F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Johan van Gaalen (South Africa), member Rinaldo Martorelli (Brazil), member on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Johan van Gaalen (South Africa), member Rinaldo Martorelli (Brazil), member on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 10 February 2011, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent) signed a document named “Confirmation of your participation in Club C” (hereinafter: the contract), valid from 1 February 2012 until 31 January 2013, by means of which the Claimant was entitled inter alia to receive the following remuneration: - a monthly salary in the amount of 60,000; - a daily payment in the amount of 500 “per day due to the Day of training and official match”; - bonus in the amount of USD 200 “for the player if the club wins the particular league game (the player has to join that win game)”. 2. The contract further established that “if you agree to the details and conditions contained in this letter (the “Confirmation Letter”) including the Standard Terms of Participation and the Rules and Regulations attached hereto which shall be integral parts hereof, please sign below and initial every page and return one original copy to the club”. 3. The Rules and Regulations of Club C (hereinafter: the Rules and Regulations), in its article 1, established the “Main Duties and Responsibilities”. In particular, it established the following: “Any athlete/coach/staff of the Club shall: (…) 1.3 Faithfully and industriously perform your duties and obligations in a manner that is in the best interests of the Club and in accordance with the Club’s objectives and administration procedures at all times to the best of your skill, ability, experience and talents; 1.4 Strictly and fully comply with any laws as well as any and all rules, regulations, conditions, statements, instructions and recommendations given by the Club as a result of your failure to comply and/or of your violation of any of such laws, rules, regulations, conditions, statements, instructions and recommendations; 1.5 Fully attends and trained or coach or perform your duties in and commit to the training and matches as designated by the Club. In the event that you fail to do so for three (3) consecutive times without a reason acceptable to the Club. It shall be deemed that you are in material breach of the Club’s rules and regulations whereby the Club shall have the right to cancel your state of being an athlete/a staff member of the club or dispose of or remove you from the Club immediately without prior notice; (…)” 4. Article 4.1 of the Rules and Regulations foreseen that: “In the event that you fail to comply with any law, rule, regulation, term, condition, statement, instruction or recommendation of the Club and/or of the executive of the Club and/or any person designated by the Club, the Club shall be, in its sole and absolute discretion, entitled to: (…) 4.1.2 Immediately remove you from the Club without prior notice, and/or 4.1.3 Penalize the athlete/coach in any other ways as the Club deems appropriate.” 5. Article 8 of the club’s “Standard Terms” established that “The Participant hereby represents and warrants to the Club at the present and during the Participation Period (and throughout the possible extended period thereof). (…) (4) The Participant shall comply with any and all criteria, standard, terms, conditions, rules and regulations of the Club;” 6. On 4 September 2012, the Claimant lodged a claim against the Respondent, claiming compensation in the total amount of USD 60,000 for breach of contract, USD 30,000 corresponding to the residual amount of the contract, i.e. six monthly salaries, and USD 30,000 for damages for specificity of sport. 7. According to the Claimant, on 10 February 2011, he and the Respondent concluded an employment contract valid from 1 February 2012 until 31 January 2013, by means of which he was entitled to receive the following remuneration: - a monthly salary in the amount of USD 5,000; - a signing-on fee in the amount of USD 5,000; - a daily payment in the amount of 500 “per day due to the Day of training and official match”; - bonus in the amount of USD 200 “for the player if the club wins the particular league game (the player has to join that win game)”. In this respect, the Claimant alleged that the Respondent never gave him a signed copy of the employment contract. The Claimant provided an unsigned copy of the said contract dated 10 February 2011. 8. Further, the Claimant declared that on 7 August 2012, he had a meeting with the Respondent in order to discuss the termination of the contract. The Claimant held that the parties could not reach an agreement regarding the terms upon which the employment contract could be terminated, but that the Respondent anyway terminated the contract without just cause. In this regard, the Claimant affirmed having sent a correspondence on 8 August 2012 to the Respondent, advising the Respondent that it had no right to terminate the employment contract as well as that he would agree on a mutual termination if the Respondent pays him the amount of USD 15,000, equal to three monthly salaries as well as air travel for him and his family back to country B. 9. The Claimant further stated that the Respondent sent him several text messages asking him, inter alia, when he wanted to leave. Accordingly, the Claimant alleged having sent two further letters to the Respondent informing it when he would leave as well as warning it about art. 17 of the FIFA Regulations on the Status and Transfer of Players. 10. Finally, the Claimant affirmed having received his last salary in July 2012. 11. The Respondent replied, rejecting the claim of the Claimant. According to the Respondent, the parties initially agreed to the terms of the employment contract as indicated by the Claimant (cf. point I.7.), but the said contract was never signed due to the fault of the Claimant. In particular, the Respondent held that the Claimant did not show up for the meeting to sign the contract and also failed to attend training sessions several times. 12. However, the Respondent held that it decided to give him a chance and that the parties agreed to a new contract, which was signed by the parties (cf. point I.1.) and used for the registration in the Transfer Matching System (TMS). Moreover, the Respondent stated that the Rules and Regulations and the “Standard Terms” were part of the contract. 13. The Respondent referred to arts. 1.3, 1.4 and 1.5 of the Rules and Regulations as well as to art. 8(4) of the “Standard Terms” and held that the Claimant clearly failed to comply with his duties and with the Respondent’s rules, regulations and instructions. In particular, the Respondent alleged that the Claimant failed to attend the training sessions several times. Consequently, the coach decided not to allow the Claimant to train and play. 14. Moreover, the Respondent stated that the coach also decided to punish the Claimant by not allowing him to play due to his bad performance, in accordance with article 4.1 of the Rules and Regulations. 15. In this context, the Respondent held having contacted the Claimant to mutually terminate the contract on 7 August 2012, offering thirty days of compensation and flight tickets, but the Claimant refused, asking for three monthly salaries as compensation. 16. In this respect, the Respondent stated that compensation should be paid according to the law in country D. In particular, the Respondent referred to Section 118 of the country D Labour Protection Act, which establishes that “an employer shall pay Severance Pay to an Employee who is terminated as follows: (1) If the Employee has worked for an uninterrupted period of one hundred and twenty days but less than one year, he or she shall be entitled to receive payment of not less than his or her last rate of Wages for thirty days”. 17. Finally, the Respondent alleged having paid for the flight tickets to country B for the entire family of the Claimant in the amount of 45,200 and insisted that it did not pay compensation only because the Claimant refused to negotiate. 18. The Claimant presented his replica, denying the arguments of the Respondent and affirming that bad performance is not a just cause to terminate an employment relationship. Moreover, the Claimant held that the Respondent could take other measures before terminating the contract. 19. In addition, the Claimant insisted that the monthly salary was in the amount of USD 5,000. In this respect, the Claimant submitted a document allegedly provided by the Respondent which indicates that salary was paid in the amount of 150,000. 20. The Respondent submitted its final comments insisting in the arguments already raised in its response to the claim. 21. The Claimant informed FIFA that he remained unemployed between August 2012 and 31 January 2013. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 4 September 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. art. 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 combination 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 from country B and a club from country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 4 September 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 Chamber 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. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. The DRC started by taking note that the Claimant lodged a claim against the Respondent, claiming compensation for breach of contract. In particular, the Chamber took note that, according to the Claimant, on 10 February 2011, he and the Respondent concluded a contract valid from 1 February 2012 until 31 January 2013, by means of which he was entitled to receive inter alia a monthly salary in the amount of USD 5,000. 6. The DRC furthermore took due note of the fact that the Respondent, on its part, had categorically denied the conclusion of the employment contract with the contractual terms indicated by the Claimant. The Respondent accepted having negotiated with the Claimant such terms, but held that the parties finally signed the contract with a monthly salary of 60,000, which was duly registered in the TMS for the transfer of the Claimant. 7. In view of this dissent between the parties in respect of the basic question as to which contract should be considered as the valid one, the members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that, it was for to the Claimant to prove that the employment contract, on the basis of which he claims compensation for breach of contract from the Respondent, indeed existed. 8. Having stated the above, the DRC recalled that the Claimant maintained that he never received a duly signed copy by both parties of the employment contract he asserts having signed with the Respondent. 9. Firstly, the DRC deemed it important to highlight that, in order for an employment contract to be considered as valid and binding, it must bear the signature of both the employer and the employee. In this respect, the DRC observed that the Claimant was unable to provide the Chamber with a copy of the employment contract duly signed by both the Claimant and the Respondent. 10. On the contrary, the DRC highlighted that the Respondent presented a copy of a different contract duly signed by both parties. Moreover, the members of the DRC took into account that this contract was also registered in the TMS. 11. Further, the Chamber stressed that one apparent payment slip indicating a salary of 150,000 was not sufficient evidence to conclude that the parties had agreed upon a monthly salary of USD 5,000. 12. In conclusion, the Chamber decided that the contract, provided by the Respondent, was the valid contract and that it should be considered as the employment contract at the basis of the present dispute. 13. In continuation, the members of the DRC recalled that the Claimant lodged a claim against the club for breach of contract, asserting that the Respondent had terminated the contract without just cause. 14. On the other hand, the Chamber observed that the Respondent accepted having contacted the Claimant to terminate the contract. Moreover, the DRC took note that the Respondent held having punished the Claimant by not allowing him to play due to alleged bad performance. Finally, the Chamber also took note of the argument of the Respondent that the Claimant failed to attend training sessions several times. 15. In light of the position of the parties and the documentary evidence available, the members of the DRC established that it remained undisputed that, in August 2012, the club terminated the contract with the Claimant on the basis of his alleged bad performance as well as the fact that he, according to the club, missed training sessions. 16. However, with reference to art. 12 par. 3 of the Procedural Rules, the Chamber observed that the Respondent did not discharge its burden of proof, considering that it did not provide any evidence that the Claimant indeed failed to attend the trainings. 17. Moreover, the DRC emphasised that, according to the long-standing jurisprudence of the Dispute Resolution Chamber, bad performance is not considered a just cause to terminate an employment contract. 18. In this framework, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies 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 ensure the employee’s fulfillment 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. 19. On account of the above, the Chamber decided that the Respondent had no just cause to unilaterally terminate the contract with the Claimant and, consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause. 20. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the contract without just cause by the Respondent. 21. First of all, the members of the Chamber concurred that there were no outstanding salaries at the moment the contract was terminated, considering that the Claimant recognized having received the monthly salaries until July 2012. 22. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract on the basis of the relevant employment contract. 23. In this context, the Chamber outlined that, in accordance with said provision, 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. 24. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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. 25. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the Chamber pointed out that at the time of the termination of the employment contract in August 2012, the contract would still run until 31 January 2013, i.e. for a period of six months. Therefore, considering the financial terms of the contract, the Claimant would still be entitled to receive, for the period between August 2012 until 31 January 2013, six monthly salaries in the amount of 60,000 each, amounting to 360,000. In addition, for the relevant period, the Claimant would also be entitled to receive a daily allowance of 500 for 184 days (31 days of August 2012, 30 days of September 2012, 31 days of October 2012, 30 days of November 2012, 31 days of December 2012 and 31 days of January 2013), amounting to 92,000. 26. Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to 452,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 27. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 28. In this respect, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute the Claimant had remained unemployed during the contractual period. 29. In view of all of the above, the Chamber decided that the Respondent must pay the amount of 452,000 to the Claimant as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation. 30. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant compensation for breach of contract in the amount of 452,000, within 30 days as from the date of notification of this decision. 3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. 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 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: Jérôme Valcke Secretary General Encl. CAS Directives