F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 10 April 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman John Bramhall (England), member Jon Newman (USA), member Taku Nomiya (Japan), member Mario Gallavotti (Italy), 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 between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 10 April 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman John Bramhall (England), member Jon Newman (USA), member Taku Nomiya (Japan), member Mario Gallavotti (Italy), 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 between the parties I. Facts of the case 1. On 12 February 2012, the player from country B, Player A (hereinafter: player or Claimant), and the club from country D, Club C (hereinafter: club or Respondent), signed an employment contract (hereinafter: the contract), valid from 12 February 2012 until 12 December 2013. 2. According to Art. 6.1 of the contract, the club undertakes to pay the player USD 14,000 as monthly salary. 3. In addition, according to Art. 6.2 of the contract, the club undertakes to pay the player, inter alia, the following amounts as bonuses: - “A bonus for each won match in the Championship of country D – From 2.000 (two) - to 7.000 (seven) thousand USD”; - USD 6,000 for every victory in the AFC Champions League; - USD 10,000 for winning the Championship of country D. - USD 10,000 for reaching the semi-finals of the AFC Champions League. 4. Art. 6.3 of the contract refers to Appendix 1, Art.1.1. of which defines the details regarding the bonus payments as follows: “The award for a victory is paid to football players according to reports of matches: Players of a starting lineup are awarded according to played time and the contribution to result of game to 100% from the sum specified in item 6.3. The given contract; The Players of spare structure entered in the minutes of a match, but not left the game, are awarded at the rate of 30%; The Players participating in game from spare structure, are awarded according to playing time and the contribution to result of game at the rate 50%; The Players who left on replacement, and, turned a match outcome, are awarded at the discretion of a club management; The Players who have left on replacement, but not strenghthened game and played below level, are awarded to 30% or awarding lose; The Players who have left on replacement (tactical replacement), are awarded to 30%; The award at a rate of 100% from the initial sum declared at signing contract is paid to Players of a national team of country D.” 5. Between 4 January and 15 January 2013, the player sent five default notices to the club requesting payment of the partial salaries of March until October 2012, the salaries of November and December 2012 as well as several bonus payments. 6. On 18 January 2013, the player terminated the contract unilaterally invoking non-compliance of the club with its financial duties. 7. On 21 January 2013, the player lodged a claim in front of FIFA maintaining that the club is to be held liable for the early termination of the contract and he requested to be awarded the following monies: a) USD 61’049 as total amount of outstanding salaries: - USD 2,840 corresponding to the partially unpaid salary of February 2012 plus 5 % interest as of 1 March 2012; - USD 2,240 corresponding to the partially unpaid salary of March 2012 plus 5 % interest as of 1 April 2012; - USD 2,240 corresponding to the partially unpaid salary of April 2012 plus 5 % interest as of 1 May 2012; - USD 2,240 corresponding to the partially unpaid salary of May 2012 plus 5 % interest as of 1 June 2012; - USD 2,240 corresponding to the partially unpaid salary of June 2012 plus 5 % interest as of 1 July 2012; - USD 2,240 corresponding to the partially unpaid salary of July 2012 plus 5 % interest as of 1 August 2012; - USD 2,240 corresponding to the partially unpaid salary of August 2012 plus 5 % interest as of 1 September 2012; - USD 2,240 corresponding to the partially unpaid salary of September 2012 plus 5 % interest as of 1 October 2012; - USD 6,400 corresponding to the partially unpaid salary of October 2012 plus 5 % interest as of 1 November 2012; - USD 14,000 corresponding to the salary of November 2012 plus 5 % interest as of 1 December 2012; - USD 14,000 corresponding to the salary of December 2012 plus 5 % interest as of 1 January 2013; - USD 8,129 corresponding to the pro-rata salary of January 2013 plus 5 % interest as of 19 January 2013. b) USD 41,500 as outstanding bonuses plus 5% interest as of 19 January 2013; c) USD 154,000 as compensation for breach of contract plus 5% interest as of 19 January 2013 (11 months x USD 14,000). 8. The total bonus payment of USD 41,500 was detailed by the player as follows: - USD 10,000 for the victory in the Cup of country D in 2012; - USD 10,000 for reaching the semi-finals in the AFC Champions League; - USD 4,500 for the victory in the game against Club E on 21 June 2012; - USD 6,000 for the victory in the game against Club F on 26 June 2012; - USD 3,000 for the victory in the game against Club G on 1 July 2012; - USD 2,000 for the victory in the game against Club H on 19 October 2012; - USD 2,000 for the victory in the game against Club I on 6 November 2012; - USD 2,000 for the victory in the game against Club J on 17 November 2012; - USD 2,000 for the victory in the game against Club K on 21 November 2012. 9. In his arguments, the player stated that he was not invited to the team’s preseason training camp in January 2013. Furthermore, in his default notices, he offered his services to the club. 10. In addition, the player argued that the persistent non-compliance of the club with its financial duties constitutes a just cause to unilaterally terminate the contract. 11. In its answer to the claim, the club held that the contract was not terminated, since the termination “shall be made in accordance with the Labor Code of the Republic of country D” and that the player should have returned to the club on 15 January 2013 after vacation. Furthermore, the club acknowledged having debts towards the player, without specifying an amount, and offered to pay the outstanding amount if the player collects it in country D. In addition, the club submitted a letter, dated 21 January 2013, with an invitation to the player to the training camp. 12. Moreover, the club presented a letter, dated 21 January 2013, whereby the club informed the player about an income tax deduction of 22% regarding salaries and bonuses. In the same letter, the club stated that the outstanding bonuses were paid to a “personal plastic card” issued by a bank. 13. In his replica, the player upheld his position and pointed out that the club excluded him from the first team by not taking him to the training camp in January 2013 and that the club was no longer interested in his services. Furthermore, the player denies having received a letter with an invitation to the club’s training camp and he points out that the letter presented by the club is dated 21 January 2013, thus after the training camp had ended. 14. In addition, the player stressed that the club did not deny its debt towards him and that it has not specified any amounts it allegedly already remitted to him, nor did it deliver any proof of payments made to him. 15. Furthermore, the player pointed out that he never had a bank account or a “plastic card” in country D and that he therefore has not received the alleged payments. In addition, the player pointed out that there is no evidence of any tax payments that were allegedly deducted from his salary. 16. In its duplica, the club argued that it is common that not every player is invited to the training camp, the purpose of such camp being “to hold reviewing training of young players and invited players”. The club further asserted that it never declared that the player was not needed anymore. Therefore, the club held that the player should have fulfilled his contractual duties and performed his work after the vacation. 17. In addition, the club acknowledged a debt of USD 21,622.37 towards the player, consisting of unpaid salaries for November 2012, December 2012 and January 2013, and USD 10,000 as unpaid bonuses for the victory in the Cup of country D competition. Furthermore, the club insisted that salary and bonus payments were tax-imposed (with a rate of 22%) and, therefore less than USD 14,000 per month was paid to the player. 18. The player informed FIFA that he remained unemployed during the period of time between 18 January 2013 until 12 December 2013. 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 21 January 2013. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 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 21 January 2013, the 2012 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 Chamber recalled that, on 12 February 2012, the parties had signed an employment contract as well as an appendix, both valid as from 12 February 2012 until 12 December 2013. 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 18 January 2013, after previously having put the club in default, since the Respondent allegedly had failed to pay the Claimant’s remuneration. In this respect, the Claimant submits that parts of the salaries of March until October 2012, the salaries of November and December 2012 and several bonus payments had remained outstanding at the time he terminated the employment contract. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 7. The Chamber noted that the Respondent argued that the termination was not valid under country D’s law and that the Claimant should have returned to the Respondent on 15 January 2013, after his vacation. 8. Nevertheless, the Respondent acknowledged outstanding payments relating to one bonus payment, the full salaries of November and December 2012 and explained that due to tax deductions of 22% less than the agreed monthly salary was paid for February to October 2012. 9. Moreover, the Respondent alleged having paid outstanding bonuses for the player to a “personal plastic card”. 10. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the Claimant had just cause to terminate the relevant employment contract on 18 January 2013 and to decide on the consequences thereof. 11. As regards the Respondent’s argument that the termination of the contract by the Claimant was not valid under country D’s law, the Chamber wished to highlight that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. This should apply, in particular, also to the termination of a contract. In this respect, the DRC wished to point out that it is in the interest of football that the termination of contract is based on uniform criteria rather than on provisions of national law that may vary considerable from country to country. Therefore, the Chamber deems that it is not appropriate to apply the principles of a particular national law to the termination of the contract but rather the Regulations on the Status and Transfer of Players, general principles of law and, where existing, the Chamber’s well-established jurisprudence. 12. In continuation, the members of the Chamber took into account that the Respondent acknowledged outstanding payments relating to one bonus payment and two monthly salaries, for November and December 2012, which had fallen due when the Claimant terminated the employment contract on 18 January 2013. 13. In respect of the Respondent’s arguments related to allegedly paid bonuses and tax reductions of 22% with regard to the Claimant’s remuneration as from February until October 2012, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 14. Bearing in mind the above, the Chamber highlighted that the Respondent did not present convincing evidence in respect of the alleged bonus payments and tax deductions, allegations that were contested by the Claimant. For the sake of completeness, the Chamber highlighted that the employment contract at the basis of the present dispute does not contain any clause dealing with tax deductions from the Claimant’s remuneration. 15. As a consequence, due to the lack of evidence corroborating the Respondent’s position, the Chamber concluded that it had to reject the Respondent’s arguments in this regard. 16. On account of the above, in particular the fact that parts of the salaries of February until October 2012, the salaries of November and December 2012 and several bonus payments were outstanding at the time of the termination of the contract by the Claimant, and taking into consideration the Chamber’s pertinent longstanding and constant jurisprudence, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 18 January 2013 and that the Respondent is to be held liable for the early termination of the contract with just cause by the player. 17. In continuation, prior to establishing the consequences of the termination of the employment contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the Claimant. 18. In this regard, the members of the Chamber recalled that at the date of termination of the contract, i.e. 18 January 2013, parts of the salaries of February 2012 until October 2012 and the salaries of November 2012 and December 2012 in the total amount of USD 52,920 had fallen due and remained unpaid by the Respondent without valid reason. 19. Furthermore, the Chamber noted that the Respondent has not denied that the Claimant is entitled to receive the claimed bonuses of USD 41,500 and recalled that the Respondent had not presented credible evidence corroboration its allegations with respect to bonus payments it asserts having made to the Claimant. 20. Consequently, on account of the above and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of USD 94,420 in connection with the remuneration due to the Claimant in accordance with the employment contract until its early termination. 21. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the day following the day on which each of the payments included in the global amount of USD 94,420 fell due. 22. Having established the above, the Chamber turned its attention to the question of the consequences of the termination of the employment contract by the Claimant with just cause on 18 January 2013. 23. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent. 24. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 25. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 27. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 28. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 18 January 2013, until 12 December 2013, and concluded that the Claimant would have received in total USD 154,000 as remuneration had the contract been executed until its ordinary expiry date. Consequently, the Chamber concluded that the amount of USD 154,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 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. In this regard, the members of the Chamber noted that the Claimant had not signed any new employment contract within the period of time between the termination of the contract and its original date of expiry and, thus, had not been able to mitigate damages. 31. Consequently, on account of the above and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 154,000 to the Claimant as compensation for breach of contract in the case at hand. 32. 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. 21 January 2013, until the date of effective payment. 33. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 94,420 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 March 2012 on the amount of USD 2,840; b. 5% p.a. as of 1 April 2012 on the amount of USD 2,240; c. 5% p.a. as of 1 May 2012 on the amount of USD 2,240; d. 5% p.a. as of 1 June 2012 on the amount of USD 2,240; e. 5% p.a. as of 1 July 2012 on the amount of USD 2,240; f. 5% p.a. as of 1 August 2012 on the amount of USD 2,240; g. 5% p.a. as of 1 September 2012 on the amount of USD 2,240; h. 5% p.a. as of 1 October 2012 on the amount of USD 2,240; i. 5% p.a. as of 1 November 2012 on the amount of USD 6,400; j. 5% p.a. as of 1 December 2012 on the amount of USD 14,000; k. 5% p.a. as of 1 January 2013 on the amount of USD 14,000; l. 5% p.a. as of 19 January 2013 on the amount of USD 41,500. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 154,000 plus 5% interest p.a. on said amount as from 21 January 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 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 remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl: CAS directives