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 27 November 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Johan van Gaalen (South Africa), member on the matter between the player, Player A, Country B as Claimant / Counter-Respondent and the club, Club C, Country D as Respondent / Counter-Claimant and the club, Club E, Country B as Intervening party regarding an employment-related dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 27 November 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Johan van Gaalen (South Africa), member on the matter between the player, Player A, Country B as Claimant / Counter-Respondent and the club, Club C, Country D as Respondent / Counter-Claimant and the club, Club E, Country B as Intervening party regarding an employment-related dispute between the parties I. Facts of the case 1. On an unspecified date, the player from country B, Player A (hereinafter: the Claimant / Counter-Respondent) and the club from country D, Club C (hereinafter: the Respondent / Counter-Claimant) concluded an employment contract (hereinafter: the contract), valid as of 10 February 2014 until 31 December 2015. 2. Pursuant to art. 6.2 of the contract, the Claimant / Counter-Respondent was entitled to receive a total salary of USD 800,000 net, payable in equal monthly instalments in the amount of USD 40,000 each, from February to November of each year. 3. Art. 6.7 of the contract further specifies that “the salary distribution date is before 28 days of next month, and the work first pay later system is adopted”. 4. Moreover, art. 3.1 of the contract states that “[the Respondent / Counter-Claimant] shall provide [the Claimant / Counter-Respondent] with clean, healthy, comfortable and convenient accommodation”. 5. In addition, art. 9.2.2 of the contract provides that “the contract may be canceled by [the Respondent / Counter-Claimant] with immediate effect: if the [Claimant / Counter-Respondent] conceals a serious injury and diseases and unable to participate in or seriously impair trainings and matches”. 6. Art. 9.3.2 of the contract further stipulates that “the contract may be canceled by [the Claimant / Counter-Respondent] by notifying [the Respondent / Counter-Claimant]: if [the Respondent / Counter-Claimant] is behind in payment of salary to [the Claimant / Counter-Respondent] for over three months”. 7. Furthermore, art. 12.3 of the contract states that “in case that [the Claimant / Counter-Respondent] is a foreign citizen, the proceeding can be submitted to FIFA and the award of FIFA is final and binding”. 8. On an unspecified date, the Claimant / Counter-Respondent, the Respondent / Counter-Claimant and a company from country D entered into a “Personal Portrait Right Agreement” (hereinafter: the agreement), valid for the same period of time as the contract, i.e. 10 February 2014 until 31 December 2015. 9. In accordance with the agreement, the company from country D undertakes to pay the Claimant / Counter-Respondent an amount of USD 1,200,000 net, payable as follows: - USD 400,000 “within 15 working days after three parties have signed this agreement”; - USD 800,000 in equal monthly instalments by the 28th day of the following month, in the amount of USD 40,000 each, from February to November of each year. 10. In continuation, the agreement provides that “if [company from country D] does not pay [the Claimant / Counter-Respondent] the Personal Portrait Right Fee according to the time and amount of this agreement, [the Respondent / Counter-Claimant] shall take the full responsibility”. 11. On 22 April 2014, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default and requested the payment of “the signing fee (…) [that] shall be paid 15 days after signing the contract” as well as his salary. 12. On 23 April 2014, the Respondent / Counter-Claimant replied via e-mail, informing the Claimant / Counter-Respondent that the remuneration claimed in the Claimant / Counter-Respondent’s default notice would be paid by 2 May 2014. 13. On 7 May 2014, a representative of the Respondent / Counter-Claimant sent another e-mail informing the Claimant / Counter-Respondent that “[he] checked financial department yesterday but got nothing with the sign-on fee” and that “[the Respondent / Counter-Claimant] can not settle all these now except [his] salary”. In this regard, the representative specifies that “they will pay [his] outstanding salary and personal portrait fee in these couple of days”. 14. On 8 May 2014, the Claimant / Counter-Respondent put again the Respondent / Counter-Claimant in default giving the latter a deadline until 15 May 2014 to pay half of the sign-on fee and until 30 May 2014 to comply with the rest of its obligations, “otherwise case will be submitted the case to fifa by 1.6.2014”. 15. On 28 May 2014, the Claimant / Counter-Respondent lodged a claim before FIFA against the Respondent / Counter-Claimant requesting FIFA to hold that “the player has right to cancel his contract as the Respondent / Counter-Claimant hasn’t paid his salary for last 3 months” and to be awarded USD 640,000 as outstanding remuneration, broken down as follows: - USD 120,000 corresponding to three monthly salaries of March, April and May 2014 due in accordance with the contract; - USD 120,000 corresponding to three monthly instalments of March, April and May 2014 dues in accordance with the agreement; - USD 400,000 corresponding to the lump sum due “within 15 working days after three parties have signed this agreement”, as per the agreement. 16. In his claim, the Claimant / Counter-Respondent explains that he left the Respondent / Counter-Claimant on 25 May 2014 after the latter released him for the half season break. In addition, the Claimant / Counter-Respondent asserts that prior to signing the contract, he successfully passed a medical examination. 17. On 30 May 2014, the Claimant / Counter-Respondent allegedly terminated the contract. 18. On various occasions, i.e. on 24 June, 30 June and 12 July 2014, the Respondent / Counter-Claimant sent correspondence to the Claimant / Counter-Respondent requesting the latter to report for duty and informing him of the fines that would be imposed on him for each day of delay. In these letters, the Respondent / CounterClaimant asserts that the Claimant / Counter-Respondent only took part in three games because of a concealed serious injury, which constitutes a reason to terminate the contract on the basis of art. 9.2.2 of the contract. 19. On 15 July 2014, the Respondent / Counter-Claimant replied to the claim and lodged a counterclaim against the Claimant / Counter-Respondent, requesting to be awarded with the amount of USD 5,000,000 as “loss compensation”. In this regard, the Respondent / Counter-Claimant explains that “the [Claimant / Counter-Respondent’s] non-professional behavior has already caused serious damage to the interest and reputation of the Respondent / Counter-Claimant” and “seriously affected the normal training of our First Team”. 20. In its counterclaim, the Respondent / Counter-Claimant sustains that the salaries for February, March and April 2014 were paid to the Claimant / Counter-Respondent. In support of its assertion, the Respondent / Counter-Claimant submitted an excel sheet drafted by its own administration according to which two payments of 244,000 and a payment of 243,516 were made on 28 March, 28 April and 28 May 2014 respectively, as well as three “after-tax papers” dated 18 April, 16 June and 1 July 2014. 21. In continuation, the Respondent / Counter-Claimant argues that the Claimant / Counter-Respondent has been absent from training since 26 May 2014, i.e. almost 7 weeks, which constitutes a breach of contract. In this respect, the Respondent / Counter-Claimant outlines the various requests that were made to the Claimant / Counter-Respondent (cf. point 18 above). 22. In his replica, the Claimant / Counter-Respondent points out that the documents provided by the Respondent / Counter-Claimant only evidence that one payment was made before the termination of the contract, i.e. the payment made on 18 April 2014. The other two were made after the termination and therefore do not have any influence on the Claimant / Counter-Respondent’s just cause to terminate the contract. 23. In light of the foregoing, the Claimant / Counter-Respondent amended his claim and requests to be awarded: - USD 560,000 as outstanding remuneration, broken down as follows: o USD 40,000 corresponding to the salary for May 2014 due in accordance with the contract; o USD 120,000 corresponding to the instalments for March, April and May 2014 due in accordance with the agreement; o USD 400,000 corresponding to the sign-on fee due in accordance with the agreement; - USD 2,000,000 as compensation for the Claimant / Counter-Respondent’s loss of a chance of playing and earning money as well as the damage to his reputation. 24. In its duplica, the Respondent / Counter-Claimant stresses that the Claimant / CounterRespondent is still a member of the club and that therefore by signing a contract with the club from country B, Club E, he breached art. 8.2.3 of the contract which stipulates that “[the Claimant / Counter-Respondent] must not sign any agreement that hinders the execution of the contract with any third party”. In this respect, the Respondent / Counter-Claimant repeated its request of USD 5,000,000 from the Claimant / Counter-Respondent for breach of contract. 25. In its final comments, the Claimant / Counter-Respondent asserts that the Respondent / Counter-Claimant has always treated him very badly, in particular he explains that he was obliged to live at his own expenses and that the Respondent / CounterClaimant dishonoured his reputation. Finally, the Claimant / Counter-Respondent informed that the Football Association from country D had rejected the issuance of the International Transfer Certificate (ITC) requested by the Football Association from country B. 26. Having been invited to submit its position, the club from country B, Club E, reiterated the Claimant / Counter-Respondent’s argumentation. 27. On 23 August 2014, the Claimant / Counter-Respondent and the club from country B Club E concluded an employment contract valid as of 15 August 2014 until the end of the 2014-15 season, according to which the Claimant / Counter-Respondent is entitled to a total remuneration of 550,000,000. 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 28 May 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at stake (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 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 2012 and 2014), and considering that the present claim was lodged in front of FIFA on 28 May 2014, the 2012 edition of said Regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. In continuation, with regard to the claimed payments in connection to the image rights agreement apparently signed by the parties, the Chamber also had to verify whether, for formal reasons, it was competent to deal with this specific component or not. In fact it remains that this part of the claim could possibly not be considered due to the Chamber lacking competence to deal with disputes related to image rights. 5. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. 6. In this regard, the members of the Chamber duly acknowledged that the Claimant / Counter-Respondent and the Respondent / Counter-Claimant had concluded an employment contract valid as from 10 February 2014 until 31 December 2015, according to which the Respondent / Counter-Claimant undertook to pay a total amount of USD 800,000 to the Claimant / Counter-Respondent. Moreover, the Chamber took note that, the Claimant / Counter-Respondent, the Respondent / Counter-Claimant and a company named “Company from country D” (hereinafter: the Company) had signed a “Personal Portrait Right Agreement”, by means of which the Company undertook to pay the Claimant / Counter-Respondent the total amount of USD 1,200,000 in several instalments. 7. The Chamber further acknowledged that the Respondent / Counter-Claimant was a signing party to the “Personal Portrait Right Agreement”; however, the Chamber emphasised that said agreement does not create any rights or obligations for the latter and does not contain any employment-related elements. As a matter of fact, the members of the Chamber outlined that by means of said agreement, the Claimant / Counter-Respondent sold his image rights to the Company in exchange for the payment of a certain amount. Moreover, the DRC deemed it fit to stress that the “Personal Portrait Right Agreement” does not make any reference to the employment contract concluded between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant and that the Claimant / Counter-Respondent failed to submit any documentary evidence regarding a possible link between the employment contract and the “Personal Portrait Right Agreement”. 8. As a consequence, bearing in mind the above as well as art. 22 lit. b) of the Regulations which stipulates that the Chamber is competent to hear employmentrelated disputes, the Chamber concluded that it lacked competence to deal with the Claimant / Counter-Respondent’s claim related to the “Personal Portrait Right Agreement”. 9. 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. 10. The members of the Chamber acknowledged that the parties concluded an employment contract, valid as from 10 February 2014 until 31 December 2015 and that the Claimant / Counter-Respondent, unilaterally terminated said contract with the Respondent / Counter-Claimant on 30 May 2014, i.e. before the ordinary expiry of the employment contract, after having put the latter in default on 22 April 2014 and 8 May 2014. 11. In continuation, the members of the DRC took note of the fact that the Respondent / Counter-Claimant considers that the Claimant / Counter-Respondent had terminated the employment contract without just cause. On the other hand, the Chamber acknowledged that the Claimant / Counter-Respondent claims to have had a just cause for the unilateral termination of the employment contract since the Respondent / Counter-Claimant failed to pay him his remuneration for March, April and May 2014. 12. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant / CounterRespondent and the counterclaim of the Respondent / Counter-Claimant, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant / Counter-Respondent, and which party was responsible for the early termination of the contractual relationship in question. 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. 13. In order to do so, the Chamber, first and foremost, recalled the content of art. 6 of the contract according to which “the salary distribution date is before 28 days of next month, and the work first pay later system is adopted”. Accordingly, the members of the Chamber concurred that when the Claimant / Counter-Respondent terminated the contract, i.e. on 30 May 2014, only the salaries for March and April 2014 had fallen due, whereas the salary for May 2014 was supposed to be due on 28 June 2014. In this regard, the DRC also outlined that when the Claimant / CounterRespondent put the Respondent / Counter-Claimant in default, the sole salary for March 2014 was outstanding. 14. In this respect, the Chamber deemed it fit to point out that, in general, that is, regardless of specific circumstances surrounding a matter, solely the non-payment of two monthly salaries cannot be considered a just cause for a player to cease rendering his services to a club. 15. On account of the above considerations, the members of the Chamber established that the Claimant / Counter-Respondent had no just cause to unilaterally terminate the employment contract on 30 May 2014 and that, consequently, he is to be held liable for the early termination of the employment contact without just cause. 16. Prior to entering into the consequences of the unjust breach of the contract, the Chamber pointed out that in his amended claim dated 4 August 2014, the Claimant / Counter-Respondent acknowledged having received the payment of certain monthly salaries and only requested to be awarded the salary for May 2014 as outstanding remuneration. In view of the above, and considering that the salary for May 2014 was not yet due when the Claimant / Counter-Respondent terminated the contract, i.e. the salary for May 2014 was only due on 28 June 2014, the Chamber concluded that the Claimant / Counter-Respondent’s claim relating to outstanding salaries had to be rejected. 17. In light of the foregoing, the Chamber decided to accept the Respondent / Counter-Claimant’s counterclaim that the Claimant / Counter-Respondent had breached the contract without just cause and rejected the Claimant / CounterRespondent’s claim. 18. Having established that the Claimant / Counter-Respondent is to be held liable for the early termination of the employment contract as of 30 May 2014, the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is liable to pay compensation to the Respondent / Counter-Claimant. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the Claimant / Counter-Respondent’s new club, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the Claimant / Counter-Respondent’s new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS. 19. Taking into account the above-mentioned considerations, 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 reiterated 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(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the relevant employment contract between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant contains a provision by means of which the parties had beforehand agreed upon an amount of compensation for 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. 21. As a consequence, the members of the Chamber determined that the prejudice suffered by the Respondent / Counter-Claimant in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years. 22. Consequently, in order to estimate the amount of compensation due to the Respondent / Counter-Claimant in the present case, the Chamber firstly turned its attention to the remuneration and other benefits due to the Claimant / CounterRespondent under the existing contract and the new contract(s), which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the new contract(s) in the calculation of the amount of compensation, thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s). 23. In this regard, the DRC established, on the one hand, that the employment contract between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant had been set to expire on 31 December 2015. Therefore, as of 30 May 2014, i.e. the date of the breach, the total value of the Claimant / Counter-Respondent’s employment agreement with the Respondent / CounterClaimant for the remaining contractual period amounted to USD 680,000. On the other hand, the members of the Chamber established that should the Claimant / Counter-Respondent stay with Club E until the date of expiry of the contract concluded with the Respondent / Counter-Claimant, i.e. 31 December 2015, he would be entitled to receive an amount of USD 700,000. On the basis of the aforementioned financial contractual elements, the Chamber concluded that the average of remuneration between the contracts concluded by the Claimant / Counter-Respondent respectively with the Respondent / Counter-Claimant and Club E over the relevant period amounted to USD 690,000. 24. Consequently, on account of the above-mentioned considerations, the Chamber decided that the Claimant / Counter-Respondent must pay the amount of USD 690,000 to the Respondent / Counter-Claimant as compensation for breach of contract. Furthermore, Club E is jointly and severally liable for the payment of the relevant compensation (cf. point II.17 above). 25. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant / CounterRespondent are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is rejected. 2. The counterclaim of the Respondent / Counter-Claimant, Club C, is partially accepted. 3. The Claimant / Counter-Respondent is ordered to pay to the Respondent / CounterClaimant within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 690,000. 4. The intervening party, Club E, is jointly and severally liable for the payment of the aforementioned compensation. 5. In the event that the amount due to the Respondent / Counter-Claimant in accordance with the above-mentioned point 3 is not paid by the Claimant / Counter-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. The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent and the intervening party 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. 7. Any further claim lodged by the Respondent / Counter-Claimant is rejected. ***** 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