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 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohamed Al-Saikhan (Saudi Arabia), member Zola Majavu (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 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohamed Al-Saikhan (Saudi Arabia), member Zola Majavu (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 29 August 2013, the player from country B, Player A (hereinafter: the Claimant), 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 6 June 2014. 2. Pursuant to the contract, the Claimant was entitled to a monthly gross remuneration of 948,276, equivalent to 825,000 net. 3. In addition, the contract provides for a monthly housing allowance of 20,000. 4. Furthermore, art. 2 of the contract stipulates that “[the Claimant] is accepted as a highly skilled person for a work to the position of Sportsman-Trainer (professional football sportsman) in a structural unit of Players of the general team”. 5. Art. 11.1 of the contract further states that “in the event of dispute between Parties, shall be settled by direct negotiations. If the dispute between Parties is not settled, it shall be settled in accordance Regulation of the Football Union of country D by status and players transfers”. 6. On 2 October 2013, the parties agreed to extend the duration of the contractual relationship until 6 June 2016, the other contractual stipulations remaining the same. 7. On 26 August 2014, the Claimant questioned the Respondent about the legality of its decision of transferring him to a separate training group. 8. On 25 September 2014, the Respondent replied to the Claimant’s question, informing him that it divided the team into two groups taking into account “the physical and emotional condition of the players” and with the aim of preparing the upcoming sports events. However, the Respondent stressed that there was no discrimination since both groups were part of the first team. In addition, the Respondent referred to an alleged Claimant’s refusal to comply with his training programme and informed him that such a behaviour might be deemed as a material breach of the contract. 9. On 15 October 2014, the Claimant requested the Respondent to reinstate him in “the training activities of the general team” and to pay his outstanding remuneration. In this regard, the Claimant claimed 3,550,000 corresponding to half of the salary for May 2014 as well as the salaries from June until September 2014, plus 69,000 corresponding to his outstanding housing allowances. The Claimant gave the Respondent a deadline until 20 October 2014. 10. On 21 October 2014, the Claimant terminated the contract in writing, requesting the Respondent to pay his outstanding remuneration and informing it that should it fail to do so, he would lodge a claim in front of FIFA. 11. On 22 October 2014, the Respondent replied to the Claimant’s termination, explaining that the delays in payment are due to “objective reasons” but that it would be solved as soon as possible. Regarding the training programme, the Respondent sustained that the head coach made his own decision in accordance with the contract. 12. On 13 November 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 23,362,329, broken down as follows: - 3,832,260, plus 5% p.a. interest, as outstanding salaries for June, July, August, September and 20 days of October 2014; - 69,000 as outstanding housing allowances; - 19,461,069, plus 5% interest, as compensation corresponding to the gross residual value of the contract; In addition, the Claimant requested sporting sanctions to be imposed on the Respondent and the costs to be borne by the latter. 13. In his claim, the Claimant reiterates that the Respondent prevented him from taking part in the sporting activities of the general team in violation of art. 2 of the contract and failed to pay him more than four monthly salaries, which constitutes a just cause to terminate the contract. 14. In its reply to the claim, the Respondent challenges FIFA’s competence to deal with the matter, alleging that in accordance with art. 11.1 of the contract, art. 30 of the Football Union of country D Regulations on the status and transfer of players as well as art. 3 and 13 of the Regulations of the NDRC of country D, the jurisdictional bodies of the Football Union of country D are competent. In spite of having been invited to do so, the Respondent did not submit documentary evidence in support of its assertion. 15. In addition, the Respondent acknowledges that the housing allowances and the salaries for June, July, August, September and 20 days of October 2014 were outstanding. However, the Respondent considers that the outstanding salary for October is equivalent to 502,173.91 [(825,000 / 23 working days in October 2014) x 14 working days until 20 October 2014]. Regarding the training programme, the Respondent repeats the argumentation raised in the previous correspondence. Finally, the Respondent rejects the Claimant’s calculation of the compensation. 16. In his comments as to the competence, the Claimant first asserts that art. 11.1 of the contract cannot be considered as a valid arbitration clause since it does not refer to a specific decision-making body. In addition, the Claimant outlines that the Respondent did not submit any element evidencing that the NDRC of country D complies with the minimum requirements of independence, impartiality and equal representation. In particular, the Claimant stresses that the NDRC of country D is established within the frame of the Football Association of country D, which puts in doubt its independence. 17. On 5 March 2015, the Claimant and the club from country B, Club E concluded an employment contract valid as of the date of signature until 15 November 2015 and according to which the Claimant is entitled to receive a gross monthly salary of EUR 390 (approx. 26,900 on 5 March 2015). 18. In addition, on 13 May 2015, the Claimant acknowledged receipt of the amount of 3,419,000 paid by the Respondent. II. Considerations of the Dispute Resolution Chamber 1. In a first instance, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 13 November 2014. Consequently, the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) 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 2015) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving an player from country B and a club from country D regarding an alleged breach of contract. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that any dispute arisen between the parties should be submitted to the jurisdictional bodies of the Football Union of country D on the basis of art. 11.1 of the contract. 5. The Chamber equally noted that the Claimant rejected such position and alleged that FIFA had jurisdiction to deal with the present matter because there is no specific arbitration clause in the contract empowering exclusively a specific national arbitration body. Additionally, the Claimant asserted that the Respondent did not submit documentation evidencing that the Football Union of country D NDRC complies with the requirements of independence, impartiality and equal representation. 6. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the 2015 FIFA Regulations, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause. 8. Having said this, the members of the Chamber turned their attention to art. 11.1 of the contract, which stipulates that “in the event of dispute between Parties, shall be settled by direct negotiations. If the dispute between Parties is not settled, it shall be settled in accordance Regulation of Football Union of country D by status and players transfers”. 9. In view of the aforementioned clause, the members of the DRC were of the opinion that art. 11.1 of the employment contract does not make clear reference to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the members of the Chamber deemed that said clause does not constitute an arbitration clause, and, therefore, does not consist in a choice of jurisdiction. 10. However, the members of the Chamber wished to stress that, even if the contract at the basis of the present dispute would have included an arbitration clause in favour of national dispute resolution, the Respondent failed to submit documentary evidence proving that, in fact, the Football Union of country D NDRC meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 11. In view of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC 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. 12. Subsequently, the members of the Chamber analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2015) and considering that the claim in front of FIFA was lodged on 13 November 2014, the 2014 edition of said Regulations is applicable to the present matter as to the substance. 13. 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. 14. In this respect, the DRC acknowledged that, on 29 August 2013, the parties signed an employment contract, valid as from the date of signature until 6 June 2014 and then extended the contractual relationship until 6 June 2016 on 2 October 2013. Furthermore, the Chamber also took note that it is uncontested by the parties that on 21 October 2014, and after having put the Respondent in default, the Claimant terminated in writing the contractual relationship with the Respondent. 15. In this regard, the Chamber took note of the Claimant’s affirmation according to which he had just cause to terminate the contract. In particular, the members of the Chamber noted that the Claimant asserts that the Respondent failed to pay him his salaries for June, July, August, September and twenty days of October 2014 as well as housing allowances and prevented him from taking part in the sporting activities of the general team in violation of the contract. 16. In continuation, the Chamber noticed that the Respondent acknowledged that at the time of termination the claimed housing allowances and salaries were outstanding. 17. The DRC further acknowledged that, in accordance with the employment contract, the Respondent was obliged to pay to the Claimant a monthly salary of 825,000 net, as well as a monthly housing allowance of 20,000. 18. On account of the aforementioned, and, in particular, taking into account that the Respondent did not contest that the relevant amount had remained unpaid, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 21 October 2014, the salaries for June, July, August and September 2014 as well as the relevant housing allowances. Consequently, and considering that the Respondent had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 21 October 2014 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. 19. Having established that the Respondent 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 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. 20. First, the Chamber reverted to the Claimant’s claim for outstanding salaries and housing allowances and emphasised the fact that it would only consider the amounts that have already fallen due at the date of termination, i.e. 21 October 2014. 21. At this stage, the DRC recalled that in absence of further specification in the contract, the salaries are payable in arrears. In view of the above, and considering that the contract was terminated on the 21 October 2014, the Chamber concluded that on the day of termination, the salary for October 2014 had not fallen due yet and therefore held that only the salaries for June, July, August and September 2014, equivalent to 3,300,000, had to be deemed outstanding. 22. Regarding the housing allowances, the members of the Chamber observed that the Respondent does not contest that they were due and thus considered that the amount of 69,000 was outstanding at the time of the termination. 23. Having stated the foregoing, the Chamber took note that on 13 May 2015, i.e. after the termination of the contract, the Claimant acknowledged receipt of a payment of 3,419,000 from the Respondent. Consequently, and considering that the above-mentioned outstanding remuneration amounted to 3,369,000, the Chamber concluded that no amount remained outstanding. In addition, and considering the fact that the amount paid on 13 May 2015 exceeded by 50,000 the amount due as outstanding remuneration, the DRC held that this amount of 50,000 would be deducted from the compensation payable to the Claimant 24. 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. 25. In application of the relevant provision, the Chamber held that it first 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. 26. 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. 27. 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 6 June 2016, taking into account that the Claimant?s remuneration until September 2014 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of 16,500,000, i.e. remuneration as from October 2014 until 6 June 2016, serves as the basis for the determination of the amount of compensation for breach of contract. 28. The DRC then referred to its previous consideration (cf. point II.23 above) and decided to deduct the amount of 50,000. 29. 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. 30. The Chamber noted that according to the Claimant’s declarations and the documentation submitted, the Claimant concluded a new employment contract valid until 15 November 2015, according to which the Claimant received a monthly remuneration of EUR 390, corresponding to 26,900. 31. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 32. In view of all of the above, and taking into consideration the respective duration of the original and of the new contract, the DRC decided that the Respondent must pay the amount of 16,000,000 to the Claimant, which is considered by the DRC to be a reasonable and justified amount as compensation for breach of contract. 33. 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. 13 November 2014, until the date of effective payment. 34. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 35. 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 admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision the amount of 16,000,000 plus 5% interest p.a. on said amount as from 13 November 2014 until the date of effective payment. 4. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned point 3 is not paid by the Respondent within the stated time limit, 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 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 Acting Secretary General Encl. CAS directives