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 21 January 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Eirik Monsen (Norway), member Zola Percival Majavu (South Africa), 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 21 January 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Eirik Monsen (Norway), member Zola Percival Majavu (South Africa), 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 12 December 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 from the date of signature until 11 December 2015. 2. The contract provides for the following fixed remuneration: USD 11,600 as sign-on fee payable in two instalments as follows: - USD 5,000 on the date of signature; - USD 6,600 upon receipt of the International Transfer Certificate (ITC); USD 1,350 as monthly salary due twelve times per year. 3. On 16 September 2014, the Claimant lodged a complaint before FIFA against the Respondent for breach of contract, requesting: the payment of USD 675 as unpaid salary for September 2014, plus 5% interest p.a. as of 15 September 2014; the payment of USD 600 as remaining portion of the sign-on fee, plus 5% interest p.a. as of 12 December 2013; the payment of USD 20,925 as compensation corresponding to the residual value of the contract, plus 5% interest p.a. as of 15 September 2014; the payment of USD 8,100 for specificity of sport, plus 5% interest p.a. as of 15 September 2014; legal costs to be borne by the Respondent; sporting sanctions to be imposed on the Respondent. 4. The Claimant alleges that the Respondent did not fulfil its obligation to register him and denied his right to train and play competitive football. In particular, the Claimant holds that he was not registered by the Respondent at the Football Federation from country D on 6 September 2014 as part of the quota of five foreign players for the 2014-2015 season. The Claimant also states that immediately thereafter, the Respondent informed him that he would not be joining the rest of the team in training camp because his services were no longer required. 5. In addition, on 9 September 2014, the Respondent allegedly offered to transfer the Claimant to “an unknown club in country E”, offer which was declined according to the Claimant. The Claimant further asserts that on the same day, he was told to train at home and on his own. 6. Based on the above-mentioned circumstances, on 10 September 2014, the Claimant sent an e-mail to the Respondent notifying the alleged breaches and – in reply to an alleged offer from the Respondent to terminate the contract, being conditional upon compensation corresponding to three-month salary – offering the Respondent to terminate the contract amicably subject to the payment of “the full balance of his contract, together with a signing on fee balance”. 7. Subsequently, on 11 September 2014, the Claimant apparently informed the Respondent of his will to join the rest of the players in training camp. However, the Claimant was allegedly told that he was not allowed to train because the Respondent was preparing for a friendly match. Thereafter, on 15 September 2014, the Claimant sustains that the Respondent left for country D for a series of friendly matches for which the Claimant was not included in the contingent and was apparently left in country D. 8. Therefore, on 15 September 2014, the Claimant terminated the contract by e-mail referring to his right to train with the team as well as his non-registration for the 2014-2015 season. 9. In its statement of defence, the Respondent alleges that the parties agreed that the Claimant would play in the ongoing local cups that start in November 2014. Thus, the Respondent asserts that the Claimant’s allegation according to which the latter was not wanted by the Respondent is false and not substantiated. 10. The Respondent further sustains that as from 9 September 2014, the Claimant did not report at the team’s training camp. In this respect, the Respondent provided the following correspondences: - a correspondence dated 11 September 2014 addressed to the Claimant by means of which the Respondent underlines the alleged aforementioned breach by the Claimant and urges the Claimant to report at the team’s training camp in country D; - a correspondence dated 19 September 2014 referring to an alleged meeting between the Claimant and the president of the Respondent held on 12 September 2014 according to which the Claimant apparently agreed to report at the team’s training camp the following day; then, stating that the said agreement had still been ignored by the Claimant and thus, urging the Claimant to immediately report at the team’s training camp; - a correspondence dated 1 October 2014 as final warning addressed to the Claimant. In this regard, the Respondent acknowledges that its aforementioned attempts to reach the Claimant were vain since the Claimant was not receiving the said correspondence. 11. Moreover, the Respondent acknowledges having received the aforementioned e-mail on 15 September 2014 (cf. point 8 above). However, the Respondent acknowledges that it did not reply since it had been sent by an alleged representative of the Claimant who was not known by the Respondent as such and who did not provide any power of attorney in this regard. 12. As to the Respondent’s alleged offer to transfer the Claimant to a club in country E, the Respondent states that there was no agreement either oral or written that forced the Claimant to be transferred to a club in country E. In any event, the Respondent underlines that the Claimant’s allegations lack evidence. 13. Finally, the Respondent holds that it complied with its contractual obligation of payment. In particular, according to the Respondent, the Claimant was contacted in order to collect his due salary. 14. In his replica, the Claimant first of all points to the Respondent’s correspondence dated 19 September and respectively 1 October 2014 allegedly sent to him (cf. point 10 above) which he considers irrelevant. The Claimant explains that since the contract had already been terminated on 15 September 2014, he deemed that he was no longer compelled to respond to the Respondent’s relevant correspondence. 15. Furthermore, the Claimant rejects the Respondent’s allegation pertaining to the parties having assented on using the Claimant in local cups. The Claimant underlines the lack of evidence from the Respondent in this regard. 16. The Claimant also argues that the Respondent aimed at transferring the Claimant to another club at all costs and, in this respect, had already made several proposals to loan the Claimant. In particular, the Claimant refers to the letter dated 19 September 2014 provided by the Respondent (cf. point 10 above) according to which the Claimant had apparently accepted to be loaned to the club from country D, Club F. In this regard, the Claimant asserted that he had not accepted such loan. 17. Moreover, the Claimant holds having “involuntarily missed” training sessions as a result of having been excluded by the Respondent. In order to substantiate the Respondent’s alleged lack of interest in retaining his services, the Claimant reiterates the content of the discussion on 9 September 2014 (cf. point 5 above), the fact that the Respondent did not register him for the 2014-2015 season (cf. point 4 above), as well as his attempt to reach the Respondent on 11 September 2014 in order to join the rest of the team in training camp in country D (cf. point 7 above). The Claimant added that if the Respondent had really wanted him to join the training camp, as it sustains, it would have provided him with a flight ticket to go to country D. 18. In its duplica, the Respondent reiterates its position pertaining to the matter at stake and denies each and every allegation of the Claimant. In particular, the Respondent holds that it never released the Claimant and that it was still in need of the Claimant’s services. In this respect, the Respondent refers to several conversations between the Claimant and the Respondent’s officials according to which the Respondent apparently showed its will to retain the Claimant’s services and to settle this matter. 19. The Respondent also asserts that it never denied the Claimant an opportunity to train with the rest of the team. According to the Respondent, the Claimant always trained with the team until he “absconded training”. The Respondent further adds that it never had the intention to terminate the contract and that it is willing to have the Claimant for the remaining term of the contract. 20. Upon FIFA’s request, the Claimant confirmed that on 1 December 2014, he signed an employment contract with the club from country B, Club G, valid for three years until 31 December 2017. The employment contract states that the Claimant is to receive a monthly salary in the amount of country B Shilling (KES) 60,000 equivalent to USD 600. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 16 September 2014. Consequently, the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at stake (cf. art. 21 par. 1 and 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 a 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 in front of FIFA on 16 September 2014, the 2014 edition of said Regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered the substance of the present matter. In doing so, it started by acknowledging the abovementioned facts of the matter as well as the documentation contained in the file. 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 12 December 2013, the Claimant and the Respondent entered into a contractual relationship, which was set to run until 11 December 2015, in accordance with which the Claimant was to receive a sign-on fee of USD 11,600 as well as a monthly salary in the amount of USD 1,350 payable twelve times per year. 6. In continuation, the Chamber also took note that the Claimant terminated the contractual relationship on 15 September 2014 by e-mail, after having put the club in default on 10 September 2014. 7. In this regard, the Chamber duly noted that the Claimant, on the one hand, insisted on the fact that the Respondent did not register him for the forthcoming season, wanted to loan him as well as excluded him from training camp in country D and from playing friendly matches there. On this basis, the Claimant considers that he had a just cause to terminate the contract. 8. On the other hand, the Chamber further took note of the argumentation of the Respondent, which sustained that the parties had agreed upon the Claimant playing as from November 2014 in the ongoing local cups. Additionally, the Chamber noted that the Respondent asserted that the Claimant absconded training as from 9 September 2014. 9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 10. At this point and for the sake of good order, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. 11. In this respect, the DRC noted that the Claimant has provided a copy of the e-mail sent on 10 September 2015 to the Respondent, pointing to his non-registration for the forthcoming season by the Respondent as well as his exclusion from training camp. 12. Bearing in mind the said principle of burden of proof, the DRC equally noticed that the Respondent did not substantiate its allegations pertaining to the parties having agreed upon the player taking part in the local cups as from November 2014. The Chamber further noted that the Claimant’s statement as per his non-registration for the season 2014-2015 was not contested by the Respondent. 13. Moreover, the Chamber carefully considered the evidence provided by the Respondent in order to report the Claimant’s absence from training as from 9 September 2014. In this regard, the DRC observed that the correspondence addressed to the Claimant in this respect were mainly sent to the Claimant only after the termination of the contract by the Claimant on 15 September 2014. In this context, the DRC also took note that, in any event, the Respondent acknowledged that the Claimant had not received said correspondence. 14. In continuation, the DRC turned its attention to the Claimant’s allegations pertaining to the Respondent’s will to loan him on several occasions. In this regard, the Chamber pointed to the correspondence dated 19 September 2014 provided by the Respondent, which refers to a potential loan offer of the player to a third club. The Chamber underlined that said loan offer was not only provided by the Respondent itself, but also not contested by the Respondent in its subsequent argumentation, i.e. the Respondent did not deny that it tried to transfer the Claimant. 15. In view of the aforementioned facts, the DRC was of the opinion that the Claimant had founded reasons to believe that the Respondent did not show a doubtless interest in retaining the Claimant’s services for the forthcoming season. 16. As a consequence of all the aforementioned allegations combined with the documentation provided by the parties, the Chamber considered that the Respondent was to be considered responsible for the breach of contract without just cause, consisting of the Claimant’s exclusion from training camp and his non-registration for the forthcoming season. Consequently, the Chamber concluded that the Claimant had a valid reason to terminate his contractual relation with the Respondent and that it should be considered as a well-founded just cause. 17. Having established that the Respondent is to be held liable for the early termination of the employment contract, the Chamber focused 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 from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payment(s) on the basis of the relevant employment contract. 18. First of all, the Chamber reverted to the Claimant’s financial claim, which consists of the balance of sign-on fee amounting to USD 600. In this regard, the Chamber emphasised that the amounts to be taken into consideration at this stage were all amounts which had fallen due at the time the Claimant terminated the contract, i.e. 15 September 2014. 19. Equally, the Chamber brought into account the Respondent’s allegations according to which it complied with its contractual obligations of payment. 20. In this respect, the DRC recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, and stressed that the Respondent did not substantiate its defence, as it did not present any evidence in respect of the relevant payment. 21. In view of the above, the DRC concluded that the Respondent has not provided evidence of its defence and that, therefore, it could be established that the Respondent had failed to pay to the Claimant the amount as agreed upon between the parties in the contract. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of USD 600 to the Claimant. 22. In addition, taking into consideration the Claimant’s claim and the Chamber’s constant jurisprudence in this respect, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 600 as from 12 December 2013 until the date of effective payment. 23. 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. 24. 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 the said employment contract at the basis of the matter at stake. 25. 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. 26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 15 September 2014, until its original date of expiry, i.e. 11 December 2015. The DRC thus concluded that the Claimant would have received USD 21,600 as total guaranteed remuneration if the contract had been executed until 11 December 2015. Consequently, the Chamber concluded that the amount of USD 21,600 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 27. 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 Claimant’s general obligation to mitigate his damages. 28. The Chamber recalled that, on 1 December 2014, the Claimant signed an employment contract with the club from country B, Club G, in accordance with which the Claimant was to receive a total fixed remuneration of USD 7,200 during the period as from December 2014 until December 2015. 29. In view of all of the above, the Chamber decided that the Respondent must pay the amount of USD 13,800 to the Claimant, which is considered by the Chamber to be a reasonable and justified amount as compensation for breach of contract. 30. In addition, taking into account the Claimant’s request for interest as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of claim, i.e. 16 September 2014, until the date of effective payment. 31. Moreover, the Chamber rejected any claim for legal expenses and compensation for specificity of sport, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 32. The Dispute Resolution Chamber concluded his 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 is partially accepted. 2. The Respondent 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 600 plus 5% interest p.a. as from 12 December 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 USD 13,800 plus 5% interest p.a. as from 16 September 2014 until the date of effective payment. 4. In the event that the aforementioned amounts plus interest are not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s 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: Markus Kattner Deputy Secretary General Encl. CAS directives