F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), 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 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), 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 1. On 4 September 2013, the player from country B, Player A (hereinafter: the Claimant), born on 2 December 1985, and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as of the date of signature until 31 May 2016, “or any later date on which an official match is played in the respective football season to be effective for the 2015/2016 football season”. 2. Pursuant to the contract, the Claimant was entitled to the following remuneration: - 2013-14 season: o EUR 75,000 as “advance payment after medical check”; o EUR 225,000 payable in ten equal monthly instalments of EUR 22,500 each on the 25th of the month, from October 2013 to July 2014; - 2014-15 season: EUR 325,000 payable in twelve equal monthly instalments on the 25th of the month, from August 2014 to July 2015. - 2015-16 season: EUR 350,000 payable in ten equal monthly instalments on the 25th of the month, from August 2015 to May 2016. 3. Article VI of the contract contains a stipulation which reads as follows: “a) In case of non-payment of “two consecutive salaries” in full or in part, [the Claimant] should notify [the Respondent] in writing. If [the Respondent] should not pay the notified amount in 60 (sixty) days starting from the due date of the second unpaid salary, then [the Claimant] shall have the right to unilaterally terminate the Contract with just cause. b) In this case, [the Claimant] shall have the right to keep any and all amount received from [the Respondent] until the termination date. c) In case of termination by [the Claimant] due to delay in payment by [the Respondent], [the Claimant] shall be entitled to receive as an indemnity due to the breach by [the Respondent] 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 Respondent]. Upon a termination by [the Claimant] this [Contract] as mention above and if [the Claimant] is employed by a new Club after termination, [the Respondent] will be responsible only for the payment of wages to the date of the new contract. [The Claimant] shall not be entitled to receive any other compensation from [the Respondent]. d) If [the Claimant] decides to terminate the present Contract unilaterally without just cause, before the termination of its actual duration, [the Respondent] is entitled to receive compensation”. 4. On 15 May 2014, the Claimant put the Respondent in default of paying the amount of EUR 67,500 corresponding to the salaries due on 25 February, 25 March and 25 April 2014. 5. On 6 June 2014, the Respondent sent an e-mail to the Claimant informing him that it will pay “the rest of the unpaid payments”, i.e. EUR 90,000, but only after deduction of the penalty of EUR 75,000 that it imposed on him for his 6-match ban. In addition, the Respondent stated that it would provide the Claimant with its disciplinary regulations. 6. On the same day, the Claimant replied by e-mail to the Respondent, alleging that he did not understand how it could impose a penalty of EUR 75,000 for a 6-match ban when his monthly salary, i.e. the salary received for playing an average of four games, amounted to EUR 22,500. Furthermore, the Claimant informed the Respondent that should it not comply with the contract, he would lodge a claim in front of FIFA. 7. By means of two correspondence sent on 18 July 2014, but received by the Respondent on 21 July 2014, the Claimant reiterated his doubts regarding the validity of the penalty. However, and should it be deemed valid and therefore deduct from his dues, the Claimant outlined that part of his salary for April 2014, i.e. EUR 15,000, and his salary for May 2014 would still be outstanding. In view of the above, the Claimant requested the Respondent to pay him “the whole amount” while emphasising that should it fail to do it, art. VI of the contract would entitle him to terminate the contract with just cause. 8. Subsequently, by means of a correspondence dated 26 July 2014, but received by the Respondent on 31 July 2014, the Claimant terminated the contract in writing, stressing that the Respondent failed to pay him his remuneration for seven months, i.e. from January 2014 until July 2014, or at least four, should the penalty be considered valid. 9. On 7 August 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting to be awarded with the amount of EUR 852,500, broken down as follows: - EUR 157,500, plus 5% interest as of 18 July 2014, as outstanding salaries for the period as from January until July 2014; - EUR 675,000, plus 5% interest as of 18 July 2014, as compensation corresponding to the residual value of the contract; - EUR 20,000 as moral damages. In addition, the Claimant requested to be provided with salary sheets as well as documents related to social security. 10. In his claim, the Claimant reiterates the argumentation raised in the correspondence addressed to the Respondent. Finally, the Claimant asserts that should the Respondent prove the validity of the penalty, his outstanding remuneration would be equivalent to EUR 82,500, i.e. three monthly salaries plus EUR 15,000. 11. In spite of having been invited to do so, the Respondent did not reply to the claim. 12. According to the information uploaded into the Transfer Matching System (TMS), on 16 January 2015, the Claimant and the club from country F, Club E, concluded an employment contract, valid until 30 June 2015 and according to which, the Claimant was entitled to a total remuneration of EUR 30,000. 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 7 August 2014. Consequently, the 2014 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 hand (cf. article 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 2015), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2014 and 2015), and considering that the present claim was lodged on 7 August 2014, the 2014 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the Chamber recalled that the parties had signed an employment contract, valid as from 4 September 2013 until 31 May 2016, “or any later date on which an official match is played in the respective football season to be effective for the 2015/2016 football season”. 6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 31 July 2014, after previously having put the club in default, since the Respondent allegedly failed to pay him seven monthly salaries. Consequently, the Claimant asks to be awarded with his outstanding dues as well as with the payment of compensation for breach of the employment contract. 7. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced to its right of defence and, thus, had accepted the allegations of the Claimant. 8. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant. 9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute was to determine whether the contract had been terminated by the Claimant on 31 July 2014 with or without just cause. The DRC also underlined that, subsequently, it would be necessary to determine the financial consequences for the party that is to be held liable for the early termination of the pertinent employment contract. 10. In order to do so, the Chamber, first and foremost, recalled the content of art. VI lit. a) of the contract, which stipulates that “[i]n case of non-payment of ‘two consecutive salaries’ in full or in part, [the Claimant] should notify [the Respondent] in writing. If [the Respondent] should not pay the notified amount in 60 (sixty) days starting from the due date of the second unpaid salary, then [the Claimant] shall have the right to unilaterally terminate the Contract with just cause”. 11. In this respect, the DRC deemed it crucial to outline that it is remained uncontested that the Respondent failed to pay the Claimant more than two consecutive salaries, actually seven consecutive monthly salaries i.e. from January until July 2014. Furthermore, the DRC stressed that it is also undisputed that the Claimant put the Respondent in default in writing and then terminated the contract more than sixty days after the due date of the second outstanding salary. 12. On account of the aforementioned, the members of the Chamber concurred that the Claimant had terminated the contract in accordance with art. VI of the contract and had, therefore, just cause to do so. 13. In continuation, 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. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract. 14. At this stage, the DRC made reference to its previous considerations and recalled that at the time of the termination, the salaries from January until July 2014 were outstanding. 15. Consequently, in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay the Claimant the amount of EUR 157,500 as outstanding remuneration corresponding to the salaries relating to January until July 2014. 16. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 157,500 as of 1 August 2014 until the date of effective payment. 17. In continuation, the Chamber focused its attention on 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. 18. 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 context, the members of the Chamber recalled the content of art. VI lit. c) and d) of the contract which provide that “[i]n case of termination by [the Claimant] due to delay in payment by [the Respondent], [the Claimant] shall be entitled to receive as an indemnity due to the breach by [the Respondent] 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 Respondent]. Upon a termination by [the Claimant] this [Contract] as mention above and if [the Claimant] is employed by a new Club after termination, [the Respondent] will be responsible only for the payment of wages to the date of the new contract. [The Claimant] shall not be entitled to receive any other compensation from [the Respondent]” and that “if [the Claimant] decides to terminate the present Contract unilaterally without just cause, before the termination of its actual duration, [the Respondent] is entitled to receive compensation”. 19. The members of the Chamber duly analysed the contents of said clause and acknowledged that the aforementioned art. VI lit. c) of the contract provides that, upon the termination of the contract with just cause by the Claimant and if the Claimant signs a new contract, the Respondent’s obligation to pay compensation is limited to the starting date of the potential new employment relationship, no matter the (low) value of this new contract in comparison with the contract concluded between the Claimant and the Respondent. In this respect, the DRC referred to the player’s general obligation to mitigate his damages, which is commonly interpreted as an obligation for the player to do his best to enter into a new employment contract after the termination of his previous contract. In view of the above, the Chamber stressed that the Claimant’s strict compliance with his obligations would have as a consequence the Respondent’s total release of its obligation to pay compensation. 20. In addition, the Chamber considered that art. VI of the contract does not grant the same rights to the parties, since it provides for a method of mitigation of the compensation payable to the Claimant in case of breach of contract by the Respondent, whereas it stipulates that the Respondent will be entitled to an imprecise amount of compensation without any possibility of mitigation, in case the breach would be attributable to the Claimant. 21. Based on the above-mentioned considerations, the members of the Chamber agreed that art. VI of the contract is to the benefit of the Respondent, i.e. it lacks of proportionality as it does not grant the same rights to the Claimant than to the Respondent and that, therefore, said clause cannot be taken into consideration in the determination of the amount of compensation. 22. On account of the foregoing, the Chamber decided that art. VI lit. c) of the contract could not be taken into consideration in the determination of the amount of compensation. 23. 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. 24. 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 2016, taking into account that the Claimant?s remuneration until July 2014 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of EUR 675,000, i.e. remuneration as from August 2014 until May 2016, serves as the basis for the determination of the amount of compensation for breach of contract. 25. 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. 26. Indeed, on 16 January 2015, the Claimant found employment with the club from country F, Club E. In accordance with the pertinent employment contract, valid until 30 June 2015, the Claimant is entitled to receive a total remuneration of EUR 30,000. In addition, and considering that the Claimant’s new contract is due to expire on 30 June 2015 whereas his previous contract was supposed to expire on 31 May 2016, the DRC deemed that the Claimant will have the opportunity to further mitigate his loss. 27. 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 600,000 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 28. Moreover, 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. 7 August 2014, until the date of effective payment. 29. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of EUR 20,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 30. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates inter alia that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on a club found to be in breach of contract during the protected period. 31. Subsequently, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this respect, the Chamber took note that the breach of the employment contract by the Respondent had occurred on 31 July 2014, i.e. 10 months following the entry into force of the contract at the basis of the dispute. Therefore, the Chamber concluded that, irrespective of the Claimant’s age, such breach of contract by the Respondent had occurred within the protected period. 32. As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the Claimant terminated the contract with the Respondent with just cause and, consequently, the Respondent was to be held liable for the early termination of the employment contract, the Chamber decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. In this regard, the Chamber emphasised that apart from the Respondent having clearly acted in breach of the contract within the protected period in the present matter, the Respondent had also on several occasions in the recent past been held liable by the Chamber for the early termination of the employment contracts with the players Player G (case. ref. nr. xxxxxxx; decided on 31 October 2013), Player H (case ref. nr. xxxxxxx; decided on 10 April 2015) and Player I (case ref. nr. xxxxxx; decided on 24 April 2015). 33. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 157,500, plus 5% interest p.a. on said amounts as from 1 August 2014 until the date of effective payment. 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 amounting to EUR 600,000, plus 5% interest p.a. on said amounts as from 7 August 2014 until the date of effective payment. 4. In the event that the amounts plus interest due to the Claimant in accordance with the above-mentioned points 2. and 3. 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 remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. 7. The Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. ***** 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: Markus Kattner Deputy Secretary General Encl. CAS directives