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 A, country B as Claimant against the club, Club C, Country D 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 A, country B as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 1 September 2012, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid as from the date of receipt of the international transfer certificate (ITC) until 31 April 2013. 2. According to art. 2 of the contract, the Respondent undertook to provide the Claimant, inter alia, with 8 instalments of EUR 1,000 net per month, the first one to be paid on 30 September 2012 and the last one on 31 April 2013. 3. In addition, the parties agreed that “the [Claimant] shall attend all the training sessions as required by the coach of the [Respondent] and will perform to the best of his abilities both during the training sessions and during the games official and unofficial and/or international”. 4. On 2 September 2012, the parties signed an additional agreement (hereinafter: the agreement), according to which the Respondent undertook to provide the Claimant, “in addition to the said contract of employment”, with, inter alia, 8 instalments of EUR 1,000 net per month, the first one to be paid on 30 September 2012 and the last one on 31 April 2013. 5. On 19 December 2012, the Claimant unilaterally terminated the contract based on the Respondent’s failure to pay part of his salary of September 2012 and the salaries of October and November 2012. 6. On 16 October 2013, the Claimant lodged a claim for breach of contract in front of FIFA against the Respondent, requesting the payment of the following amounts: a) EUR 5,500, as outstanding salaries corresponding to part of his salary of September 2012 and his salaries of October and November 2012; b) compensation for breach of contract equivalent to the residual value of the contract and the agreement; c) legal expenses. 7. According to the Claimant, the Respondent only paid him EUR 500. On 19 December 2012, he terminated the contract, in writing, based on outstanding remuneration by means of a fax sent to the Respondent (cf. point I.5. above) and on 1 February 2013, he warned the Respondent of the salary arrears towards him in the amount of EUR 5,500. 8. In its reply, the Respondent argues that the Claimant breached art. 1.d. of the contract (cf. point I.3. above) by leaving country D on 13 October 2012 without its authorization. In this context, the Respondent claims that it sent a letter to the Country D Football Association, informing the Claimant’s behaviour. 9. In his replica, the Claimant reiterates and insists on his claims. 10. In spite of being invited to do so, the Respondent did not provide final comments on the present matter. 11. Finally, the Claimant informed FIFA that he was not employed between the date of the contract’s termination and its original expiry date. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 16 October 2013. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), he 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 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2012 and 2014) and considering that the present claim was lodged on 16 October 2013, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. 5. The DRC judge acknowledged that it was undisputed by the parties that they were contractually bound by means of the contract and the agreement, valid as from 5 September 2012 –when the relevant ITC was received (cf. point I.1. above)– until 31 April 2013. Likewise, the DRC also noted that the parties did not dispute the fact that the contract was terminated by the Claimant on 19 December 2012 and that the Respondent paid EUR 500 to the Claimant until such day. 6. The DRC judge further noted that the Claimant, on the one hand, lodged a claim for outstanding remuneration and breach of contract, arguing that the Respondent failed to comply with its contractual obligations by ceasing the payment of his receivables without just cause. 7. The Chamber also noted that the Respondent, on the other hand, maintains that the Claimant breached the contract by leaving country D on 13 October 2012 without its authorization. 8. Having established the aforementioned, the DRC 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 contract had been unilaterally terminated with or without just cause by the Claimant on 19 December 2012. The DRC judge also underlined that, subsequently, if it were found that the contract had been terminated with just cause by the Claimant, it would be necessary to determine the consequences for the party that caused the unjust breach. 9. In view of the above, the DRC judge took into consideration the content of art. 14 of the Regulations, which provides that “a contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause”. 10. The DRC judge stressed that the definition of just cause and whether just cause exists shall be established in accordance with the merits of each particular case. 11. In accordance with points I.2. and I.4. above, the Respondent was obliged to pay to the Claimant at the time the employment relationship was terminated, i.e. 19 December 2012, the amount of EUR 2,000 net due on 30 September 2012, the amount of EUR 2,000 net due on 31 October 2012 and the amount of EUR net 2,000 due on 30 November 2012, as salaries for the months of September 2012 until November 2012. 12. However, the DRC judge, bearing in mind the wording of art. 12 par. 3 of the Procedural Rules, observed that the Respondent undisputedly paid the amount of EUR 500 to the Claimant, but failed to prove that it paid to the Claimant the balance of the abovementioned salaries, amounting to a total of EUR 5,500. 13. In this sense, the DRC judge recalled that, although the Claimant did not inform the Respondent of its default before terminating the contract on 19 December 2012, it remains uncontested that the Respondent failed to pay him his three first monthly salaries in full. Thus, taking into account such an important delay in payment of a considerable amount of money, taking into account the Claimant’s monthly salary, the DRC judge deemed that the Claimant could in good faith believe that, in spite of a hypothetical notice informing about its default, the Respondent would have persisted on the noncompliance with the financial terms of the contract and the agreement. 14. The DRC judge, in turn, could not conclude that, based on the letter dated 23 October 2012 sent by the Respondent to the Country D Football Association –which may be found on file–, the Claimant actually breached art. 1.d. of the contract (cf. point I.3. above), by leaving country D on 13 October 2012 without the Respondent’s authorization. In deciding so, the DRC judge referred to art. 12 par. 6 of the Procedural Rules, according to which the evidence shall be considered with free discretion. In the absence of any proof other than a document produced by the Respondent itself in order to evidence the alleged departure of the Claimant from country D, the DRC judge was of the opinion that the Respondent did not satisfactorily carry the burden of proof regarding such allegation. 15. The DRC judge stressed that, had the Claimant actually departed from Country D on 13 October 2012 without the Respondent’s authorization, the Respondent failed in any case to prove that it paid, in fact, an additional amount of EUR 1,500 due to the Claimant by that time. 16. In summary, the DRC judge established, in accordance with the DRC’s well-established jurisprudence, that on 19 December 2012 the Claimant terminated the contract with just cause based on the Respondent’s failure to pay him his first three monthly remunerations in full. 17. In view of the foregoing, the DRC judge concluded that, in accordance with art. 17 par. 1 of the Regulations and the DRC’s long-standing jurisprudence, the Respondent is liable for the termination of the contract on 19 December 2012 and, consequently, must pay an amount of compensation to the Claimant. 18. In continuation, prior to establishing the consequences of the breach of contract by the Respondent in accordance with art. 17 par. 1 of the Regulations, the DRC judge held that he had to address the issue of the unpaid remuneration at the moment the contract was terminated by the Claimant. 19. At this point, the DRC judge recalled that the Claimant was entitled to a monthly remuneration of EUR 2,000 net and that the Respondent had not given any valid explanation or justification for the non-payment of the balance of the remuneration due on 30 September 2012 and of the following salaries until November 2012, in spite of its obligation to pay him his salaries as from said month (cf. points I.2. and I.4. above). 20. Based on the foregoing, the DRC judge stressed that the Respondent must fulfil its obligations as per the contract and the agreement in accordance with the general legal principle of pacta sunt servanda. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination of the contract and the agreement without just cause, i.e. the amount of EUR 5,500, corresponding to the balance of the remuneration of September 2012 and the salaries of October and November 2012. 21. Having stated the above, 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, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 22. 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 contains 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 23. 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 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 24. The DRC judge then 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 by him 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 in the calculation of the amount of compensation. 25. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the contract and the agreement as from its date of termination with just cause by the Claimant, i.e. 19 December 2012, until 31 April 2013, and concluded that the Claimant would have received in total EUR 10,000 as remuneration, had the contract and the agreement been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 10,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 26. 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 Claimant’s general obligation to mitigate his damages. 27. In this regard, the DRC judge noted that the Claimant had not signed any new employment contract within the period of time between the termination of the contract and its original date of expiry and, thus, had not been able to mitigate damages. In this context, the DRC judge found it reasonable that the Claimant had not been able to find new employment within the relevant period of four months only. 28. With regard to the Claimant’s claim for legal expenses, the DRC judge recalled the contents of art. 18 par. 4 of the Procedural Rules as well as the DRC’s long-standing and well-established jurisprudence, which clearly stipulates that no procedural compensation is awarded in proceedings in front of the Dispute Resolution Chamber. Therefore, the DRC judge had no other alternative than to reject this part of the claim. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 10,000, as compensation for breach of contract in the case at hand, in addition to the payment of EUR 5,500 in accordance with point II.20. above. 30. The DRC judge concluded his deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, is ordered to pay to the Claimant outstanding remuneration in the amount of EUR 5,500, within 30 days as from the date of notification of this decision. 3. The Respondent is ordered to pay to the Claimant compensation for breach of contract in the amount of EUR 10,000, 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 claims lodged by the Claimant are rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is 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