014, inter alia, as a result of his remuneration having remained unpaid by the Respondent since September2013. 10. The DRC judge highlighted that the underlying issue in this dispute was to determine whether the contract had been terminated by the Claimant on 4 March 2014 with or without just cause. The DRC judge also underlined that, subsequently, it would be necessary to determine the financial consequences for the party that is to be held liable for the early termination of the pertinent employment contract. 11. In line with the above, the DRC Judge took into consideration that according to the Claimant, by the time he terminated the contract, the Respondent had failed to pay his remuneration in the total amount of EUR 14,630, corresponding to the partial monthly salary of September 2013, the monthly salaries from October 2013 until February 2014, five months of accommodation costs from October 2013 until February 2014 and a return flight to his home country (cf. point I.6). 12. Considering the financial conditions of the contracts as well as the arguments brought forward by the Claimant, the DRC Judge took note that on the date of termination, i.e. 4 March 2014, more than five salaries were outstanding as well as accommodation costs. 13. Having taken into consideration all of the above, the DRC Judge 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. Moreover, the DRC judge took into account that the Claimant had put the club in default, establishing a deadline for the payment of the outstanding remuneration. 14. Therefore, the DRC Judge considered that the Respondent was found to be in breach of the 2013/2014 contract and supplementary agreement and that the breach was of such seriousness that, in line with the Chamber’s long-standing and well-established jurisprudence, the Claimant had a just cause to unilaterally terminate the contractual relationship with the Respondent on 4 March 2014, having previously put the Respondent in default of payment of the outstanding amounts. 15. On account of the above, the DRC Judge established that the Claimant had terminated the contract with just cause on 4 March 2014 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 16. Having established that the Respondent is to be held liable for the early termination of the contract with just cause by the Claimant, the DRC Judge focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC Judge decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract. 17. First of all, the DRC Judge concurred that the Respondent must fulfil its obligations as per the 2013/2014 contract and supplementary contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC Judge 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 EUR 14,630, consisting of the outstanding salaries corresponding to September (partially), October, November, December 2013 and January and February 2014 as well as five monthly accommodation costs and a return flight. 18. As a consequence, the DRC Judge decided that the Respondent is liable to pay the total amount of EUR 14,630 to the Claimant corresponding to the outstanding remuneration at the time of the unilateral termination of the contract by the Claimant with just cause. 19. In addition, taking into consideration the Claimant’s claim for interest and in accordance with its well-established jurisprudence, the DRC Judge decided to award the Claimant interest at the rate of 5% p.a. as of the date of the termination. 20. In continuation, the DRC Judge focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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. 21. In application of the relevant provision, the DRC Judge held that it first of all had to clarify whether the pertinent 2013/2014 and 2014/2015 contracts 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 DRC Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 22. As a consequence, the DRC Judge 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 DRC Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 23. The DRC Judge then turned their attention to the remuneration and other benefits due to the Claimant under the existing contracts and/or the new contract, which criterion was considered by the DRC Judge to be essential. The DRC Judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC Judge to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 24. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the monies payable to the Claimant under the terms of the 2013/2014 and 2014/2015 contracts and its supplementary contracts, as from its date of termination with just cause by the Claimant, i.e. 4 March 2014, until the date of expiry, i.e. 30 May 2015, and concluded that the Claimant would have received in total EUR 37,500 as remuneration had the contracts been executed until its expiry date. Consequently, the DRC Judge concluded that the amount of EUR 37,500 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 25. In continuation, the DRC Judge 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. 26. Indeed, the Claimant informed FIFA that he stills unemployed since the termination of the contract with the Respondent. 27. Consequently, on account of all of the above-mentioned, the DRC Judge decided to accept the Claimant’s claim and that the Respondent must pay the amount of EUR 37,500 as compensation for breach of contract in the case at hand. Decision of the Dispute Resolution Chamber Judge 1. The claim of the Claimant, Player B, is accepted. 2. The Respondent, Club E, 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 14,630, plus 5% interest as from 5 March 2014 until the date of effective payment. 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 37,500. 4. In the event that the amounts due to the Claimant (cf. points 2 and 3) are not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due after expiry of the aforementioned time limit and 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 DRC judge 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 DRC judge: Jérôme Valcke Secretary General Encl. CAS directives