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 6 November 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player P, from country C as Claimant against the club, Club K, from country S as Respondent regarding an employment-related contractual 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 (DRC) judge passed in Zurich, Switzerland, on 6 November 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player P, from country C as Claimant against the club, Club K, from country S as Respondent regarding an employment-related contractual dispute arisen between the parties I. Facts of the case 1. On 5 July 2012, Player P, from country C (hereinafter: the Claimant), and Club K, from country S (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid from 1 July 2012 until 30 June 2014. 2. According to annex 3 of the contract, the following financial terms were stipulated: a) Currency of country S 1,000 as monthly salary; b) Currency of country S 500 as monthly expenses; c) Currency of country S 500 as monthly allowance for the player´s participation in the youth team. 3. According to art. 3 par. 1 and 2 of the contract, the contract can be terminated by any party on “significant grounds”, i.e. serious and repeated breach of the contract or the statutes and regulations of the country S Football Federation. Equally, art. 3 par. 4 of the contract also stipulates that in case the counterparty does not contest the reasons for the termination of the contract within 10 days upon receipt of the termination notice in writing, it is presumed that the termination was acknowledged. 4. On 29 August 2013, the Claimant reminded the Respondent of its arrears in writing, requesting the payment of the total amount of currency of country S 13,962, corresponding to outstanding salaries and bonuses, within 10 days as from receipt of such notification. 5. On 7 October 2013, based on the non-payment of the aforementioned remuneration, the Claimant terminated the contract with the Respondent in writing. 6. On 29 November 2013, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, claiming the total amount of currency of country S 29,962, as set out below: a) Currency of country S 9,962 corresponding to outstanding salaries for the period from February to July 2013; b) Currency of country S 4,000 corresponding to the bonus “for the 40 points achieved”; c) Currency of country S 16,000 corresponding to the residual value of the contract from October 2013 until June 2014, i.e. “8 months”, that is: i. Currency of country S 8,000 as salary (8 x currency of country S 1,000; cf. point I. 2.a) ii. Currency of country S 4,000 as expenses (8 x currency of country S 500; cf. point I. 2 b) iii. Currency of country S 4,000 as allowance (8 x currency of country S 500; cf. point I. 2.c) Equally, the Claimant asked the Respondent to reimburse his legal expenses. 7. As to the facts of the case, the Claimant explained that he allegedly solely received the total amount of currency of country S 2,000 since January 2013. Consequently, by a letter dated 29 August 2013, he put the Respondent in default with regard to the outstanding amount of currency of country S 13,962 (cf. point I. 4 above). 8. Since the Respondent allegedly did not respond to his notice and did not proceed with the payment of the outstanding amounts, he terminated the contract on 7 October 2013 based on art. 3 par. 1 and 2 of the contract (cf. point I. 3 above). 9. With regard to his labour situation as from the termination of the contract until 30 June 2014, the Claimant stated that on 2 January 2014 he signed an employment contract with Club F, from country C, valid from 1 January 2014 until 30 June 2016. Said contract provided for a monthly salary of currency of country C 20,000, which “will be increased to currency of country C 23 000.- after 10 official matches”. 10. Despite having been invited to do so, the Respondent never replied to the claim of the Claimant. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge or the judge) analysed whether he was competent to deal with the matter at stake. In this respect, the judge referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 29 November 2013. Therefore, the DRC judge concluded that the edition 2012 of the Procedural Rules was applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country C Player and a country S club. 3. Furthermore, the 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 (editions 2012 and 2014), and considering that the present claim was lodged on 29 November 2013, the 2012 edition of said 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 judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. In continuation, before starting to acknowledge and to analyse the Claimant’s claim, the judge wished to point out that the Respondent, in spite of having been given the opportunity to reply to the claim submitted by the Claimant, failed to present its response in this respect and, by doing so, it tacitly renounced to its right of defence. 6. As a consequence of the preceding consideration, the DRC judge established that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documents on file. 7. Having said that, the judge acknowledged that it was undisputed by the parties that, on 5 July 2012, they had signed an employment contract valid from 1 July 2012 until 30 June 2014, in accordance with which the Claimant was entitled to receive a) currency of country S 1,000 as monthly remuneration, b) currency of country S 500 as monthly expenses and c) currency of country S 500 as monthly allowance for the Claimant’s participation in the youth team. 8. Equally, the DRC judge took note that it was also undisputed by the parties involved that the employment relationship had been unilaterally terminated by the Claimant, in writing, on 7 October 2013, based on art. 3 par. 1 and 2 the contract (cf. point I. 3 above). 9. In continuation, the DRC judge noted that the Claimant alleged that he had solely received the total amount of currency of country S 2,000 since January 2013. The judge further noted that, on 29 August 2013, the Claimant had put the Respondent in default with regard to the outstanding amount of currency of country S 13,962 giving it 10 days to comply with the payment of the said amount. 10. As a consequence, and due to the Respondent’s alleged lack of payment, the DRC judge took due note that the Claimant terminated the contract and is now asking to be awarded the total amount of currency of country S 29,962, consisting of outstanding monies and a bonus payment, as well as the residual value of the contract. In addition, the Claimant requested the Respondent to bear his legal expenses. 11. In this regard, the DRC judge first observed that, in accordance with the general legal principle of pacta sunt servanda, 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 currency of country S 9,962, consisting of monthly salaries for the period from February 2013 to July 2013. 12. Subsequently, with regard to the Claimant’s request for bonuses for points in the amount of currency of country S 4,000, the judge deemed it important to recall the general legal principle of the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). In this context, he observed that the Claimant had not presented any documentary evidence regarding his entitlement to the bonus in question (cf. point I.6.b). 13. In view of the foregoing, the DRC judge decided that the Claimant’s request for the bonus in the amount of currency of country S 4,000 should be rejected. 14. On account of the aforementioned, in particular in view of the considerations under points II./9 and II./11 above, the DRC judge established that the Respondent, without any valid reason, failed to remit to the Claimant, until 7 October 2013, date on which the Claimant terminated the contract, the total amount of currency of country S 9,962, corresponding to approximately 6 monthly salaries, from February to July 2013. Consequently, and considering that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the judge decided that the Claimant had just cause to unilaterally terminate the employment contract on 7 October 2013 and that, as a result, the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant. 15. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the judge focused his attention on the consequences of such termination. In this regard, the DRC judge determined that the Respondent was not only to pay the amount of currency of country S 9,962 as outstanding remuneration to the Claimant, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 16. In this context, 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, and depending on whether the contractual breach falls within the protected period. 17. In application of the relevant provision, the judge held that he first of all had to clarify as to whether the pertinent contract contains 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. The DRC judge assured himself that no such compensation clause was included in the contract at the basis of the matter at stake. 18. As a consequence, 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 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. In this regard, the judge emphasised beforehand that each request for compensation for contractual breach has to be assessed by the DRC judge on a case-by-case basis taking into account all specific circumstances of the respective matter. 19. In order to estimate the amount of compensation due to the Claimant in the present case, the judge first turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the DRC judge to be essential. The 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. 20. Bearing in mind the foregoing, the judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract signed with Club K and concluded that, taking into consideration the Claimant’s calculation, he would have received in total currency of country S 16,000 as remuneration had the contract been executed until its expiry date, i.e. 30 June 2014. 21. The judge then took due note of the employment situation of the Claimant after the termination of the contract with the Respondent and of the relevant new employment contract that he had entered into. It was duly noted that the Claimant and the Club F, from country C, signed an employment contract valid from 1 January 2014 until 30 June 2016, in accordance with which the Claimant was to receive a monthly salary of currency of country C 20,000. 22. Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the DRC judge as well as the general obligation of the player 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. 23. Thus, the judge decided that the Respondent is to be held liable to pay compensation for breach of contract in the amount of currency of country S 10,648 to the Claimant. 24. Equally, the Chamber held that the Claimant’s claim pertaining to the reimbursement of legal expenses is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 25. Finally, the DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player P, is partially accepted. 2. The Respondent, Club K, is ordered to pay to the Claimant outstanding remuneration in the amount of currency of country S 9,962 within 30 days as from the date of notification of this decision. 3. The Respondent is ordered to pay to the Claimant compensation for breach of contract in the amount of currency of country S 10,648 within 30 days as from the date of notification of this decision. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid within the above-mentioned time limit, an interest rate of 5% p.a. will apply on said amounts as of expiry of the above-mentioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further claims lodged by the Claimant are rejected. 6. 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 article 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