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 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos Guale (Ecuador), 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 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos Guale (Ecuador), 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 1 September 2010, the Player of Country B Player A (hereinafter player or Claimant) and the Club of Country D Club C (hereinafter club or Respondent) signed an employment contract valid as from 1 September 2010 until 31 May 2013 (hereinafter contract). 2. According to art. 4.2.A. of the contract, the player was entitled to the following remuneration: • EUR 950,000 for the first sporting season and payable via ten equal installments of EUR 95,000 each, starting as from 5 October 2010 up and until 5 July 2011; • EUR 950,000 for the second sporting season and payable via ten equal installments of EUR 95,000 each, starting as from 5 August 2011 up and until 5 May 2012; • EUR 950,000 for the third sporting season payable via ten equal installments of EUR 95,000 each, starting as from 5 August 2012 up and until 5 May 2013. 3. Art. 4.2.B. of the contract inter alia stipulates that the club shall provide the player with the following fringe benefits: • A house, the rent of which shall be paid by the club; • A car, the rent of which shall be paid by the club; • 6 round flight tickets Country D/Country B/Country D per season in business class for the player, his wife and children; • Education in a College of Country E in City F of Country D for the player’s children, the costs of which shall be paid by the club. 4. On 5 July 2012, the player lodged a claim before FIFA against the club and held that the club breached the above-mentioned contract without just cause. As a result, the player requested that the club be ordered to pay him the following amounts: • EUR 742,312 as outstanding salaries, corresponding to the player’s total remuneration as provided in the contract for the seasons 2010/11 and 2011/12, i.e. EUR 1,900,000, minus the amount of EUR 1,157,688 the player confirmed having received from the club; • EUR 950,000 as compensation for the player’s moral, sporting and financial prejudices resulting of the club’s behaviour and calculated on the basis of the player’s remuneration for the sporting season 2012/2013; • EUR 10,000 as compensation for the player’s legal expenses; • A penalty of EUR 250 per day of delay in the club’s payments until full payment by the club of the amounts decided by the Dispute Resolution Chamber; • Disciplinary sanctions against the club, including a suspension to compete, until the amounts granted to the player by the Dispute Resolution Chamber are fully paid. 5. In his statement of claim, the player explained that as from the month of September 2010, the club started to pay him less than the agreed monthly remuneration. 6. What is more, the player specified that as from February 2012 included, the club totally stopped paying him. 7. As a result of said situation, the player repeatedly put the club in default by sending it various correspondences between 30 March 2012 and 16 May 2012. In particular, the player’s letter dated 16 May 2012 reads that in view of the club’s non-compliance with its obligations, the player deemed being in a position to terminate his employment contract with just cause. According to the player, all correspondence addressed to the club remained unanswered by the latter and no payment was made. 8. On 29 May 2012, the player terminated the contract in writing. 9. Finally, on 5 June 2012, the player sent a letter to the club requesting the payment within a week of the amounts of EUR 742,312 as outstanding salaries and EUR 950,000 as compensation for his damages. 10. In its reply to the claim, the club firstly stressed that it was aggrieved by the player’s level of performance and pointed out in this regard that the club only fielded him 11 times out of 34 league matches. 11. In continuation, the club explained that it fulfilled all other obligations it had towards the player and even took steps to improve the player’s living conditions whereas it was not contractually bound to do so. 12. In this respect, the club underlined that whereas art. 4.2.B. of the contract only provided that the club would be liable to pay the rent of one house, the club declares having rented and paid the rent of a second house in City F of Country D for the player as well as a third house in City G of Country D for the player’s family. 13. Also, the club stressed that upon the player’s request, it also paid for the player’s children school-related expenses in City G of Country D whereas this was not what the parties had agreed upon in the contract. 14. In this regard, the club held that said expenses were four times higher than the costs of the school located in City F of Country D that the player’s children were supposed to join. 15. Accordingly, the club asked for these elements to be taken into account whilst calculating the player’s receivables. 16. Likewise, the player reportedly asked the club to arrange flight tickets for him, his family and friends and the amounts of which should, in the club’s opinion, be deducted from the player’s receivables. In this respect, the club submitted copies of about 400 e-tickets. 17. Additionally, the club submitted a document signed by the player and which reads that the player accepts that an amount of 12,750, i.e. EUR 5,436, shall be deducted from his remuneration so as to reimburse the expenses paid by the club in relation to flight tickets. 18. In continuation, the club explained that the player was not focused on football and was going out at night and consuming alcohol. In this respect, the club asserted that the player had an accident with the EUR 20,000 worth car he was provided with by the club and that this amount should be deducted from the player’s balance. 19. The club further explained that the postponement of the 2011/12 league, which was the result of enquiries on match fixings in Country D, created problems in the club’s cash flows. 20. However, the club stressed that when it gathered all the players to inform them of these difficulties, none of them, including the player, objected to the club’s announcement of future dates on which the club would be able to pay the players’ outstanding salaries. In this respect, the club stressed that on the dates it promised to pay the players, it paid the player a total amount of EUR 175,138 between 30 September 2011 and 1 November 2011, which shows its good faith and efforts. 21. As a conclusion, the club asserted that considering all the costs and expenses it incurred on the player’s behalf, it does not owe anything to the player and it is rather the latter that did not act in an ethical way. 22. Upon request, the player reported that following the termination of the employment contract with the club, he signed two employment contracts with two other clubs, the details of which are the following: • On 29 August 2012, the player signed a single season employment contract with the Club of Country D Club H on the basis of which he received, in addition to the minimum wage, the total amount of EUR 45,000 until October 2012. On 11 January 2013, the parties signed a termination agreement by means of which the club undertook to pay the player EUR 20,000; • On 16 January 2013, the player signed a contract valid until the end of the sporting season 2013/2014 with the Club of Country B Club I. According to said contract, and for the sporting season 2012/2013, the player was to receive a total remuneration of EUR 25,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 July 2012. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of the 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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 5 July 2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties available on file. However, the DRC emphasised that in the following considerations it 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 respect, the Chamber recalled that the parties had entered into an employment contract valid as from 1 September 2010 until 31 May 2013, in accordance with which the Claimant was entitled to receive, inter alia, a total guaranteed salary of EUR 2,850,000 over the execution of said contract, plus various benefits. 6. In continuation, the members of the DRC took into account that, on 29 May 2012, the Claimant notified the Respondent of the termination of the contract on the basis of outstanding remuneration. 7. The Respondent, for its part, mainly submitted that it faced unforeseen financial difficulties that, in spite of its best efforts, prevented it from fully paying the Claimant his contractual remuneration and that it covered extra contractual expenses of the player upon his alleged request. 8. Furthermore, the Respondent also invoked some behaviour issues and a lack of performance on the Claimant’s part. 9. The DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to terminate the contract on 29 May 2012, that is, at the end of the parties’ second year of contract. 10. In this context, the Chamber firstly wished to emphasize that, according to the Claimant, and on 29 May 2012, an amount of EUR 742,312 of salaries was due and outstanding. 11. The DRC also took due note of the Claimant’s indication that, prior to the termination of the contract, the Respondent had failed to answer or to follow up on the five default notices the player had sent to the Respondent between 30 March 2012 and 16 May 2012. 12. The DRC then also recalled the Respondent’s arguments and acknowledged that according to the latter, and primarily, the postponement of the League of Country D negatively impacted on the club’s cash flow and prevented it from fully observing the terms of its financial obligations towards the player. 13. Also, the members of the Chamber took due note that according to the Respondent, and in spite of the player’s alleged inappropriate behaviour, the club provided him and his family with better living conditions than the ones stipulated in the contract and that these voluntary stances should be taken into account by this deciding body while analysing the club’s non-compliance with its contractual obligation to pay the player’s salaries. 14. Against such background, the DRC firstly wished to focus its attention on the question of the club’s compliance with its contractual obligation to pay the player his remuneration in the monthly amount of EUR 95,000. 15. In this respect, the Chamber acknowledged that at the time of the player’s termination of the contract on 29 May 2012, the latter indicated having only received EUR 1,157,688 out of a due amount of EUR 1,900,000, hence leaving a balance of EUR 742,312 in the player’s favour. 16. Thus, the DRC established that the aforementioned amount approximately corresponded to eight monthly salaries of the player, while bearing in mind that the contractual relationship between the parties lasted twenty one months. 17. On the other hand, the Chamber duly noted that the club asserted having paid all amounts due to the player if one takes into account the salaries paid to the player and the additional expenses the club paid for the player or for his family and friends. 18. However, and after a careful examination of the club’s submission in this respect, the DRC noted that even though the club had been duly informed that, if need be, it had to submit a translation into one of the official FIFA languages of the documents drafted in Language of Country D it wished to rely on, all the payment documents submitted by the club in support of its standpoint were only presented in their original Language of Country D version. 19. On account of the above, and in line with art. 9 par. 1 of the Procedural Rules, the Chamber was left with no alternative but to disregard said documents, to reject the club’s argument in this respect and to conclude that the club’s level of indebtedness towards the player was to be based on the amount the player admitted having received from the club and not based on the club’s standpoint. 20. Having so found, the members of the DRC nevertheless wished to continue their analysis of the club’s position and, in particular, to address the Respondent’s thesis that it provided the player and his family with better conditions than what it was contractually bound to. 21. In this respect, and after having carefully reviewed the club’s representation as well as the various supporting documents it presented in this respect, the Chamber found that although the club uncontestably took several costly actions inter alia in connection with accommodation, school for the player’s children or in relation to flight tickets it reportedly bought at the player’s request for the latter’s friends and family, the Respondent had freely decided to fund these expenses, which were not agreed upon in the contract. 22. In other words, the Chamber agreed that even though it is aware of the (financial) efforts the Respondent did in this respect, such behaviour could not exempt the Respondent from complying with its primary obligation as an employer, which is to pay in full and in a timely manner his employee’s remuneration. 23. On account of the above, the DRC decided that the various payments the club did on a voluntary basis with respect to the player’s living conditions were not to be taken into account whilst assessing the latter’s fulfillment of its primary contractual obligation to fully pay the player’s salaries. 24. Likewise, and as regard the club’s argument that the delay in the start of the sporting season 2011/2012 caused problems in the club’s cash workflow, the members of the Chamber unanimously agreed that said contention could not be seen as a valid reason for the club not to comply with its contractual obligations. 25. In this respect, and for the sake of completeness, the DRC was eager to stress that according to the player, the club’s non-compliance with its payment obligation started as from the first month of the execution of the contract, i.e. September 2010, and not only as from the beginning of the sporting season 2011/2012, fact which was not contested by the club. 26. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber concurred that the Respondent had seriously neglected its primary financial contractual obligation towards the Claimant. 27. Consequently, the DRC decided that the Claimant had just cause to unilaterally terminate the contract on 29 May 2012 and that the Respondent is to be held liable for the early termination of the contract with just cause by the player. 28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 736,876, corresponding to the above-cited amount of outstanding salaries (EUR 742,312) minus an amount of 12,750 the player undertook in writing to reimburse to the Respondent in connection with flight tickets. 29. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focussed 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. 30. Accordingly, 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. 31. In application of the relevant provision, the Chamber held that it 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 32. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 31 May 2013 and concluded that the Claimant would have received a total remuneration of EUR 950,000 had the contract been executed until its expiry date. 33. 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 the player’s general obligation to mitigate his damages. 34. Indeed, on 29 August 2012, the player signed a single season employment contract with the Club of Country D Club H on the basis of which he received, in addition to a minimum unspecified wage, the total amount of EUR 45,000 until October 2012. Furthermore, the Claimant reported that on 11 January 2013, the parties signed a termination agreement by means of which the club undertook to pay the player EUR 20,000. 35. In continuation, the player indicated having signed on 16 January 2013 a contract valid until the end of the sporting season 2013/2014 with the Club of Country B Club I. According to said contract, and for the sporting season 2012/2013, the player was to receive a total remuneration of EUR 25,000. 36. Consequently, the Chamber established that the value of the new employment contracts concluded between the Claimant and the new clubs for the period as from 29 May 2012 until and including May 2013 amounted to EUR 90,000. 37. On account of all of the above-mentioned considerations and the specificities of the matter at hand, the DRC decided that the Respondent must pay the Claimant the amount of EUR 860,000 as compensation for breach of contract. 38. In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. 39. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses. 40. Likewise, the Chamber wished to point out that as a result of the absence of legal basis, the Claimant’s claim for a daily penalty to be imposed upon the club had to be rejected. 41. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 736,876. 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 amounting to EUR 860,000. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the 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 Acting Secretary General Encl.: CAS directives