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/Counter-Respondent against 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 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/Counter-Respondent against 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 between the parties I. Facts of the case 1. On 4 September 2012, the player from country B, Player A (hereinafter: the Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter: the Respondent/Counter-Claimant), signed a “protocol” valid for the seasons 2012/2013 and 2013/2014. 2. According to art. 4 of the protocol, the Respondent/Counter-Claimant undertakes to pay the Claimant/Counter-Respondent, inter alia, remuneration in the amount of EUR 600,000 per season, broken down as follows: a. For the 2012/2013 season: i. EUR 70,000 per month, payable until the 20th day of each month, starting on 20 September 2012 until 20 February 2013; ii. EUR 60,000 per month, payable until the 20th day of each month, starting on 20 March 2013 until 20 May 2013. b. For the 2013/2014 season: i. EUR 60,000 per month, payable on the 20th day of each month, starting on 20 August 2013 until 20th May 2014. 3. On 24 April 2013, the Claimant/Counter-Respondent lodged a claim in front of FIFA against the Respondent/Counter-Claimant for breach of contract without just cause, requesting the payment of the total amount of EUR 1,273,947.37 plus 5% interest p.a. as from the date of the claim, broken down as follows: i. EUR 895,000 corresponding to “the sum of the salaries that Player A is entitled to receive for the remaining period of the contract“ (EUR 235,000 as in point I.5. below + EUR 60,000 for May 2013 + EUR 600,000 for season 2013/2014). ii. EUR 378,947.36 corresponding to “additional compensation for the damages caused by the breach of the Contract in the amount correspondent to six months of salaries”. iii. Sporting sanctions on the Respondent/Counter-Claimant. 4. In his claim, the Claimant/Counter-Respondent states that he fully respected all his contractual obligations. However, the Respondent/Counter-Claimant failed to pay him as per the contract; it “is not paying correctly the Players’ wages resulting in a debt of EUR 235,000”. 5. On 29 April 2013, the Claimant/Counter-Respondent sent a notice to the Respondent/Counter-Claimant by means of which he reminded it of its arrears, underlining that he was entitled to receive the amount of EUR 540,000 to that date but he only received the amount of EUR 305,000. Therefore, the amount of EUR 235,000 is outstanding. In addition, the Claimant/Counter-Respondent informed the Respondent/Counter-Claimant that, in case he would not be paid within two days, he would refer the matter to FIFA or the Football Federation of country D. 6. On 7 May 2013, the Claimant/Counter-Respondent sent a second notice to the Respondent/Counter-Claimant giving it 24 hours to comply with its contractual obligations. 7. On 13 May 2013, the Claimant/Counter-Respondent terminated the employment contract in writing with immediate effect, alleging that the Respondent/CounterClaimant has not made any payment and underlining the facts mentioned in points I.5. and I.6.. 8. In its reply to the Claimant/Counter-Respondent’s claim, the Respondent/CounterClaimant complains about the short deadline given by the Claimant/CounterRespondent to comply with its obligations, as well as the moment of their notification. According to the Respondent/Counter-Claimant, the reminders and the termination letter were all sent close to a match day. In addition, the Respondent/Counter-Claimant holds that this case is only “an attempt to unjust enrichment” underlining that the Claimant/Counter-Respondent sent his claim to FIFA before the Respondent/Counter-Claimant received any written reminder from him, which is clearly unfair. 9. Consequently, the Respondent/Counter-Claimant rejected the Claimant/CounterRespondent’s claim and on 7 June 2013, lodged a counterclaim against him, since the Claimant/Counter-Respondent had allegedly no just cause to unilaterally terminate the contract. In particular, the Respondent/Counter-Claimant requested EUR 895,000 as compensation for the unjustified termination corresponding to the residual amount of the contract. 10. Despite having been invited by FIFA to provide his reply on the Respondent/Counter-Claimant’s counterclaim, the Claimant/Counter-Respondent did not answer. 11. Also, despite having been invited by FIFA to provide its comments on the present affair, the intervening party, Club E, did not answer. 12. Finally, the Claimant/Counter-Respondent informed FIFA that after the termination of the contract with the Respondent/Counter-Claimant, he found new employment with the club from country B, Club E, from 2 January 2014 until 31 December 2014, for which he was entitled to a monthly salary of 10,000. The Claimant/Counter-Respondent claims to have terminated such contract by mutual consent on 2 July 2014 and to be ever since unemployed. 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 24 April 2013. Consequently, the 2012 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (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 b) of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B and a club from country D. 3. Furthermore, the DRC 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 (editions 2012, 2014 and 2015), and considering that the present claim was lodged on 24 April 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. First of all, the members of the Chamber acknowledged that it was undisputed by the parties that, on 4 September 2012, they had concluded an employment contract valid as from the date of signature until the end of the 2013/2014 season (cf. point I.1.above). 6. The members of the Chamber acknowledged that the Claimant/CounterRespondent lodged a claim in front of FIFA on 24 April 2013 against the Respondent/Counter-Claimant seeking payment of the total amount of EUR 1,273,947.37 corresponding to outstanding remuneration and compensation, as detailed in point I.3. above. 7. The DRC further observed that, on the one hand, the Claimant/CounterRespondent claims that the Respondent/Counter-Claimant has breached the contractual relationship without just cause, by failing to pay him in accordance with the contract (cf. point. I.4. above). In this regard, the Chamber acknowledged the documentation provided by the Claimant/Counter-Respondent, consisting of an extract of his bank account, according to which he only received the amount of EUR 305,000 between 1 November 2012 and 9 April 2013. Therefore the Claimant/Counter-Respondent deemed that the total amount of EUR 235,000 was outstanding at the date on which his claim was lodged in front of FIFA. The Chamber further observed that, by means of his correspondence dated 29 April and 7 May 2013, the Claimant/Counter-Respondent reminded the Respondent/Counter-Claimant of its situation of breach of contract and inviting it to comply with its obligations. As the Respondent/Counter-Claimant did not react to such reminders, the Claimant/Counter-Respondent terminated the contract on 13 May 2013. 8. Subsequently, the DRC noted that, on the other hand, the Respondent/CounterClaimant deemed that the Claimant/Counter-Respondent terminated the contract without just cause, since he lodged a claim in front of FIFA before the termination of the contract and only gave it a short notice in his reminders. 9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant/CounterRespondent and the allegations 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. 10. At this point already, and in relation to the documentation provided by the parties, the Chamber deemed it appropriate to refer the parties to the content of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis on an alleged fact shall carry the burden of proof”. In this particular case, the Chamber pointed out that the Respondent/Counter-Claimant did not provide any evidence in support of its position. 11. More specifically, the Chamber entering the analysis of the parties’ arguments, concurred that the Respondent/Counter-Claimant did not provide any valid reason not to comply with its obligations towards the Claimant/Counter-Respondent as per the contract. 12. Subsequently, the Chamber noted that, on the date of termination, i.e. 13 May 2013, the Claimant/Counter-Respondent should have received the total amount of EUR 540,000 as remuneration, in accordance with the contract. The Claimant/Counter-Respondent however claims and provides evidence that the Respondent/Counter-Claimant only paid him the amount of EUR 305,000. Thus, the amount of EUR 235,000, corresponding to more than three monthly salaries, remained unpaid at the date of termination, in spite of the Claimant/CounterRespondent’s reminders previously sent to the Respondent/Counter-Claimant (cf. points I.5. and I.6. above). 13. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber decided that the Claimant/Counter-Respondent had just cause to unilaterally terminate the contract on 13 May 2013 and that the Respondent/Counter-Claimant is to be held liable for the early termination of the contract with just cause by the Claimant/Counter-Respondent. 14. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 235,000 (cf. point I.5. above). 15. In addition, taking into consideration the Claimant/Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the outstanding amount of EUR 235,000 as of the date of claim, i.e. 24 April 2013, until the date of effective payment. 16. In continuation, having established that the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contract with just cause by the Claimant/Counter-Respondent, the Chamber focused its attention on the consequences of such termination. In this regard, the members of the Chamber determined that the Respondent/Counter-Claimant was not only to pay the amount of EUR 235,000 to the Claimant/Counter-Respondent (cf. point. II.15. above), but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 17. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant/Counter-Respondent by the Respondent/Counter-Claimant 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/Counter-Respondent 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. 18. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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. 19. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 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 non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 20. Bearing in mind the foregoing as well as the claim of the Claimant/CounterRespondent, the Chamber proceeded with the calculation of the monies payable to the Claimant/Counter-Respondent under the terms of the employment contract, i.e., until the end of the season 2013/2014 (cf. point I.2. above). Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the contract as from its early termination until the regular expiry of the contract amounts to EUR 660,000, corresponding to the Claimant/Counter-Respondent’s salary from May 2013 until 20 May 2014 (11 salaries of EUR 60,000 each) and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 21. In continuation, the Chamber verified as to whether the Claimant/CounterRespondent 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. 22. Indeed, on 2 January 2014, the Claimant/Counter-Respondent found employment with the club from country B, Club E (hereinafter: Club E). In accordance with the pertinent employment contract, which has been made available by the Claimant/Counter-Respondent, valid until 31 December 2014, the Claimant/Counter-Respondent was entitled to receive a monthly salary of 10,000. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant/Counter-Respondent and Club E for the period as from 2 January 2014 until end of May 2014 amounted to approximatively EUR 14,250. 23. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the Claimant/Counter-Respondent to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 24. Consequently, on account of all of the aforementioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent/Counter-Claimant must pay the amount of EUR 645,750 to the Claimant/Counter-Respondent, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 25. In addition, taking into account the Claimant/Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent/Counter-Claimant must pay to the Claimant/CounterRespondent interest of 5% p.a. on the amount of EUR 645,750 as from 24 April 2013, i.e. the date of claim, until the date of effective payment. 26. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant/Counter-Respondent’s claim and that the Respondent/CounterClaimant must pay to the Claimant/Counter-Respondent the amount of EUR 235,000 as outstanding remuneration and the amount of EUR 645,750 as compensation for breach of contract. 27. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant/Counter-Respondent is rejected and that the counterclaim of the Respondent/Counter-Claimant is rejected. ***** III. Decision of the of the Dispute Resolution Chamber 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, outstanding remuneration in the amount of EUR 235,000 plus 5% interest p.a. as from 24 April 2013 until the date of effective payment. 4. The Respondent/Counter-Claimant, has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 645,750 plus 5% interest p.a. as from 24 April 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant/Counter-Respondent in accordance with the above-mentioned numbers 2. and 3. plus interest are not paid by the Respondent/Counter-Claimant 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/Counter-Respondent is rejected. 7. The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant immediately and directly of the account number to which the remittances are 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: Marco Villiger Acting Deputy Secretary General Encl. CAS Directives