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 A, from country B as Claimant against the club, Club C, from country D 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 A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 27 August 2012, the player from country B, Player A (hereinafter: player or Claimant) and the club from country D, Club C (hereinafter: club or Respondent), signed an employment contract valid as from 1 September 2012 during 3 seasons, i.e. until the end of the 2014-15 season. 2. According to the employment contract, the player was to receive 9 monthly wages of 26,400 each, totalling 237,600 per season. The contract further indicates that “this agreement to season 2012/13. End also valid to season 2013/14, 2014/15 in addition of 15% of all season”. 3. On 7 August 2013, the club and the player signed an agreement by means of which they terminated the employment contract with mutual consent (hereinafter: termination agreement). 4. According to the termination agreement, the club undertook to pay the amount of EUR 12,000 to the player within 28 days of signing the agreement. 5. The termination agreement contains a clause (paragraph 3), which stipulates that the player, once the club makes the payment, shall irrevocably waive any claim, whether current or future, he has or may have in connection with the employment contract or the termination thereof. According to another clause in the termination agreement (paragraph 4), the player, with the intention of binding himself, expressly releases and discharges Club C from all claims that he had or now has or may have against the club. 6. Furthermore, the termination agreement contains a clause (paragraph 5) stipulating that “If the club doesn’t make the payment within the due date the Player shall have every right to claim for the payment to be paid according to FIFA Regulations”. 7. On 31 August 2013, the player signed an employment contract with the Club from country B, Club E, valid until 15 May 2015, in accordance with which he was entitled to receive a monthly salary of EUR 1,500. 8. On 14 February 2014, the player lodged a claim against the club in front of FIFA maintaining that the club had committed a unilateral breach of the termination agreement “and by such act the Contract” and, therefore, he claims payment of the amount of 784,080 plus EUR 10,000, composed as follows: a. 79,200 relating to monthly salaries (26,400 per month) as from March 2013 until and including May 2013 plus default interest as from 1 April, 1 May, and 1 June 2013, respectively; b. 273,240 for the 2013-14 season (based on 9 monthly salaries of 30,360 including a 15% increase) plus default interest as of 7 August 2013; c. 273,240 for the 2014-15 season (based on 9 monthly salaries of 30,360 including a 15% increase) plus default interest as of 7 August 2013; d. 158,400 as compensation (6 monthly salaries of 26,400 each); e. EUR 10,000 for legal costs; f. The player further indicates that the amount may be reduced if he signs any new contract for the same period of time. 9. The player maintains that during the 2012-13 season the club had been in delay of the payment of his salary since March 2013 and that the club had the clear intention to unilaterally terminate the contract without just cause, which is why they started negotiations and subsequently concluded the termination agreement. 10. While referring to the clause (paragraph 5) mentioned under number I./6. above, the player sustains that the club failed to pay the aforementioned amount of EUR 12,000 in spite of his default notice and, consequently, it is clear that the intention of the club was only to terminate the contract with no real intention to fulfil its contractual obligations. This, according to the player, constitutes a unilateral breach of contract without just cause which should be “punished” in accordance with the FIFA Regulations. 11. In reply to the claim, the club highlights that soon after the start of the first season of the contract (2012-13) country D was under a severe bombing attack from country F, especially the city of Club C. 12. According to the club, since then the player’s performance deteriorated and he asked the club to be able to leave country D and terminate the employment contract, which request was approved of by the club, as a result of which the termination agreement was signed. The parties agreed that the club would pay EUR 12,000 and that the player would have no claim regarding the employment contract. 13. The club deems that the player’s claim for compensation is made without good faith. 14. The club further states that it tried to transfer the relevant payment to the player’s bank account, but the player’s bank account details appeared incorrect. 15. The club rejects the claim put forward by the player and asserts that he can only claim the amount of EUR 12,000 as per the termination agreement, which amount the club is willing to transfer to the player upon receipt of the player’s correct banking details. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 February 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 player from country B and an club from country D. 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 (edition 2014), and considering that the present claim was lodged on 14 February 2014, 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 acknowledged that, on 27 August 2012, the Claimant and the Respondent signed an employment contract valid as from 1 September 2012 during 3 seasons, i.e. until the end of the 2014-15 season. The Chamber further noted that, on 7 August 2013, the employment contract was terminated by the parties in writing by mutual consent. According to the termination agreement, the Respondent undertook to pay the amount of EUR 12,000 to the Claimant within the following 28 days, on condition of which payment the Claimant waived any claim, whether current or future, he has or may have in connection with the employment contract or the termination thereof. 6. The members of the Chamber further noted that according to the clause in paragraph 5 of the termination agreement “If the club doesn’t make the payment within the due date the Player shall have every right to claim for the payment to be paid according to FIFA Regulations”. 7. The Claimant, on the one hand, maintains that the Respondent failed to remit the EUR 12,000 to him and, consequently, that the Respondent must be held liable for payment of inter alia the amount of 784,080, which amount includes outstanding remuneration as well as compensation for breach of contract, in accordance with the clause mentioned under numbers I./6. and II./6. above (hereinafter: Paragraph 5 clause). The Respondent, on the other hand, holds that the employment contract was terminated at the player’s request. The Respondent further alleges that it was not in possession of the correct banking details of the Claimant in order to proceed with the payment of the amount of EUR 12,000. The Respondent therefore deems that the Claimant can only claim the amount of EUR 12,000, which it is willing to remit to him. 8. The DRC held that the central issue in the matter at stake would be, thus, to determine as to whether the Respondent can be held liable to pay the amount claimed by the Claimant, which includes compensation for breach of contract, on the basis of the termination agreement concluded by and between the parties. 9. Subsequently, taking into account that the wording of the Paragraph 5 clause, which is at the basis of the Claimant’s claim, is ambiguous, the members of the Chamber turned their attention to the termination agreement and observed that it contains the final paragraph stipulating that “This Letter Agreement shall be governed by and construed according to the laws of the state of country D”. 10. The termination agreement having clearly established this choice of law, the members of the Chamber concluded that the Paragraph 5 clause cannot be interpreted as a choice of law clause. 11. According to the termination agreement, the Paragraph 5 clause applies in the event of the Respondent failing to remit the amount of EUR 12,000 to the Claimant. 12. The DRC understood that by inserting the Paragraph 5 clause in the termination agreement, the parties intended to revert to the situation that existed prior to the signature of the termination agreement, should the club fail to remit the payment of EUR 12,000 within the stipulated time limit. Above all, and in this connection, the Paragraph 5 clause was understood to refer to the FIFA Regulations pertaining to the maintenance of contractual stability and, in particular, to the consequences of breach of contract. 13. In continuation, the Chamber reverted to the Respondent’s allegations that the termination agreement was signed at the Claimant’s request and that its attempts to transfer the relevant payment to the Claimant failed, since it was not in possession of the correct banking details. In this regard, the members of the Chamber highlighted that the termination agreement does not indicate that said agreement was concluded at the Claimant’s request. In addition, the Respondent had not presented any documentation corroborating these allegations in accordance with art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Therefore, the Chamber agreed that it could not uphold the Respondent’s arguments. 14. Having said this, the Chamber stressed that it has remained undisputed that the Respondent has not paid the amount of EUR 12,000 to the Claimant. 15. On account of all of the aforementioned considerations, the DRC decided to accept the Claimant’s arguments and concluded that the Paragraph 5 clause applies, as a result of which the Claimant is entitled to claim payment of the amounts on the basis of the employment contract and the FIFA Regulations. 16. Subsequently, the members of the Chamber turned their attention to the facts relating to the circumstances prior to the termination of the employment contract on 7 August 2013 and highlighted that the Claimant’s allegation that the Respondent had been in delay of payment of his salary since March 2013 has not been contested by the Respondent. Nor has the Respondent indicated any reasons that could have justified the cessation by the Respondent of the payment of the Claimant’s receivables as of March 2013. Consequently, the Respondent was in default of payment of the Claimant’s remuneration for March, April, and May 2013, May 2013 being the 9th and final instalment of the relevant season, totalling the amount of 79,200. 17. On account of the above considerations, the Chamber decided that the Respondent has acted in breach of contract and is liable to pay compensation for breach of contract, in addition to the outstanding remuneration, in accordance with art. 17 par. 1 of the Regulations. 18. The Chamber then reverted to the Claimant’s financial claim, which includes the aforementioned salaries as of March 2013 until May 2013 totalling the amount of 79,200. 19. As stated above, the Respondent has not contested that these salaries have remained unpaid. On account of the above, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of 79,200 in connection with the remuneration due to the Claimant in accordance with the employment contract for services rendered until the termination of the employment contract prior to the start of the 2013-14 season. 20. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the three monthly salaries amounting to 26,400 each as of the day following the day on which said salaries fell due. 21. In continuation, the Chamber focussed 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. 22. 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. The Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 23. 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 the 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. 24. 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. 25. In accordance with the employment contract signed by the Claimant and the Respondent, which was to run for two seasons more after the breach of contract occurred, i.e. until the end of the 2014-15 season, the Claimant was to receive remuneration amounting to the total amount of 546,480, i.e. 273,240 per season including the contractual increase of 15%. Consequently, the Chamber concluded that the amount of 546,480 serves as the basis for the final determination of the amount of compensation for breach of contract. 26. The Chamber then took due note of the employment situation of the Claimant after the termination of the employment contract with the Respondent. It was duly noted that, on 31 August 2013, the player signed an employment contract with the Club from country B Club E, valid until 15 May 2015, in accordance with which he was entitled to receive a monthly salary of EUR 1,500. 27. Hence, the Chamber concluded that on the basis of this new employment contract the Claimant’s new income amounts to approximately 150,000 as from September 2013 until the 15 May 2015. 28. Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the Claimant to mitigate his damages, such remuneration under the new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay not the entire residual value of the employment contract, but the amount of 396,480. 30. In addition, taking into account the Claimant’s request, 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. 14 February 2014 until the date of effective payment. 31. Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 32. The Chamber concluded its deliberations in the present matter by rejecting any further request(s) filed by the Claimant. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of 79,200, plus interest of 5% p.a. as follows: a. 5% p.a. on the amount of 26,400 as of 1 April 2013 until the date of effective payment; b. 5% p.a. on the amount of 26,400 as of 1 May 2013 until the date of effective payment; c. 5% p.a. on the amount of 26,400 as of 1 June 2013 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 396,480, plus interest at 5% p.a. as from 14 February 2014 until the date of effective payment. 4. In the event that the amounts due to the Claimant 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 request filed by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber 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 Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl: CAS directives