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 16 October 2014, in the following composition: Geoff Thompson (England), Chairman Todd Durbin (USA), member John Bramhall (England), member on the claim presented by the player, Player B, from country P as Claimant against the club, Club L, from country A 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 16 October 2014, in the following composition: Geoff Thompson (England), Chairman Todd Durbin (USA), member John Bramhall (England), member on the claim presented by the player, Player B, from country P as Claimant against the club, Club L, from country A as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 20 April 2012, Player B, from country P (hereinafter: the Claimant) and Club L, from country A (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1 June 2012 until 30 June 2014. 2. According to the contract, the Claimant was entitled to receive as remuneration the total amount of USD 600,000 as follows: a. USD 50,000 to be paid “on January 2013 year”; b. USD 50,000 to be paid “on January 2014 year”; c. A monthly salary of USD 25,000 “for the period of the contract (20-months from 01.06.2012)”. 3. On 4 October 2013, the Claimant lodged a claim against the Respondent in front of FIFA requesting the following: a. USD 50,000 as outstanding salaries for the months of July and August 2013; b. USD 275,000 as compensation for breach of contract; c. Interest at a rate of 5% “from the date of the instalments in debt until full payment”. 4. In particular, the Claimant explained that on 29 July 2013, the Respondent granted him permission to be absent from the Respondent in order to “take part in trials within the squad of any football team until 31 August 2013”. 5. The Claimant further argued that on 3 September 2013, upon his return, he was forbidden to enter the Respondent’s premises and to practice with the main squad. 6. In continuation, the Claimant alleged that he put the Respondent in default on 4, 16 and 19 September 2013, in order for the latter to reintegrate him in the team and to pay his salaries of July and August. Moreover, the Claimant informed the Respondent that his visa was to expire on 19 September 2013 and that the renewal of the visa was the Respondent’s obligation. In this respect, the Claimant stressed that the Respondent did not reply to any of the letters. 7. In view of the foregoing, on 23 September 2013, the Claimant notified the Respondent of the termination of his employment contract alleging just cause due to the “non-payment of salaries contractually due”, the “unjustified ban to attend the club’s facilities and practices with the team” and the “unfulfillment by the club of the duty to provide the Player with a visa”. 8. Furthermore, the Claimant stressed that “the Club’s behavior to ban the Player to attend the club’s facilities and practice with the team without any kind of justification, shows an attitude of disrespect and hostility (…) and must be considered as an unfulfillment of the contract”. 9. In its reply to the claim, the Respondent firstly argued that on 26 July 2013, the Claimant was sent to the reserve team “according to the decision of the head coach”. In this respect, the Respondent sustained that, as the Claimant did not agree with said decision, it granted the Claimant permission to “take part in trials within the squad of any football team until 31 August 2013” and informed him that “any football club, which would like to sign the player, is invited to negotiations with [the Respondent]”. 10. In continuation and according to the Respondent, on 3 September 2013 the Claimant was once again allowed to be absent from the club until 25 September 2013. In this respect, the Respondent stated that “Surprisingly for us, the player, who got permission until 25 September, did not leave country A and started to send to the club ‘notification letters’, where he threatened the club to terminate the contract” and that “this action was opposite to the agreement, reached between the player and the club before”. 11. In addition, the Respondent acknowledged “that it is obliged to make pending payments to the player” and that it received all the letters from the Claimant, however it could not answer them since “the player was sending all his letters (…) by fax from different service centers in the city”. 12. In continuation, the Respondent argued that the Claimant left country A without any notification and thus, it tried to contact him by phone and by sending letters to the country B Football Federation and to the Association of Football Federations of country A asking both of them for assistance. 13. Additionally, the Respondent stressed that it is “eager to extend the player’s visa and also to make all due payments” but that it cannot take any action since it is unaware of the player’s whereabouts. Also, the Respondent indicated it “every time took care of visa”. 14. Finally, the Respondent alleged that “We admit delay of the payments, but this delay should not be interpreted as ignorance of the player or disrespect of the contract. The player has been playing for [the Respondent] since 2011, and he has never faced any problem of such kind before”. 15. After having been asked by FIFA about his contractual situation, the Claimant indicated that he “remains unemployed for all 2013/2014 sporting season (…)”. 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 hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 4 October 2013. Consequently, the 2012 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 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 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 P player and an country A club. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 10 October 2014 by means of which the parties were informed of the composition of the Chamber, the member Mr E and the member Mr V refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr E has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr D refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players. 4. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), and considering that the claim was lodged in front of FIFA on 4 October 2013, the 2012 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 6. First of all, the Chamber acknowledged that on 20 April 2012, the parties entered into an employment contract valid as from 1 June 2012 until 30 June 2014, by means of which the Claimant was entitled to receive the total amount of USD 600,000, payable in 20 monthly instalments of USD 25,000 plus 2 payments of USD 50,000, the first one payable “on January 2013 year” and the second one payable “on January 2014 year”. 7. In continuation, the DRC observed that it was undisputed that on 23 September 2013, the Claimant terminated the contract with the Respondent invoking just cause. 8. Furthermore, the members of the Chamber took note of the position of the Claimant, who argues that the Respondent breached the aforementioned employment contract in view of the following: i) the Respondent failed to pay his salaries of July and August 2013 despite having been put in default by him on 4, 16 and 19 September 2013, ii) as from 3 September 2013, he was banned from the main squad and the Respondent forbade him from entering its premises and iii) the Respondent failed to renew his visa which expired on 19 September 2013. 9. On the other hand, the Chamber acknowledged the position of the Respondent which argues that in view of the decision of its assistant coach, the player was “sent to the reserve team”, decision which was not accepted by the player. In this respect, the Chamber observed that the Respondent stressed having granted permission to the Claimant to look for a new club as from 29 July 2013 until 31 August 2013 and as from 3 September 2013 until 25 September 2013. 10. In addition, the members of the Chamber noticed that the Respondent admits being “in delay of payments” but that said delay “should not be interpreted as ignorance of the player or disrespect of the contract”. 11. On account of the above, the Chamber deemed that the underlying issue in this 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. 12. Having said this, the members of the Chamber turned their attention to the arguments of the Respondent and wished to highlight the fact that in its reply to the claim, the Respondent admitted i) not having paid the Claimant’s salary in a timely manner, ii) having received the Claimant’s default letters and iii) having sent the Claimant to the “reserve team”. What is more, the Chamber observed that the Respondent did not dispute the Claimant’s allegation that his visa had expired on 19 September 2013 and merely stated that it is “eager to extend” said visa. 13. As to the Respondent’s argumentation, the members of the Chamber were of the unanimous opinion that, contrary to the Respondent’s view, it could be established that the Respondent, by not paying the Claimant’s salaries of July and August 2013 and by not arranging his visa before its expiration, had seriously neglected its contractual obligations towards the Claimant. 14. Moreover, in the Chamber’s view, the fact that the Respondent sent the Claimant to the “reserve team” and granted the latter two unsolicited authorizations to be absent from the Respondent for more than one month in order to look for a new club, showed that the Respondent was not interested in the Claimant’s services anymore. 15. On account of all the above-mentioned considerations, the members of the Chamber unanimously decided that the Claimant had just cause to terminate the relevant employment contract on 23 September 2013 and that the Respondent is to be held liable for said early termination of the contract. 16. Bearing in mind the above, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant. 17. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations as per 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. USD 50,000 as outstanding salaries for the months of July and August 2013. 18. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest on said amount at the rate of 5% p.a. as from the respective due dates, i.e. as of 1 August 2013 for the salary of July and as of 1 September 2013 for the salary of August. 19. In continuation, the Chamber underlined that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 20. 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. 21. 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. 22. 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. Consequently and considering the claim of the Claimant, 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 275,000, an amount which shall serve as the basis for the final determination of the amount of compensation for breach of contract. 23. 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. 24. In this respect, the Chamber acknowledged that the Claimant argued that he “remains unemployed for all 2013/2014 sporting season” and thus, that he had not been able to mitigate his damages. 25. In conclusion, taking into account all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to accept the claim of the Claimant and, as a consequence, determined that the Respondent is liable to pay to the Claimant the total amount of USD 275,000 as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount, as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 4 October 2013, until the date of effective payment. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player B, is accepted. 2. The Respondent, Club L, 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 50,000 plus 5% interest until the date of effective payment as follows: a. 5% p.a. as of 1 August 2013 on the amount of USD 25,000; b. 5% p.a. as of 1 September 2013 on the amount of USD 25,000. 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 USD 275,000 plus 5% interest p.a. on said amount as from 4 October 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are 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. 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. ***** 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