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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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 1 June 2010, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an employment contract valid as from 1 June 2010 until 31 May 2012 (hereinafter: the first contract). 2. On 1 July 2011, the Claimant and the Respondent signed a second employment contract (hereinafter: the second contract) valid as from 1 June 2012 until 31 May 2015. The parties also signed a supplementary agreement on 2 July 2011 valid for the same period, which provides for additional remuneration to the second contract. 3. In accordance with the first contract, the Claimant was inter alia entitled to receive the following remuneration and benefits: a. for the 2010/2011 season: a total of EUR 25,000 payable in ten monthly instalments of EUR 2,500 at the end of each month from 31 August 2010 until 31 May 2011; b. for the 2011/2012 season: a total of EUR 30,000 payable in ten monthly instalments of EUR 3,000 at the end of each month from 31 August 2011 until 31 May 2012; c. “if the team climbs to a superior division, the player shall receive the amount of EUR 5,000”; d. “accommodation in a flat or a house for a rent of not more than EUR 400 per month”; e. “two return air tickets in order for the football player to be able to go to country E”. 4. In accordance with the second contract and the supplementary agreement, the Claimant was inter alia entitled to receive the following remuneration and benefits: a. EUR 20,000 payable in ten monthly instalments of EUR 2,000 at the end of each month from 31 August until 31 May, in accordance with the second contract for each season; b. EUR 35,000 payable in ten monthly instalments of EUR 3,500 at the end of each month from 31 August until 31 May, in accordance with the supplementary agreement for each season; c. “accommodation in a flat or a house for a rent of not more than EUR 400 per month” as per the supplementary agreement”; d. “two return air tickets in order for the Football Player to be able to go to country E”. 5. The second contract provides in its article 8 that “in case of gradation of the Football Club to an inferior Category, the Football Club will have the right to release the Football Player and the latter will have no right to damages”. 6. On 8 February 2013, the Claimant lodged a claim in front of FIFA against the Respondent asking that he be paid a total of EUR 204,000, plus 5% interest from the respective due dates, as follows: a. Outstanding remuneration: EUR 14,000 pertaining to the promotion bonus (cf. point I.3.c above) in the amount of EUR 5,000, and the months of March, April and May 2012 in the amount of EUR 9,000; b. Compensation for breach: EUR 165,000 pertaining to the residual value of the second contract and supplementary agreement from July 2012 until 31 June 2015; c. Additional compensation in the amount of EUR 25,000. The player claims that EUR 14,400 of this amount corresponds to the residual value of the contractually provided rent (cf. points I.3.d and I.4.c. above) as thirty six months x EUR 400. 7. The Claimant claims that in spite of the Respondent being promoted to a superior division after its performances during the 2010/2011 season (cf. point I.19 below), he did not receive the promotion bonus (cf. point I.3.c above). He also claims that in March 2012 he suffered an injury requiring surgery and the Respondent failed to remunerate him for the months of March, April and May 2012. 8. The Claimant claims that in July 2012, upon his return to the Respondent, it informed him orally that his services were no longer required. It proceeded to book him a one way ticket to country B for 24 September 2012 and provided him with three cheques in the total amount of EUR 17,100 as follows: a. EUR 5,100 dated 30 October 2012; b. EUR 6,000 dated 30 November 2012; c. EUR 6,000 dated 30 December 2012. The Claimant never cashed these cheques (cf. point I.12 below). 9. On 29 January 2013, the Claimant formally put the Respondent in default of outstanding remuneration amounting to EUR 14,000, corresponding to the bonus for promotion (cf. point I.3.c above) and the outstanding salaries for March, April and May 2012 (cf. point I.6.a. below). In the same letter, the Claimant contests the unilateral termination of the Respondent of July 2012 and requests to be compensated for the breach in the amount of EUR 194,400 corresponding to the residual value of the contract including additional benefits. When the Respondent did not react to this letter, the Claimant lodged a claim in front of FIFA. 10. In its reply, the Respondent submitted a payment order for EUR 8,000 dated 10 October 2013, stating that the Claimant has “been fully settled and thus the status of the case should not be considered as pending, but should be categorised as fully settled and hence finalised”. 11. The Respondent further refers to its contractual right of termination in accordance with article 8 of the second contract (cf. point I.5 above) to justify the alleged termination of the contract in July 2012 because it was allegedly relegated during the 2011/2012 season. 12. The Respondent claims that on 10 July 2012 the Claimant signed a “certificate of debts” which states “I confirm that the name of the Club C has paid all its obligations arising from contractual agreements as of 31 May 2012”, after having been provided with the three cheques and the flight ticket (cf. point I.8 above). It acknowledges that the cheques were never cashed, and notes that certain regulations in place at the time may have meant that if the cheques were not cashed within three months they would become void. 13. The Respondent further claims that a certain Mr F, allegedly known to the Respondent as being an associate of the Claimant’s management team, had allegedly decided to act as a mediator in this dispute. The Respondent claims that the negotiations came to a head with the alleged signing of a “Settlement Agreement” by Mr F on behalf of the player on 30 September 2013 (cf. point I.17 below) which only provided for the payment of EUR 8,000. The Respondent states that the EUR 8,000 could not have been paid for rent allowance as the Claimant suggests, as all amounts relating to rent have been settled. 14. In his replica, the Claimant categorically denies having signed the “certificate of debts” (cf. point I.12 above). He states that the Respondent was aware of the default notice of January 2013 (cf. point I.6 above) as well as the claim lodged against it, and expresses his surprise that the Respondent took so long to produce a document which would, in effect, absolve it of all responsibility. Furthermore, the Claimant claims that the “certificate of debts” cannot be considered as a “certificate of proof” of the mutual termination, notably because “it refers to the first contract”, which at the time would have already come to an end. The Claimant claims that even if he had signed the document, the three cheques provided to him would only cover the outstanding remuneration in relation to the first employment contract. 15. In addition, the Claimant claims that article 8 of the second contract (cf. I.5 above) is illegal and should not be applicable. In light of this, the termination must be considered to be without just cause. 16. The Claimant alleges that the fact that the Respondent claims to have approached him to offer him a settlement of EUR 8,000 after he had lodged his claim in front of FIFA, clearly demonstrates that no settlement of debt had ever been reached between the parties. He alleges that he believed the payment of EUR 8,000 was to cover outstanding rent. When he is allegedly entitled to EUR 204,000, he does not see why he would accept such a small amount of compensation. 17. Finally, the Claimant notes that he never gave any permission or authorisation to Mr F to sign any document on his behalf, let alone any settlement agreement. The settlement agreement is not on the official paper of the Respondent and there is no mention of who the signatory for the Respondent is. The Claimant states that the settlement agreement can not have any legal bearing on the basis that the signature on the document reads “F Manager on behalf Player A 30/9/13”, who was never authorised, mandated or empowered to represent the player. 18. In reply to the Claimant’s request, the Respondent stated that it had no original copy of the “certificate of debts” (cf. point I.12 above) because at the time the Respondent dismissed the Claimant the document was sent to him via fax for him to sign, and once it was signed he allegedly only sent it via fax to the Respondent and to the Football Association of country D. In addition, it claims that the EUR 8,000 payment could not have been paid for rent allowance as the Claimant suggests, because all amounts relating to rent have allegedly been settled. 19. It concludes by stating that article 8 of the contract (cf. point I.5 above) had to be inserted into all contracts for foreign players as a result of conditions set by the Football Association of country D for the validity of a contract for a foreign player. In a letter dated 17 September 2015, the Football Association of country D states that “during the football period of 2010/2011 and 2011/2012, Football Association of country D issued a direction which provided that the contract of a player would be automatically terminated in case of gradation of a team”. Furthermore, the letter explains that “in case of gradation of a club from the First Division to the Second Division, the contracts of all foreigner professional players are automatically terminated and the players are released until 1st of June that follows the ending of the championship”. 20. In reply to FIFA’s pertinent request, the Claimant asserts having not found employment since he signed with the Respondent in 2012. 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 8 February 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 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 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 (edition 2015), and considering that the present claim was lodged on 8 February 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 aforementioned facts as well as the arguments and the documentation submitted by the parties. 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. First, the members of the DRC acknowledged that the Claimant and the Respondent had concluded a first employment contract valid from 1 June 2010 until 31 May 2012. The members also noted that a second employment contract was signed and valid between 1 June 2012 and 31 May 2015, as well as a supplementary agreement for the corresponding period of time. 6. The DRC further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of EUR 204,000, indicating that the Respondent had stopped paying the Claimant for the months of March, April and May 2012 as well as the promotion bonus and then terminated the contract orally in July 2012. In addition, the members of the Chamber noted that the Claimant asserted that in light of the breach of contract without just cause, the Respondent owed him compensation for breach corresponding to the residual value of the second contract. 7. Subsequently, the Dispute Resolution Chamber noted that the Respondent, in its defence, provided several documents, however, it did not dispute that the payments of March, April and May 2012 had not been paid. The members of the Chamber further noted that the Respondent claimed that a waiver had been signed by the Claimant, thereby absolving its responsibilities towards him, and that the termination was justified and based on article 8 of the second contract (cf. point I.5. above). 8. Having established the aforementioned, the Chamber deemed that the underlying issue in the present dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Respondent. 9. In view of the above, the Chamber first deemed it necessary to establish the exact date of termination of the contract in view of the absence of a specific termination document. In this regard, it was noted by the members of the Chamber that the Claimant had stated that the contract had been orally terminated by the Respondentat the end of July 2012 and that the Respondent had confirmed the termination on this date following its relegation at the end of the 2011/2012 season. The DRC therefore considered the contract to have been terminated by the Respondent on 31 July 2012. 10. The Chamber therefore sought to establish whether the contract was terminated by the Respondent with just cause. In this regard, the DRC noted that the Respondent stated that the termination should be deemed valid in light of art. 8 of the employment contract (cf. point I.5 above) which states that in case of relegation, the Respondent may terminate the employment with the Claimant, who will not be entitled to any compensation. 11. In this context, the Chamber deemed it important to point out that the simple relegation of a club may not be considered, per se, to be a valid reason for the termination of an employment contract. Furthermore, the Chamber held that art. 8 of the contract could not be applicable as it only grants the club the right to unilaterally terminate the employment contract without paying any compensation to the player in case the club is relegated. Therefore, the Chamber decided that the Respondent could not legitimately terminate the contract with the Claimant on the basis of art. 8 of the contract, as such an article establishes unbalanced rights for the parties and is therefore potestative and invalid. 12. In view of all the above and, in particular, taking into account that the Respondent did not provide any other justification for the termination of the contract other than the application of article 8 of the second contract, the DRC decided that the Respondent terminated the employment relationship without just cause on 31 July 2012. Consequently, the Respondent is to be held liable for the payment of an amount of money to the Claimant as compensation for the unjustified breach. 13. Prior to establishing the amount of compensation due to the Claimant for the breach of contract by the Respondent, the DRC proceeded with the calculation of any outstanding monies payable to the Claimant under the terms of the employment contract until the date of termination, i.e. 31 July 2012. In this regard, the DRC referred to the principle of the burden of proof explicitly 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, and noted that the Respondent does not deny that no payments were made but claims that a waiver had been signed between the parties. 14. In continuation, the members of the Chamber acknowledged the documentation provided by each party and noted that the alleged waiver, which was contested by the Claimant, was not signed by the latter but by a third party allegedly on behalf of the Claimant. Consequently, the DRC noted that from the documentary evidence presented, it was not possible to establish that the Claimant had given explicit authorisation to the aforementioned third party to act on his behalf. The Chamber considered that the Respondent had not sufficiently substantiated its defence, as it did not present any conclusive documentary evidence which could corroborate that the Claimant had waived its right to payment. Therefore, the members of the Chamber established that there is not sufficient evidence to consider the waiver to be valid, and consequently the relevant amounts are indeed due. 15. Consequently, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations towards the Claimant and would be held liable to pay the Claimant the amount of EUR 14,000, corresponding to three monthly salaries of EUR 3,000 each and the contractually provided bonus (cf. point I.3.c. above) of EUR 5,000. The members of the Chamber noted however that after the claim was lodged in front of FIFA, the Respondent paid the Claimant EUR 8,000 (as acknowledged by the player), and as such, the DRC decided that the Claimant was entitled to receive from the Respondent the payment of EUR 6,000. 16. In continuation and with regard to the Claimant's request for interest, the DRC decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of EUR 6,000 until the date of effective payment as follows: a. 5% p.a. as of 1 May 2012 on the amount of EUR 3,000; b. 5% p.a. as of 1 June 2012 on the amount of EUR 3,000. 17. Furthermore, 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 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 contracts 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. 18. In application of the relevant provision, the Chamber held that it first had to clarify whether the pertinent contract contains a provision by means of which the parties had beforehand agreed on 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 contracts 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 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 non-exhaustive enumeration of criteria to be taken into account when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 20. 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 in the calculation of the amount of compensation. 21. Bearing the foregoing in mind, the Chamber recalled that with regard to the relevant employment contract, the player was entitled to receive EUR 179,400 between 31 July 2012 and 31 May 2015. Consequently, the Chamber concluded that the amount of EUR 179,400 serves as the basis for the final determination of the amount of compensation for breach of contract. 22. In continuation, the Chamber verified 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 Dispute Resolution Chamber, 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. 23. The Chamber noted that according to the Claimant’s declaration, he had not been able to sign an employment contract with another club during the relevant period of time. The Chamber however, and regarding the matter at hand, deemed it important to point out that after the premature termination of the employment relationship, the Claimant had multiple opportunities to find a new club given that at least two transfer periods had been open until today and thus had the opportunity to mitigate his loss to some extent. 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’s claim and that the Respondent must pay the Claimant compensation for breach of contract in the amount of EUR 119,600, which was considered to be reasonable and proportionate as compensation for breach of contract in the case at hand. 25. In continuation and with regard to the Claimant's request for interest, the DRC decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of EUR 119,600 as from 8 February 2013. 26. The Dispute Resolution Chamber concluded its 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, outstanding remuneration in the amount of EUR 6,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 May 2012 on the amount of EUR 3,000; b. 5% p.a. as of 1 June 2012 on the amount of EUR 3,000. 3. 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 EUR 119,600 plus 5% interest p.a. on said amount from 8 February 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the aforementioned numbers 2. and 3. 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. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent 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 fmerile 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