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 10 February 2015, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player B, from country A as Claimant against the club, Club D, from country C 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 10 February 2015, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player B, from country A as Claimant against the club, Club D, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 21 August 2012, the player from country A, Player B (hereinafter: the Claimant), and the club from country C, Club D (hereinafter: the Respondent), concluded an employment contract (hereinafter: the first contract) valid “for the period of one year for the football season 2012-2013”. 2. According to clause 2 of the first contract, the total remuneration of the Claimant for his services was of EUR 15,000, payable in ten monthly instalments of EUR 1,500 each, “as the first instalment to be paid on the 31st of August 2012 and the last to be paid on the 31st of May 2013 (within 60 days grace period)”. 3. Equally, the first contract also stipulated the following in its clauses 1 g), 1 m) and 1 i): “[the Claimant] will always behave in a professional manner both during his working time and private life time and will not in any case make such actions that may affect his sporting performance as a player. In case of failing to do so or he violates the internal regulation of the Football Department, he will accept any penalty and/or any disciplinary measures ordered by the coach/trainer and/or [Respondent’s] Disciplinary Committee”; “[the Claimant] shall obey and comply with all orders and instructions of the [Respondent] and faithfully observe the rules, regulations and arrangements for the time being in force for the protection of the [Respondent’s] property and interests”; “[the Claimant] shall not at any time be guilty of any act or conduct which may cause damage, according to the judgement of the [Respondent], to its property/interests or reputation. He shall respect and at all times conduct himself with propriety and decorum, and in particular shall obey and comply all the laws, rules and regulations for the time being in force in country C”. 4. Furthermore, the parties also signed an undated “contract of image rights” (hereinafter: the second contract), valid “as long as the Contract of Employment is in force”, which established that “in consideration of the assignment of his image rights to the [Respondent] for the period from 31/08/2012 until 31/05/2013 the total sum of Euro € 35000 […] net of taxes payable by ten […] equal monthly instalments of € 3500 […], as the first instalment to be paid on the 31st of August 2012 and the last to be paid on the 31st of May 2013 (with 60 days grace period)”. 5. Equally, the second contract also stipulated that the Claimant shall receive an additional amount of EUR 500 per month for his accommodation, a car and air tickets. 6. On 11 February 2013, the Respondent unilaterally terminated the first and second contract with the Claimant, in writing, alleging that it had “decided to activate paragraphs 1g, 1m and 1i of the [first contract]. Particularly the Board of Directors of the [Respondent] took into consideration the penalty that has been imposed [on the Claimant] by the Disciplinary Committee of Football Association from country C that prohibits [the Claimant] from participating into any official match of the Club for 6 consecutive matches due to [his] unprofessional conduct during the match with Club E. As a result of the penalty imposed [on the Claimant his] sporting performance to the [Respondent] has been seriously affected since [he is] not entitled to participate in any official matches damaging in this manner the interests of the [Respondent]”. 7. On 18 February 2013, the Claimant lodged a claim before FIFA against the Respondent, alleging breach of contract without just cause and requesting the payment of the total amount of EUR 48,664, plus 5% interest p.a., as follows: a. EUR 22,664 as compensation for breach of contract, plus 5% interest p.a. “starting from the decision delivery date”; b. EUR 26,000 corresponding to outstanding monies, plus 5% interest p.a. as from 11 February 2013, as follows: I. EUR 23,000 corresponding to six outstanding payments based on the first contract and the second contract (cf. point I.8 below); II. EUR 3,000 corresponding to the accommodation costs (cf. point I.5 above). 8. In this respect, the Claimant explained that, on 11 February 2013, the Respondent terminated the first and second contract without just cause due to his alleged “disciplinary offences”, which he denies. Equally, the Claimant explained that the Respondent had allegedly only made partial payments of the amounts stipulated in the first and second contract totalling EUR 7,000 only. 9. In its reply, the Respondent disputed the competence of the FIFA Dispute Resolution Chamber, asserting that the only competent authority to deal with the case is the “Dispute Resolution Chamber of Football Association from country C”. In this respect, the Respondent provided FIFA with a copy of the Regulations for the Registration and Transfer of Football Players of the Football Association from country C (edition 2005; hereinafter: the regulations of the Football Association from country C). 10. The Respondent also emphasised that FIFA has no jurisdiction relating to disputes based on image rights contracts. 11. With regard to the substance of the dispute, the Respondent rejected the Claimant’s allegations and explained that, on 12 January 2013, he had allegedly acted unprofessionally during a first division league match against Club E. As a consequence, he was fined with EUR 5,250 by the Respondent. In addition, on 25 January 2013, the Football Association from country C Disciplinary Committee suspended the Claimant for 3 consecutive matches and fined him with EUR 1,000. “Moreover after this decision the [Claimant] was suspended for a total of 6 consecutive matches.” As a consequence, and taking into consideration the penalty imposed by the Football Association from country C Disciplinary Committee and having the primary goal to secure the interests of the Respondent, the Board of the club decided to terminate both the first contract and the second contract with the Claimant as of 11 February 2013 (cf. point I.6 above). 12. With regard to the Claimant’s claim for outstanding payments, the Respondent explained that it fulfilled all of its obligations and that no further amount is due to him “due to the fact that any other salary owned to the [Claimant] until the day of the incident was crossed out through the penalty imposed on the [Claimant] for this unprofessional behaviour”. Summing up, and also referring to the Claimant’s request for accommodation costs, the Respondent noted that he has received all his monthly payments and accommodation fees until the day of the termination of the contract. 13. In view of all the above-mentioned, the Respondent stated that the termination of the first and second contract was with just cause and that the Claimant shall be condemned to pay the Respondent’s incurred legal expenses as well as any procedural costs. 14. In relation to his contractual situation, the Claimant stated not having signed any other employment contract from 11 February 2013 until the expiry of the contract with the Respondent. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge or the judge) analysed whether he was competent to deal with the matter at stake. In this respect, the judge referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 18 February 2013. Therefore, the DRC judge concluded that the edition 2012 of the Procedural Rules was applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), he is, in principle, competent to decide on an employment-related dispute with an international dimension, between a player from country A and a club from country C. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA's deciding bodies, asserting that the only competent authority to deal with the case is the “Dispute Resolution Chamber of the Football Association from country C”, based on the edition 2005 of the regulations of the Football Association from country C. 4. In this respect, the judge took due note that the Respondent did not base its contestation of FIFA’s competence on any stipulation of the contract. 5. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the Regulations, he is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC judge referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. In relation to the above, the DRC judge also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC or the DRC judge is competent to settle an employment-related dispute between a club and a player of an international dimension is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract. 7. Therefore, while analysing whether he was competent to hear the present matter, the DRC judge considered that he should, first and foremost, analyse whether the contracts at the basis of the present dispute actually contained a jurisdiction clause. 8. Having said this, the DRC judge turned his attention to the content of the aforementioned contracts and, after a thorough analysis thereof, he concluded that no clear jurisdiction clause had been inserted in any of those contracts. 9. Having established that the first criteria for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the DRC judge deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body. 10. In view of the above, the judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC judge is in principle competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 11. However, the DRC judge also acknowledged that the Respondent contested the competence of FIFA's deciding bodies highlighting that FIFA has no jurisdiction considering the claim based on an image rights contract, thus, escaping from the competence scope of art. 22 of the Regulations. 12. In fact, it remains that the claimed outstanding payments and compensation for breach of contract under the second contract could possibly not be considered due to the DRC judge’s lack of competence to deal with disputes related to image rights. The DRC judge, therefore, had to also verify whether, for formal reasons, he was competent to deal with this specific component or not. 13. While analysing whether he was competent to adjudicate on this part of the claim, the DRC judge wished, without entering into any discussion regarding the actual wording of the preamble and art. 1 of the second contract nor its title itself, which undoubtedly defines the contract as an image rights agreement, to highlight that said image rights contract contained further elements which led to believe that it was not in fact an image rights contract but rather a separate agreement accidental to the contract, i.e. directly linked to the services of the Claimant as a player and employee of the Respondent. 14. As a general rule, if there are separate agreements, the DRC judge tends to consider the agreement on image rights as such and, therefore, as non-competent to deal with it. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. In the case at hand, such elements appear to exist. In particular, the second contract contains inter alia stipulations regarding the use of a vehicle, accommodation and flight tickets, which are typical for employment contracts and not for image rights contracts. Consequently, the DRC judge decided not to consider the second contract as an image rights contract, but determined that said contract was in fact an additional agreement to the first contract instead. 15. In view of all the above, the DRC judge established that the second contract is to be considered, meaning that he is in a position to take it into consideration when assessing the Claimant’s claim. 16. Having established the foregoing, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations and considering that the present matter was submitted to FIFA on 18 February 2013, the 2012 edition of said Regulations is applicable to the present matter as to the substance. 17. The competence of the DRC judge and the applicable regulations having been established, the judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. 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. 18. In this respect, the DRC judge acknowledged that it was undisputed by the parties that, on 21 August 2012, they had signed the first contract valid “for the period of one year for the football season 2012-2013”, in accordance with which the Claimant was entitled to receive the total amount of EUR 15,000, payable in ten monthly instalments of EUR 1,500 each, “as the first instalment to be paid on the 31st of August 2012 and the last to be paid on the 31st of May 2013 (within 60 days grace period)”. 19. In addition, the judge further noticed that it was also undisputed by the parties that they had signed a second contract, valid “as long as the Contract of Employment is in force”, in accordance with which the Claimant was entitled to receive the total amount of EUR 35,000 net, payable in ten monthly instalments of EUR 3,500 each, “the first instalment to be paid on the 31st of August 2012 and the last to be paid on the 31st of May 2013 (with 60 days grace period)”. 20. In continuation, the DRC judge also took note that it was undisputed that the contractual relationship between the parties to the present dispute was terminated by the Respondent on 11 February 2013, when the Respondent submitted its termination letter to the Claimant. 21. In this regard, the judge noted that the Claimant, on the one hand, argued that the Respondent had unilaterally terminated the contractual relationship without just cause on 11 February 2013, justifying said decision by alleging that “the sporting performance to the [Respondent] has been seriously affected” due to the Claimant’s alleged unprofessional conduct and the ensuing penalty and ban imposed on him by the Disciplinary Committee of the Football Association from country C. As a consequence, the DRC judge took due note that the Claimant is now asking to be awarded the total amount of EUR 48,664, consisting of outstanding monies and compensation for breach of contract, as well as 5% interest p.a. 22. The DRC judge further noted that the Respondent, on the other hand, insisted on having terminated the first and second contract with the Claimant with just cause based on his alleged unprofessional behaviour during a first division league match on 12 January 2013. In this context, the judge took due note that the Claimant was fined by the Respondent with EUR 5,250 and was additionally also fined with EUR 1,000 by the Football Association from country C Disciplinary Committee and, ultimately, suspended by the Football Association from country C Disciplinary Committee for a total of 6 consecutive matches. As a consequence, so the Respondent, it terminated both contracts with just cause in order to “secure the interests of the [Respondent]”. Finally, the DRC judge also took note of the Respondent’s explanation with regard to the Claimant’s outstanding monies, by means of which it stated having fulfilled all of its obligations and that no further amount was due to the Claimant “due to the fact that any other salary owned to the [Claimant] until the day of the incident was crossed out through the penalty imposed on the [Claimant] for this unprofessional behaviour”. 23. Having established the aforementioned, the judge deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the first contract and the second contract had been unilaterally terminated with or without just cause by the Respondent. 24. In view of the above, the judge subsequently went on to deliberate as to whether the Claimant’s alleged serious misconduct, which is invoked by the Respondent in its defence, can be considered as a just cause for the Respondent to prematurely terminate the employment relationship. 25. In this context, and for the sake of good order, the DRC judge deemed it appropriate to remind the parties of 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 on the basis of an alleged fact shall carry the respective burden of proof. Bearing in mind the aforementioned principle, the DRC judge noted that in the present dispute the Respondent bore the burden of proof regarding the existence of a just cause for the premature and unilateral termination of the contracts. 26. In this regard, the judge deemed it necessary to highlight that the Respondent did not submit any documentary evidence with regard to the Claimant’s alleged misconduct and that, therefore, not even the actual existence thereof could be established. 27. Notwithstanding the foregoing, the DRC judge also pointed out that the Claimant’s alleged misconduct, i.e. his unprofessional behaviour during a first division league match on 12 January 2013, could not constitute, per se, a valid reason for the termination of an employment contract. Only a breach or misconduct which is of certain severity would justify 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 assure 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. 28. In view of all the above, the judge was of the opinion that the objective circumstances at the time did not provide the Respondent with just cause to prematurely terminate the contracts concluded with the Claimant, since there would have been more lenient and proportionate measures to be taken, in order to sanction the alleged misconduct, which was apparently at the basis of the termination of the employment relationship by the Respondent. 29. Overall, the DRC judge decided that there was no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and that, therefore, the Respondent had terminated both contracts on 11 February 2013 without just cause. 30. Having established that the Respondent is to be held liable for the early termination of the contracts without just cause, 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 first and second contract. 31. First of all, the judge reverted to the Claimant’s claim, which includes outstanding monies of EUR 26,000 based on both contracts. 32. In this respect, the DRC judge recalled that the Respondent did not dispute the fact that the Claimant’s outstanding monies have not been paid but deemed that fines imposed on the Claimant for alleged undisciplined behaviour, were to be deducted from the amount owed to him. Consequently, the Respondent claimed that there was no amount owed to the Claimant. 33. In this context, the DRC judge concurred that the fine imposed on the Claimant by the Respondent shall be disregarded, since a) the Respondent did not prove any alleged unprofessional behaviour, and b) the total amount of the fine allegedly imposed on the Claimant by the Respondent (i.e. EUR 5,250) represents more than one monthly remuneration and, consequently, must be considered disproportionate. 34. In addition, and irrespective of the foregoing consideration, the judge wished to address the fact that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a method to set off outstanding financial obligations towards players. Consequently, the DRC judge decided to reject the Respondent’s argument in this regard. 35. Consequently, taking into account the disproportionate fine imposed by the Respondent on the Claimant, the lack of documentary evidence provided by the Respondent in this respect and the fact that both contracts are to be considered as terminated as of 11 February 2013, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of EUR 26,000, plus interest of 5% p.a. as from 11 February 2013. 36. In continuation, the judge focused his 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 any other 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. 37. In application of the relevant provision, the DRC judge held that, first of all, he had to clarify as to whether the contracts contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the parties in the event of breach of contract. In this regard, the judge established that no such compensation clause was included in the contracts. 38. As a consequence, the DRC judge 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 judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of payable compensation. 39. Bearing in mind the foregoing as well as the claim of the Claimant, the DRC judge proceeded with the calculation of the amount payable to the Claimant under the terms of both contracts until 31 May 2013. The judge concluded that the amount of EUR 22,500, corresponding to the Claimant’s remuneration and accommodation for 4 residual months, serves as the basis for the final determination of the amount of compensation for breach of contract. 40. In continuation, the DRC judge 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 able 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. 41. In this regard, the judge took into account that the Claimant had not signed any employment contract with another club between 11 February 2013 and 31 May 2013, i.e. during the residual validity of the contract with the Respondent. 42. Consequently, and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided that the Respondent must pay the amount of EUR 22,500 plus 5% interest p.a. as from 10 February 2015 until the date of effective payment to the Claimant (cf. point II.39. above), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter, in addition to the amount of EUR 26,000 as outstanding remuneration plus 5% interest p.a. as from 11 February 2013 until the date of effective payment. 43. 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, Player B, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club D, is ordered to pay to the Claimant outstanding remuneration in the amount of EUR 26,000 plus 5% interest p.a. as from 11 February 2013 until the date of effective payment, within 30 days as from the date of notification of this decision. 4. The Respondent is ordered to pay to the Claimant compensation for breach of contract in the amount of EUR 22,500 plus 5% interest p.a. as from 10 February 2015 until the date of effective payment, within 30 days as from the date of notification of this decision. 5. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 3. and 4. plus interest are not paid within the above-mentioned time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 6. Any further claims lodged by the Claimant are rejected. 7. 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 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 DRC judge Jérôme Valcke Secretary General Encl. CAS directives