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 6 November 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theo van Seggelen (Netherlands), member Carlos González Puche (Colombia), member Theodore Giannikos (Greece), member Mohamed Al-Saikhan (Saudi Arabia), member on the claim presented by the player, Player V, from country P as Claimant against the club, Club T, from country I 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 6 November 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Theo van Seggelen (Netherlands), member Carlos González Puche (Colombia), member Theodore Giannikos (Greece), member Mohamed Al-Saikhan (Saudi Arabia), member on the claim presented by the player, Player V, from country P as Claimant against the club, Club T, from country I as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 29 May 2012, Player V, from country P (hereinafter: player or Claimant), and the Club T, from country I (hereinafter: club or Respondent), concluded an employment contract (hereinafter: contract) valid for the two seasons 2012/2013 and 2013/2014, “and will terminate after the Premier league of country I”. 2. Clause 7.2 of the contract provides for a monthly salary of USD 24,000, to be paid ten times per season and on the 15th day of each month starting on 15 August 2012 and 15 August 2013, respectively. Furthermore, according to clause 7.1 of the contract, the Claimant is entitled to receive an “advance payment” in the amount of USD 200,000, payable as follows: a) USD 100,000 upon signature of the contract; b) USD 50,000 on 10 July 2012; c) USD 50,000 “in the half season 2012-2013”. 3. Clause 7.3 of the contract stipulates that “if the club does not pay the salary and bonuses of players for more three consecutive months, the player may ask his agent to oblige the club to pay the agreed payments by sending the case to relative organizations like FIFA”. 4. On 2 November 2012, the Claimant sent a letter to the Respondent requesting the payment of outstanding remuneration. 5. On 9 November 2012, the Claimant sent a letter to the Respondent terminating the contract. 6. On 13 December 2012, the Claimant lodged a claim before FIFA requesting the total amount of USD 580,000 plus interest of 5% p.a. on the claimed amount as of the due dates of the payments, calculated as follows: a) USD 122,000 as outstanding payments composed of: i. USD 72,000 corresponding to his remuneration for the months of August, September and October 2012; ii. USD 50,000 corresponding to the second instalment of the advance payment; b) USD 458,000 corresponding to the residual value of the contract, i.e. USD 408,000 as remaining monthly remuneration and USD 50,000 as the third instalment of the advance payment. In addition, the Claimant claims that the Respondent must contribute to his legal costs. 7. In his claim, the Claimant explained that the Respondent had failed to pay the instalment of USD 50,000, which was due on 10 July 2012, as well as the remuneration for the months of August, September and October 2012 in the amount of USD 72,000. Based on clause 7.3 of the contract (cf. point I./3. above) and the jurisprudence of the Dispute Resolution Chamber, the Claimant concluded having had a just cause to terminate the contract, since three monthly salaries were outstanding. 8. In its reply to the claim, the Respondent stated that the Claimant was only conditionally employed because of his knee problems and that the Claimant had given a “written commitment for cancellation” in case he would not be able to play in accordance with the decision of the club. In this respect, the Respondent presented a translated annex to the contract apparently signed by the parties, which states the following “I, Player V […] undertake that I have no physical problem, but the medical board of federation reported that I have problem with my knees and don’t confirm my physical health and I accept that my contract can be cancelled if I cannot attract the satisfaction of my coach up to half-season”. The Respondent further held that the Claimant had been absent from 18 practice sessions and three official matches and that he had left the club on 18 July 2012 without informing the club. Therefore, the disciplinary committee of the club decided to deduct 75% of his monthly salary due to his absence from the training sessions and 45% of the total amount of his contract for the absence from matches. According to the Respondent, the case was also reported to the country I Football Federation on 6 January 2013 and the contract was cancelled by the disciplinary committee of the country I Football Federation. Consequently, the Respondent stated that the Claimant should be punished and shall refund the amounts received from the Respondent due to his absences, the non-fulfilment of his medical commitments and leaving the club without further notice. Finally, the Respondent indicated its willingness to negotiate with the Claimant. 9. After FIFA asked the Respondent if it intends to lodge a counterclaim against the Claimant and, if so, to provide a detailed breakdown of the amounts claimed, the Respondent repeated its previous statements and added that “the club announces its complaint and claims for legal claims of the club resulting from the absence of this player and non-fulfillment of his obligations”. 10. In his replica, the Claimant alleged that the decision of the disciplinary committee of the club is dated 11 December 2012 and that by that time, the Claimant had already terminated the contract. Further, the Claimant contested having signed the annex to the contract. The Claimant also contested having left the club on 18 July 2012 and argued that he had participated in eight matches between 6 August and 25 October 2012. In addition, the Claimant denied having had knee problems and argued that he had signed a new employment contract with the Club G, from country G, and played 14 matches by the end of the 2012/2013 season. 11. In its duplica, the Respondent mainly reiterated its previous allegations. The Respondent specified the matches from which the player had allegedly been absent, i.e. on 28 November, 3 December and 20 December 2012. The Respondent also specified the fines imposed on the Claimant, i.e. USD 180,000 for the player’s absence from training sessions and USD 153,000 for his absence from three matches. The Respondent further held that it had paid USD 185,480 to the Claimant for his salaries for the 2012/2013 season. 12. On 11 December 2012, the Claimant and the Club G, from country P, signed an employment contract valid as from 1 January 2013 until the end of the season 2014/2015, according to which the Claimant is entitled to receive the amount of EUR 27,120 for the season 2012/2013 and the amount of EUR 54,240 for the season 2013/2014. 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 13 December 2012. 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 editions 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 par. 2 in conjunction 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 county I club. 3. Furthermore, the Chamber analysed which regulations 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 (editions 2012 and 2014), and considering that the present claim was lodged on 13 December 2012, 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, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In this respect, the Chamber recalled that the parties had signed an employment contract valid for the seasons 2012/2013 and 2013/2014, in accordance with which the Claimant was entitled to receive a monthly salary of USD 24,000 and an “advance payment” in the amount of USD 200,000, payable in three instalments. 6. In continuation, the members of the Chamber took into account that on 9 November 2012, the Claimant notified the Respondent of the termination of the contract on the basis of outstanding remuneration after having previously put the Respondent in default in writing. Furthermore, the DRC observed that the Claimant had lodged a claim before FIFA against the Respondent seeking payment in the total amount of USD 580,000 corresponding to outstanding remuneration for the months of August, September and October 2012 and to the second instalment of the advance payment, as well as compensation for breach of contract. Finally, the Chamber took note of the Claimant’s request that the Respondent shall bear his legal costs. 7. Equally, the Chamber noted that according to the Respondent, the Claimant was only conditionally employed due to his knee problems and that according to an annex to the contract apparently signed by the parties, he would accept the cancellation of his contract if he did not satisfy the coach due to a physical problem. In addition, the DRC took note of the Respondent’s allegation that the Claimant had been absent from 18 practice sessions and three official matches and that he had left the club on 18 July 2012 without informing it. Moreover, the Chamber noted that the Respondent stated that it had reduced the Claimant’s remuneration due to his alleged absences from training and the matches, referring to a decision apparently taken on 11 December 2012 by the disciplinary committee of the club. 8. In view of the foregoing, the DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to terminate the contract on 9 November 2012. 9. In this respect, the Chamber wished to emphasize that, according to the Claimant, at the time of the termination of the contract on 9 November 2012, the total amount of USD 122,000 corresponding to three monthly salaries as well as the second instalment of an advance payment was yet to be paid by the Respondent. 10. The DRC then turned its attention to the arguments of the Respondent and acknowledged that according to the latter, the Claimant had been absent from the matches played on 28 November, 3 December and 20 December 2012 and that the Respondent had imposed fines in the total amount of USD 333,000 on the Claimant due to his absences from training sessions and the three aforementioned matches. 11. Moreover, the members of the Chamber acknowledged that the Claimant stated that the decision of the club’s disciplinary committee was taken after the termination of the contract and that he had never signed an annex to the contract. Equally, the Chamber observed that the Claimant contested having left the club on 18 July 2012 and presented a list confirming his participation in eight matches between 6 August and 25 October 2012. 12. In this context, the Chamber firstly concurred that the fines imposed on the Claimant by the Respondent shall be disregarded, since a) the Respondent was not able to proof the Claimant’s absences from training and matches before the termination of the agreement on 9 November 2012; b) a fine for the absence of a player after the player terminated the contract cannot be justified, and c) the total amount of the fines imposed on the Claimant by the Respondent represents more than half of the player’s yearly remuneration and, consequently, must be considered disproportionate. 13. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent’s argument in this connection. 14. Moreover, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the Chamber established that the total amount of USD 122,000 relating to three monthly salaries corresponding to August, September and October 2012 in the amount of USD 72,000, and the second instalment of the advance payment in the amount of USD 50,000 had fallen due and remained outstanding at the time of the termination of the contract by the Claimant. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant. 15. On account of the above, the Chamber decided that the Claimant had just cause to unilaterally terminate the contract on 9 November 2012 and that the Respondent is to be held liable for the early termination of the contract with just cause by the Claimant. 16. 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 Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber 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. As a consequence, on account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. USD 72,000 corresponding to the salaries relating to August, September and October 2012, and USD 50,000 corresponding to the second instalment of the advance payment, which was due on 10 July 2012. Accordingly, the Chamber decided that the Respondent has to pay to the Claimant outstanding remuneration in the total amount of USD 122,000. 18. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of USD 122,000 until the date of effective payment as follows: a. 5% p.a. as of 16 August 2012 on the amount of USD 24,000; b. 5% p.a. as of 16 September 2012 on the amount of USD 24,000; c. 5% p.a. as of 16 October 2012 on the amount of USD 24,000; d. 5% p.a. as of 1 January 2013 on the amount of USD 50,000. 19. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber 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. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment 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. 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. 21. 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 22. The members of the Chamber then turned their 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 Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation. 23. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 9 November 2012, until 22 May 2014, and concluded that the Claimant would have received in total USD 458,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 458,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 24. 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. 25. The Chamber recalled that, on 11 December 2012, the player signed an employment contract with the Club G, from country P, valid as from 1 January 2013 until the end of the season 2014/2015, in accordance with which the player was to receive the amount of EUR 27,120 for the season 2012/2013 and the amount of EUR 54,240 for the season 2013/2014. Hence, this employment contract enabled the Claimant to earn an income of EUR 77,487 in the period as of 9 November 2012 until 22 May 2014. 26. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 361,000 as compensation for breach of contract in the case at hand. 27. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 13 December 2012 until the date of effective payment. 28. In addition, as regards the claimed legal expenses, 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 expenses. 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player V, is partially accepted. 2. The Respondent, Club T, 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 122,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 16 August 2012 on the amount of USD 24,000; b. 5% p.a. as of 16 September 2012 on the amount of USD 24,000; c. 5% p.a. as of 16 October 2012 on the amount of USD 24,000; d. 5% p.a. as of 1 January 2013 on the amount of USD 50,000. 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 361,000 plus 5% interest p.a. as from 13 December 2012 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 limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is 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 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