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 (DRC) judge passed in Zurich, Switzerland, on 7 July 2015, by Theo van Seggelen (Netherlands), DRC judge, on the matter between the player, Player A, country B, as Claimant / Counter-Respondent and the club, Club C, country D, as Respondent / Counter-Claimant and the club, Club E, country B as intervening party regarding an employment-related dispute 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 (DRC) judge passed in Zurich, Switzerland, on 7 July 2015, by Theo van Seggelen (Netherlands), DRC judge, on the matter between the player, Player A, country B, as Claimant / Counter-Respondent and the club, Club C, country D, as Respondent / Counter-Claimant and the club, Club E, country B as intervening party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 29 August 2012, the player from country B, Player A (hereinafter: the Claimant / Counter-Respondent or the player) and the club from country D, Club C (hereinafter: the Respondent / Counter-Claimant or the club) concluded an employment contract (hereinafter: the contract), valid as of 30 August 2012 until 30 June 2013. 2. Pursuant to the contract, the Claimant / Counter-Respondent was entitled to receive an annual net salary of EUR 45,000 payable in monthly instalments on the 30th day of the following month 3. Additionally, art. X.2 of the contract provides that the Claimant / CounterRespondent is entitled to four round air tickets country D – country B - country D in economy class “during the time when the [the player] uses his due paid annual leave”. In this regard, art. VII of the contract specifies that “the [player] shall be entitled to a paid annual leave amounting to 20 calendar days” which “may be used by the [player] on days off, with no official football matches of the [club]”. 4. Art. X.21 of the contract stipulates that “upon termination of the contract on the part of the [player] unilaterally, without a substantiated reason or a substantiated sports reason or the termination of the contract is through [the player]’s fault, he shall owe to the club a penalty amounting to his gross remuneration within the period as of the date of termination of the contract up to the end of its validity”. 5. On 3 June 2013, the Respondent / Counter-Claimant dismissed the Claimant / Counter-Respondent as disciplinary sanctions on the grounds that “he did not take part in the educational training and competitive process and did not appear to work during the spring half-season of the competitive 2012-2013, which ended on 25.05.2013”. 6. On 5 September 2014, the Claimant / Counter-Respondent lodged a claim in front of FIFA against the Respondent / Counter-Claimant for breach of contract, requesting to be awarded with the following: - EUR 45,000 as outstanding salaries “for the season 2012-2013”; - EUR 3,000 corresponding to four flight tickets: country B – country D (August 2012), country D – country B (December 2012), country B – country D (January 2013) and country D – country B (June 2013). 7. In his claim, the Claimant / Counter-Respondent explains that as of the beginning of the contractual relationship, he has only received the payment of one salary in August 2012. 8. In addition, the Claimant / Counter-Respondent asserts that shortly after the signature of the contract and after he had only played one game, the Respondent / Counter-Claimant proposed him to terminate the contract in exchange for the payment of a half monthly salary. 9. The Claimant / Counter-Respondent further alleges that he had to fly back to country B for Christmas at the expenses of his agent, although the Respondent / Counter-Claimant undertook to cover these costs as per the contract. 10. In continuation, the Claimant / Counter-Respondent sustains that between the end of December 2012 and the beginning of January 2013, he tried on various occasions to reach the Respondent / Counter-Claimant, however to no avail. In particular, the Claimant / Counter-Respondent outlines that on 3 January 2013, he sent an e-mail to the Respondent / Counter-Claimant referring to his outstanding remuneration and requesting the latter to regularize the situation, i.e. paying his outstanding remuneration plus a flight ticket to travel back to country D, or alternatively to pay an amount of EUR 11,000 in order to terminate the contract. In this regard, the Claimant / Counter-Respondent maintains that, in spite of his request, the Respondent / Counter-Claimant did not provide him with a flight ticket country B - country D and that therefore, in the absence of sufficient means, he could not travel back to country D. However, the Claimant / Counter-Respondent further states that his agent eventually managed to contact a Respondent / Counter-Claimant’s representative who allegedly undertook to pay the outstanding remuneration, i.e. his salaries for September, October, November and December 2012, in two instalments by the end of January 2013. 11. Finally, the Claimant / Counter-Respondent affirms that on 24 June 2013, he sent an e-mail by means of which he “give[s] [the Respondent / Counter-Claimant] AD 5 (five) days to pay the amount in debt or to send a proposal consisting in the payment of that same amount that, at the present date, 40.500,00 EUR”. The Claimant / Counter-Respondent added that should the Respondent / CounterClaimant not pay, he would take legal actions against it. 12. On 3 November 2014, the Respondent / Counter-Claimant replied to the Claimant / Counter-Respondent’s claim and lodged a counterclaim, requesting to be awarded with EUR 30,791.54 in accordance with art. X.21 of the contract. 13. In its submission, the Respondent / Counter-Claimant first of all rejects the Claimant / Counter-Respondent’s allegation regarding the correspondence allegedly sent on 3 January and 23 June 2013. 14. The Respondent / Counter-Claimant further sustains that the Claimant / CounterRespondent’s salaries for the period running from 30 August to 31 December 2012 were paid to the Claimant / Counter-Respondent. In support of its assertions, the Respondent / Counter-Claimant submitted payment receipts signed by the Claimant / Counter-Respondent evidencing that an amount of 24,414.42, i.e. approx. EUR 12,500, was paid to the Claimant / Counter-Respondent. In this regard, the Respondent / Counter-Claimant emphasises that since the contract entered into force on 30 August 2012, the Claimant / Counter-Respondent was only entitled to two days of salaries for the month of August 2012. Moreover, the Respondent / Counter-Claimant stresses the Claimant / Counter-Respondent’s incoherence, who acknowledges receipt of salary but then claims the whole annual remuneration. 15. In continuation, the Respondent / Counter-Claimant alleges that in December 2012, the Claimant / Counter-Respondent left country D although he was not entitled to take days off as per art. VII of the contract. In this respect, the Respondent / Counter-Claimant further alleges that the salaries for January to June 2013 were not paid since the Claimant / Counter-Respondent was absent and therefore did not provide his services to the Respondent / Counter-Claimant. 16. In light of the foregoing elements, the Respondent / Counter-Claimant concludes that the player breached the contract. 17. In his reply to the counterclaim, the Claimant / Counter-Respondent acknowledges having signed the receipts but insists that they do not evidence that the salaries were actually paid. 18. Furthermore, the Claimant / Counter-Respondent questions why the Respondent / Counter-Claimant waited until June 2013 to terminate the contract and did not take, motu proprio, legal action against him. The Claimant / Counter-Respondent also emphasises that the Respondent / Counter-Claimant had de-registered him even before terminating the contract. 19. Finally, and after reiterating his previous argumentation, the Claimant / CounterRespondent amended his claim and requested to be awarded with EUR 43,909, i.e. EUR 40,909 as outstanding salaries plus EUR 3,000 corresponding to four flights tickets (cf. above point 7). 20. In its final comments, the Respondent / Counter-Claimant outlines that the Claimant / Counter-Respondent’s signature on the payment receipts unquestionably evidences that he acknowledges having received the net amounts referred therein. 21. The Respondent / Counter-Claimant then repeats that the Claimant / CounterRespondent did not render services to the Respondent / Counter-Claimant as from January until June 2013 and therefore, in accordance with the law of country D, he was not entitled to receive any salary. 22. Finally, the Respondent / Counter-Claimant alleges that it waited before terminating the contract because its wish was to maintain the contractual relationship; however, in June 2013, it realised that it was utopian and therefore, decided to dismiss the Claimant / Counter-Respondent. 23. Upon request, the Claimant / Counter-Respondent informed FIFA that he did not play for any club during the 2011-12 and 2012-13 seasons and thereafter played as an amateur with Club E during the 2013-14 season. 24. In spite of having been invited to do so, Club E, the Claimant / CounterRespondent’s new club, did not submit any comments. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 5 September 2014. Consequently, the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. With regard to the competence of the DRC judge to decide on the present matter, the DRC judge referred to art. 3 par. 2 and par. 3 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 DRC judge 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, a club from country D and a club from country B. 3. Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute which value does not exceed CHF 100,000. 4. Furthermore, the DRC judge 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 5 September 2014, the 2014 version of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. In this respect, the DRC judge firstly acknowledged that the Claimant / CounterRespondent and the Respondent / Counter-Claimant had signed an employment contract on 29 August 2012, valid as of 30 August 2012 until 30 June 2013. 6. In continuation, the DRC judge noted that the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant maintaining that the Respondent / Counter-Claimant had breached the contract by showing no interest in his services. In particular, the DRC judge observed that the Claimant / CounterRespondent asserts that the Respondent / Counter-Claimant only paid him one monthly salary and did not provide him with a flight ticket in order to go back to country D after Christmas. 7. Thereafter, the DRC judge took note that the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent alleging that the latter left the country in December 2012 without authorisation and never came back, which constitutes, in its opinion, a breach of contract. 8. Having established the aforementioned, the DRC judge deemed that the underlying issue in this dispute, considering the claim of the Claimant / Counter-Respondent and the counterclaim of the Respondent / Counter-Claimant, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant / Counter-Respondent, and which party was responsible for the early termination of the contractual relationship in question. 9. In view of the above, the DRC judge deemed it appropriate to shortly recall the timeline of events in the present matter according to the documentary evidence provided by either party as well as the respective allegations which have remained uncontested by the opposing party. 10. In this context, the DRC judge outlined that it is uncontested that the Claimant / Counter-Respondent left country D during the Christmas period of 2012 and did not come back afterwards. In this regard, the DRC judge deemed of utmost importance to point out that both parties stopped executing their reciprocal obligations as of that date. Consequently, the DRC judge concluded that, even though the Respondent / Counter-Claimant formally terminated the contractual relationship on 3 June 2013, the latter had de facto been terminated at the end of December 2012. 11. The DRC judge then turned his attention to the question of which party was to be held liable for the early termination of the contractual relationship. In doing so, the DRC judge first of all took note that the Claimant / Counter-Respondent sustains that the Respondent / Counter-Claimant had only paid him one monthly salary until the end of December 2012. In this respect, the DRC judge observed that the Respondent / Counter-Claimant, for its part, alleges that it complied with its contractual obligations and submitted documents evidencing that an amount of EUR 12,500 had been paid to the Claimant / Counter-Respondent during the relevant period. As a consequence, and considering that until the end of December 2012, the amount of EUR 13,500 had fallen due, the DRC judge held that when the contract was terminated, an amount of EUR 1,000 was actually outstanding. 12. In continuation, the DRC judge acknowledged that the Claimant / CounterRespondent satisfactorily proved having requested the club to provide him with a flight ticket on 3 January 2013. However, the DRC judge further outlined that after that date, the Claimant / Counter-Respondent had remained silent and had not taken any other measure in order for the contract to be executed until June 2013, i.e. for more than six months, manifesting by doing so his satisfaction with the situation and his lack of interest in maintaining the contractual relationship. 13. On the other hand, the DRC judge noted that the Respondent / Counter-Claimant asserts that the Claimant / Counter-Respondent breached the contract by leaving the country in December 2012 without being authorised to do so. In this regard, the DRC judge deemed it fit to emphasise that if the club had considered that the Claimant / Counter-Respondent was in breach of his contractual obligations, it should have urged the latter to travel back to country D in order to resume his duties. In particular, the DRC judge pointed out that the Respondent / CounterClaimant had the opportunity to express its grievances when the Claimant / Counter-Respondent requested it to provide him with a flight ticket. However, and instead of doing so, the DRC judge stressed that the Respondent / Counter-Claimant did not provide him with the requested flight ticket and remained inactive until 3 June 2013 when it decided to unilaterally terminate the contract. In view of the above, the DRC judge held that, like the Claimant / Counter-Respondent, the Respondent / Counter-Claimant’s attitude clearly demonstrates that it was no longer interested in maintaining the contractual relationship. 14. In light of the foregoing, the DRC judge held that both parties, by their respective behaviour, manifestly expressed their intention of being no longer bound by the contractual relationship and therefore concluded that none of them could be held liable for the early termination of the contractual relationship. 15. Having established the above, the DRC judge reverted to the Claimant / CounterRespondent’s claim for outstanding remuneration. In this respect, the DRC judge referred to his previous consideration and established that at the time of termination, an amount of EUR 1,000 was outstanding. The DRC judge however considered that even though the Claimant / Counter-Respondent’s salary for December 2012, i.e. EUR 4,500, had not formally fallen due on the date of termination, the Claimant / Counter-Respondent had rendered his services to the Respondent / Counter-Claimant for the entire month of December 2012 and therefore decided to award it to the Claimant / Counter-Respondent as outstanding remuneration. 16. In view of the above, in accordance with the principle of pacta sunt servanda and taking into account the fact that the employment contract was terminated at the end of December 2012, the DRC judge decided that the Respondent / CounterClaimant is liable to pay the Claimant / Counter-Respondent the amount of EUR 5,500. 17. Equally, as regards the Claimant / Counter-Respondent’s claim pertaining to air tickets, on the basis of the information provided by FIFA Travel and referring to the art. X.2 of the employment contract, the DRC judge decided that the Respondent / Counter-Claimant must reimburse to the Claimant / Counter-Respondent the amount of EUR 410 for one air ticket country D – country B. 18. Consequently, the DRC judge decided to partially accept the Claimant / CounterRespondent’s claim, and to reject the Respondent / Counter-Claimant’s counterclaim. 19. Finally, the DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant / Counter-Respondent is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted. 2. The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected. 3. The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, the amount of EUR 5,910. 4. In the event that the amount due to the Claimant / Counter-Respondent in accordance with the above-mentioned point 3 is not paid by the Respondent / Counter-Claimant within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant / Counter-Respondent is rejected. . The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge 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 DRC judge: Markus Kattner Acting Secretary General Encl. CAS directives