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, 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 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, 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 28 August 2008, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent), and Company E (hereinafter: the Company), signed a document titled “Employment contract of the athlete Player A” (hereinafter: the contract) valid from the date of signature until 28 August 2009 or “at the end of the sports season 2008/2009, whichever of the two occurs later”. 2. The contract established that “the company acting as an owner of Club hereby agrees to make payments under this contract”. 3. According to article 2.1 of the contract, the Company shall pay the Claimant a basic salary of EUR 6,500,000 plus EUR 1,000,000 regarding “the transferring compensation of the athlete”, payable in instalments as follows: - EUR 3,500,000 “free taxes”, due on the signing date; - EUR 2,000,000 “free taxes”, due on 25 September 2008; - EUR 2,000,000 “free taxes”, due on 25 October 2008. 4. Article 3.1.2 of the contract established benefits as follows: a) 12 flight tickets in an executive class per season: Country D – Country B – Country D; b) 1 equipped and furnished house to be selected by the Claimant; c) Hotel with all included until the Claimant finds a residence; d) 2 cars; e) 1 chauffer; f) School for Language F for his 5 children; g) Teacher for Language G for the Claimant and his family; h) Health insurance. 5. Article 4 of the contract established a possibility to extend the contract for one or two seasons, in which case the Claimant would be entitled to a remuneration of EUR 6,000,000. In case the parties want to extend the contract, “the Parties shall agree in writing by no later than 30 April 2009”. 6. On the same date, i.e. 28 August 2008, the Claimant and the Respondent signed a document titled “THE CONTRACT on performance of professional duties by non-amateur-Football player of Club C”, valid until 28 August 2009, by means of which inter alia “the Club undertakes to follow the condition of payment of the Football Player according to the present contract”. 7. Article 4.1 of the aforementioned contract established that “for performance of the duties stipulated by the present contract, the wages, according to the list of staff of Club are monthly paid to the Football Player”. 8. On 17 November 2008, the Claimant, the Respondent and the Company signed a document titled “Term of Employment Contract Extension” (hereinafter: the new contract), by means of which the parties extended “the stated period of validity of related contract” until 31 December 2011, according to article 4 of the contract dated 28 August 2008, establishing the remuneration for the seasons 2010 and 2011 as follows: Season 2010 - The Respondent will pay the Claimant the amount of EUR 6,000,000 divided in two equal instalments on 25 August 2009 and 25 September 2009; Season 2011 - The Respondent will pay the Claimant the amount of EUR 6,000,000 divided in two equal instalments on 25 August 2010 and 25 September 2010. The new contract further established that the abovementioned remuneration revokes the remuneration established in article 4 of the contract dated 28 August 2008 for the same period. 9. Article 3 of the new contract established that “to be continue being valid for the contractual however extending period, all the rest clauses of the Employment contract firmed between [Respondent] and [Claimant] in 28 August 2008 and that they had not damaged no modification with the present instrument from Extension”. 10. On 1 April 2009, the Claimant, the Respondent and the Company signed a document named “Service Contract” (hereinafter: the service contract) valid until 31 December 2011, by means of which the Claimant was hired as “Consultant to advise the club on the assembly’s football team, the Technical Commission, modernizing the management of soccer, identification of talents, acting, even when prompted, the recruitment of players, comment on financial terms for the loan and pay athlete in search quality technical and professional athletes to be engaged in training and creation of conditions for training and preparation for the athletes to think in terms of training to be established, and represent the club in all countries and clubs to football that is requested to be present in that capacity”. 11. According to the service contract, the Claimant was entitled to “26% the importance equal amount from his salary established in the contract of employment signed on 28 August 2008 and the term of option signed on 17 November 2008, this amounts to be paid on the same dates of those contracts”. 12. Article 5.1 of the service contract established that “The Club may use the image of the [Claimant] for the disclosure of his, with, and therefore warn you in advance of at least fifteen days where the event to be held depends on the physical presence of the [Claimant]”. 13. Finally, the service contract determined that “the company signing this Agreement as a responsible club solidarity with the obligations assumed by it with the player in this instrument”. 14. On 26 July 2010, the Claimant send a default notice to the Respondent and the Company, requesting the payment of the outstanding amount of EUR 6,000,000 regarding the payments due on 25 August 2009 and 25 September 2009, establishing a deadline of 10 days. 15. On 9 August 2010, the Claimant terminated the employment relationship in writing alleging just cause. 16. On 19 August 2010, the Claimant lodged a claim before FIFA against the Respondent for breach of contract, claiming the following: - EUR 8,269,013 as outstanding remuneration; - EUR 7,650,000 as compensation corresponding to the residual value of the contract and the service contract; - sporting sanctions to be imposed on the Respondent. 17. According to the Claimant, the Respondent and the Claimant concluded an employment contract on 28 August 2008, which established the possibility of extending the contractual period, as well as an annex (cf. point I.6). Subsequently, the Respondent and the Claimant signed a new contract establishing a new contractual period until 31 December 2011, determining the remuneration for the seasons 2010 and 2011. 18. In this respect, the Claimant held that the Respondent fulfilled its financial obligations until 25 September 2008, but failed to pay the instalments that became due on 25 August 2009 and 25 September 2009 in the amount of EUR 3,000,000 each. 19. The Claimant also stated having held several meetings with the Respondent to try to solve the problem, without success. As a consequence, the Claimant contacted the Respondent on 26 July 2010, requesting the payment of the outstanding remuneration, establishing a deadline of 10 days. Subsequently, since no payment was received, the Claimant terminated the contract on 9 August 2010. 20. The Claimant also held that, although the service contract established that it was related to image rights and consultancy, it was actually intended to complement the remuneration established in the employment contract. According to the Claimant, he was entitled to receive: - EUR 1,267,497 from 1 April 2009 until 31 December 2009; - EUR 780,000 due on 25 August 2009 (26% of EUR 3,000,000); - EUR 780,000 due on 25 September 2009 (26% of EUR 3,000,000); - EUR 780,000 due on 25 August 2010 (26% of EUR 3,000,000); - EUR 780,000 due on 25 September 2010 (26% of EUR 3,000,000). 21. In this respect, although he was allegedly entitled to the amount of EUR 2,767,497 regarding the service contract for the season 2009, he held having received only EUR 920,257 on 1 April 2009, and thus, the amount of EUR 1,847,240 remained outstanding. 22. Furthermore, the Claimant stated that he was entitled to receive until the date of the termination, i.e. 9 August 2010, the amount of EUR 361,772.94 according to clause 3.1.2 of the contract. 23. Therefore, according to the Claimant, on the date of the claim, the aggregate amount of “EUR 8,269,013.16” (EUR 6,000,000 + EUR 361,722.94 + EUR 1,847,240) was outstanding. 24. Finally, the Claimant held having also contacted the Company to receive the aforementioned amounts, since the Company also signed the relevant contracts. 25. Although having been invited to do so, the Respondent did not answer to the claim even though informed that in the absence of a reply, a decision would be taken on the basis of the documentation and information on file. 26. The Claimant informed FIFA that he remained unemployed between 9 August 2010 and 27 January 2011, date on which he signed an employment contract with the Club of Country B, Club H, valid from 27 January 2011 until 31 December 2011. The employment contract established a monthly salary of 70,000. 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 19 August 2010. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of the 2008, 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 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 of Country B and a Club of 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 (editions 2014, 2012, 2010 and 2009), and considering that the present claim was lodged on 19 August 2010, the 2009 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 continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent for breach of contract requesting outstanding remuneration and compensation for breach of contract. 6. In this respect, the Chamber first of all considered that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced to its right of defence and, thus, had accepted the allegations of the Claimant. 7. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents on file, in other words, upon the statements and documents presented by the Claimant. 8. Having established that, the members of the DRC acknowledged that the Claimant and the Respondent had concluded several contracts. Consequently, the DRC considered that it was necessary to first analyse the different contracts and determine which contracts are to be considered at the basis of the present dispute. 9. The Chamber recalled that the Claimant and the Respondent had concluded four different contracts: (i) The contract dated 28 August 2008 concluded between the Claimant, the Respondent and the Company. In particular, the Chamber took note that the Company was acting as the owner of the Respondent and was responsible to make the payments under this contract to the Claimant (cf. point I.2); (ii) “THE CONTRACT on performance of professional duties by non-amateur-Football player of Club C” also dated 28 August 2008, concluded between the Claimant and the Respondent. In particular, the Chamber took note that it only established the Claimant’s obligations, without foreseeing any remuneration; (iii) The new contract dated 17 November 2008 concluded between the Claimant, the Respondent and the Company, by means of which the parties agreed on the extension of the contract dated 28 August 2008. In particular, the Chamber took note that the new contract established the obligation of the Respondent to pay the Claimant the amount of EUR 6,000,000 per season; (iv) The service contract dated 1 April 2009 also concluded between the Claimant, the Respondent and the Company. 10. In consideration of the above, the Chamber highlighted that the contract dated 28 August 2008 was extended and replaced by the new contract on 17 November 2008. As a consequence, the new contract dated 17 November 2008 shall be considered as relevant for the present dispute, this also being the contract on which the Claimant bases his claim in the present matter. 11. Regarding the service contract, the DRC took note that it clearly established the object of that agreement (cf. point I.10-12), establishing the obligations of the Claimant as a “consultant” to the club. Nevertheless, the Chamber took into account the argument of the Claimant that the service contract was intended to complement the remuneration established in the employment contract. 12. In this respect, the DRC recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 13. In this regard, the members of the DRC considered that the Claimant had to demonstrate that the amounts established in the service contract were not related to image rights and consultancy services as described in the relevant contract. However, the DRC considered that the Respondent did not submit any evidence in this regard and failed to discharge his burden of proof. 14. Considering all the above, in line with its well-established jurisprudence, the Chamber highlighted that the relevant service contract is not strictly employment-related within the framework of a player and club relationship and therefore, does not fall under the competence of the DRC. Therefore, the amounts claimed based on the service contract cannot be considered. 15. Consequently, the DRC concluded that the contract dated 17 November 2008 is the contract to be considered by the Chamber in the present dispute, when examining the financial part of the claim. 16. In this respect, the Chamber recalled that the parties had signed the new contract on 17 November 2008 extending the validity of the employment relationship until 31 December 2011. In particular, the DRC acknowledged that the new contract established that the Claimant was entitled to receive the amount of EUR 6,000,000 for each season, 2010 and 2011, to be paid in two instalments of EUR 3,000,000 each payable on 25 August and 25 September 2009, for the season 2010, and on 25 August and 25 September 2010, for the season 2011. 17. In continuation, the Chamber took note that the Claimant terminated the contract in writing on 9 August 2010, after having put the Respondent in default on 26 July 2010. 18. Considering the new contract and the claim of the Claimant, the DRC considered that on the date of the termination, i.e. 9 August 2010, the aggregate amount of EUR 6,000,000, corresponding to the two instalments of EUR 3,000,000 each due, respectively on 25 August and 25 September 2009, was outstanding. 19. On account of the aforementioned, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant the instalments that became due on 25 August and 25 September 2009 in the total amount of EUR 6,000,000. Consequently, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant over a substantial amount of time, despite the Claimant having put the Respondent in default. 20. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant had just cause to unilaterally terminate the contract on 9 August 2010 and that the Respondent is to be held liable for the early termination of the contract with just cause by the Claimant. 21. As a consequence, 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. EUR 6,000,000, as established in point II.18 above. 22. Furthermore, the DRC took into account the request for outstanding remuneration in the amount of EUR 361,772.94 based on article 3.1.2 of the contract (cf. point I.4), which was also valid for the new contract and highlighted that the relevant article did not specify any amounts for the different benefits listed. In this respect, the DRC recalled the principle of the burden of proof (cf. art. 12 par. 3 of the Procedural Rules) and pointed out that the Claimant had not provided any evidence in this regard and thus, all amounts based on article 3.1.2 of the contract are rejected. 23. 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 Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay compensation to the Claimant. 24. 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. 25. In application of the relevant provision, the Chamber held that it 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. In this regard, the Chamber established that no such compensation clause was included in any of the contracts. 26. Subsequently, 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 contract dated 17 November 2008 as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the employment contract on 9 August 2010, the contract would still run until 31 December 2011. Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the contract as from its early termination by the Claimant until the regular expiry of the contract amounts to EUR 6,000,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 27. In continuation, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute the Claimant had found new employment with the Club of Country B, Club H, valid as from 27 January 2011 until 31 December 2011 in accordance with which he would be remunerated with the total amount of 770,000, corresponding to EUR 336,000. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant 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. 28. In view of all of the above, the Chamber decided that the Respondent must pay the amount of EUR 5,664,000 to the Claimant as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount as compensation. 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ******* III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted, insofar as it is admissible. 2. The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the amount of EUR 6,000,000, 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 EUR 5,664,000, 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 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 Player A, 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