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 17 March 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player T, from country A as Claimant against the club, Club B, from country R as Respondent regarding an employment-related dispute 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 17 March 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player T, from country A as Claimant against the club, Club B, from country R as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 1 February 2012, Player T, from country A (hereinafter: the Claimant), and the Club B, from country R (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from the date of signature until 31 December 2013, i.e. for 23 months. 2. According to art. 9 of the contract, the Respondent undertakes to pay the Claimant, inter alia, the following net amounts: - EUR 500 net as monthly salary until 15 June 2012; - EUR 600 net as monthly salary from 16 June 2012 until 31 December 2012; - EUR 1,000 net as monthly salary, in case the Respondent is promoted to the second league; - 2 air tickets country A – country R per year; - rent expenses; - match bonuses, the value and paydate of which are “registered in the annex to the contract signed by both parties”. 3. Furthermore, art. 2.2. of the contract stipulated that: “In case when the player is declared by the medical commission as unable for playing football, this contract becomes null and void”. 4. In addition, art. 2.3. of the contract established that: “If up to 15.06.2012 it is proved that the player cannot adapt in country R, this contract is terminated with obligation for the club to pay contractual financial rights for the period February-June 2012 without other claims on both sides”. 5. On 16 July 2013, the Claimant lodged a claim in front of FIFA against the Respondent, for breach of contract, requesting the payment of the total amount of EUR 50,550.21, plus interests of 5% p.a. as from 1 March 2012, i.e. date of the breach of contract as per the Claimant, broken down as follows: - EUR 430.14 as partially outstanding salary for February 2012; - EUR 500 as outstanding match bonus; - EUR 14,600 as residual salaries from March 2012 to December 2013: o from March until June 2012: 4 x EUR 500; o from July to December 2012: 6 x EUR 600; o from January to June 2013: 6 x EUR 700; o from July to December 2013: 6 x EUR 800; - EUR 11,000 as residual amount of match bonuses; - EUR 3,870 corresponding to the air tickets due for the duration of the contract; - EUR 3,300 corresponding to 22 months of rent at EUR 150 per month; - EUR 16,850.07 as additional compensation, corresponding to 50% of the total amount requested above, i.e. EUR 33,700.14, due to the Respondent’s breach inside the protected period and to the Claimant’s alleged impossibility to mitigate his damages, due to the Respondent’s refusal to issue his International Transfer Certificate (ITC); - sporting sanctions; - attorney fees and procedural costs. 6. In his arguments, the Claimant states that, on 9 February 2012, he travelled to country R in order to start executing the contract. According to the Claimant, his return to country A on holidays had already been pre-scheduled by the Respondent for 4 June 2012. In this regard, the Claimant submitted a copy of an air ticket provided to him by the Respondent, bearing the dates of 9 February 2012 and 4 June 2012. However, the Claimant claims that by the end of February 2012, the Respondent informed him that it was no longer interested in his services. As per the Claimant, on 1 March 2012 he was taken to the airport in country R by one of the club’s directors, which provided him with a return ticket and allegedly tried to convince him to sign a termination agreement, to which he refused. 7. The Claimant claims to have received from the Respondent the total amount of currency of country R 300, corresponding to approximately EUR 69.86, for the services rendered to the Respondent until 1 March 2012. 8. Back in country A, as he inquired the Respondent about the reasons for his dismissal, the latter replied that “from objective reasons, our club has given up to transfer the country A player […]”. In this regard, the Claimant provided a copy of his e-mails dated 24 and 26 April 2012 to the Respondent, as well as an undated letter and an e-mail dated 20 March 2012 from the Respondent, with the same content. 9. Furthermore, the Claimant contacted the Respondent seeking the issuance of his ITC in order to play for another club in country A. However, the Claimant claims that, due to the Respondent’s lack of diligence, the transfer window was closed before his ITC could be issued and, thus, he could not be registered with any club in country A, frustrating his intention to mitigate the damages arising from the unjust dismissal. 10. In its response, the Respondent claims that after having been presented a few internet videos of the Claimant’s performance on the field, it decided to invite him to join the club. The Respondent claims that the Claimant, in order to travel to country R, requested that an agreement was to be previously concluded between the parties, as a guarantee. The Respondent further claims that “although the purpose of our calling him here was strictly to verify his professional and medical status (that is, a short test-period), we sent an agreement by e-mail, but never personally signed the contract”. 11. As per the Respondent, upon the Claimant’s arrival in country R, they realized that he was not the same person seen in the videos mentioned in point I.10. above. However, the Respondent decided to allow him to show his performance, by participating in a series of matches and training sessions from 9 to 25 February 2012. According to the Respondent, during this period the Claimant a) had an insufficient performance, b) was in bad physical shape, c) “could not communicate with the coaches, as he did not speak any country R” and d) could not adapt psychologically, as his daughter had just been born in country A. In this respect, the Respondent submitted a copy of a declaration of the club’s coach dated 28 February 2012 and a declaration of its physiotherapist dated 25 February 2012. 12. Therefore, the Respondent decided not to submit the agreement to the country R Football Federation and not to continue its employment relationship with the Claimant. In this respect, the Respondent points out that no ITC had been issued from country A to country R and no evidence to the contrary was presented by the Claimant. In view of the foregoing, the Respondent deems that the contract was duly terminated with sporting just cause, as well as in accordance with art. 2.2. and 2.3. of the contract (cf. points I.3. and I.4. above). Thus, the Claimant’s claim should be rejected. 13. In case the DRC deems that the contract was terminated without just cause by the Respondent, the latter deems that the amounts requested by the Claimant are disproportionate and contrary to the content of art. 2.3. of the contract (cf. point I.4. above). Therefore, he should only be entitled to receive an amount corresponding to his salaries from February to June 2012, at the maximum. Finally, the Respondent requests that the Claimant should bear all “costs, expenses and legal fees relating to these proceedings”. 14. After the closure of the investigation, the Claimant submitted new, unsolicited documentation, by means of which he points out inter alia that the Respondent admits having unilaterally and prematurely terminated the contract and that the documentation provided by the Respondent cannot be taken into account, as it was issued by its own employees. 15. Finally, the Claimant informed FIFA that he did not conclude any new employment contract after 1 March 2012. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 16 July 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 hand (cf. article 21 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 and par. 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, 2014 and 2015) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country R club. 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 (editions 2012, 2014 and 2015), and considering that the present claim was lodged on 16 July 2013, the 2012 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. His competence 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 context, the DRC judge first acknowledged that it was undisputed by the parties that, on 1 February 2012, they had signed an agreement, valid as from the date of signature until 31 December 2013, which stipulated that the Respondent should pay the Claimant the amounts detailed in point I.2. above. 6. In addition, the DRC judge noted that the parties did not dispute that such agreement was considered as unilaterally terminated by the Respondent on 1 March 2012. 7. The DRC judge further noted that, while the Claimant deems that such termination was arbitrary and without just cause, the Respondent maintains that it terminated the agreement with just cause, based on its art. 2.2 and 2.3. Furthermore, the Respondent argued that the agreement signed with the Claimant on 1 February 2012, was only concluded as a guarantee, upon the Claimant’s request, and exclusively with a view to verify his “professional and medical status”. As the Respondent was not satisfied with the Claimant’s performance on the pitch, it decided to unilaterally discontinue their relationship, not to submit the agreement to the country R Football Federation and not to request the Claimant’s ITC from country R. 8. Bearing in mind the aforementioned allegations of both parties, the DRC judge deemed that he would first have to establish whether the “trial agreement” signed between the parties on 1 February 2012 can be considered as a valid and binding labour contract and, if so, whether such contract was terminated with or without just cause by the Respondent. 9. In this context, and in view of the Respondent’s allegations, the DRC judge first recalled that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their obligations, the duration of the employment relationship, the remuneration and the signature of both parties. 10. After a careful study of the agreement presented by the Claimant, the DRC judge concluded that all such essential elements are included in the pertinent document, in particular, the fact that the agreement is signed by both parties, that it bears the club’s stamp and that it establishes that the Claimant is entitled to receive remuneration, including a monthly salary, in exchange for his services to the club as a player. Therefore, already at this point, the DRC judge could conclude that the parties had signed a valid employment contract, by which they were bound. 11. Furthermore, the DRC judge also referred to the Respondent’s argument, according to which the agreement signed between the parties was not submitted to the country R Football Federation and the Claimant’s ITC was not requested from country A. In this regard, and bearing in mind the content of art. 18 par. 4 of the Regulations, the DRC judge considered relevant to recall the jurisprudence of the Dispute Resolution Chamber (DRC) in accordance with which the validity of an employment contract cannot be made conditional to the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence. As regards the case at stake, the Respondent acknowledged that no ITC was requested. Bearing in mind that according to Annexe 3 of the Regulations an ITC request depends on the new club’s application to the new association to register a professional, the club is actually in the position to prevent the occurrence of the condition preceding the receipt of an ITC by willfully choosing not to proceed with the application for an ITC request. For these reasons, the DRC judge decided that the Respondent’s arguments in this regard did not imply the invalidity of the contract or justify its unilateral termination by the Respondent. 12. On account of all of the above, the DRC judge concluded that a valid and binding employment contract had been signed between the Claimant and the Respondent, and that such contract even started being executed by the parties, as the Claimant was provided with air tickets by the Respondent and undisputedly trained with it for a certain period of time, at least from 9 to 25 February 2012 (cf. point I.11. above). 13. Having established that a valid and legally binding employment contract had been in force between the Claimant and the Respondent, the DRC judge went on to analyse whether such contract had been terminated by the Respondent with or without just cause. 14. In this regard, the DRC judge noted that the Respondent deems to have terminated the contract with just cause, on 1 March 2012, based on art. 2.2 and 2.3 of the contract. 15. Focusing firstly on art. 2.2, which stipulates that the contract should be considered as null and void in case the Claimant did not pass his health assessment, the DRC judge once again referred to art. 18 par. 4 of the Regulations, as per which “The validity of a contract may not be made subject to a medical examination […]”. In line with that principle, the DRC judge also deemed appropriate to remind the parties of the well-established jurisprudence of the DRC, according to which a club wishing to employ a player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract with him. In the present case, however, the parties first concluded an employment contract on 1 February 2012, valid until 31 December 2013, and only on 9 February 2012, the Claimant arrived in country R – in a flight arranged by the Respondent – to pass tests to “verify his professional and medical status”. Therefore, the DRC judge deemed that art. 2.2 of the contract cannot be taken into account, as it is in total disagreement with the well-established jurisprudence of the DRC and with the principle of maintenance of contractual stability. 16. The DRC judge then continued with the analysis of art. 2.3 of the contract, which stipulated that the latter can be terminated by the Respondent against payment of a reduced amount of compensation to the Claimant, should it be “proved [until 15 June 2012] that the player cannot adapt in country R”. In this respect, the DRC judge deemed, equally in accordance with the longstanding jurisprudence of the DRC, that the player’s adaptation to the country could by no means justify a premature termination of an employment contract by a club, as the assessment of such “level of adaptation” of a player to a certain place is of a purely subjective perception, which could not be measured on an objective scale and, therefore, should be considered as inadmissible grounds for premature termination of an employment contract. In addition, the DRC judge deemed that such a clause inserted in the employment contract could not even be considered as valid, since it leads to an unacceptable result based on non-objective criteria, which entitles the Respondent to unilaterally terminate the contract, within a certain time period, to an unjustified disadvantage of the Claimant’s financial rights. 17. Therefore, the DRC judge concluded that art. 2.2 and 2.3 of the employment contract do not constitute a reason that can be validly invoked nor a legal basis to unilaterally terminate the contract. 18. Finally, and for the sake of completeness of his analysis, the DRC judge referred to the argument of the Respondent, according to which the Claimant had shown an insufficient performance during his “trial period” with the club. In accordance with the reasoning detailed in point II.16. above and to the well-established jurisprudence of the DRC, the DRC judge reminded the parties that the alleged poor performance of a player could not justify a premature termination of an employment contract by a club, as it is the result of a purely subjective perception, not measurable in objective criteria. Thus, it also cannot be considered as a just cause for the premature termination of an employment contract. 19. Consequently, the DRC judge concluded that the contract was terminated without just cause by the Respondent on 1 March 2012. Consequently, the Respondent is to be held liable for the payment of an amount of money to the Claimant as compensation for such unilateral breach without just cause. 20. However, prior to establishing the amount of compensation for breach of contract due to the Claimant by the Respondent, the DRC judge proceeded with the calculation of the outstanding monies payable to the Claimant under the terms of the employment contract until the date of termination, i.e. 1 March 2012. 21. In this regard, the DRC judge noted that it remained undisputed by the Respondent that, for the entire duration of the contract, it had only paid the Claimant the total amount of EUR 69.86. 22. Taking into consideration the Claimant’s claim as well as the reasons previously exposed, the DRC judge concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the employment contract concluded with the Claimant and, consequently, is to be held liable to pay him the total amount of EUR 430.14, as outstanding salary for February 2012. 23. The DRC judge further established that an interest rate of 5% p.a. applies over the aforementioned amount, as from 1 March 2012, as per the claim of the Claimant. 24. As to the Claimant’s request for allegedly outstanding match bonuses in the amount of EUR 500, the DRC judge first noticed that, in spite of the fact that art. 9 of the contract stipulates that the Claimant is inter alia entitled to bonuses, the value and paydate of which are supposedly “registered in the annex to the contract signed by both parties”, no copy of such annex was provided by any of the parties. At this point, the DRC judge deemed it appropriate to refer to art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right should bear the respective burden of proof of its allegations. In this context, the DRC judge pointed out that, not only had the Claimant failed to provide a copy of the financial annex mentioned in art. 9 of the contract, but he also did not provide any other proof of his entitlement to the claimed bonus. Therefore, the DRC judge decided that such claim of the Claimant had to be rejected. 25. Subsequently, the DRC judge referred to the Claimant’s request for flight tickets and, in this respect, he noted, also from the Claimant’s allegations, that he had already been provided by the Respondent with flight tickets both to travel to country R and to return to country A, after the termination of the contract by the Respondent. Thus, the DRC judge deemed that no outstanding amounts regarding air tickets were due to the Claimant by the Respondent. 26. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, he 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. 27. 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. The DRC judge referred to art. 2.3 of the contract as well as to the analysis made in point II.16. above. In this regard, the DRC judge concluded that such clause – describing a possibility of unilateral termination of the contract by the Respondent to the financial disadvantage of the Claimant, in total disagreement with the longstanding jurisprudence of the DRC – cannot be taken into consideration for the determination of the amount of compensation payable by the Respondent to the Claimant. 28. 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 DRC judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the DRC judge emphasised beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter. 29. In order to estimate the amount of compensation due to the Claimant in the present case, the DRC judge first turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 30. Bearing in mind the above considerations and prior to determining the residual value of the contract, the DRC judge first observed that, in spite of the fact that the contract was valid as from 1 February 2012 until 31 December 2013, it only stipulated the remuneration payable by the Respondent to the Claimant until 31 December 2012. Therefore, in view of the lack of any contractual basis, the DRC judge concluded that the period of 1 January to 31 December 2013 could not be included in the calculation of the residual value of the contract concluded between the Claimant and the Respondent, as no financial information was available for such period. 31. In view of the foregoing, the DRC judge concluded that the residual value of the contract, to be calculated taking into account the period ranging from 1 March 2012 until 31 December 2012, corresponding to 4 months à EUR 500 and 6 months à EUR 600, amounted to EUR 5,600. This amount should serve as the basis for the final determination of the amount of compensation for breach of contract. 32. For the sake of the completeness of his analysis, the DRC judge referred to the Claimant’s claim for air tickets, bonuses and rent expenses to be included in the calculation of compensation. As to the requests regarding air tickets and bonuses, the DRC judge first referred the parties to the reasoning detailed in points II.24. and II.25. above, the contents of which he fully endorses. Furthermore, he deemed it appropriate to remind the parties of the Chamber’s jurisprudence, according to which claims related to an estimated loss of bonuses relating to a future season are fully hypothetical and, therefore, cannot be taken into account in order to assess the loss of financial benefit suffered by the Claimant. Consequently, the Chamber decided to reject such claim. As to the claim for the inclusion of rent expenses in the calculation of compensation, the DRC judge pointed out, while referring to art. 12 par. 3 of the Procedural Rules, that even though these costs are usually taken into account for the assessment of the Claimant’s lost profit, in this particular case, they could not be considered, as no amount is provided for in the contract signed by the parties on 1 February 2012 and as the Claimant did not provide any other evidence that the claimed amount of EUR 150 per month was indeed the amount due to him as rent costs. Thus, the Claimant’s claims for the inclusion of rent expenses in the amount of compensation for breach of contract due to him by the Respondent has to be rejected. 33. 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 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 the player’s general obligation to mitigate his damages. 34. The DRC judge then took due note of the employment situation of the Claimant after the termination of the contract with the Respondent and, in this regard, he acknowledged that the Claimant had not signed any other employment contracts until the date of the original expiry of the contract with the Respondent. Thus, the Claimant was not able to mitigate his damages arising from the unilateral termination of the contract by the Respondent without just cause. 35. Consequently, the DRC judge concluded that the Respondent should pay compensation for breach of contract to the Claimant in the total amount of EUR 5,600 plus 5% interest p.a. as from 16 July 2013, i.e. the date of claim, until the date of effective payment. 36. Moreover, the DRC judge decided to reject the Claimant’s claim pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules and the DRC’s respective longstanding jurisprudence in this regard. 37. 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 T, is partially accepted. 2. The Respondent, Club B, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 430.14 plus 5% interest p.a. as from 1 March 2012 until the date of effective payment. 3. The Respondent is ordered 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 EUR 5,600 plus 5% interest p.a. as from 16 July 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant plus interest are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further 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: Jérôme Valcke Secretary General Encl: CAS directives