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 15 October 2015, in the following composition: Geoff Thompson (England), Chairman Taku Nomiya (Japan), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), 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 regarding an employment-related dispute arisen 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 15 October 2015, in the following composition: Geoff Thompson (England), Chairman Taku Nomiya (Japan), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), 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 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 September 2014, 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 an employment contract and its annexes, valid as from 1 September 2014 until 31 August 2015. 2. Articles 1 and 2 of Annex 1 of the contract stipulate that: a. The Respondent/Counter-Claimant “agreed to pay the Player monthly wage, allowance and contracts fee such as follows: i. Fee transfer: USD 90,000 (Ninety thousand dollars us). In case of liquidation of the player ahead of time to return to club transfer fee amount equal to the remaining duration of the contract. ii. Wage of the player are: USD 9,000/month (nine thousand US on month) [the Respondent] shall pay individual income tax for the player”. b. “During the time not playing club, the club will pay a salary for players with 50% of the monthly salary”. c. the Respondent/Counter-Claimant is responsible for “meals, accommodation and move for the player” and “the player will eat, in focus with the other players of the team”. Furthermore, “the club is responsible for providing a player’s wife (01) Roundtrip air tickets in case of wife player to country D”. 3. Furthermore, article 2 of the contract inter alia states “during going on tour for competition the Player shall stay with the team. The Club covers all cost for such accommodation and foods”. The contract also provides that “in case the player breaks the regulations of [the Respondent] he will be warned, fired an amount of money: USD 10,000 or even sacked by the club without any compensation for this agreement termination”. 4. Article 1 of Annex 1 of the employment contract also stipulates “during play game of the season if the club’s expertise assessment council not satisfactory with the player, the club will liquidate the contract with the player without having to pay compensation for any expenses”. It further stipulates that “in case of liquidation of the player ahead of time to return to the club transfer fee amount equal to the remaining duration of the contract”. 5. On 12 January 2015, the Respondent/Counter-Claimant notified the Claimant/Counter-Respondent of the termination of the employment contract in writing reminding him and requesting “Player A return completed obligation to repay the transfer fee under the contract signed with the football club and the club will Club C completing the legal for players to play”. 6. On 16 January 2015, the Claimant/Counter-Respondent lodged a claim in front of FIFA against the Respondent/Counter-Claimant asking that he be paid a total of USD 120,000, broken down as follows: a. Outstanding remuneration in the total amount of USD 57,000, as follows: i. remaining amount of the alleged sign-on fee (cf. point I.2.a.i. above): USD 30,000. ii. salaries of December 2014, January and February 2015 for a total of EUR 27,000. b. Compensation for breach of contract, amounting to the residual value of the contract, i.e. March 2015 until September 2015 for the total amount of USD 63,000. 7. The Claimant/Counter-Respondent claims that the Respondent/Counter-Claimant unilaterally terminated the employment contract with him without just cause (cf. point I.5 above) by asking him, during a meeting on 14 January 2015 to find another club and to stop participating in any training or club activities. The Respondent allegedly provided him with a copy of the termination letter (cf. point I.5 above) but did not give any reason for the premature termination of the contract. The Claimant/Counter-Respondent submitted a newspaper article dated 15 January 2015, the title of which states “League of country D teams sack foreign players for poor performance, health issues”. 8. The Claimant/Counter-Respondent further claims that the Respondent/CounterClaimant refused to send the release papers to the Football Federation of country D unless he paid the Respondent back certain sums relating, in particular, to the alleged “transfer fee” (cf. points I.2.a.i and I.5 above). The Claimant/Counter-Respondent questions why he would have to pay compensation to the Respondent when it was the Respondent that terminated the employment contract unilaterally. In addition, the Claimant/Counter-Respondent claims to have been forced to leave his hotel. 9. Before entering into the substance of the reply of the Respondent/Counter-Claimant, it must first be noted that the Respondent/Counter-Claimant initially sent an incomplete copy of its reply within the timeframe given by FIFA to respond to the claim, i.e. 24 February 2015. In reply to FIFA’s pertinent request that FIFA be provided with a complete copy of the Respondent/Counter-Claimant’s position regarding the claim, the Respondent/Counter-Claimant provided FIFA with a different submission, which included a counterclaim dated 3 July 2015. 10. In its reply, the Respondent/Counter-Claimant stated that the reason for the termination was the multiple violations of the terms of the employment contract. Indeed, the Respondent/Counter-Claimant claims that the Claimant/CounterRespondent, by deciding to live in a hotel without the authorisation of the Respondent, violated article 2 of the first annex to the employment contract, which stipulates “the player will eat, in focus with the other players of the team” (cf. point I.2.c above). 11. The Respondent/Counter-Claimant continues by asserting that the Claimant/CounterRespondent showed poor performance in both physical and professional aspects, and upon a decision by the members of the Respondent it was decided on 12 January 2015 that the Claimant/Counter-Respondent did not satisfy the requirements of the Respondent/Counter-Claimant. 12. Furthermore, the Respondent/Counter-Claimant claims that in relation to article 1 of Annex 1 of the contract (cf. point I.4 above), the Claimant/Counter-Respondent is not entitled to receive the remainder of the sign-on bonus (i.e. USD 30,000) and should have to pay the Respondent/Counter-Claimant USD 26,250. The Respondent/CounterClaimant claims that the Claimant/Counter-Respondent was entitled to USD 33, 750 of the sign-on fee for the four and a half months he was registered with it, and asserts that because it paid the Claimant/Counter-Respondent USD 60,000 of the sign-on fee, he should pay back USD 60,000 – USD 33,750 = USD 26,250 to the Respondent/Counter-Claimant, and is not entitled to the remaining USD 30,000. 13. The Respondent/Counter-Claimant claims it is entitled to fine the Claimant/CounterRespondent USD 10,000 as disciplinary sanction for violating the employment contract (cf. point I.3 above). It therefore claims to be entitled to USD 10,000 from the Claimant/Counter-Respondent. It further asserts that it should not have to pay for any flight tickets in relation to article 2 of Annex 1 of the employment contract, on the basis that the Claimant/Counter-Respondent’s wife never travelled to country D. 14. Based on the foregoing, on 10 July 2015 the Respondent/Counter-Claimant lodged a counterclaim against the player requesting that “Player A refund a part of transfer fee to Club C and pay the penalty due to his breach of the Labour Contract” for the amount of USD 26,250 plus a fine of USD 10,000. 15. In his reply to the counterclaim, the Claimant/Counter-Respondent requests that the Respondent/Counter-Claimant’s response which includes the counterclaim (cf. point I.9 above) be disregarded pursuant to article 9.3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber as it was allegedly received after the given deadline. 16. Subsidiarily, the Claimant/Counter-Respondent contests the validity of the document submitted as “Minutes of the board meetings expertise” (cf. point I.11 above) on the basis that the document purports that Mr E was Chairman of the board on 12 January 2015. The Claimant/Counter-Respondent alleges that Mr F, the initial signatory to the employment contract, was the Chairman of the board until May 2015. He asserts that the document in question is a forgery, as it is simply not conceivable that Mr E was Chairman on 12 January 2015. 17. The Claimant/Counter-Respondent claims that between 23 October 2014 and 12 January 2015 he had not received any verbal or written warning regarding his accommodation situation. In addition, he notes that article 2 of the contract (cf. point I.2.d. above) provides that the Respondent/Counter-Claimant will pay for accommodation during competitions, and that it is in light of the club’s request he stay in a particular hotel which it was paying for, that the Respondent was able to have the Claimant/Counter-Respondent discharged so easily. He adds that he never refused to stay in any accommodation provided for by the Respondent. 18. He also states that, contrary to the Respondent/Counter-Claimant’s assertion, it is clear he has never claimed for the reimbursement of flight tickets, even if though they are contractually provided for (cf. point I.2.c. above). Finally, he reasserts the illegality of the termination and the lack of just cause. 19. After the closure of the investigation, the Respondent/Counter-Claimant replied with unsolicited comments by stating that Mr E did not sign any document as Chairman of the Board, but did sign as Chairman of the Expertise Board of Club C. It further claims that the Claimant/Counter-Respondent had left the Respondent/Counter-Claimant without permission and left the hotel he was staying in on 14 January 2015. It also states that the document dated 12 January 2015 did not give permission to the Claimant/Counter-Respondent to resign without permission. In addition, the Respondent claims it had just cause to terminate the contract as the Claimant/Counter-Respondent had severely breached national labour law. Finally, the Respondent/Counter-Claimant claims that in accordance with a clause (cf. point I.2.b. above) of the contract, the Respondent/Counter-Claimant does not have to pay the other 50% of the salaries owed to the Claimant/Counter-Respondent because “the player had not been practicing or competing” and the Respondent/Counter-Claimant “has not arranged to train and compete during the period of September – October 2014”. 20. In response to FIFA’s pertinent request, the Claimant/Counter-Respondent stated that since 12 January 2015 he has not found any form of employment, football-related or not. 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 16 January 2015. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2014 edition; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 would, in principle, be 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 Chamber analysed which regulations should be applicable to the substance of the matter. In this respect, the Chamber 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 claim was lodged in front of FIFA on 16 January 2015, the 2014 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the substance of the matter at hand. 4. The competence of the Chamber and the applicable Regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging that aforementioned facts as well as the documentation contained in the file. The Chamber 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. Before addressing the parties’ arguments relating to the substance of the dispute, the DRC noted that the Claimant/Counter-Respondent deemed that the Respondent/Counter-Claimant’s second correspondence mentioned in point I.9 above, should not be taken into account as it was submitted after the deadline granted by FIFA. In this respect, the DRC pointed out that a reply from the Respondent/Counter-Claimant, although incomplete was in fact received on 13 February 2015, i.e. before the deadline expired on 24 February 2015. Consequently, this correspondence shall be taken into account. As to the second correspondence dated 3 July 2015 mentioned in point I.9 above, the members of the Chamber noted that it consists of a counterclaim of the Respondent/CounterClaimant, which was lodged within the timeframe stipulated in art. 25 par. 5 of the Regulations (2014 edition), i.e. 6 July 2015, therefore it should be taken into consideration. The Chamber also referred to the final correspondence of the Respondent/Counter-Claimant mentioned in point I.19 above, noting that it had been lodged after the closure of the investigation phase. In consequence, the members of the Chamber decided that this submission should not be considered, in accordance with art. 9 par. 3 of the Procedural Rules. 6. Having established the foregoing, the Chamber started the analysis of the parties’ arguments relating to the substance of the dispute. In this respect, the Chamber acknowledged that on 1 September 2014, the Claimant/Counter-Respondent and the Respondent signed an employment contract and its annexes valid from 1 September 2014 until 31 August 2015. The Claimant/Counter-Respondent, on the one hand, maintains that the Respondent/Counter-Claimant terminated the employment contract without just cause on 12 January 2015 and therefore asks to be awarded, inter alia, outstanding remuneration and the payment of compensation for breach of contract. The Respondent/Counter-Claimant, on the other hand, rejects such a claim and holds that it duly terminated the employment contract with just cause in light of article 1 of Annex 1 of the employment contract (cf. point I. 4. above), thereby entitling it to the sums mentioned in point I.12 above. 7. First and foremost, in order to be able to establish whether, as claimed by the Claimant/Counter-Respondent and contested by the Respondent/Counter-Claimant, the club terminated the employment contract without just cause, the Chamber turned its attention to article 1 of Annex 1 of the employment contract, which was invoked by the Respondent in its defence. 8. As stated above, according to article 1 of Annex 1 of the employment contract “during play game of the season if the club’s expertise assessment council not satisfactory with the player, the club will liquidate the contract with the player without having to pay compensation for any expenses”. 9. In this respect, the Chamber held that it could not accept said article as being valid, as it provides for a unilateral termination of the contract by the club based on its assessment of the player’s performance. In accordance with its well established jurisprudence, the Chamber indicated that the player’s performance in itself cannot be considered a valid reason to terminate an employment contract, as it is the result of a purely subjective perception, not measurable according to objective criteria. Therefore, the Chamber decided that the Respondent/CounterClaimant could not legitimately terminate the contractual relation with the Claimant/Counter-Respondent by applying article 1 of Annex 1 of the employment contract. Consequently, as this was the only reason given by the Respondent/Counter-Claimant for the termination, the Chamber decided that the Respondent/Counter-Claimant had terminated the contract with the Claimant/Counter-Respondent without just cause on 12 January 2015 and that the Respondent/Counter-Claimant is therefore to be held liable for the early termination of the employment contract without just cause. 10. In continuation, the Chamber deemed that in consideration of the fact that the Respondent/Counter-Claimant had terminated the employment contract without just cause on 12 January 2015, its counterclaim lodged against the Claimant/Counter-Respondent had to be rejected. 11. In this regard, the members of the Chamber unanimously agreed that the counterclaim of the Respondent/Counter-Claimant had to be rejected. 12. Bearing in mind the previous considerations, the Chamber then dealt with the consequences of the early termination of the employment contract without just cause by the Respondent/Counter-Claimant. 13. In continuation, prior to establishing the consequences of the breach of contract without just cause by the Respondent/Counter-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 Respondent/Counter-Claimant. 14. Indeed, in his statement of claim, the Claimant/Counter-Respondent alleges that the sign-on fee and salaries of December 2014, January and February 2015 in the total amount of USD 57,000 had to be considered outstanding. Bearing in mind, as stated above, that the contract was terminated by the Respondent/CounterClaimant on 12 January 2015 and that in accordance with both the employment contract and the annexes the Claimant/Counter-Respondent’s sign-on fee was due on 1 September 2014 and his salary was due each month, the Chamber established that on 12 January 2015, only the sign-on fee and the salary of the month of December 2014 had fallen due. The Respondent/Counter-Claimant did not provide any proof of payment of these amounts or any valid reasons for not having paid them. The members of the Chamber established that the Respondent/Counter-Claimant had to pay the Claimant/Counter-Respondent USD 39,000 in outstanding remuneration. 15. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the employment contract and the supplementary agreement by the Respondent/Counter-Claimant without just cause on 12 January 2015. 16. The members of the Chamber first 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 player 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. 17. In application of the relevant provision, the Chamber held that it first had to clarify as to whether the contract at the basis of the present dispute 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. The members of the Chamber recalled that according to art. 1 of Annex 1 to the contract “during play game of the season if the club’s expertise assessment council not satisfactory with the player, the club will liquidate the contract with the player without having to pay compensation for any expenses” and stipulates that “in case of liquidation of the player ahead of time to return to the club transfer fee amount equal to the remaining duration of the contract”. 18. The members of the Chamber agreed that this clause is to the benefit of the club only. Not only does it allow the Respondent/Counter-Claimant to terminate the contract at any time, based on non-objective criteria (cf. point II. 9 above), but also to do so without having to pay any compensation to the Claimant/CounterRespondent for such an arbitrary termination. Article 1 of Annex 1 also stipulates that in case the Claimant/Counter-Respondent terminates the contract – without or without just cause – he must pay the Respondent/Counter-Claimant the nonamortised transfer fee paid by the club. In view of the foregoing, the DRC concluded that such a clause establishes non-reciprocal and extremely unbalanced conditions for the termination for the player and the club. Thus, it cannot be taken into consideration for the calculation of the amount of compensation for breach of contract due by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent. 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 20. In order to estimate the amount of compensation due to the Claimant/CounterRespondent in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant/CounterRespondent under the existing contracts 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. 21. On the basis of the contract signed by the Claimant/Counter-Respondent and the Respondent/Counter-Claimant, which was valid until the end of the season that was running at the time of termination, i.e. until 31 August 2015, as well as the claim of the Claimant/Counter-Respondent, the the residual value of the employment contract serves as the basis for the final determination of the amount of compensation for breach of contract. This amount corresponds to the Claimant/Counter-Respondent’s salaries from January to August 2015, i.e. a total of EUR 72,000. 22. 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, remuneration earned 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. 23. The Chamber noted that the Claimant/Counter-Respondent had remained unemployed during the relevant period of time. 24. Consequently, on account of all of the aforementioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant/Counter-Respondent’s claim and that the Respondent/Counter-Claimant must pay the amount of EUR 72,000 to the Claimant/Counter-Respondent, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand. 25. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant/Counter-Respondent are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player A, is partially accepted. 2. The Respondent/Counter-Claimant, Club C, has to pay to the Claimant/CounterRespondent outstanding remuneration in the amount of USD 39,000, within 30 days as from the date of notification of this decision. 3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent compensation for breach of contract in the amount of USD 72,000, within 30 days as from the date of notification of this decision. 4. In the event that the amounts due to the Claimant/Counter-Respondent in accordance with the aforementioned numbers 2. and 3. are not paid by the Respondent/Counter-Claimant within the stated time limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limits and 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/Counter-Respondent is rejected. 6. The counterclaim of the Respondent/Counter-Claimant is rejected. 7. The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant 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. 8. The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant directly and immediately 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