F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohammed Al-Saikhan (Saudi Arabia), member Zola Majavu (South Africa), member on the matter between the player, Player A, Country B as Claimant and 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 (2013-2014) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohammed Al-Saikhan (Saudi Arabia), member Zola Majavu (South Africa), member on the matter between the player, Player A, Country B as Claimant and the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 20 June 2012, the Player of Country B, Player A (hereinafter: the Claimant), concluded an “Employment Contract for a Professional Football Player” (hereinafter: the contract) with the Club of Country D, Club C (hereinafter: the Respondent), valid as of 1 July 2012 until 31 May 2015. 2. According to clause V.I of the contract, the Claimant was entitled to a total remuneration of EUR 500,000 (excluding bonuses), detailed as follows: For the 2012/2013 Football Season: EUR 150,000 - EUR 50,000, to be paid as the advance payment of the above mentioned amount after medical check, upon signature of the contract by the parties. - EUR 50,000, to be paid in ten equal instalments in the amount of EUR 5,000, due on the 30th day of each month, during the period comprised between 30 September 2012 and 30 June 2013. - EUR 50,000, to be paid on a “per match” basis. The “per match” payment is calculated as follows: 50,000/34 league games, equivalent to EUR 1,470 per game. In this regard, the contract outlines that “if the player would be in the squad and also fielded at the beginning of the game, he will be entitled to receive 100% of game fee, if the player would be in the squad but fielded during the game, he will be entitled to receive 75% of game fee, if the player would be in the squad but not fielded at the game, he will be entitled to receive 50% of game fee.” For the 2013/2014 Football Season: EUR 175,000 - EUR 60,000 of the above mentioned amount to be paid as the advance payment on 30 August 2013. - EUR 55,000, to be paid in ten equal instalments in the amount of EUR 5,500, due on the 30th day of each month, during the period comprised between 30 September 2013 and 30 June 2014. - EUR 60,000, to be paid on a “per match” basis. The “per match” payment is calculated as follows: 60,000/34 league games, equivalent to EUR 1,760 per game. In this regard, the contract outlines that “if the player would be in the squad and also fielded at the beginning of the game, he will be entitled to receive 100% of game fee, if the player would be in the squad but fielded during the game, he will be entitled to receive 75% of game fee, if the player would be in the squad but not fielded at the game, he will be entitled to receive 50% of game fee.” For the 2014/2015 Football Season: EUR 175,000 - EUR 60,000 of the above mentioned amount to be paid as the advance payment on 30 August 2014; - EUR 55,000, to be paid in ten equal instalments in the amount of EUR 5,500, due on the 30th day of each month, during the period comprised between 30 August 2014 and 30 May 2015; - EUR 60,000, to be paid on a “per match” basis. The “per match” payment is calculated as follows: 60,000/34 league games, equivalent to EUR 1,760 per game. In this regard, the contract outlines that “if the player would be in the squad and also fielded at the beginning of the game, he will be entitled to receive 100% of game fee, if the player would be in the squad but fielded during the game, he will be entitled to receive 75% of game fee, if the player would be in the squad but not fielded at the game, he will be entitled to receive 50% of game fee.” 3. In addition, the contract included the following clauses: VI. b) In case of non-payment of “two consecutive salaries” or “the following season’s advance payment” in full or in part, the PLAYER should notify the club in writing. If the CLUB should not pay the notified amount in 30 (thirty) days starting from the due date of the second unpaid salary or the due date of the following season’s advance payment, then the PLAYER shall have the right to unilaterally terminate the CONTRACT with just cause. c) In case of termination by the PLAYER due to the delay in payment by the CLUB, the PLAYER shall be entitled to receive as an indemnity due to the breach by the CLUB of its payment obligations, all the amounts established in this CONTRACT including the payments due before and after the termination date, with this situation being treated, as regards its consequences, as the same as that of the unilateral termination without just cause on the part of the CLUB. Being employed of the PLAYER by a new club between the termination date and the actual duration shall affect the amount of the compensation indicated in this clause and in this context the CLUB has his rights to claim the reduction (…) of this amount before the judicial bodies (…). 4. On 17 November 2014, the Claimant lodged a claim before FIFA, and requested the payment of a total amount of EUR 361,470, plus procedural costs, detailed as follows: - EUR 82,470, plus 5% interest p.a. as of 5 December 2013 until the date of effective payment, calculated as in the letters sent by the Claimant on 31 October 2013; - EUR 279,000, as compensation for breach of contract, corresponding to all the amounts established in the contract payable as from the actual date of termination until the original date of termination of the contract. 5. The Claimant argued that, on 3 August 2013, the Respondent’s sports director told him that he did not count on him anymore, and that he should not train with the first team. 6. In addition, the Claimant explained that, on 24 August 2013, he received a letter from the Respondent informing him that he would not be allowed to train with the first team and to sleep in the Respondent’s training camp anymore. 7. Furthermore, the Claimant declared that, on 11 September 2013, the Respondent’s sports director apparently talked with the coach of the second team, and allegedly ordered him to prevent the Claimant from training with the second team. 8. Consequently, the Claimant explained that, on 2 October 2013, he asked the Respondent to give him “in writing” the reasoning behind his exclusion from the trainings of the second team. According to the Claimant, immediately thereafter he started to train again with the second team. 9. Thereafter, the Claimant stated that, on 31 October 2013, he sent a letter to the Respondent and to the Football Federation of Country D requesting the payment, within 30 days, of a total overdue amount of EUR 82,470, detailed as follows: For the 2012-2013 season: - EUR 5,000, to be paid on 30 May 2013; - EUR 5,000, to be paid on 30 June 2013; - EUR 735 for the match Club E-Club C; - EUR 735 for the match Club C-Club F. For the 2013-2014 season: - EUR 60,000, as advance payment, to be paid on 30 August 2013; - EUR 5,500, to be paid on 30 September 2013; - EUR 5,500, to be paid on 30 October 2013. 10. In addition, the aforementioned letter warned the Respondent that, upon termination of the deadline established in the letter, the Claimant would deem the contract as unilaterally terminated in a rightful manner. 11. Subsequently, the Claimant argued that, on 17 November 2013, the Respondent’s president ordered the coach of the second team to keep the Claimant as second player on every match. December 2013, he sent a new letter to the Respondent and to the Football Federation of Country D, in which he declared that, due to the expiration of the deadline established in his previous correspondence, he deemed the contract as terminated. 13. Finally, the Claimant declared that, on 10 December 2013, the Football Federation of Country D confirmed the termination of the contract. 14. Despite being invited to do so, the Respondent did not respond to the claim. 15. On 30 April 2015, the Claimant informed FIFA that he concluded a new employment contract with the Club of Country G, Club H, valid as of 7 August 2014 until 31 May 2015, which entitled him to a monthly salary of EUR 2,000, with an additional right to have his rent refunded in the amount of EUR 400 per month. In addition, the Claimant explained that he did not play for any club between December 2013 and 26 February 2014. The player also declared that, from 26 February 2014 until 11 August 2014, he played as an amateur without any remuneration with the Club of Country B Club I. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 17 November 2014. Consequently, the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2014 and 2015 editions 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 of Country B and a Club of Country D. 3. The competence of the Chamber having been established, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 (editions 2014 and 2015), and considering that the present matter was submitted to FIFA on 17 November 2014, the 2014 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand. 5. In this respect, the Chamber acknowledged that the parties to the dispute had signed a valid employment contract on 20 June 2012, valid as from 1 July 2012 until 31 May 2015. 6. Subsequently, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 5 December 2013, after previously having put the club in default, since the Respondent allegedly failed to pay the Claimant’s remuneration. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 7. Moreover, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant. 8. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant. 9. In continuation, the DRC acknowledged that, in accordance with the contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the total amount of EUR 500,000 (excluding bonuses) for the whole term of the contract. 10. In this respect, the members of the Chamber took into consideration that according to documentation provided by the Claimant at the time he terminated the contract, the Respondent had failed to pay his remuneration in the total amount of EUR 87,970, corresponding to the salaries of May 2013 and June 2013, in the amount of EUR 5,000 each, as well as to the salaries of September 2013, October 2013 and November 2013, corresponding to EUR 5,500 each. In addition, the members of the Chamber noted that the aforementioned total amount included the sum of EUR 60,000, corresponding to the “advance payment” for the 2013/2014 football season, as well as the amount of EUR 1,470, related to two match bonuses for the season 2012-2013. 11. On account of the aforementioned and, in particular in view of the considerations made above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 5 December 2013, date on which the Claimant terminated the contract, the total amount of EUR 87,970. Consequently, and considering that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 5 December 2013 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 12. 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 focused its attention on the consequences of such termination. In this regard, the members of the Chamber determined that the Respondent was not only to pay the amount of EUR 87,970 as outstanding remuneration to the Claimant, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 13. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent 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. 14. In application of the relevant provision, the Chamber held that it 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. 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. 15. As a consequence, the members of the Chamber 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. 16. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 31 May 2015, taking into account that the Claimant?s remuneration until December 2013 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of EUR 153,500 (i.e. remuneration as from December 2013 until 31 May 2015) serves as the basis for the determination of the amount of compensation for breach of contract. 17. 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 Claimant’s general obligation to mitigate his damages. 18. Indeed, on 7 August 2014, the Claimant found employment with the Club of Country G, Club H. In accordance with the pertinent employment contract, which has been made available by the Claimant, valid until 31 May 2015, the Claimant was entitled to receive a monthly salary of EUR 2,000, plus EUR 400 per month for housing. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant and Club H for the period as from 7 August 2014 until and including 31 May 2015 amounted to EUR 24,000. 19. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 129,500 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 20. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant?s claim and that the Respondent must pay to the Claimant the amount of EUR 87,970 as outstanding remuneration and EUR 129,500 as compensation for breach of contract. 21. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 87,970 as from 5 December 2013 until the date of effective payment. 22. Moreover, 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. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses. 23. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the Claimant. 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 87,970, plus 5% interest p.a. as of 5 December 2013 until the date of effective payment. 3. In the event that the amount foreseen in point 2. plus interest is not paid within the stated time limit by the Respondent, the matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. 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 in the amount of EUR 129,500. 5. In the event that the amount set forth in point 4. 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. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 4. 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 (CAS) Avenue de Beaumont 2 CH-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: Marco Villiger Acting Deputy Secretary General Enclosed: CAS directives