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 10 April 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman John Newman (USA), member Taku Nomiya (Japan), member on the claim presented by the player, Player A, Country B as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 10 April 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman John Newman (USA), member Taku Nomiya (Japan), member on the claim presented by the player, Player A, Country B as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case Facts relating to the preliminary issue on the competence of the DRC: 1. On 30 September 2013, the futsal player from country B, Player A (hereinafter: player or Claimant), and the club from country D, Club C (hereinafter: club or Respondent) signed an employment contract valid for two consecutive seasons, as of the 2013 season. 2. In accordance with art. 26 of the employment contract, any dispute arising between the parties “is only a concern of the Board and courts of country D”. 3. The club has contested the competence of the FIFA Dispute Resolution Chamber to deal with the present matter, alleging that according to the employment contract the competent deciding authority is the Court of country D. 4. The player insists that FIFA’s Dispute Resolution Chamber is competent to deal with the present matter. Facts relating to the substance of the matter: 5. In accordance with the employment contract, the player was entitled to receive the following remuneration: a. Monthly salary of USD 4,500 payable at the end of each month, starting as from the commencement of employment until the end of the contract, with each season not exceeding 10 months; b. Bonus equalling one monthly salary in the event of winning the league and/or association cup championship. 6. The employment contract further entitles the player to receive medical care in Public hospitals of country D in case of injury or sickness as a result of playing or training for the club and provided that he subjects himself to the proposed treatment. 7. According to art. 4 of the employment contract, the club has the sole right to terminate the contract without objection from or payment of financial or moral compensation to the player. 8. On 8 March 2014, the club terminated the employment contract in writing with effect as from 28 February 2014 invoking art. 4 of the employment contract. 9. By means of his letters dated 15 March 2014 and 15 April 2014 addressed to the club, the player disputed the contract termination by the club and advised the latter that he would file a claim in front of FIFA. 10. On 31 July 2014, the player lodged a claim for breach of contract without just cause against the club in front of FIFA asking to be awarded payment of the total amount of USD 98,500 plus 5% interest, which was detailed as follows: a. Outstanding salary of USD 10,200 i. January 2014 – USD 4,500 plus interest as of 31.01.14 ii. February 2014 – USD 4,500 plus interest as of 29.02.14 iii. 8 days of March 2014 – USD 1,200 plus interest as of 08.03.14 b. Compensation for breach of contract of USD 84,300 plus interest as of the date on which he lodged his claim i. Remaining salary for 2013-14 season on basis of 10 months/season – USD 21,300 ii. Bonuses 2013-14 season – USD 9,000 iii. Full salary for 2014-15 season – USD 45,000 iv. Bonuses for 2014-15 season – USD 9,000 c. Medical expenses incurred by the player in country E – USD 4,000 11. In addition, the player asks that sporting sanctions be imposed on the club. 12. The player explains that, on 20 January 2014, he sustained a knee injury while playing in an official match. 13. He further holds that in the beginning of March 2014, when the club became aware that his recovery would need a medical intervention and take more time, on 8 March 2014, the club notified him of the unilateral termination of the contract with effect as of 28 February 2014. He adds that he disputed such termination in writing, as he deems that it was made without any legal or sporting just cause. 14. In addition, following the contract termination, the player returned to country E where he underwent a medical intervention, the costs of which were borne by him. 15. The player sustains that the club had no just cause to terminate the contract and holds that art. 4 of the employment contract must be considered void, since it is not in line with universal principles of labour law or of maintenance of contractual stability. In addition, according to the player, an injury does not constitute a just cause for the termination of an employment contract. 16. The club, for its part, sustains that the employment contract was terminated legally and that the player had received all of his financial entitlements. 17. The club further deems that the player is misleading the Dispute Resolution Chamber by claiming that the season lasts 10 months. 18. According to the club, the 2013-14 season was of 5 months and 11 days, whereas the player received salary of USD 13,500 for 3 months (October to December 2013). Therefore, according to the club the balance for the 2013-14 season is of USD 10,650 for 2 months and 11 days. Furthermore, according to the club, the start of the 2014-15 season was delayed and the total duration was yet to be determined. 19. Therefore, the club rejects the player’s claim relating to salary maintaining that it should not exceed USD 10,650 on the basis of the official duration of the season. 20. The club further rejects the player’s claim relating to bonuses alleging that the club did not win any trophy in either of the seasons. 21. In addition, the club rejects the player’s claim for reimbursement of medical expenses due to the absence of causality between the injury and the services rendered by the player to the club. In this regard, the club maintains that the injury and related costs referred to by the player are not connected to an injury sustained on 20 January 2014, but, instead, to a chronic injury that he previously sustained and which he had not disclosed to the club. 22. In reaction, and without having been invited to present his comments as to the substance of the club’s response, the player rejects most of the club’s allegations, which the club presented after the closure of the investigation in the present matter. The player accepts, though, that he is not entitled to the bonus payments, which he previously included in his claim (cf. point I./10.b.ii. and I./10.b.iv. above). 23. The player informed FIFA, following its pertinent request, that he had not found new employment after the termination of the employment contract by the club. 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 31 July 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B and a club from country D. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 31 March 2015 by means of which the parties were informed of the composition of the Chamber, the member Member F and the member Member G refrained from participating in the deliberations in the case at hand, due to the fact that the member Member F has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Member G refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. In continuation, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding body on the basis of art. 26 of the employment contract. 5. In this regard, the Chamber noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 6. While analysing whether it was competent to decide on the matter, the Chamber referred to art. 26 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. Said article stipulates that any dispute between the parties “is only a concern of the Board and courts of country D”. The members of the Chamber outlined that the content of art. 26 is rather vague, differs between different unspecified judicial bodies and that it does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the Regulations. In view of the foregoing, the Chamber held that art. 26 of the employment contract can by no means be considered as a clear arbitration clause and, therefore, cannot be applicable. 7. Therefore, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 8. In continuation, 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2014), and considering that the present claim was lodged on 31 July 2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 9. 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. 10. In this context and as regards the receipt of the Respondent’s position on the claim after the closure of the investigation in the matter at hand, the Chamber took into account that the Respondent had presented documentation demonstrating that in fact it had reacted to the claim of the Claimant within the time limit set by FIFA. 11. Having said this, the Chamber acknowledged that, on 30 September 2013, the Claimant and the Respondent signed an employment contract valid for 2 consecutive seasons as of the 2013 season. 12. The members of the Chamber further took into account that, on 8 March 2014, the Respondent terminated the employment contract on the basis of its art. 4. 13. The Claimant, on the one hand, maintains that the Respondent terminated the employment contract without just cause and therefore asks to be awarded, inter alia, payment of compensation for breach of contract. The Respondent, on the other hand, rejects such claim and holds that it duly terminated the employment contract in accordance with art. 4 of the employment contract. 14. In order to be able to establish as to whether, as claimed by the Claimant and contested by the Respondent, the club terminated the employment contract without just cause, the Chamber turned its attention to art. 4 of the employment contract, which was invoked by the Respondent in its notice of termination of contract. 15. As stated above, according to art. 4 of the employment contract, the Respondent has the sole right to terminate the contract without objection from or payment of financial or moral compensation to the Claimant. 16. In this respect, and bearing in mind this Chamber’s longstanding respective jurisprudence, the Chamber held that it could not accept said article as being valid, since it provides for a unilateral termination right, without any compensation, to the benefit of the club only. Therefore, the Chamber decided that the Respondent could not legitimately terminate the contractual relation with the Claimant by invoking art. 4 of the employment contract. Consequently, the Chamber rejected the Respondent’s argument in this respect. 17. Having said that, the members of the Chamber noted that the Respondent has not invoked any other reason for the early and unilateral termination of the employment contract on 8 March 2014. 18. Consequently, the members of the Chamber established that the Respondent terminated the employment contract on 8 March 2014 without just cause. 19. In continuation, prior to establishing the consequences of the breach of contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the Respondent. 20. Indeed, in his statement of claim, the Claimant alleges that his salary for January and February 2014 in the total amount of USD 9,000 was outstanding. In addition to this amount plus interest of 5% p.a. as of the last day of the relevant month, the Claimant asks to be awarded salary of 8 days of March 2014 as well as reimbursement of medical costs allegedly incurred by him in country E. Bearing in mind, as stated above, that the contract was terminated by the Respondent on 8 March 2014 and that the Claimant’s salary was due to be paid at the end of the month, the Chamber established that, on 8 March 2014, the March salary had not yet fallen due in accordance with the employment contract. 21. The Chamber further took into account that according to the Respondent, the Claimant had received all of his financial entitlements up to and including the month of December 2013. In addition, the Respondent acknowledged that the Claimant should be entitled to receive USD 10,650 for 2 months and 11 days of salary, maintaining that the 2013-14 season lasted for 5 months and 11 days only. 22. On account of the above, the Chamber concurred that it has thus remained undisputed that the Claimant at least is entitled to receive salary payments for both January and February 2014 in the total amount of USD 9,000. As regards the remaining days of March 2014, the Chamber stressed that this specific issue will be taken into account when deliberating on the consequences of the breach of contract by the Respondent. 23. The Chamber then turned to the Claimant’s request pertaining to medical costs, which request was rejected by the Respondent. The Claimant asks that the Respondent be ordered to reimburse medical expenses he alleges having incurred in country E in the amount of USD 4,000. In this regard, the Chamber took into account that the employment contract does not include any clause, on the basis of which the Respondent could be held liable for the payment of the Claimant’s medical costs incurred outside of the territory of country D. Therefore, and bearing in mind this Chamber’s respective constant jurisprudence, the Chamber decided to reject the Claimant’s claim pertaining to the reimbursement of medical costs apparently incurred in country E. 24. On account of the above considerations, the Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration for January and February 2014 totalling the amount of USD 9,000. 25. Furthermore, taking into account the Claimant’s pertinent request, the Chamber decided to award interest of 5% p.a. on each of the two relevant instalments of USD 4,500 as of the day following the day on which said instalments fell due. 26. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the employment contract by the Respondent without just cause on 8 March 2014. 27. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent. 28. Subsequently, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 29. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 30. 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber 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. 31. In continuation, the Chamber noted that the pertinent employment contract does not include any clearly defined period of validity. That is, it stipulates that its duration is of two consecutive seasons as of the 2013 season, without any precision of a date of expiry. 32. In this regard, the Chamber referred to the diverging position of the parties with respect to the contractual duration, more specifically, with respect to the length of the relevant seasons and the payments owed to the Claimant during the relevant period of time. Indeed, from his statement of claim, it can be concluded that according to the Claimant the season was of 10 months, whereas the Respondent asserts that the 2013-14 season only lasted 5 months and 11 days and that the total length of the 2014-15 season was yet to be determined. In this regard, the Chamber took note of the documents presented by the Respondent in support of its position, i.e. a match schedule indicating a final match on 11 March 2014 and an extract from the 2014-15 futsal regulations of country D, which reads that the sport season for futsal starts during October every year and ends during May of the following year as well as a match schedule indicating a final match. 33. In addition, the members of the Chamber took particular note that art. 3 of the employment contract, which refers to the contractual duration and the Claimant’s remuneration, stipulates that each season should not exceed 10 months. 34. Subsequently, the Chamber referred to art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof and concluded that the Respondent had not submitted complete and convincing evidence in support of its allegations relating to the contractual duration. Consequently, the Chamber concurred that the maximum number of 10 months per season in accordance with art. 3 of the employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract payable by the Respondent to the Claimant. 35. Having established the above, in order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contracts and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 36. On the basis of the contract signed by and between the Claimant and the Respondent, which was to run further as from March 2014 until the end of the 2014-15 season after the breach of contract occurred, as well as the consideration under point II./33. above, the Chamber concluded that the amount of USD 67,500, i.e. 5 remaining months of the 2013-14 season and 10 months of the 2014-15 season x USD 4,500 per month, serves as the basis for the final determination of the amount of compensation for breach of contract. 37. 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. 38. The members of the Chamber noted that according to the Claimant he had not found new employment after the termination of the employment contract by the Respondent. 39. 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 USD 67,500 to the Claimant as compensation for breach of contract in the case at hand. 40. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. as from 31 July 2014 until the date of effective payment. 41. The Chamber concluded its deliberations in the present matter by rejecting any further request filed 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 USD 9,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. on the amount of USD 4,500 as from 1 February 2014; b. 5% p.a. on the amount of USD 4,500 as from 1 March 2014. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 67,500 plus 5% interest p.a. as from 31 July 2014 until the date of effective payment. 4. In the event that the amounts due to the Claimant are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the 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 article 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. (CAS directives)