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 20 August 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Taku Nomiya (Japan), member Theo van Seggelen (Netherlands), member on the claim presented by the player, Player A, Country B, as Claimant / Counter-Respondent against the club, Club C, Country D as Respondent / Counter-Claimant and the clubs, Club E and Club I, Country B as intervening parties 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 20 August 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Taku Nomiya (Japan), member Theo van Seggelen (Netherlands), member on the claim presented by the player, Player A, Country B, as Claimant / Counter-Respondent against the club, Club C, Country D as Respondent / Counter-Claimant and the clubs, Club E and Club I, Country B as intervening parties regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 November 2009, the player from Country B, Player A (hereinafter: the Claimant / Counter-Respondent) and the Country D from Club C (hereinafter: the Respondent / Counter-Claimant) signed an employment contract (hereinafter: the contract) valid as from the date of signature until the end of the 2011 season, i.e. 3 November 2011. 2. According to article 7 par. 1 of the contract, the Claimant / Counter-Respondent was entitled to receive the following amounts - USD 50,000 as signing-on fee; - USD 25,000 as monthly salary due “after 12 days in the next month”. 3. In addition, article 7 par. 2 of the contract specifies that “[the Claimant / CounterRespondent] must reach the attendance time of playing 75% in the season of the championship, if [the Claimant / Counter-Respondent]’s match appearance rate can not reach 70%, [the Respondent / Counter-Claimant] will take one year whole income of [the Claimant / Counter-Respondent] as the base, according to corresponding proportion to deduct (deduct 1% per 1% will be reduced), when [the Claimant / Counter-Respondent]’s match appearance rate can not meet 60 %, besides deduct the salary of [the Claimant / Counter-Respondent] in proportion, [the Respondent / Counter-Claimant] have the rights to deduct 10% of [the Claimant / Counter-Respondent]’s whole year salary income.” 4. Additionally, according to article 7 of the contract, the Claimant / CounterRespondent was entitled to receive various performance-related bonuses. 5. Furthermore, and with regard to penalties that may be imposed on the Claimant / Counter-Respondent, the contract states the following: “9.4. (…) if [the Claimant / Counter-Respondent] is proved to be able to participate in training or matches and refuse to work in the meanwhile, [the Claimant / Counter-Respondent] will not gain his agreed salary from [the Respondent / Counter-Claimant] until the end of the contract period, [the Respondent / Counter-Claimant] has the right to unilateral terminate the contract with [the Claimant / Counter-Respondent]. [The Claimant / Counter-Respondent] has no right to lodge an appeal or ask for compensation. [The Claimant / CounterRespondent] will compensate 100,000 USD to [the Respondent / CounterClaimant]. 16.1. Be absent from training or matches without the permission by the club, over 24 hours (including the 24th hour) shall pay penalty fine $5000, over 48 hours shall pay penalty fine $10,000, over 72 hours shall pay penalty fine $20,000. 18. In case of a violation of any detail of the Contract, [the Respondent / CounterClaimant] has the right to punish [the Claimant / Counter-Respondent] by more than USD 50,000.00 if the sum of penalty is not mentioned in the articles stipulated in the contract, or to terminate the contract according to the details of violation. [The Claimant / Counter-Respondent] has no right to lodge an appeal or ask for compensation.” 6. On 1 January 2011, the Respondent / Counter-Claimant sent a document to be signed by the Claimant / Counter-Respondent by means of which he would accept the mutual termination of the contract and would waive his right to claim damages. 7. On 7 June 2011, the Claimant / Counter-Respondent lodged a claim, amended on 23 June 2011, against the Respondent / Counter-Claimant in front of FIFA, requesting to be awarded with the amount of USD 375,000 as salaries as from August 2010 until the end of the contract, i.e. 15 months, as well as all playing and appearance bonuses. In this respect, the Claimant / Counter-Respondent explains that the Respondent / Counter-Claimant failed to pay his salary for the months of August, September and October 2010 and refused to pay him for the entire 2011 season. Additionally, the Claimant / Counter-Respondent states that the bonuses outlined in article 7 of the contract are due in addition to his base salary of USD 25,000. 8. In his claim, the Claimant / Counter-Respondent asserts that after suffering an injury in July 2010, the Respondent / Counter-Claimant ceased paying his salary and failed to pay the costs of his operation amounting to USD 10,000. By an undated correspondence, apparently received on 13 April 2011 by the Respondent / Counter-Claimant, the Claimant / Counter-Respondent requested the Respondent / Counter-Claimant to comply with its obligations. The Claimant / Counter-Respondent enclosed to said correspondence two medical reports, one drawn up by the Country B national team’s physician and the other by the Country D. The former referred to the treatment undergone by the Claimant / Counter-Respondent between 6 July 2010 and 6 August 2010 and ordered a threemonth rehabilitation period while the latter, dated 13 April 2011, stated that the Claimant / Counter-Respondent was fit for playing. In relation to the second medical report, the Claimant / Counter-Respondent affirms that it indicates his readiness to perform for the Respondent / Counter-Claimant. 9. Besides, the Claimant / Counter-Respondent states that the Respondent / CounterClaimant’s attitude prevented him from joining a Country B club since the latter was afraid of the consequences that it might face because of the contractual dispute. 10. On 3 October 2011, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent requesting FIFA to terminate the contract and the payment of an amount of USD 228,000, broken down as follows: - USD 58,000 as reimbursement of the undue salary paid in 2010; - USD 170,000 as compensation. 11. According to the Respondent / Counter-Claimant, it was never informed by the Claimant / Counter-Respondent that he would travel to Country B to undergo surgery on 6 July 2010. Subsequently, the Respondent / Counter-Claimant supposedly tried to contact him but he did not reply and never came back to train with the Respondent / Counter-Claimant. Therefore, the Respondent / Counter-Claimant considered that the Claimant / Counter-Respondent breached articles 5 par. 2 and 9 par. 3 of the contract which require the Claimant / CounterRespondent to accept medical treatment as demanded by the Respondent / Counter-Claimant. 12. Moreover, the Respondent / Counter-Claimant states that it paid USD 175,000 to the Claimant / Counter-Respondent for the 2010 season instead of USD 117,000. In this regard, the Respondent / Counter-Claimant makes reference to the Claimant / Counter-Respondent’s appearances and interprets from article 7 par. 2 of the contract that an amount of USD 183,000 has to be deducted from the Claimant / Counter-Respondent’s annual salary of USD 300,000. Consequently, the Claimant / Counter-Respondent has to pay USD 58,000 back to the Respondent / CounterClaimant. 13. Additionally, the Respondent / Counter-Claimant asserts that the Claimant / Counter-Respondent violated the contract since, in February and March 2011, he performed trial tests with two other Country D, Club F Football Club and Club G Football, without the Respondent / Counter-Claimant’s authorisation. 14. Finally, the Respondent / Counter-Claimant considers that the Claimant / CounterRespondent breached articles 9 par. 4, 16 par.1 and 18 of the contract and should therefore pay the Respondent / Counter-Claimant for said violations USD 100,000, USD 20,000 and USD 50,000 respectively. 15. In his response to the counterclaim, the Claimant / Counter-Respondent states that he wanted to return to the Respondent / Counter-Claimant in November 2010, i.e. immediately after the rehabilitation period, but the Respondent / Counter-Claimant did not accept him back and proposed a buyout settlement of USD 75,000 to rescind the contract. The Claimant / Counter-Respondent apparently refused and asked for the payment of his salaries from July to November 2010. In this regard, the Claimant / Counter-Respondent submitted a copy of his passport as evidence of his return. According to said passport, the Claimant / Counter-Respondent entered the country on 25 October 2010 and left it on 20 November 2010. Additionally, the passport indicates that the Claimant / Counter-Respondent’s visa was due to expire on 24 January 2011. 16. Furthermore, the Claimant / Counter-Respondent asserts that in January 2011 the Respondent / Counter-Claimant requested him to leave his apartment since he was no longer part of the squad. However, after the Claimant / CounterRespondent resorted to the services of a lawyer who contacted the Respondent / Counter-Claimant, the Respondent / Counter-Claimant informed the Claimant / Counter-Respondent that he was only asked to leave due to renovations. 17. Regarding the trial tests, the Claimant / Counter-Respondent confirms that he did take part in them but states that it was with the approval of the Respondent / Counter-Claimant. 18. In its last submission, the Respondent / Counter-Claimant reiterates its arguments, and in particular that the Claimant / Counter-Respondent breached his contractual obligations by leaving the country without informing the Respondent / CounterClaimant and by refusing to resort to the medical treatments provided by the Respondent / Counter-Claimant. 19. Upon FIFA’s request, the Claimant / Counter-Respondent states that he did not sign a contract with another club and therefore retired. However, from the information contained in Transfer Matching System (TMS), it can be noted that, on 1 August 2011, the Claimant / Counter-Respondent signed a contract with the Club E from Country B, valid for the 2011/2012 season and entitling him to a monthly salary of 35000. Nevertheless, the registration process was not completed following Football Association’s from Country D refusal to issue the International Transfer Certificate (ITC). Subsequently, as per the information in the TMS, the Claimant / Counter-Respondent signed, on 17 July 2012, a contract with the, Club I from Country B, valid for the opening and closing tournament of the 2012-2013 season and entitling him to a monthly salary of USD 308.839. The registration process with the latter club was completed in the TMS. 20. In spite of having been invited to do so, neither Club E nor Club I presented any comments on the present matter. 21. After the closure of the investigation, the Claimant / Counter-Respondent mentioned that he never played professionally nor received any salary from Club E or Club I 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 7 June 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at stake (cf. art. 21 of the 2008, 2012 and 2014 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 2014), 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 (editions 2010, 2012 and 2014), and considering that the present claim was lodged in front of FIFA on 7 June 2011, 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 doing so it started by acknowledging the facts as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the members of the Chamber acknowledged that the parties were bound by an employment contract, which was signed on 1 November 2009, valid as from the date of signature until the end of the 2011 season, i.e. 3 November 2011, in accordance with which the Respondent / Counter-Claimant would pay the Claimant / Counter-Respondent an amount of USD 50,000 as signing-on fee as well as a salary in the amount of USD 25,000 per month. 6. The Chamber took note that the Claimant / Counter-Respondent, on the one hand, maintains that the employment contract was breached by the Respondent / Counter-Claimant by failing to pay him his salary after he suffered an injury in July 2010. The Respondent / Counter-Claimant, on the other hand, rejects such claim asserting that the Claimant / Counter-Claimant had in fact breached the contract, by travelling to Country B to undergo surgery without informing it and by failing to resume his training subsequently. 7. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim and counterclaim respectively lodged by the parties, was to determine when the contractual relationship had been terminated and which party should be responsible for the early termination of the latter. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 8. In view of the above, the Chamber deemed it appropriate to shortly recall the timeline of events in the present matter according to the documentary evidence provided by either party as well as the respective allegations which have remained uncontested by the opposing party. 9. In this respect, the Chamber noted that it is uncontested that the Claimant / Counter-Respondent left Country D to undergo surgery in July 2010. The DRC further observed that according to the Claimant / Counter-Respondent’s passport, the latter returned to Country D as from 25 October 2010 until 20 November 2011. In addition, the members of the Chamber took note that the Claimant / CounterRespondent’s visa was due to expire on 24 January 2011. In continuation, the Chamber noted that the Respondent / Counter-Claimant never contested the Claimant / Counter-Respondent’s assertions that in January 2011, it offered him to mutually terminate the contract and requested him to leave his apartment. 10. In light of the foregoing, and considering the content of art. 12 par. 3 of the Procedural Rules together with the date of expiry of the visa and the proposal made by the Respondent / Counter-Claimant on 1 January 2011, the members of the Chamber concluded that the contractual relationship came to an end on 1 January 2011. 11. The Chamber then turned its attention to the question of which party was to be held liable for the early termination of the contractual relationship. In order to do so, the Chamber first of all pointed out that the Respondent / Counter-Claimant did not contest the argument of the Claimant / Counter-Respondent regarding the non-payment of salaries as of July 2010. In continuation, the DRC took note that the Respondent / Counter-Claimant justifies the non-payment by arguing that, for the 2010 season, it paid a total amount of USD 175,000 to the Claimant / CounterRespondent while the amount that was actually due was USD 113,000, in consideration of the Claimant / Counter-Respondent’s number of appearances and the fact that his annual salary was of USD 300,000. Therefore, the Respondent / Counter-Claimant considers that there is no outstanding amount insofar as the Claimant / Counter-Respondent received an amount of USD 58,000 in excess of his due remuneration. 12. In this respect and bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber was eager to point out that the Respondent / Counter-Claimant had failed to present documentation in support of its position. In particular, the members of the Chamber observed that the Respondent / Counter-Claimant was not able to corroborate the number of appearances of the Claimant / Counter-Respondent and neither the amounts that were already paid to him. As a consequence, the Chamber considered that the Respondent / Counter-Claimant had not presented any evidence proving that the Claimant / Counter-Respondent was not entitled to the amounts he had already received and came to the conclusion that, at the time of the termination, i.e. 1 January 2011, the salaries for August, September, October and November 2010 were outstanding. 13. Furthermore, the Chamber underlined that the Respondent / Counter-Claimant had not provided any documentation which would prove that the lack of payment of the Claimant / Counter-Respondent’s salaries, was justified by any other reason than the latter’s injury. 14. In addition, the members of the Chamber established that the Respondent / Counter-Claimant had no longer been interested in the Claimant / CounterRespondent’s services by sending him the proposal of mutual termination in January 2011 and by having previously offered a buyout settlement in November 2010, the latter allegation equally having remained uncontested by the Respondent / Counter-Claimant. 15. On account of the all the above circumstances, and considering that the Respondent/Counter-Claimant had repeatedly been in breach of its contractual obligations towards the Claimant/Counter-Respondent together with the reasons thereof, the Chamber concurred that the Respondent / Counter-Claimant had de facto terminated the contract without just cause on 1 January 2011. 16. In light of the foregoing, the Chamber decided to accept the Claimant / CounterRespondent’s claim with regards to the Respondent / Counter-Claimant’s breach of contract without just cause and, thus, rejected the Respondent / Counter-Claimant’s claim. 17. Having established that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant / CounterRespondent is entitled to receive from the Respondent / Counter-Claimant an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract. 18. First of all, the Chamber reverted to the Claimant / Counter-Respondent’s financial claim, which includes outstanding salaries as well as outstanding match bonuses. In this regard, the Chamber emphasised the fact that it would only consider the amounts that have already fallen due at the date of termination, i.e. 1 January 2011. 19. At this stage, the DRC made reference to its previous considerations and recalled that at the time of the termination, the salaries for August, September, October and November 2010 were outstanding. 20. Then, the Chamber turned its attention to the match bonuses claimed by the Claimant / Counter-Respondent and pointed out that the latter failed to specify his request in this regard and to provide any documentary evidence that they were actually due. Consequently, and after making reference to the content of art. 9 par. 1 as well as 12 par. 3 of the Procedural Rules, the members of Chamber decided to reject the Claimant / Counter-Respondent’s claim. 21. Consequently, in accordance with the principle of pacta sunt servanda and taking into account the fact that the employment contract was considered terminated as of 1 January 2011 and the documentary evidence provided by the parties, the Chamber decided that the Respondent / Counter-Claimant is liable to pay the Claimant / Counter-Respondent the amount of USD 100,000 as outstanding remuneration corresponding to the salaries relating to August, September, October and November 2010. 22. In continuation, 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 / Counter-Respondent 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. 23. 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. 24. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent 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. 25. Bearing in mind the foregoing as well as the claim of the Claimant / CounterRespondent, the Chamber proceeded with the calculation of the monies payable to the Claimant / Counter-Respondent under the terms of the employment contract until 3 November 2011, taking into account that the Claimant / CounterRespondent’s remuneration until November 2010 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of USD 275,000, i.e. remuneration as from December 2010 until the end of the 2011 season, serves as the basis for the determination of the amount of compensation for breach of contract. 26. In continuation, the Chamber verified as to whether the Claimant / CounterRespondent had signed an employment contract with another club during the relevant period of time, by means of which he would have been able 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. 27. The Chamber noted that according to the documentation contained in the TMS, he signed an employment contract with Club E, on 1 August 2011; however the registration process was never completed. The DRC also observed that the Claimant / Counter-Respondent subsequently entered into an employment agreement with Club I on 17 July 2012, i.e. after the original date of expiry of the contract with the Respondent / Counter-Claimant. Thus, the player had apparently not been able to mitigate damages. In this context, the Chamber declared that there is no remuneration to be taken into account in order to mitigate the amount of compensation for breach of contract. 28. In this respect and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent / Counter-Claimant must pay the amount of USD 275,000 to the Claimant / CounterRespondent, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant / Counter-Respondent is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted. 2. The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected. 3. The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 100,000. 4. The Respondent / Counter-Claimant 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 USD 275,000. 5. In the event that the amounts due to the Claimant / Counter-Respondent in accordance with the above-mentioned points 2. and 3. are not paid by the Respondent / Counter-Claimant 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. 6. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 7. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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: Jérôme Valcke Secretary General Encl. CAS directives