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 (DRC) judge passed in Zurich, Switzerland, on 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, 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 (DRC) judge passed in Zurich, Switzerland, on 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, 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 18 December 2013, the Player A from country B (hereinafter: player or Claimant) and the Club C from country D (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract), valid from 1 December 2013 until 30 November 2014 ‘or until the end of the season 2014’. 2. According to the contract, the player was entitled to a monthly salary of 150,000, payable at the end of each month. 3. Article 6 of the contract provides for the following: ‘If any of the below followings, the employer has the right to dismiss the player contract: (6.1) When the player’s performance does not reach the standards or pre requisites set out by the employer’ (6.2) When the player ignores the rules and regulations from the employer or his team’. According to article 7 of the contract, a ‘release from the contract’ shall take place ‘when the player neglects his responsibilities at work for more than 3 consecutive days in a row without any proper explanation’. 4. According to the player, the club did not make any payments to him after June 2014 and unilaterally terminated the contract without having just cause, on or around 30 June 2014. 5. On 8 September 2014, the player requested the club to pay his salaries for July, August, September, October and November 2014, amounting to 750,000 in total. On 25 September 2014, the club answered by forwarding the player several documents, which were allegedly sent to the player in May 2014. 6. In two documents, dated 16 May 2014 and 17 May 2014, the club warned the player that he had not shown up for the training sessions of the club between 13 May 2014 and 16 May 2014 and asked him to attend the next training sessions. In a document dated 19 May 2014, the club informed the player that he ‘broke a promise made to the club’ and that the club ‘can continue’ according to article 5, 6 and 7 of the contract. 7. In a document dated 17 September 2014, the club informed the player that it wanted to cancel the contract, because (1) he had not become an important player in the team and (2) the player ‘don’t make himself physically be ready to play even a match in all competitions, league of country D, league cup of country D and cup of country D, before finishing the first leg, the club has found solution for Mr. Player A by borrow to play another club in the second leg, but Mr. Player A refused to obey by the club order following’. 8. The player informed the club on 26 September 2014 and 10 October 2014 in writing that he was not absent from the training sessions between 13 and 16 May 2014 and that he only received the documents, allegedly sent to him in May 2014, on 25 September 2014. Further, the player stated that the club had no just cause to terminate the contract and requested again that the club pay the total amount of 750,000. According to the player, the club did not respond to his request, nor did it pay the requested amount. 9. On 21 October 2014, the player lodged a claim against the club in front of FIFA, asking that the club be ordered to pay the amount of 750,000 as compensation for breach of contract plus 5% interest and that sporting sanctions be imposed on the club. 10. The player explained that until the alleged termination of the contract, he fulfilled ‘all duties assigned to him by the club’ and that he was not absent from training sessions between 13 and 16 May 2014. Also, the player stated that his alleged poor performance cannot be a valid reason for the club to terminate the contract. Therefore, the player concludes that the club terminated the contract without having just cause. 11. In its reply to the claim of the player, the club alleges that shortly after the arrival of the player, it turned out that he was injured and that he refused to follow the club’s treatment guidelines. Therefore, according to the club, the player could not play for club. Further, the club argues that, in June 2014, the player allegedly returned to country B and that it therefore stopped salary payments as from July 2014. Finally, the club stated that it terminated the contract of the player, because of his nonwillingness to follow the injury treatment guidelines, his return to country B and his absence from training sessions for more than three consecutive days. 12. In addition, the club allegedly replied to the player, on 15 October 2014, that he had acted in breach of the contract, due to not following the orders of the club and due to his absence for more than three days. 13. For these reasons, the club asks that the player’s claim be rejected. 14. Since the alleged termination of his contract with the club in June 2014, the player has not found employment with another club. II. Considerations of the DRC judge 1. First, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 21 October 2014. Consequently, the DRC judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, 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 conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) he 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 DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (2015 edition), and considering that the present claim was lodged on 21 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 DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. 5. First of all, the DRC judge acknowledged that the Claimant and the Respondent had concluded an employment contract valid as from 1 December 2013 until 30 November 2014. As to the financial terms of said contract, the DRC judge took note that it had been agreed upon between the parties that the Respondent would pay to the Claimant a monthly salary of 150,000, payable at the end of each month. 6. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of 750,000, indicating that the Respondent had terminated the contract on or around 30 June 2014 without having just cause and that it had not remitted any salary payments as from July 2014. 7. In reply to the claim lodged against it, the Respondent alleged that the Claimant refused to follow injury treatment guidelines and that he was absent during the training sessions for more than three consecutive days. In addition, according to the Respondent, the Claimant returned to country B in June 2014. The Respondent holds that the Claimant thus acted in breach of the contract. 8. Moreover, the Respondent argued that for these reasons, it terminated the contract based on art. 6 and art. 7 of the contract and stopped salary payments as from July 2014. 9. In this context, the DRC judge acknowledged that the central issue in the matter at stake was to determine whether the reasons put forward by the Respondent could justify the termination of the contract by the Respondent in the present matter. 10. In this respect, the DRC judge 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. 11. In continuation, the DRC judge recalled that according to the Respondent the Claimant was absent from training sessions between 13 and 16 May 2014, which allegation was contested by the Claimant, who further indicated that he had not received any letter of warning from the Respondent in this regard prior to 25 September 2014. In this respect, and bearing in mind art. 12 par. 3 of the Procedural Rules relating to the general legal principle of the burden of proof, the DRC judge observed that there was no evidence of transmission of the alleged letters of warning by the Respondent to the Claimant prior to 25 September 2014 on file or any other documentation corroborating the Respondent’s allegation that the Respondent was indeed absent between 13 May 2014 and 16 May 2014. Therefore, the DRC judge concluded that the Respondent’s argument relating to the Claimant’s alleged absence must be rejected. 12. However, regardless of the question whether the Claimant was effectively absent during training sessions between 13 May 2014 and 16 May 2014, the DRC judge was of the firm opinion that the Respondent did, in any case, not have just cause to prematurely terminate the employment contract with the Claimant on this basis, since such breach could not legitimately be considered as being severe enough to justify the termination of the contract. The DRC judge emphasised that there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine) in order to inflict punishment due to an (alleged) absence of the Claimant during a few days. 13. Having said that, the DRC judge turned his attention to the Respondent’s argumentation in connection with the player’s allegedly injury and alleged refusal to follow the club’s instructions and concluded that such alleged circumstances, even if substantiated with documentary evidence, could not legitimately be considered as constituting a just cause to terminate the contract. 14. In this regard, the DRC judge highlighted that an injury, a refusal to follow treatment guidelines of the club or an unsatisfactory performance of a player can be no valid reasons to terminate an employment contract and that contractual clauses providing for a possibility to do so cannot be considered valid. 15. In line with the above, the DRC judge concluded that articles 6 and 7, which in addition have a potestative character and are to the benefit of the Respondent only, cannot be validly invoked as a basis for the termination of the contract. 16. In continuation, the DRC judge turned his attention the Respondent’s statement that, after the player returned to country B in June 2014, it ceased salary payments and terminated the contract. The Claimant, on the other hand, stated that until the termination of the contract, he fulfilled all his obligations under the contract. In this respect, the DRC judge took into account that the Respondent did not submit documentary evidence corroborating that the Claimant effectively returned to country B before the contract was terminated by the Respondent. Further, the DRC judge noted that the Respondent has not put the Claimant in default after his alleged return to country B. Therefore, the DRC judge deemed that the argument of the Respondent, in accordance with which the alleged return of the Claimant to country B was a valid reason to terminate the contract, cannot be upheld. 17. On account of all of the above, the DRC judge concluded that the Respondent had no just cause to unilaterally terminate the employment contract and, therefore, decided that the Respondent had terminated the employment contract without just cause in June 2014. 18. Consequently, in accordance with article 17 par. 1 of the Regulations, the Respondent is liable to pay compensation to the Claimant for the early termination of the employment contact without just cause. 19. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge 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 DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 21. As a consequence, the DRC judge 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 DRC judge recalled that said provision provides for a non-exhaustive 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 DRC judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 23. In accordance with the contract signed by the Claimant and the Respondent, the Claimant was entitled to receive remuneration amounting to 750,000 as from 1 July 2014 until 30 November 2014. Consequently, the DRC judge concluded that the amount of 750,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 24. In continuation, the DRC judge verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which the Claimant would have been able 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. The DRC judge noted that the Claimant had remained unemployed within the period of time between the termination of the contract and its original date of expiry, i.e. during 5 months, and, thus, had not been able to mitigate damages. 26. On account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided that the Respondent must pay the residual value of the contract, i.e. 750,000 to the Claimant as compensation for breach of contract without just cause. 27. In addition, taking into account the Claimant’s request, the DRC judge 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 October 2014, until the date of effective payment. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is accepted. 2. 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 750,000 plus 5% interest p.a. as of 21 October 2014 until the date of effective payment. 3. In the event that the afore-mentioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. 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 DRC judge 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 DRC judge: Jérôme Valcke Secretary General Encl. CAS Directives