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 between the parties I.

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 between the parties I. Facts of the case 1. On 9 August 2011, 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, valid as of 10 August 2011 until 30 June 2013 (hereinafter: contract). 2. In addition, on 10 August 2011 the club and the player signed the ``Additional agreement N°1’’ (hereinafter: agreement), the duration of which is not specified. 3. In accordance with the contract, the player was entitled to receive a salary of 50,000 per month “without taking into account the compensating, stimulating and social payments”. 4. Moreover, the agreement provides that the player is entitled to a monthly 190,000 corresponding to “monthly incentive payments for the high level of qualification”. The agreement further provides for monthly remuneration of 20,000 for the rental of a flat. 5. In addition, the agreement states that “the overall player’s salary consisting of the base wage and incentive payments for the high level of qualification is 240,000”. 6. The contract contains the following compensation clause (cf. art. 10.3 of the contract): ``in case of termination of the contract on the initiative of the Player (on his on will), the Player is obligated to produce the payment in favor of the Club in amount of 10,000,000 (ten millions)’’ corresponding to “unlawful reduced monthly salaries of 30% each”. Furthermore, the contract stipulates that ``the labor contract can be terminated on the basis, provided by chapter 13 and article 348.11 of the Labor Code of the Federation of country D’’. The contract does not include any stipulation regarding the sum payable by the club to the player in case of breach of contract by the club. 7. On 23 April 2012, the player put the club in default of the payment of the total amount of 1,284,000 relating to outstanding salaries for January until March 2012 (i.e. 720,000), the salary for the month of April 2012 which falls due on 30 April 2012 (i.e. 240,000), as well as the outstanding balance relating to alleged missing amounts on previous salary payments, i.e. 324,000. The player sent two further reminders on 9 May and 25 May 2012. In the reminder of 25 May 2012, the player informed the club that in the event of failure to comply with the payment and other financial obligations agreed upon under the terms of the contract, i.e. 1,524,000 with the month of May 2012 included, he would terminate the contract and “claim for the debt plus compensation”. 8. On 11 June 2012, the player sent formal notification of unilateral termination on the basis that the club breached the contract without just cause. 9. On 19 July 2012, the club sent notice of termination of the contract to the player and to the Football Union of country D for unauthorised absence on the basis of national law and a decision allegedly taken by the board of the club on 25 June 2012. 10. On 3 July 2012, the player lodged a claim against the club in front of FIFA maintaining that the latter breached the employment contract without just cause during the protected period. Therefore, the player requests that disciplinary sanctions be imposed on the club and that procedural costs be borne by it, as well as the payment of 5,004,000 plus 5% interest p.a. as from the relevant due dates, as follows: a. Outstanding remuneration in the amount of 1,624,000 relating to the 2011/12 season: i. Monthly salary from January to May 2012 (240,000 x 5 months) 1,200,000 ii. Flat rental from January to May 2012 (20,000 x 5 months) 100,000 iii. Outstanding balance relating to unpaid salaries (72,000 x 4.5 months) 324,000 b. Compensation for breach in the amount of 3,380,000, as follows: i. Monthly salary of June 2012 240,000 ii. Monthly salary from July 2012 until June 2013 (240,000 x 12 months) 2,880,000 iii. Flat rental for June 2012 20,000 iv. Flat rental from July 2012 until June 2013 (20,000 x 12 months) 240,000 11. The player claims that the club exempted him from attending a training camp taking place between 10 and 20 January 2012 and provided an undated letter which was sent to his agent to substantiate his allegation, which states that the club “confirms that the player is not obligated to come over to city E for the training camp from January 10th till January 20th, 2012. The player can practice according to his personal program to keep the necessary physical form. The physical test will be made upon the player’s arrival”. 12. The player maintains that the club verbally told him that it did ``not count on him anymore’’ and that he ``should look for another club’’. Moreover, the player sustains that in March 2012 the club sent him, via his agent, ``a mutual agreement for a prematurely termination’’ of the employment contract. Moreover, the player claims not to have accepted the club’s proposal as it solely contained ``the amount until the date of termination as indemnity’’ and he could not stay without any income from March until June 2012. 13. The player sustains that the club did not reply to any of his reminders and failed to answer his telephone calls. Consequently, on 11 June 2012, the player terminated the employment contract (cf. point I.8 above). According to the player, at the time of the termination the outstanding sums amounted to 1,624,000. 14. After the closure of the investigation (i.e. 6 June 2013) the club replied on 14 June 2013 claiming that it had only been made aware of the claim after having received the letter informing it of the closure of the investigation. In this respect, it must be noted that the Football Union of country D, on 7 April 2015, stated that “FIFA documents regarding the Player A were forwarded to Club C (city F) by company G on 20.08.2012 (reference number XXXX)”. 15. With regards to the substance of the matter at hand, the club claim that the player stopped fulfilling his contractual duties as from 21 January 2012. It states that it requested the assistance of the Football Union of country D on 21 March 2012 and 26 April 2012 to assist it in having the player return to the club, it states however that the only consequence was that the player started requesting his salaries. 16. The club states that it is because of the player’s alleged absence that it was forced to send a request on 2 March 2012 for the player to go to the club in order to explain his absence since 21 January 2012, warning the player that if he did not show up the club would initiate the procedure for termination. It also sent the player e-mails on 4 April 2012 reminding him that he was asked to return and stating that it would not pay the player due to his absence. 17. To substantiate its response relating to the absence of the player further, the club provides multiple affidavits from members of staff noting the absence of the player from training dated between 21 January 2012 and 4 June 2012. 18. The player begins his replica by requesting that the Dispute Resolution Chamber disregard all documentation and argumentation submitted by the club in light of the fact that the club’s response arrived after the closure of the investigation. Furthermore, the player claims that the club has provided falsified documentation relating to his absence (cf. point I.17 above) asserting that all six documents provided were signed by the same people on the same day, at the same time (i.e. 17h25) and not over a period of five months, adding that only the dates were modified. He continues and adds that the translation of the documents was not complete: the dates, in particular, were not translated. 19. The player does not dispute that he was absent as from 21 January 2012, yet questions why the club did not seek to address the situation as soon as 21 January 2012. He states that due to an absence of more than fifteen days, the club could have unilaterally terminated the contract with just cause but did not, and because the club did not terminate the employment relationship this goes to show that the club had, indeed, given him a verbal statement where an agreement was met (cf. points I.11 and I.12 above). 20. With regard to the club’s alleged request of 2 March 2012, the player claims that he would never have received it because the domain name was incorrect. 21. In continuation, the player states that by not inviting him to the training camp and verbally asking him to find another club, the club was “simply finding a way to get rid of me”. He adds that he was offered release on a free transfer, free of any compensation, which he refused stating that he would not be remunerated for a period of two months. The player also notes that the club never responded to any of the reminders or default notices sent to it. 22. In its final response, the club asserts that all statements and affidavits are authentic. The club provides an e-mail sent 4 April 2012, which indicates that the club had requested the player to return, as well as a statement that the club is not obliged to pay a player who is absent without leave (cf. point I.9 above). 23. The club also states that it was by a decision taken by “order of the club dated 25.06.2013” that the contract with the player was terminated by the club on 19 July 2012, on the basis of national law. Finally, it requests that the player’s claim is rejected. 24. In response to FIFA’s pertinent request, the player informed FIFA that on 2 July 2012 he signed a new employment contract with the club from country B, Club H, valid until 30 June 2014, the terms of which provide that the player is inter alia entitled to the amount of 80,000 per month, payable on the 15th, and “compensation for the player’s transfer” of 550,000, total EUR 12,966 (from 2 July 2012 until 30 June 2013). II. Considerations of the Dispute Resolution Chamber 1. First, 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 3 July 2012. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2008 edition; 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 (2015 edition) 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 edition of the 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 (2015 edition), and considering that the present claim was lodged on 3 July 2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The Chamber started by acknowledging the aforementioned facts of the case as well as the documentation contained in the file. The DRC however 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 the parties had signed an employment contract valid from 10 August 2011 until 30 June 2013 in accordance with which the Claimant was entitled to inter alia receive the total amount of 240,000 per month as salaries, and a further 20,000 a month in housing allowance. 6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that after having been offered what he deemed to be an unacceptable mutual termination offer, he had terminated the contract with just cause after the Respondent did not react to having been put in default of outstanding amounts on 23 April, 9 May and finally 25 May 2012 (cf. point I.7 above). The Claimant sent the club a formal letter of termination of the employment contract on 11 June 2012. The Claimant asserts that he was not paid 324,000 between 10 October 2011 and 31 December 2011 as well as salaries of 1,200,000 and housing allowance of 100,000 between January and May 2012. The Claimant therefore asks to be awarded the aforementioned outstanding sums in addition to compensation for breach of contract in the total amount of 5,004,000 pertaining to the residual value of the employment contract. 7. Subsequently, the Chamber observed that the Respondent for its part had, in spite of having been invited to do so, failed to present its response to the claim of the Claimant within the relevant time-limit. The members of the Chamber noted from the elements on the file that the reply of the Respondent was only received after the investigation-phase of the matter had already been concluded. The DRC equally noted that in response to a pertinent request by the FIFA administration, the Football Union of country D confirmed that it had validly, and within a reasonable time-frame, forwarded all documentation pertaining to the claim to its affiliated club, the Respondent. Consequently, the Chamber decided to not 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 on 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. Notwithstanding the foregoing, the DRC deemed it should still analyse the argumentation and documentation submitted by the Claimant, and verify whether the contract had in fact been unilaterally terminated with just cause by the Claimant, and on which date. 9. In this respect, 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. 10. In this context, the members of the Chamber then took note that the Claimant had managed to substantiate his allegation with regard to the aforementioned art. 12 par. 3 of the Procedural Rules that he was authorised to not be at training until 20 January 2012, but did state having been absent from 21 January 2012. The Chamber took note that the player had only put the Respondent in default of its obligations for the first time on 23 April 2012 and had never proposed his services since his absence from 21 January 2012. 11. In continuation, and also with regards to the aforementioned art. 12 par. 3 of the Procedural Rules, the members of the Chamber took note that the Respondent had not submitted evidence within the allocated time-limit to demonstrate that it had immediately sought the player out in order to continue with the execution of the employment relationship. 12. Consequently, the DRC was of the opinion that both the Claimant and the Respondent had tacitly accepted that the neither party was interested in continuing the employment relationship and as such the employment contract was de facto terminated by tacit mutual agreement on 21 January 2012. Consequently, neither party is entitled to compensation. 13. Notwithstanding the foregoing, the Chamber was eager to emphasise that it must still verify whether any contractually prescribed amounts had remained outstanding at the moment the contract was tacitly considered as terminated by the parties. 14. Subsequently, the members of the Chamber noted that, the Respondent did not dispute that the amounts claimed by the player as having remained outstanding between 10 October 2010 and 31 December 2011 had not been paid and did not provide any evidence of payment. 15. Therefore, taking into account that the contract was to be deemed to have been terminated on 21 January 2012 and that the Respondent did not contest that the relevant salaries had remained unpaid, the members of the Dispute Resolution Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations towards the Claimant for the time he had rendered his services for the Respondent, i.e. until 21 January 2012. 16. Consequently, the Chamber deemed that the Respondent has to pay to the Claimant the undisputed outstanding amounts of 324,000 pertaining to the months of October to December 2011, as well as the pro-rata calculation of the salary of January 2012 until the time the Claimant rendered his services for the Respondent, i.e. until 21 January 2012, in the sum of 162,580 plus housing allowance in the amount of 20,000. The Respondent has to pay the Claimant the total amount of 506,580. 17. In continuation and with regard to the Claimant’s request for interest, the DRC decided that the Claimant is entitled to receive interest of 5% p.a. on the amount of 506,580 from the day following the termination, i.e. 22 January 2012, until the date of effective payment. 18. The members of the Chamber concluded their deliberations in the present matter 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, the amount of country 506,580 plus 5% interest p.a. as from 22 January 2012 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, 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 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 Acting Secretary General Encl: CAS directives