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 (DRC) judge passed in Zurich, Switzerland, on 7 April 2016, by Philippe Diallo (France), DRC judge, on the claim presented by the player, G, from A represented by Mr xxxxxxxx as Claimant against the club, P, from M as Respondent 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 (DRC) judge passed in Zurich, Switzerland, on 7 April 2016, by Philippe Diallo (France), DRC judge, on the claim presented by the player, G, from A represented by Mr xxxxxxxx as Claimant against the club, P, from M as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 16 December 2013, the player from A, G (hereinafter: the Claimant), and the club from M, P (hereinafter: the Respondent), signed an employment contract valid until 30 November 2014. 2. The employment contract provides for monthly remuneration of USD 4,000 payable no later than on the seventh day of the following month. The contract also provides that the club will pay USD 8,000 as agent fees to the Claimant as agreed by the Claimant and the Respondent and will be paid after the Respondent receives the International Transfer Certificate, as well as a one way flight ticket back to the Claimant’s country. 3. On 3 February 2014, the Claimant was given a first warning by the Respondent to improve his performance within 7 days of receipt. On 21 February 2014, the Respondent issued a second warning on the basis that his performance had not improved. 4. On 31 March 2014 the Respondent notified the Claimant of the termination of the employment contract on the basis that the Claimant’s performance had not improved despite two written warnings allegedly sent by the Respondent, and not acting in the way a professional should. It stated it would compensate the Claimant one monthly salary and a single flight ticket back to his home country. 5. On 5 April 2014, the Claimant contested the termination by the Respondent stating that the Claimant’s performance cannot be a reason to unilaterally terminate an employment relationship. In the same letter, the Claimant put the Respondent in default of outstanding salaries and agent fees, giving the Respondent ten days to comply with its obligations, no amounts were specified. No reply to this letter was received. 6. On 23 April 2014, the Claimant once again contested the validity of the termination and put the Respondent in default of payment of his outstanding remuneration for the month of March 2014 in the amount of USD 4,000, compensation for breach pertaining to the months of April until November 2014 in the amount of USD 32,000, agent fees in the amount of USD 8,000 and flight tickets in the amount of EUR 1,501.48. The Claimant sent a reminder on 14 May 2014 which has also remained unanswered. 7. On 11 August 2014, the Claimant lodged a claim before FIFA against the Respondent asking that he be paid a total of USD 44,000 and EUR 1,501.48, in addition to the imposition of sporting sanctions, as follows: a. USD 4,000 as outstanding remuneration for March 2014 plus 5% interest p.a. from 7 April 2014; b. USD 32,000 as compensation for breach from April until November 2014; c. USD 8,000 as agent fees plus 5% interest p.a. from 31 December 2013; d. EUR 1,501.48 for a flight ticket from W to B. 8. The Claimant asserts that at the time the Respondent terminated the contract, i.e. 31 March 2014, it was already in default of USD 12,000 (cf. points I.2, I.7.a and I.7.c above) and had contested the termination on the basis that there was no just cause. In this regard, he also claims compensation for breach of contract by the Respondent. 9. In its reply to the claim, the Respondent asserts having paid the salary of the month of March 2014. It also claims to have paid the agent’s fees in the amount of 26,400 xxx in three instalments on 24 January 2014 for the amount of xxx 10,000, 17 September 2014 for the amount of xxx 6,400 and 13 May 2014 for the amount of xxx 10,000. 10. It also claims that despite having warned the Claimant to improve his performance twice, there was no change. It claims that the Claimant had used offensive words on 26 March 2014 which caused violent reactions and clashes between the players of the club. The Respondent claims that after a decision rendered during a meeting with the deputy president of the club, it decided to terminate the contract, and also states that the Claimant had fourteen days to appeal the decision, which he allegedly did not do. 11. In response to FIFA’s pertinent request, the Claimant stated that he had signed an employment contract on 21 August 2014 valid until 31 December 2015 with the club C which provides for monthly remuneration of yyy 7,000 corresponding to approx. USD 820 per month. II. Considerations of the DRC judge 1. First, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 11 August 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an player from A and a club from M. 3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (2015), and considering that the present claim was lodged on 11 August 2014, the 2014 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. 5. In this respect, taking into account the claim of the Claimant as well as the reply of the Respondent, the DRC judge acknowledged that he first needed to address whether the Respondent had just cause to terminate the employment relationship with the Claimant on 31 March 2014. 6. In this regard, the DRC judge took due note that the Claimant asserted that the Respondent had sent him two warnings in February 2014 (cf. point I.3 above) relating to his sporting performance. The DRC judge further noted that the Respondent subsequently terminated the employment relationship with the Claimant on the basis that the Claimant’s performance had not improved. 7. In this context, the DRC judge acknowledged that he had to examine whether the reasons put forward by the Respondent could possibly justify the termination of the contract in the present matter. 8. The DRC judge therefore was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit the expectation that the continuation of the employment relationship between the parties can continue, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 9. In this regard, the DRC judge recalled the DRC’s well-established jurisprudence relating to the fact that a player’s poor performance can not be a valid reason for an employer to cease paying due salaries, as this is a purely unilateral and subjective evaluation by the club. Thus, the DRC judge emphasised that poor or unsatisfactory performance cannot by any means be considered as a valid reason to reduce a player’s salary, to impose a fine on a player, or to terminate an employment relationship. The DRC judge therefore concluded that the Respondent did not have just cause to terminate the employment relationship with the Claimant on the basis of poor performance. 10. Having established the above, the DRC judge turned his attention to the question of the consequences of the unilateral termination of the contract by the Respondent without just cause. In this regard, the DRC judge sought to establish whether any salaries had remained outstanding at the time of the termination. In addition, taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive compensation from the Respondent for the termination of the contract without just cause. 11. With due consideration of the above and turning his attention to the salaries allegedly paid by the Respondent to the Claimant (cf. point I. 9 above), the DRC judge noted that the Claimant asserted that at the time of the unilateral termination by the Respondent, salaries were already outstanding. 12. In this respect, the DRC judge recalled the basic principle of burden of proof as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 13. Consequently, the DRC judge noted that the Respondent had only provided untranslated and/or illegible documentation in an attempt to substantiate its allegation that it had made payments. 14. In view of the above, the DRC judge concluded that the Respondent has not provided evidence of its defence and that it therefore could be established that at the time of termination of the employment relationship the Claimant was owed outstanding remuneration. As a consequence, and in accordance with the general principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the employment contract with the Claimant and is consequently to be held liable for the payment of outstanding remuneration in the amount of USD 4,000 pertaining to the monthly salary of March 2014 as well as USD 8,000 pertaining to contractually provided payments relating to agent fees. 15. With regard to the claimed interest, the DRC judge, applying the constant practice of the DRC decided to award the Claimant 5% interest p.a. on the amount of USD 4,000 from 16 January 2014, and 5% interest p.a. on the amount of USD 8,000 from 7 April 2014 as requested. 16. Bearing the previous considerations in mind, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent. 17. Therefore, the DRC judge decided that taking art. 17 par. 1 of the Regulations into consideration, the Claimant is entitled to receive compensation for breach of contract from the Respondent, in addition the aforementioned outstanding salaries and its respective interest. 18. In this context, the DRC judge outlined that in accordance with the aforementioned provision, 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 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. 19. In application of the relevant provision, the DRC judge held that it first had to clarify whether the pertinent employment contract contained any clause by means of which the parties had previously agreed on compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 20. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that at the time of the termination of the employment contract on 31 March 2014, the contract was set to run for another eight months. Consequently, taking into account the financial terms of the contract and the supplementary agreement, the Chamber concluded that the remaining value of the contract from the early termination until the regular expiry of the contract amounts to USD 32,000 and that such an amount shall serve as the basis for the final determination of the amount of compensation due for breach of contract. 21. In continuation, the DRC judge took due note that following the early termination of the employment contract at the basis of the present dispute, the Claimant had found new employment with S on 21 August 2014 until 31 December 2015. The employment contract signed with S provides for monthly remuneration of approximately USD 820, amounting to a total of approximately USD 2,733 between 21 August 2014 and 30 November 2014. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the obligation of the Claimant to mitigate his damages, such remuneration earned or provided for under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 22. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD 29,267 to the Claimant as compensation for breach of contract without just cause, which is considered by the DRC judge to be a reasonable and justified amount of compensation. In addition, with regards to the Claimant’s claim pertaining to flight tickets, on the basis of the information and documentation submitted by the Claimant and referring to the relevant terms of the employment contract, the DRC judge decided that the Respondent must pay the Claimant the amount of EUR 1,501.48 for said flight tickets. 23. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant is partially accepted. 2. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision outstanding remuneration in the amount of USD 4,000 plus 5% interest p.a. from 8 April 2014 until the date of effective payment. 3. The Respondent has to pay to the Claimant the amount of USD 8,000 plus 5% interest p.a. from 16 January 2014. 4. In the event that the amounts due to the Claimant in accordance with the abovementioned 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. 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 USD 29,267. 6. The Respondent has to pay to the Claimant flight tickets in the amount of EUR 1,501.48. 7. In the event that the amounts due to the Claimant in accordance with the aforementioned numbers 5 and 6 are not paid by the Respondent 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. 8. Any further claim lodged by the Claimant is rejected. 9. 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 DRC judge 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: Marco Villiger Deputy Secretary General Encl. CAS directives