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 24 April 2015, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Leonardo Grosso (Italy), member Philippe Diallo (France), member Todd Durbin (USA), member on the claim presented by the player, A, country S, represented by Mr xxxx as Claimant against the club, B, country L, as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1.

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 24 April 2015, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Leonardo Grosso (Italy), member Philippe Diallo (France), member Todd Durbin (USA), member on the claim presented by the player, A, country S, represented by Mr xxxx as Claimant against the club, B, country L, as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 14 January 2012, the player from S, A (hereinafter: player or Claimant), and the club from L, B (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract), valid as from 14 January 2012 until 30 November 2013, as well as an agreement (hereinafter: agreement) in addition thereto. 2. According to the contract, the club undertook to pay the player a monthly salary of xxxx (xxx) 100,000. 3. According to the agreement, the club undertook to pay the total amount of xxx 34,178,750 for the year 2012 to the player, payable in monthly instalments falling due on the 1st day of the month as from February 2012 until 1 December 2012. In particular, between September and December 2012, on the first day of these months, the amount of xxx 2’568’875 fell due. 4. According to the agreement, the club undertook to pay the total amount of xxx 34’178’750 to the player for the year 2013. 5. The agreement further stipulates that the club shall compensate the player for “transportation costs and expenses related to his departure and arrival with a view to take up employment.” 6. By letter dated 28 September 2012, the club terminated the contract and the agreement, with effect as of 1 October 2012, invoking the player’s absence from work during “three and more hours consecutively for one working day” as well as articles 2.2.3, 2.2.5, 7.1 par. 7 of the contract. Said contractual clauses deal with the player’s obligations to comply with work discipline and coach instructions, to carry out instructions of superiors and club officials, as well as the termination of the employment contract in case of breach of the contractual terms and conditions, respectively. 7. On 15 January 2013, the player lodged a claim against the club in front of FIFA for breach of contract without just cause and requested to be awarded payment of the following amounts: - xxx 2’568’875 corresponding to the outstanding salary of September 2012; - xxx 2’568’875 corresponding to the outstanding salary of October 2012; - xxx 1’284’438 corresponding to the outstanding salary of November 2012 before the termination; - xxx 226’470 corresponding to flight ticket costs “X-Y-X”; - xxx 35’463’188 as compensation corresponding to the residual value of the agreement. In addition, the player requested 5% interest “for every single payment since the due date” and that disciplinary sanctions be imposed on the club. 8. In his arguments, the player stated that while recovering from an injury and after he returned to L on 14 October 2012, he was told by the club that his services are no longer needed and that his contract was already terminated on 28 September 2012 after allegedly not having shown up for work for more than three hours. The player acknowledged having received the termination letter on 17 October 2012 in S. 9. According to the player, the club justified the termination on “absence of the employee from work without a justifiable reason three and more hours consecutively for one working day”. The player stated that he was injured and in the recovery phase and that the termination therefore was without just cause. 10. The player further stated that prior to his return to L on 14 October 2012, during a telephone conversation, he was offered a premature termination of the contract with the club, which he declined. 11. Moreover, the player acknowledged having received salaries as of January 2012 until August 2012. He further stated that the payment set out in the contract, i.e. xxx 100’000 monthly, was included in the payments defined in the agreement. 12. According to the player, on 2 November 2012, he put the club in default and requested payment of outstanding salaries for September to November 2012. The club then answered that due to the contract termination with effect as of 1 October 2012 all salaries had been paid. 13. After the closure of the investigation-phase of the present matter, the club replied to the player’s claim arguing that all financial obligations towards the player were fulfilled, since the contract was terminated as of 1 October 2012. Moreover, the club maintained that the salary of September 2012 was paid to the player. 14. Furthermore the club argued that it terminated the contract by imposing a “disciplinary penalty” on the player for not appearing in the club’s office without notification. In support of this argument, the club attached a written statement of the team doctor stating that the player did not appear for the final stage of his rehabilitation and “got out of contact”. 15. The player informed FIFA that he remained unemployed during the period of time between 28 September 2012 and 30 November 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 15 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 S and a club from L. 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 15 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 14 January 2012, the parties had signed an employment contract as well as an agreement, both valid as from 14 January 2012 until 30 November 2013. 6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the employment contract and agreement were terminated by the Respondent without just cause. In this respect, the Claimant states that the salaries of September, October and parts of November 2012 as well as flight ticket costs had remained outstanding at the time of the termination of the employment relation. Consequently, the Claimant asks to be awarded outstanding dues as well as compensation for breach of the employment contract. 7. Subsequently, the DRC observed that the Respondent, for its part, in spite of having been invited to do so, failed to present its response to the claim of the Claimant within the set time-limit. In fact, the reply of the Respondent was only received after the investigation-phase of the matter had already been concluded. As a result, the DRC decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant. 8. In this context, the Chamber acknowledged that it had to examine whether the employment contract and the agreement were terminated by the Respondent with or without just cause and to decide on the consequences thereof. 9. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 10. In view of the above, the Chamber took into account that the Respondent terminated the employment contract and the agreement by a letter, dated 28 September 2012, with effect as of 1 October 2012, invoking an absence of the player from work during “three and more hours consecutively for one working day”. However, regardless of the question whether the Claimant was indeed absent during said time frame, the Chamber was of the firm opinion that the Respondent did, in any case, not have just cause to prematurely terminate the employment contract and agreement with the Claimant on such basis, since an alleged absence of three hours could not legitimately be considered as being severe enough to justify the termination of the contract and the agreement, and that there are more lenient measures which the Respondent could have taken. 11. On account of the above, and in the absence of any other reason for the termination of the contract and the agreement by the Respondent, the Chamber concluded that the Respondent had no just cause to unilaterally terminate the contract and the agreement with effect as of 1 October 2012 and, therefore, decided that the Respondent is to be held liable for the early termination of the employment relation without just cause. 12. In continuation, prior to establishing the consequences of the termination of the employment contract and agreement without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration when the Respondent terminated the employment relation. 13. In this regard, the members of the Chamber took into account that at the date of termination of the contract and the agreement, i.e. 1 October 2012, the salary of September 2012 in the amount of xxx 2,568,875 had fallen due and remained unpaid by the Respondent without valid reason. 14. Furthermore, as regards the Claimant’s claim pertaining to air tickets, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the agreement, the Chamber decided that the Respondent must pay to the Claimant the amount of xxx 55,553 for a one-way ticket from X to Y. 15. 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 xxx 2,624,428 in connection with the remuneration due to the Claimant in accordance with the employment contract and the agreement until their early termination. 16. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of xxx 2,568,875 as of the day following the due date of the salary payment for September 2012. 17. Having established the above, the Chamber turned its attention to the question of the consequences of the termination of the employment contract and the agreement by the Respondent without just cause on 1 October 2012. 18. 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. 19. 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. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract and agreement contain 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 or the agreement at the basis of the matter at stake. 21. 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. 22. 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. 23. 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 and the agreement as from the date of termination without just cause by the Respondent, i.e. 1 October 2012, until the original date of expiry, i.e. 30 November 2013, and concluded that the Claimant would have received remuneration in the total amount of xxx 39,316,500 had the contract and the agreement been executed until their ordinary expiry date. Consequently, the Chamber concluded that the amount of xxx 39,316,500 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 24. 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. 25. In this regard, the members of the Chamber noted that the Claimant had not signed any new employment contract for the period of time between the termination of the contract and the agreement and their original date of expiry and, thus, had not been able to mitigate damages. 26. 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 xxx 39,316,500 to the Claimant as compensation for breach of contract in the case at hand. 27. 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. 15 January 2013, until the date of effective payment. 28. 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, A, is partially accepted. 2. The Respondent, B, has to pay to the Claimant, outstanding remuneration in the amount of xxxxx (xxx) 2,624,428, within 30 days as from the date of notification of this decision. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, interest of 5% p.a. on the amount of xxx 2,568,875 as of 2 October 2012 until the date of effective payment. 4. 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 xxx 39,316,500 plus 5% interest p.a. as from 15 January 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant 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. 6. Any further claim lodged by the Claimant is rejected. 7. 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: Markus Kattner Deputy Secretary General Encl: CAS directives