F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 2 July 2015, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Joaquim Evangelista (Portugal), 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 (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 2 July 2015, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Joaquim Evangelista (Portugal), 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 16 September 2013, the player A from country B (hereinafter: player or Claimant) and the Club C from country D (hereinafter: club or Respondent) allegedly concluded an employment contract, valid as from 1 January 2014 until 31 December 2015 (hereinafter: the document). 2. According to the document, the player was entitled to receive, inter alia: • a monthly salary of 12,000, if he plays as a goalkeeper in the ’U21 & B team’; • a monthly salary of 16,000, if he plays as a second goalkeeper in the ’A team’; • a monthly salary of 20,000, if he plays as a first goalkeeper in the ‘A team’. 3. The player states that in January 2014 and February 2014, he received from the club the total amount of 24,000 (2 instalments of 12,000 each) as salary payment. 4. According to the player, on 19 February 2014, he received a letter from the club, in which the club stated that ‘As of 19.2.2014 the Club C did not register the Player A into the Football Association of country D who is therefore a free agent and the above mentioned club does not possess any transfer rights of the player’. 5. According to the player, said letter has to be considered as a unilateral termination of his contract by the club without just cause. On 3 March 2014, the player protested in writing against the alleged termination of his contract and put the club in default of payment of the amount of 264,000, as value of the contract for the period between 1 March 2014 and 31 December 2015. 6. On 2 October 2014, the player lodged a claim before FIFA against the club (which claim was amended on 27 October 2014), claiming payment of compensation for breach of contract by the club, in the amount of: a. Primary: 440,000, based on the ‘first goalkeeper in the A team’ status of the player, specified as follows: 200,000 (value of the contract for the period of 1 March 2014 until 31 December 2014) and 240,000 (value of the contract for the period of 1 January 2015 – 31 December 2015); b. Alternatively: 264,000, based on the ‘U21 & B team’ status of the player, specified as follows: 120,000 (value of the contract for the period of 1 March 2014 until 31 December 2014) and 144,000 (value of the contract for the period of 1 January 2015 until 31 December 2015). The player also requested reimbursement of his legal expenses. 7. In its reply, the club stated that the document signed on 16 September 2013 was a ‘pre-contract’ and not an employment contract. According to the club, the player did not provide certain documents requested by the Respondent and/or did not want to conclude a ‘player’s contract’, although on 17 December 2013, the club offered him a proposal to sign such a contract. 8. The club alleges that the document signed on 16 September 2013 was not intended to be legally binding, since it was a ‘future contract to close a player’s contract’. According to the club, the proposal made to the player on 17 December 2013 contained detailed provisions on the remuneration as well as additional rights and obligations, which elements were not included in the document signed on 16 September 2013. 9. Furthermore, the club states that ‘any sums paid to the plaintiff by the defendant were provided to the plaintiff because he didn’t have enough funds to finance his costs of living in country D’. According to the club, these payments would be considered as down payments after the signing of the proposal for the player’s contract. 10. The club concludes that the player acted in ‘bad faith’ by not signing the proposal, and lodged a counterclaim, asking that the player’s claim be rejected and claiming that the player be ordered to pay 24,000 to the club, because ‘these were paid to the plaintiff without just cause due to ill faith of the plaintiff’, 6,000 for legal fees of the club, as well as procedural costs. 11. In his reaction to the counterclaim, the player denied that the document he signed on 16 September 2013 was a pre-contract. According to the player, the club tried to create the impression that the parties needed to conclude a professional contract, by sending him emails with the request to accept the proposal. Further, the player states that the document established a legal relationship between the player and the club for the period of 1 January 2014 to 31 December 2015 and that the club did not submit any proof that the contract was in fact a pre-contract. 12. The player finally stated that after the breach of contract, he did not conclude a professional player’s contract with another club, but that as from the beginning of May 2015, he plays as an amateur for the Club E from country B. 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 2 October 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; 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 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 (edition 2015), and considering that the present claim was lodged on 2 October 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. 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. 5. In this respect, the members of the Chamber started by acknowledging that the parties to the dispute had signed a document, valid as from 1 January 2014 until 31 December 2015, in accordance with which the Respondent would pay the Claimant a monthly salary of 12,000 if he would play as a goalkeeper in the ’U21 & B team’, a monthly salary of 16,000 if he would play as second goalkeeper in the ’A team’ and a monthly salary of 20,000 if he would play as a first goalkeeper in the ’A team’. 6. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had breached the document, which the Claimant considers to be an employment contract, by not registering him with the Football Association of country D and by showing no interest in his services. 7. Thereafter, the members of the Chamber took note of the reply of the Respondent, which alleged that the document signed on 16 September 2013 was actually a ‘future contract to close a player’s contract’, without legal effect, and that the Claimant refused to sign the proposal for a definitive contract made to the Claimant on 17 December 2013. 8. Moreover, the Chamber noted that the Respondent stated that it paid certain amounts to the Claimant, but that these amounts were merely provided to the Claimant to finance his cost of living. Finally, the members of the Chamber noted that in response to the claim of the Claimant, the Respondent also requested for said amounts to be reimbursed by the Claimant. 9. Having stated the aforementioned, the Chamber turned its attention to the Respondent’s statements that the document signed on 16 September 2013, was not an employment contract, but a legally non-binding document. The Chamber duly acknowledged that the fundamental issue in the present matter is whether or not the document signed on 16 September 2013 should be considered an employment contract. In this respect, the members of the Chamber wished to highlight that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract, their role, the duration of the employment relationship and the remuneration. 10. After careful study of the document dated 16 September 2013 presented by the Claimant, the Chamber concluded that all such essential elements are included, in particular, the fact that the contract establishes that the Claimant has to render his services towards the Respondent, which in counterpart has to pay to the Claimant a monthly remuneration. Furthermore, the members of the Chamber wished to highlight that in the months of January and February 2014, the Claimant received the total amount of 24,000 from the Respondent, which corresponds to the Claimant’s entitlements under the document dated 16 September 2013. 11. Based on the aforementioned circumstances, the DRC concluded that the Claimant and the Respondent had effectively entered into an employment contract on 16 September 2013, valid as from 1 January 2014, which was also executed by the parties. 12. Having established that a valid and legally binding employment contract had been in force between the Claimant and the Respondent, the Chamber went on to analyse whether such contract had been breached and, in the affirmative, which party is to be held liable for breach of contract. 13. In this regard, the Chamber noted that the Respondent held that the Claimant did not provide certain documents requested by the Respondent and/or that the Claimant did not sign the proposal for a ‘player’s contract’. 14. In this respect, and turning its attention to the letter allegedly received by the Claimant on 19 February 2014, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the transfer of a player, which is the sole responsibility of a club and on which a player has no influence. In this regard, the Chamber pointed out that it is the responsibility of the engaging club to ensure that the player is properly registered with his new club in order to be able to provide it with his services. Since the club is supposedly interested in acquiring the rights of the player and in benefiting from his services, it is also expected from it that its acts accordingly in view of the registration of the player. For these reasons and since the Claimant and the Respondent had already signed a contract, the members of the Chamber decided to reject the Respondent’s arguments in this regard. 15. Subsequently, the Chamber recalled that according to the Claimant, the Respondent informed him on 19 February 2014 in writing that he would not be registered with the Football Association of country D, which he considers to be a termination of the contract by the Respondent. The Respondent, on the other hand, held that it was the Claimant who breached the ‘pre-contract’ by not signing a ‘player’s contract despite the agreement on future contract’. 16. At this point, the Chamber was eager to emphasize that a possible refusal of the Claimant to sign an additional agreement, does not affect the validity and enforceability of the document signed on 16 September 2013, since said document has to be considered as a valid employment contract, as stated under points and II./9., II./10. and II./11. In particular, the members of the Chamber observed that the Respondent did not contest that it had not registered the Claimant with the Football Association of country D and that, in fact, it merely disputed the legal validity of the document signed on 16 September 2013. 17. On account of all the above circumstances, in particular, by not registering the Claimant with the Football Association of country D and informing him about this in writing on 19 February 2014, the Chamber established that the Respondent had no longer been interested in the Claimant’s services. Such conduct constitutes, in the Chamber’s view, a clear breach of contract. Accordingly, the members of the Chamber concluded that the employment contract, which is to be considered as valid and binding, was indeed breached by the Respondent without just cause and that the Respondent is to held liable for such early termination of the employment contract. 18. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focussed 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. 19. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”. The Chamber noted that the Claimant stated to have received the amount of 12,000 in the months January and February 2014. In absence of any evidence to the contrary, this led the Chamber to the conclusion that the Claimant was to play as a goalkeeper in the “U21&B team” and thus was entitled to a monthly salary of 12,000. Therefore, the Chamber concluded that there were no outstanding payments at the date of termination of the contract. 20. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract. 21. Having stated the above, the Chamber turned to 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. 22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 24. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination without just cause by the Respondent, i.e. 19 February 2014, until 31 December 2015, and concluded that the Claimant would have received in total 264,000 as remuneration had the contract been executed until its expiry date. In this respect, the Chamber wished to reiterate that it assumed that the Claimant was entitled to a monthly salary of 12,000, since this amount was paid to the Claimant in January and February 2014 and the Claimant did not submit documentary evidence that he was entitled to a monthly salary of 20,000. Consequently, the Chamber concluded that the amount of 264,000, i.e. 22 months x 12,000, serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 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. The Chamber noted that, according to the Claimant?s declaration, he had not been able to sign an employment contract with another professional club during the relevant period of time, but that as from the beginning of May 2015, he plays as an amateur (without receiving any remuneration) for the Club E from country B. As a result, the Chamber held that no mitigation shall be applied. 27. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of 264,000 as compensation for breach of contract in the case at hand. 28. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected and that the Respondent’s request for reimbursement is rejected as well in light of all the aforementioned considerations. ***** 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 compensation for breach of contract in the amount of 264,000, within 30 days as from the date of notification of this decision. 3. In the event that the aforementioned sum is not paid by the 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 FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. 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