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 A, country B as Claimant against the club, Club C, 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(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 A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 January 2013, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as of the date of signature until 30 November 2013. 2. The contract specifies, inter alia, that the Respondent is to provide the Claimant with a monthly salary amounting to USD 10,000 payable at the end of each month. 3. Article 3 of the contract stipulates that “should a player unable to attend training sessions or fallen sick, he should make a report as soon as possible to Club C [the Respondent] and will indicate as to when will he resume training. This must be supported by a medical leave receipt signed by the authorised officer from the approved list of medical facilities. This should be submitted to Club C [the Respondent] immediately. Player will be allowed not attend training sessions for a period of not exceeding 14 days and will be receiving full salary/allowance for the month. For a period exceeding 14 days salary will be paid at 50%”. 4. Article 4 of the contract also foresees the following: “a. The player [the Claimant] shall play football to the best of his ability and with commitment. b. The player [the Claimant] shall play in all football matches in which he is selected to play for Club C [the Respondent] and to attend at any place and time for the purposes of or reasons related to training in accordance with instruction given by authorised official of Club C [the Respondent].” 5. Pursuant to article 5.b of the contract, “Club C [the Respondent] is entitled to claim compensation from the Player [the Claimant] where Club C [the Respondent] is satisfied that the Player [the Claimant] has deliberately breached the instructions of the coach or team officials or in a game has committed a deliberate foul which has resulted in the player [the Claimant] receiving a yellow card and/or red card provided that the total compensation sum that may be deducted from the player’s [the Claimant’s] salary shall not exceed 50% of his salary for that month”. 6. According to article 8 of the contract, the Respondent can put an end to the contract “by giving one-month notice, Such notice may be given with or without just cause and may be given irrespective of whether or not any disciplinary action has, is or might be taken against the player [the Claimant]”. 7. On 8 May 2013, the Respondent terminated the contract in writing. In this respect, the termination notice sent by the Respondent to the Claimant states inter alia that the said notice serves as one month notice to terminate the contract. 8. On 30 October 2013, the Claimant lodged a complaint before FIFA against the Respondent for termination of the contract without just cause, requesting the following amounts: - USD 70,000 as compensation corresponding to the residual value of the contract; - USD 30,000 as damages “due to sudden interruption of career”. 9. The Claimant allegedly attempted to settle the dispute amicably with the Respondent, by means of a letter dated 12 June 2013 sent to the Respondent. However, the Respondent apparently refused such settlement. 10. In its reply, the Respondent sustains that its decision to terminate the contract was due to the Claimant’s behaviour. In particular, the Respondent evokes two matches against the club from country F, Club E, on 21 February 2013 and against the club from country H, Club G, on 1 May 2013 during which the Claimant apparently walked off the pitch during an ongoing match without informing the head coach of any possible reason. In this respect, the Respondent presented a correspondence dated 30 July 2013 stating the aforementioned facts and addressed to the alleged Respondent’s lawyer. 11. The Respondent also points to the various alleged fights with teammates initiated by the Claimant which, according to the Respondent, seriously affected the teamwork and performance. The Respondent further holds that the Claimant voluntarily isolated himself during trainings and pretexted an ankle injury. 12. Therefore, the Respondent concludes that the Claimant was in breached of articles 3, 4.a and 4.b of the contract and consequently, the Respondent alleges having lawfully terminated the contract pursuant to article 8 of the contract. 13. In this context, the Respondent requests the Claimant to pay compensation based on article 5.b of the contract and article 22 of the FIFA Regulations. 14. In spite of having been invited on two occasions to specify the claimed amount pertaining to its request, the Respondent did not submit further comments in this respect. 15. Upon FIFA’s request, the Claimant asserted having remained unemployed from May to November 2013. II. Considerations of the DRC judge 1. First of all, the DRC judge (hereinafter: the Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 30 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) are applicable to the matter at stake (cf. art. 21 par. 1 and 2 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 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 DRC judge 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 a club from country D, and which value does not exceed CHF 100,000. 3. Furthermore, the DRC 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 2 of the Regulations on the Status and Transfer of Players (edition 2014), and considering that the present claim was lodged in front of FIFA on 30 October 2013, the 2012 edition of said Regulations (hereinafter: 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 DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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 this respect, and in first instance, the DRC judge recalled that on 1 January 2013 the parties had signed an employment contract valid as from the date of signature until 30 November 2013, in accordance with which the Claimant was entitled to receive a monthly salary of USD 10,000. 6. The DRC judge also took due note of the termination of the contract by the Respondent by means of a written notice dated 8 May 2013 sent to the Claimant. At this stage, the DRC judge took due note that there was no reason for the termination indicated in the said written notice. 7. In continuation, the DRC judge took into account that, on 12 June 2013, the Claimant pointed out to the Respondent, in writing, that it had terminated the contract without just cause. Moreover, the DRC judge noted that in the aforementioned letter addressed to the Respondent, which apparently remained unanswered, the Claimant had sought an amicable settlement of the present dispute and warned the Respondent of the possible consequences. Additionally, the DRC judge observed that the stated letter apparently remained unanswered. 8. Furthermore, the DRC judge duly noted that the Respondent, for its part, sustained having duly terminated the contract based on the Claimant’s bad behaviour. In particular, the Respondent held that the Claimant walked off the pitch on two occasions and initiated fights with his teammates, as stated by the correspondence dated 30 July 2013 addressed to the Respondent’s lawyer. 9. In this context, the DRC judge acknowledged that he had to examine whether the reasons put forward by the Respondent could justify the termination of the contract in the present matter. 10. In this respect, the DRC judge was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 11. In view of the above, the DRC judge first of all observed that the Respondent never contested that the Claimant had attempted to settle the matter amicably on 12 May 2013 and that it refused such amicable settlement without any reason. Equally, the DRC judge observed that there was no reason specified by the Respondent in the termination notice dated 8 May 2013. Moreover, the DRC judge noticed that there was no evidence submitted by the Respondent which could justify the early termination of the contract. Indeed, the DRC judge duly noted that the correspondence referring to the Claimant’s alleged bad behaviour was dated 30 July 2013, thus after the Respondent had terminated the contract. In any case, the DRC judge was of the firm opinion that the Respondent did not have just cause to prematurely terminate the employment contract with the Claimant, since such alleged conduct could not legitimately be considered as being severe enough to justify the termination of the contract, and that there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine) in order to sanction the Claimant for his alleged bad behaviour. 12. On account of the above, the DRC judge decided that the Respondent had no just cause to unilaterally terminate the employment relationship with the Claimant and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 8 May 2013 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause. 13. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC judge focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract. 14. First of all, the DRC judge reverted to the termination notice dated 8 May 2013 and serving as one-month notice. Therefore, the termination of the contract is deemed to have been terminated as of 8 June 2013. As a result, the DRC judge concluded that the player’s salary for May 2013 in the amount of USD 10,000 is due as outstanding. 15. In continuation, the DRC judge focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, 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. 16. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to whether the pertinent employment contract contained 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. 17. In this regard, the DRC judge recalled that according to art. 5.b of the contract, “Club C [the Respondent] is entitled to claim compensation from the Player [the Claimant] where Club C [the Respondent] is satisfied that the Player [the Claimant] has deliberately breached the instructions of the coach or team officials or in a game has committed a deliberate foul which has resulted in the player receiving a yellow card and/or red card provided that the total compensation sum that may be deducted from the player’s salary shall not exceed 50% of his salary for that month”. 18. In this respect, the DRC judge took into account that article 5.b of the contract appears to be unilateral and to the benefit of the Respondent only. In the light of such unilateral character of the pertinent contractual clause, the DRC judge concluded that it cannot be taken into consideration. 19. Likewise, the DRC judge concluded that the said article 5.b of the contract does not clearly indicate the exact monetary value for compensation and, therefore, cannot be taken into consideration. 20. As a consequence, the DRC judge determined that the amount of compensation payable by the Respondent had to be assessed in application of the parameters set out in art. 17 par. 1 of the FIFA Regulations. In this regard, the DRC 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. 21. In casu, the DRC judge took note that, in accordance with the contract signed by the Claimant and the Respondent, which was to run until 30 November 2013, after the breach of contract occurred on 8 May 2013, the Claimant was to receive the total amount of USD 60,000, made up of six monthly salaries in the amount of USD 10,000 each, during the remaining term of the contract. 22. As a consequence, and bearing in mind that the Claimant had not been able to mitigate damages since he remained unemployed between the date of termination of the contract by the Respondent and the end date of the contract, the DRC judge concluded by deciding that the Respondent has to pay the total amount of USD 60,000 to the Claimant, as compensation for breach of contract. 23. Reverting to the Claimant’s petition regarding damages “due to not providing necessary and adequate medical care to the player after suffering an injury on a match”, the DRC judge agreed that such claim is to be rejected as it is not sufficiently specified and due to a lack of legal basis. 24. The DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant is partially accepted. 2. The Respondent has to pay to the Claimant outstanding remuneration in the amount of USD 10,000, within 30 days as from the date of notification of this decision. 3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 60,000, 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 by the Respondent within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and 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 DRC Judge 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 DRC judge: Markus Kattner Deputy Secretary General Encl. as mentioned