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 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member Johan van Gaalen (South Africa), member Mohamed Al-Saikhan (Saudi Arabia), member Eirik Monsen (Norway), 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 F as Intervening Party 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 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member Johan van Gaalen (South Africa), member Mohamed Al-Saikhan (Saudi Arabia), member Eirik Monsen (Norway), 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 F as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 29 January 2013, 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 (hereinafter: the contract) valid as from 30 January 2014 until 30 June 2016. 2. According to art. 3 of the contract, the Respondent/Counter-Claimant undertook to provide the Claimant/Counter-Respondent, inter alia, with the following monthly net salary, payable on the 30th day of the following month: a. EUR 2,500, from 30 January 2014 until 30 June 2014; b. EUR 3,500, from 1 July 2014 until 30 June 2015; c. EUR 4,500, from 1 July 2015 until the end of the contract, i.e. 30 June 2016. 3. According to art. 9 par. 1, “The contract between the club and the player can be terminated in accordance with the labour code”. In addition, according to art. 9 par. 2, “Within seven days following the termination of the contract by mutual consent, in writing, the club shall present to the sport technical department of the BFU a notice and the original document of the termination. In this case, the player has the right to be transferred to another club during the transfers periods, and the club can use the free space”. 4. Art. 10 par. 20 of the contract further stipulates that “in case of breach of contract without just cause by the player only, the latter owes compensation to the club in the amount of the double of gross his remuneration as from the breach of the contract until its expiry”. 5. On 15 May 2014, the Claimant/Counter-Respondent sent a notice to the Respondent/Counter-Claimant alleging that he only received two payments as from the beginning of the contract in the total amount of 7,500 (2,500 paid as an advance payment on 19 February 2014 + 5,000, payment date not specified), corresponding to approximatively EUR 3,832 as per the player. Therefore, the Claimant/Counter-Respondent urged the Respondent/Counter-Claimant to comply with its obligations and pay him the total outstanding amount of EUR 3,668 (i.e EUR 7,500 due – EUR 3,832 paid) within three days, otherwise the contract with the Respondent/Counter-Claimant will be terminated and he will refer the matter to FIFA. 6. On the same date, in accordance with the alleged procedure in country D, the Claimant/Counter-Respondent also sent a notary notice to the Respondent/Counter-Claimant and the Football Union of country D underlining the facts presented in point I.5. above. 7. On 20 May 2014, the Football Union of country D released a statement which ascertained that the Claimant/Counter-Respondent (among three other players from the Respondent/Counter-Claimant) “unilaterally terminated his labour contract without sending a notice” and considered his contract with the Respondent/Counter-Claimant terminated on 19 May 2014. 8. On 11 December 2014, 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 104,616, broken down as follows: i. EUR 5,200 as outstanding remuneration, corresponding to his salaries from 30 January until 30 April 2014 and 19 days in May 2014 minus EUR 3,832 paid by the Respondent/Counter-Claimant; ii. EUR 99,416 as compensation, corresponding to the residual value of the contract. 9. In its reply, the Respondent/Counter-Claimant rejected the Claimant/CounterRespondent’s claim and holds having fulfilled all its contractual obligations. According to the Respondent/Counter-Claimant, it has paid the Claimant/CounterRespondent’s salary for the months of February and March 2014. The Respondent/Counter-Claimant further holds that the Claimant/CounterRespondent received a total amount of 7,389.58 for the period of February to May 2014. In addition, the Respondent/Counter-Claimant underlines that the Claimant/Counter-Respondent left country D in May 2014 without its permission. Consequently, the Respondent/Counter-Claimant rejected the Claimant/CounterRespondent’s claim and lodged a counterclaim against him, on 2 February 2015 since the Claimant/Counter-Respondent had allegedly no just cause to unilaterally terminate the contract. In particular, the Respondent/Counter-Claimant requested an amount of compensation to be paid by the Claimant/Counter-Respondent, corresponding to “(…) double the amount of his gross salary for the period from the date of termination of the contract by the end of its term“, in accordance with art. 10 par. 20 of the contract (cf. point I.4. above), as well as the legal costs to be borne by the Claimant/Counter-Respondent. 10. In his reply to the Respondent/Counter-Claimant’s counterclaim, the Claimant/Counter-Respondent recalled having never considered his salary of February 2014 as outstanding but he underlined that it was paid with a delay of one month. Moreover, the Claimant/Counter-Respondent points out that the Respondent/Counter-Claimant did not pay his salaries for two days in January 2014 (30 and 31 January 2014), his salaries for March and April 2014 and 19 days in May 2014. 11. Furthermore, the Claimant/Counter-Respondent emphasises that the Respondent/Counter-Claimant has failed to reply to his notice dated 15 May 2014 and therefore the termination of the contract was effective as from 19 May 2014 and confirmed by the Football Association of country D. In addition, the Claimant/Counter-Respondent points out that according to the labour law of country D (art. 327, par. 1, item 2): “The employee may terminate the employment contract unilaterally in writing without notice when the wages are delayed by the employer, this without preventing the employee from claiming labour remuneration and/or compensation”. 12. Finally, the Claimant/Counter-Respondent informed FIFA that on 6 January 2015, he signed an employment contract with the club from country F, Club E, valid until 31 June 2017, for which he is entitled to a monthly salary of EUR 2,700 until the original expiry of the contract with the Respondent/Counter-Claimant. However, the Claimant/Counter-Respondent holds that as from the beginning of the contract, he was only paid EUR 1,816 and terminated the contract with Club E on 3 June 2015. As from this date, he remained unemployed. 13. Upon request to provide its position in relation to the matter at stake, Club E outlines that it has signed a first contract with the Claimant/Counter-Respondent on 9 September 2014 but it was rejected by TMS since it “uploaded in system the unilateral termination agreement received by the player from Football Union of country D and in addition we were outside the transfer period”. Therefore the contract was cancelled, the Claimant/Counter-Respondent left and came back on 6 January 2015 and the club could obtain the ITC. Finally, Club E indicates that the contract with the Claimant/Counter-Respondent was terminated after a period of 4 months. 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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 11 December 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2014 and 2015) 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 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2014 and 2015), and considering that the present claim was lodged on 11 December 2014, the 2014 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 5. 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. 6. In this respect, the members of the Chamber acknowledged that the parties were bound by an employment contract, which was signed on 29 January 2013 and valid as from 30 January 2014 until 30 June 2016. 7. In continuation, the members of the Chamber noted that the Claimant/CounterRespondent lodged a claim against the Respondent/Counter-Claimant maintaining that he had terminated the employment contract with just cause on 19 May 2014, after previously having put the Respondent/Counter-Claimant in default on 15 May 2014, since he allegedly only received the total amount of EUR 3,832 instead of EUR 7,500, as from the beginning of the contract (cf. point I.5. above). Consequently, the Claimant/Counter-Respondent asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 8. The Respondent/Counter-Claimant, for its part, submitted that the Claimant/Counter-Respondent had been absent as from the end of the month of May 2014 without its authorisation. In addition, the Respondent/CounterClaimant asserted that it had paid the Claimant/Counter-Respondent’s salary for the months of February and March 2014. The Respondent/Counter-Claimant deemed that the Claimant/Counter-Respondent unilaterally terminated the contract without just cause on 19 May 2014 and therefore, on 2 February 2015, the Respondent/Counter-Claimant lodged a counterclaim against the Claimant/Counter-Respondent seeking the payment of an amount of compensation corresponding to “double the amount of his gross salary for the period from the date of termination of the contract by the end of its term“, in accordance with art. 10 par. 20 of the contract (cf. point I.9. above). 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, on 19 May 2014. 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”. 11. In view of the above, the DRC deemed that, in the present case, the Respondent/Counter-Claimant carried the burden of proof of proving the payment of the Claimant/Counter-Claimant’s remuneration or to have had any valid reasons not to pay him in accordance with the contract. 12. In this context, the members of the Chamber first observed that the Respondent/Counter-Claimant could provide documentary evidence proving two payments towards the player: Two receipts issued by the Respondent/CounterClaimant and signed by the Claimant/Counter-Respondent, the first one dated 30 April 2014 for an amount of 4,889.68 and the second one, for an amount of 2,500 dated 19 February 2014. 13. Therefore, the Chamber determined that the Respondent/Counter-Claimant could prove having paid the Claimant/Counter-Respondent’s salary for the month of February 2014 and part of the salary of March 2014. Moreover, the Chamber recalled that the Claimant/Counter-Respondent confirmed having received from the Respondent/Counter-Claimant the total amount of EUR 3,832. 14. Turning its attention to the arguments of the Respondent/Counter-Claimant for the non-payment of the Claimant/Counter-Respondent’s salary, the DRC noted that the Respondent/Counter-Claimant does not present any valid reason or evidence for not having paid the Claimant/Counter-Respondent’s salary for part of the month of March 2014. 15. The Chamber deemed it important to underline that the Claimant/CounterRespondent considered that at the time of the termination of the contract, the salaries of April 2014 and 19 days in May 2014 were due. 16. Having recalled the aforementioned, the Chamber outlined that, in accordance with art. 3. of the contract (cf. point I. 2. above), the Claimant/CounterRespondent’s salary was payable until the 30th day of the following month. 17. In this context, the Chamber stressed that at the date of the termination of the contract by the Claimant/Counter-Respondent, i.e. 19 May 2014, remuneration of less than one month, i.e. March 2014, was outstanding. In this respect, the Chamber deemed it fit to point out that, in general, that is, regardless of specific circumstances surrounding a matter, solely the partial non-payment of one monthly remuneration cannot be considered a just cause for a player to cease rendering his services to a club. 18. Having stated the above, the Chamber turned its attention to the question as to whether the Claimant/Counter-Respondent had had a just cause to prematurely terminate his contract with the Respondent / Counter-Claimant. In this respect, the Chamber noted that the only reason given by the Claimant/CounterRespondent for leaving the club was related to the alleged outstanding payments. 19. On account of the above, considering that less than one month of the Claimant/Counter-Respondent’s salary was outstanding at the time of the termination of the contract, the DRC decided that the Claimant/CounterRespondent did not have a just cause to unilaterally terminate the employment relationship between the Claimant/Counter-Respondent and the Respondent/Counter-Claimant, on 19 May 2014. 20. Prior to analysing the amount of compensation due to the Respondent/CounterClaimant, and on account of the aforementioned considerations, the Chamber decided that in accordance with the general legal principle of pacta sunt servanda, since the Claimant/Counter-Respondent rendered his services until and including the 19 May 2014, the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent the remuneration until the termination i.e. the amount of EUR 5,200. 21. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the Claimant/Counter-Respondent to the Respondent/Counter-Claimant in the case at stake. 22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contract 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. 10 par. 20 of the contract “in case of breach of contract without just cause by the player only, the latter owes compensation to the club in the amount of the double of gross his remuneration as from the breach of the contract until its expiry”. 23. In view of the foregoing, and bearing in mind the Respondent/Counter-Claimant’s request, the Chamber deemed that a clause establishing that compensation for breach of contract amounts to double of the residual value of the contract is clearly disproportionate and cannot be applied. 24. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Claimant/Counter-Respondent to the Respondent/Counter-Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. 25. 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 emphasized 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. 26. Having said this, the Chamber turned its attention to the remuneration and other benefits due to the Claimant/Counter-Respondent under the existing contract and/or the new contract. The members of the Chamber deemed it important to emphasise that the wording of article 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) in the calculation of the amount of compensation thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s). 27. In this regard, the Chamber noted that, as per the employment contract signed with the Respondent/Counter-Claimant, the Claimant/Counter-Respondent was entitled to a total salary of EUR 99,468 from the date of termination, i.e. 19 May 2014, until the original end of the contract i.e., until 30 June 2016. 28. In continuation, the DRC equally took note of the Claimant/Counter-Respondent’s remuneration with his new club, i.e. Club E, which corresponded to a total amount of EUR 67,500, until the original end of the contract with the Respondent/Counter-Claimant. 29. Taking into account the aforementioned elements the Chamber concluded that the average remuneration of EUR 83,484 for the time remaining of the relevant contract should be taken into account in the calculation of the amount of compensation for breach of contract payable to the Respondent/CounterClaimant. 30. On account of all of the above-mentioned considerations, the Chamber decided that the Claimant/Counter-Respondent must pay the amount of EUR 83,484 to the Respondent/Counter-Claimant as compensation for breach of contract, which was considered a fair and adequate amount of compensation in the present matter. 31. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the Claimant’s new club, i.e. Club E, shall be jointly and severally liable for the payment of compensation. 32. In this respect, the Chamber was eager to recall that the joint liability of a player’s new club is independent from the question as to whether this new club has committed an inducement to contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club E is jointly and severally liable for the payment of the relevant compensation. 33. Finally, the DRC decided that the Respondent/Counter-Claimant’s claim pertaining to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s longstanding respective jurisprudence. 34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant/CounterRespondent are rejected and that the counterclaim of the Respondent/CounterClaimant is partially accepted. ***** III. Decision 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 partially accepted. 3. The Respondent/Counter-Claimant has to pay to the Claimant/CounterRespondent outstanding remuneration in the amount of EUR 5,200, within 30 days as from the date of notification of this decision. 4. The Claimant/Counter-Respondent has to pay to the Respondent/CounterClaimant compensation for breach of contract in the amount of EUR 83,484, within 30 days as from the date of notification of this decision. 5. The Intervening Party, Club E, shall be held jointly and severally liable for the payment of the amount mentioned in point 4 above. 6. In the event that the amount due to the Claimant/Counter-Respondent in accordance with the above-mentioned number 3. and the amount due to the Respondent/Counter-Claimant in accordance with the above-mentioned number 4. are not paid by respectively the Respondent/Counter-Claimant and the Claimant/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. 7. Any further claim lodged by the Claimant/Counter-Respondent is rejected. 8. Any further counterclaim lodged by the Respondent/Counter-Claimant is rejected. 9. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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. 10. The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent and the Intervening Party 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 art. 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