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 matter between the player, Player M, from country S as Claimant / Counter-Respondent 1 and the club, Club K, form country T as Respondent / Counter-Claimant and the club, Club B, from country P as Counter-Respondent 2 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 matter between the player, Player M, from country S as Claimant / Counter-Respondent 1 and the club, Club K, form country T as Respondent / Counter-Claimant and the club, Club B, from country P as Counter-Respondent 2 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 24 June 2009, Club K, from country T (hereinafter: the Respondent / Counter-Claimant or the club), and Player M, from country S (hereinafter: the Claimant / Counter-Respondent 1 or the player) concluded an employment contract (hereinafter: the contract) valid as from 24 June 2009 until 31 May 2013. 2. According to the contract, the club undertook to pay the player the following net amounts: - EUR 120,000 for the 2009/2010 season; - EUR 140,000 for the 2010/2011 season, payable as follows: - EUR 46,000 payable until 15 July 2010; - EUR 46,000 payable in ten equal installments of EUR 4,600 between 30 August 2010 and 31 May 2011; - EUR 48,000 payable in installments of EUR 1,411 for each of the 34 league games of the 2010/2011 season (100% if the player was in the starting line-up, 75% if the player came on as a substitute, 50% if the player was on the match sheet but did not come on as a substitute). - EUR 160,000 for the 2011/2012 season, payable as follows: - EUR 55,000 payable until 15 July 2011; - EUR 52,000 payable in ten equal installments of EUR 5,200 between 30 August 2011 and 31 May 2012; - EUR 53,000 payable in installments of EUR 1,558 for each of the 34 league games of the 2011/2012 season (100% if the player was in the starting line-up, 75% if the player came on as a substitute, 50% if the player was on the match sheet but did not come on as a substitute). - EUR 180,000 for the 2012/2013 season, payable as follows: - EUR 60,000 payable until 15 July “2011”; - EUR 60,000 payable in ten equal installments of EUR 6,000 between 30 August “2011” and 31 May “2012”; - EUR 60,000 payable in installments of EUR 1,764 for each of the 34 league games of the 2012/2013 season (100% if the player was in the starting line-up, 75% if the player came on as a substitute, 50% if the player was on the match sheet but did not come on as a substitute). 3. In addition, according to art. 5 par. 10 of the contract, the club had to provide the player with an apartment, a car and two return flight tickets per year. 4. Art. 6 par. 3 of the contract reads as follows: “Any claim raised by the player in relation to late payments can only be lodged after a payment delay of 90 days. In such case, the player shall be entitled to send a written 30-day warning to the club asking for the outstanding salaries. If the club does not liquidate its debt to the player within the term of notice, the player shall be entitled to terminate the labour relationship.” 5. On 9 November 2012, the player lodged a claim in front of FIFA against the club, indicating that the club had failed to pay the following amounts: - EUR 26,024, as part of the “financial bonus” of EUR 46,000 due on 15 July 2010, - EUR 55,000 regarding the “financial bonus” due on 15 July 2011; - EUR 30,025.80 as salary for the months of August to December 2011 and for 24 days of January 2012; - EUR 370.24 concerning a flight ticket from country S to country T bought by the player on 26 June 2011. 6. As a consequence, the player claimed from the club the amount of EUR 370.24 for the flight ticket, the amount of EUR 111,049.80 as outstanding remuneration as well as 5% interest on said amounts as from the respective due dates. 7. The player explained that as from 28 June 2010 until 31 May 2011, he was loaned to Club Q, from country S. According to the player, Club Q was only responsible for the payment of his basic salary and accommodation; all other “bonuses” remained payable by the club in accordance with the contract. 8. Furthermore, the player explained that after the end of the loan period, he bought a flight ticket and was prepared to join the club for the pre-season training, but his agent advised him not to travel to the club and “the [player]’s agent announced him that he will be informed in writing about his future in the squad of the [club].” 9. According to the player, following continuous non-compliance by the club of its contractual obligations, he sent a default notice to the club on 18 November 2011. Via an e-mail dated 21 December 2011, the club replied to the player informing him that no salary was outstanding and that it “considers the [contract] terminated on the basis of the [player’s] implicit behavior.” Thereafter, on 18 January 2012, the player terminated the contract in writing which was confirmed by the country T Football Federation on 24 January 2012. 10. In reply to the player’s claim, the club referred to the loan agreement in accordance with which the player was transferred on a loan basis to Club Q as from 5 July 2010 until 31 May 2011. In this respect, the club submitted a copy of the loan agreement, which was signed by all three parties, and which stipulates, inter alia, that: - The loan of the player “is carried without compensation”; - The club “undertakes to interrupt personal contract with [the player] until 31.05.2011”; - “(…) [the player] agrees that he will not demand any salary or payments etc. from [the club] during the loan period. [The player] declare and accept that during the loan period starting from 05.07.2010 and ends on 31.05.2011 Club Q will pay all his salaries, premiums and etc. On the other hand [the player] also grants that his salary and all additional payments had been paid up to 05.07.2010 by [the club].” 11. The club therefore stressed that Club Q was responsible to pay the player “all his salaries, premiums and etc.” 12. Furthermore, the club held that upon expiry of the loan term and after the summer holidays, it “duly instructed” the player on 26 June 2011 to return to the club by 27 June 2011 in order to perform his contractual duties. However, the player did not show up and only on 18 November 2011 he sent a default notice to the club. In reply to said correspondence, the club informed the player on 21 December 2011 that it considered the employment contract terminated by the player without just cause as of “1 July 2011”, because the latter had failed to render his services to the club since 27 June 2011. 13. With regard to the alleged outstanding remuneration, the club stated that: a) the claim for the amount of EUR 26,024 is time-barred; b) notwithstanding point a), according to art. 3 and art. 5 of the loan agreement, the contract between the player and the club was suspended during the player’s loan to Club Q. Since the payment fell due on 15 July 2010, it matured during the loan period with Club Q; c) the player confirmed that he had decided, advised by his agent, to cancel his flight to country T on 26 June 2011 and remained silent until he sent the default notice on 18 November 2011. The club stated that wages are only paid in exchange for services and since the player had failed to render his services from 27 June 2011 onwards, the club’s non-payment was justified; d) The player’s claim concerning the flight ticket should be rejected since the player alleged that he cancelled his ticket upon instruction of his agent, not upon instruction of the club. 14. In continuation, the club lodged a counter-claim against the player and his new club, Club B, requesting compensation for breach of contract in the amount of EUR 250,000 plus 5% interest as of 28 June 2011, calculated taking into account the following elements: a) the residual value of the employment contract: EUR 227,000; b) the remuneration due to the player under his new contract with Club B; c) the player breached the contract within the protected period; d) the club could not benefit from the player’s services during the remaining period of the contract; e) the player’s social and commercial value for the club; f) the club was deprived from the opportunity to realize further income by transferring the player to another club. 15. In reply to the club’s counterclaim, the player stated that the amount of EUR 46,000 that fell due on 15 July 2010 was payable by the club regardless of whether the player was playing for the club or for another club on loan. Consequently, according to the player, said payment was not affected by his loan to Club Q. In addition, the player stated that the relevant payment fell due on 15 July 2010, which is later than 5 July 2010, i.e. the date until which the club was assumed to have made all payments to the player. 16. Furthermore, the player stated that the club had made a partial payment of the amount of EUR 46,000 on 19 July 2010, i.e. at the moment that he was already playing for Club Q. Therewith, the club implicitly confirmed that the loan agreement and the interruption of the contract did not affect the payment of the amount of EUR 46,000. 17. In continuation, the player referred to art. 102 of the Swiss Code of Obligations and stated that the two year limitation period of art. 25 par. 5 of the Regulations on the Status and Transfer of Players only started running as from 18 November 2011, i.e. the date on which he sent the default notice to the club. As a result, the player held that his claim for the amount of EUR 26,024 is not time-barred. 18. Moreover, the player denied that he was ever informed to return to the club and outlined that he was represented by a reputable international player’s agency. On 26 June 2011, the club informed his agent, Mr C, that it did not count on his services for the 2011/2012 season and that he should remain in country S, waiting for further instructions. In this respect, the player submitted a declaration from Mr C. In the meanwhile, according to the player, the club and his agent were looking for a new club to which he could be loaned. The player insisted having had the intention to return to the club, given that he bought a flight ticket to fly from country S to country T on 26 June 2011. Equally, the player stressed that if the club was truly counting on his services, the club would have invited him to return to country T. 19. What is more, according to the player, the club did not allow him to perform his duties in accordance with the contract. With reference to art. 95 and art. 107 of the Swiss Code of Obligations, the player stated that there is no legal basis for the termination of the contract due to unilateral implicit conduct; the club should have contacted the player in writing that he should resume to perform his duties. Furthermore, the player stated that he was represented by another agent as per 1 September 2011, that the club’s correspondence of 21 December 2011 was sent to his former agent and that, therefore, he never had the chance to read said correspondence. 20. Finally, the player stated that he validly terminated the contract due to the club’s non-performance of its financial obligations for more than 90 days; he sent a default notice to the club providing it with a 30-day deadline in order to fulfill its financial obligations, however, to no avail. Therefore, the player rejected that he breached the contract and, consequently, the club did not suffer any damages for which it should be compensated. Furthermore, the player stated that the club’s counterclaim for compensation in the amount of EUR 250,000 is only based on the transfer compensation that the club paid to Club Q when it acquired the player. 21. In its final position, the club reiterated its previous position and added that: - Art. 3 and art. 5 of the loan agreement are clear: the player expressly waived its right to demand any payment during the loan period between 5 July 2010 and 31 May 2011; - The amount of EUR 46,000 claimed by the player matured on 15 July 2010 only, i.e. during the period of time the player was on loan with Club Q. Therefore, the club was not obliged to pay such amount and pointed out that the player did also not mention this amount in the default letter of 18 November 2011, which would indicate that he was well aware that said amount was not payable by the club; - As to the payment made on 19 July 2010, the club held that this payment was obviously an error and does not change the legal position of the club under art. 3 and art. 5 of the loan agreement; - It was common ground between the parties that the player had to return to country T on 26 June 2011. The club stressed that it never instructed the player’s agent to inform the player not to travel back to country T. In this respect, the club referred to the witness statement of Mr C, who does not state that the club instructed him to advise the player to cancel his flight ticket and not to return to country T for the pre-season training; - In any case, the witness statement of the agent is not impartial and there is no certainty that the agent indeed signed this statement; - The “Agency Contract” between the player and his agent expired on 30 March 2011 and there is no evidence on file that the agent was still the agent of the player in June 2011; - Hence, neither the club nor his agent instructed the player not to return to country T and, as a result, it must be concluded that it was his own decision; - The player could have written immediately to the club to render his services or to ask for instructions, however, he decided not to contact the club, at least not until 18 November 2011; - There is no evidence on file that the club refused a further cooperation with the player nor that the player was instructed to find a new club. 22. In spite of having been invited by FIFA to provide its position to the claim lodged against it by the country T club, Club B did not provide its position. 23. Upon request of FIFA, the player informed FIFA that between 1 June 2011 and 14 February 2012 he had remained unemployed. On 15 February 2012, he signed an employment contract with Club B valid until 30 June 2013 for a monthly salary of currency of country P 1,500. However, said club only fulfilled its obligations until 30 June 2012. According to the player, no payment was received between 1 July 2012 and 31 December 2012, reason for which on 31 December 2012 the parties agreed upon the mutual termination of the contract. 24. On 7 January 2013, the player signed a contract with Club W, form country P, valid until 30 June 2014, in accordance with which he was entitled to a monthly salary of currency of country P 21,000. However, due to a bankruptcy, said club did not fulfill its obligations on time and on 26 June 2013 the parties terminated the contract with mutual consent, the amount of currency of country P 116,935 still being outstanding. 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 9 November 2012. Consequently, the 2008 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 2008, 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 S player, a country T club and a country P 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 2010, 2012 and 2014) and considering that the present claim was lodged in front of FIFA on 9 November 2012, the 2010 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. Having taken note of the claim of the player as well as of the counter-claim of the club, the members of the Chamber stressed that the following four questions needed to be addressed by the Chamber: i) Is the player’s claim for the remaining part of the amount of EUR 46,000, due on 15 July 2010, barred by the statute of limitations? ii) In case the answer to the previous question is negative, is the club obliged to pay the player the amount of EUR 26,024 or was Club Q responsible for the payment of this amount? iii) Is the player entitled to any of the salaries that fell due between 1 June 2011 and 24 January 2012? iv) Did the player terminate the employment contract without just cause and are he and the club, Club B, therefore liable to pay compensation for breach of contract? 6. Turning its attention to the first question, the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute and that the application of this time limit shall be examined ex officio in each individual case. 7. In this respect, the Chamber noted that the payment date of the amount of EUR 46,000 was clearly specified in the employment contract as 15 July 2010. Therefore, and taking into account that the player’s claim was lodged in front of FIFA on 9 November 2012, the Chamber concurred that the Claimant had brought his claim against the Respondent for the payment falling due on 15 July 2010 only after the two-year period of time had elapsed. In this regard, the Chamber was eager to emphasise that the player’s argumentation that the two-year time limit only started running as from the date he had sent the default notice does not find any legal or regulatory basis. Thus, the Chamber found that the player’s claim for this particular payment must be declared barred by the statute of limitations in application of art. 25 par. 5 of the Regulations. As a consequence of the foregoing, the Chamber concluded that it was not necessary to address the 2nd question identified in point II./5. above. 8. The Chamber then turned to the question whether the player was entitled to the salaries that fell due between 1 June 2011 and 24 January 2012 and to the question whether the player had terminated the employment contract without just cause, as asserted by the club. The Chamber held that these two questions are evidently closely linked to one other and are therefore addressed simultaneously by the Chamber. In this respect, the Chamber stressed that the player acknowledged that he had not been at the club between 1 June 2011 and 24 January 2012 and that, thus, he had not rendered his services to the club in the aforementioned period of time. The Chamber realised however that the player and club had different views on the reason for the player’s absence between 1 June 2011 and 24 January 2012; whereas the player argued that he was authorized to be absent during the aforementioned period and that the club had instructed his agent that he did not have to return to the club, the club held that the player was not authorized to be absent and held that it did in fact request the player to return to country T. 9. In this context, the Chamber deemed it appropriate to recall the legal principle of the burden of proof as contained in art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In view of the foregoing and considering the claim of the player, the Chamber ruled that it was for the player to prove that he was indeed authorized not to return to the club after the expiry of the loan period with Club Q. 10. The Chamber acknowledged that the only documentary evidence submitted by the player to support his position was the statement of his - back then - agent, Mr C. In this regard, the Chamber pointed out however that the information contained in a personal statement, not supported by any additional documentation, is of mainly subjective perception and might be affected by diverse contextual factors. Therefore, the credibility of such type of documentation is limited. In particular, the Chamber wished to outline that Mr C was the former agent of the player and, considering the specific circumstances of the present matter, can therefore not be considered as a completely independent and impartial person in the matter at stake. Consequently, the Chamber decided not to give any weight to the statement of Mr C. 11. Having established the above, the Chamber concluded that the player had failed to prove that the club had authorised him to be absent from the club as from 1 June 2011. Equally, the Chamber concluded that the player had failed to prove that he had offered his services to the club after the expiry of the loan period. As a consequence, and since it is undisputed that the player was not at the club between 1 June 2011 and 24 January 2012 and therefore did not render his services to the club during the aforementioned period, the Chamber decided that the player is not entitled to any remuneration for the period between June 2011 and January 2012. 12. In relation to the foregoing and turning its attention to the counterclaim of the club, the Chamber deemed it also vital to underline that the club had not been able to prove that it had indeed requested the player to return to country T on 27 June 2011 in order to continue their contractual relationship. 13. In fact, the Chamber emphasised that for a period of almost 6 months, the player and club had not contacted one other; no objective evidence had been provided by any of the parties that they had requested the other party to comply with his/its part of the contract. Thus, the Chamber emphasised that both parties had failed to prove that they had any interest in the continuation of the employment relationship. Indeed, from the documentation on file, the Chamber established that it was not until 18 November 2011 that the player for the first time contacted the club requesting his alleged outstanding salaries. Hence, the Chamber acknowledged that whereas the player had never requested the performance of the contract from the club for almost 6 months, the club had equally never requested the player to return to the club to comply with his side of the contract. 14. As a consequence of the above-mentioned consideration, the Chamber held that in view of the considerable period of non-communication between the parties, it could be concluded that both parties had in fact no longer any interest in the continuation of the employment relationship after 1 June 2011. For this reason, the Chamber concluded that apart from the fact that the player’s claim for outstanding remuneration was rejected, also the club’s counter-claim had to be rejected, the latter not being able to prove that it had been interested in the continuation of the employment relationship with the player. 15. In view of all the foregoing, the Chamber determined that both the claim of the player as well as the counter-claim of the club needed to be rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent 1, Player M, is rejected. 2. The claim of the Respondent / Counter-Claimant, Club K, 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: Jérôme Valcke Secretary General Encl. CAS directives