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 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, T, from C represented by xxxxxx as Claimant against the club, P, from H represented by xxxxxx as Respondent regarding an employment-related dispute arisen between the partie 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 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, T, from C represented by xxxxxx as Claimant against the club, P, from H represented by xxxxxx as Respondent regarding an employment-related dispute arisen between the partie I. Facts of the case 1. On 15 January 2015, the player from C, T (hereinafter: the Claimant) and the club from H, TP (hereinafter: TP), concluded an employment contract, valid as of 14 January 2015 until 31 May 2016. 2. Pursuant to the contract, the Claimant was entitled to receive a basic monthly wage of xxx 47,600. 3. In continuation, art. 14 of the contract reads as follows: “In the event of any grievance in connection with his employment under this Agreement, the following procedure shall be available to the [Claimant] in the order set out: 14.1 the grievance shall be brought to the notice of the Club in the first instance; then 14.2 formal notice of the grievance to be given in writing to the Club; then 14.3 if the grievance is not settled to the [Claimant]’s satisfaction within 14 days thereafter, formal notice of grievance may be given in writing to the General Secretary of the Association to be dealt with in accordance with Rules 20 (4) of the Association”. 4. In addition, art. 16 of the contract stipulates that “[t]his contract shall be governed in all respects by the Laws of H”. 5. Furthermore, art. 18 of the contract provides that “[a]ny dispute of this Agreement is subject to arbitration by the Association according to Article-65 of the Articles of the Association on the condition that the Agreement is endorsed by the Association”. 6. On the same date the Claimant and P FC concluded a “private and confidential” agreement (hereinafter: the agreement), by means of which they agreed on the following: “[the Claimant’s] agreed salary (USD12000 per month ie. Xxx 93600) will be as follows:- xxx22630 paid into [his] bank account (on the last day of each month) xxx20000 as cash to cover allowance for food, transport &entertainment xxx35000 as housing allowance (as full quarters will be provided to [him] during his employment with [P FC] xxx15970 as an utility allowance (as all utilities bills within the quarters will be paid on [his] behalf”. 7. On 20 April 2015, the director of P FC sent a correspondence to the Claimant, which reads as follows: “We regret to inform you that your employment with TP shall be terminated on 30-04-2015 and we hereby give you one month’s notice. This is confirmed your last working day on 29-05-2015 and you will receive a cheque for final salary payments on that day”. 8. On 7 May 2015, the Claimant sent, via e-mail, a correspondence to P FC, objecting to the termination and requesting the latter club to comply with its contractual obligations. 9. On 23 July 2015, the Claimant addressed a correspondence to P FC, requesting said club to pay him xxx 1,123,200 as compensation in accordance with art. 17 of the FIFA Regulations on the Status and Transfer of Players; although the Claimant stated that he was open to find a settlement agreement. 10. On 31 July 2015, the legal representative of P FC offered to settle the matter in exchange for an “ex gratia” payment of xxx 93,600. 11. On 24 August 2015, the Claimant rejected the offer made by the legal representative of P FC. 12. On 31 August 2015, the legal representative of P FC made a second offer to settle the matter in exchange for an “ex gratia” payment of xxx 280,800. 13. On 8 September 2015, the Claimant rejected the second offer and requested the payment of the amount of xxx 842,400, emphasising that should the payment not be made by 14 September 2015, he would lodge a claim in front of FIFA. 14. On 21 September 2015, the Claimant lodged a claim in front of FIFA against P (hereinafter: the Respondent) for breach of contract, requesting: - xxx 1,123,200, plus 5% interest “starting from the respective date of maturity”, as compensation for breach of contract; - the imposition of sporting sanctions on the Respondent; - the reimbursement of his legal expenses and of the procedural costs. 15. On 15 June 2016, the Football Association of H (FAH) confirmed that TP and P FC constitutes the same legal entity. 16. In its reply to the claim, the Respondent argues that the Claimant’s contract was terminated with just cause. In this respect, the Respondent asserts that on 1 April 2015, and due to the fact that it would cease to participate in the H Premier League as of September 2015 because of significant financial losses, P FC decided to terminate the contracts of 25 players, including the Claimant, and of 5 coaches, giving them an “early notice” for them to have time to find a new employment contract. The Respondent further alleges that in mid-June 2015 and due to the foregoing circumstances, the owner of P FC was obliged to sell the “FAH Club licence” to a company known as GT., which decided to change the management as well as the name of the Respondent to P FC. 17. In continuation, the Respondent stresses that upon termination, it paid the Claimant xxx 47,600 via bank transfer, xxx 46,000 in cash to cover his expenses for the month of May 2015 as well as a flight ticket to Z dated 2 June 2015. In this respect, the Respondent outlines that the Claimant returned the keys of the apartment and left H on 2 June 2015. Moreover, the Respondent insists in its goodwill, stressing in particular on the “ex gratia” payments that it offered to make to the Claimant. 18. Finally, and notwithstanding the above, the Respondent contends that the Claimant failed to follow the grievance procedure laid down in art. 14.3 of the contract. In this respect, the Respondent asserts that if he had done so, “pursuant to Term 16 of the [contract]”, the FAH would have referred the matter to arbitration under the Rules of the FAH. 19. In view of the above, the Respondent requests to be reimbursed the legal expenses and procedural costs incurred. 20. In his replica, the Claimant asserts that the FAH has not established an arbitration tribunal complying with art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players. 21. In addition, the Claimant sustains that the change of owner and name does not constitute a just cause to terminate a contract. 22. In its final comments, the Respondent alleges that when they signed the contract, the parties agreed to “be bound by H Law (Term 16) together with the acceptance of Rule 20(4) of the FAH”. In this regard, the Respondent submitted the “08-09 Rules of the FAH”, emphasising the content of art. 20(4), which reads as follows: (4) Disputes and claims between clubs and players: appeals to the Association (a) A member Club and its Contract Player may refer a dispute by way of appeal to the Board. (b) Notice of appeal may be given either by the Contract player of the club and every such notice shall specify the grounds of the appeal. (c) The notice of appeal shall be served on the Association and copies thereof on all parties to the disputes. (d) Every notice of appeals and copies thereof shall be served within seven days from the date of the dispute to the Board. (e) The appeal shall be heard by the Board or its appointed Committee, as the case may be, within 10 days of service of the notice of appeal by the appellant”. 23. In addition, the Respondent outlines that in accordance with art. 18 of the contract and art. 65 of the Articles of Association of the FAH, any dispute should be referred to the arbitration tribunal established by the FAH. In this respect, the Respondent presented a copy of the “Regulations for FAH National Dispute Resolution Chamber” (hereinafter: NDRC Regulations), which entered into force on 3 August 2015 and provide for the following: “Article 3: Composition 1. The FAH Board shall appoint the following members of the NDRC, who shall serve a four-year renewable mandate: a. a chairman and a deputy chairman appointed by and independent of the FAH Board; b. between three and ten player representatives; c. between three and ten club representatives”. 24. In his comments as to the competence, the Claimant first outlines that in accordance with art. 36 of the NDRC Regulations, the latter entered into force on 3 August 2015, i.e. after the signature and the termination of the contract. 25. In addition, the Claimant points out that the contract does not contain a clear arbitration clause in favour of the FAH NDRC. 26. Finally, the Claimant alleges that the FAH does not comply with the principle of equal representation since the Executive Board of the FAH appoints the Chairman and the Deputy Chairman of the FAH NDRC with no influence of the players’ representatives. 27. On 11 September 2015, the Claimant and the club, N concluded an employment contract, valid as of 15 September 2015 until 30 June 2016 and according to which the Claimant is entitled to a monthly salary of yyy 3,200 (approx. USD 475 or xxx 3,700 on 11 September 2015). II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 21 September 2015. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is 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 2016) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a player from C and a club from H regarding an alleged breach of contract. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA to deal with the present case, stating that in accordance with the contract, and in particular its art. 14 and 18, the matter should have been referred to national bodies. 5. The Chamber equally noted that the Claimant rejected such position and insisted that FIFA had jurisdiction to deal with the present matter. 6. Taking into account the above, the DRC emphasised that, in accordance with art. 22 lit. b) of the FIFA Regulations, he is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. While analysing whether it was competent to hear the present matter, the DRC considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause. 8. Having said this, the members of the Chamber turned their attention to art. 14.3 of the contract, which stipulates that if a dispute between the Claimant and the Respondent cannot be settled internally, “[a] formal notice of grievance may be given in writing to the General Secretary of the Association to be dealt with in accordance with Rules 20 (4) of the Association”. Consequently, the members of the Chamber proceeded to the analysis of art. 20 (4) of the Rules of the FAH and observed that in accordance with the latter, “[a] member Club and its Contract player may refer a dispute by way of appeal to the Board” (emphasis added). 9. In continuation, the Chamber focuses on the content of art. 18 of the contract which provides that “[a]ny dispute of this Agreement is subject to arbitration by the Association according to Article-65 of the Articles of the Association on the condition that the Agreement is endorsed by the Association”. In this respect, and in spite of not having been provided with the referred Articles of Association, the Chamber took note of the Respondent’s assertion, ratified by the FAH, according to which said clause grants competence to the FAH NDRC in case of dispute between the parties. 10. In view of the aforementioned clauses, the members of the DRC were of the opinion that the employment contract does not make clear reference to one specific national dispute resolution chamber in the sense of the aforementioned art. 22 lit. b) of the Regulations, but actually provides for the possibility of either referring the matter to the Board of the FAH (art. 14) or to the FAH NDRC (art. 18) in case a dispute arises between the parties. Therefore, the Claimant was not in a position to know at the moment of signing the contract to which body the potential disputes related to his employment relationship were to be submitted. In this regard, the DRC pointed out that this lack of clarity is also reflected in the Respondent’s argumentation which first challenged the competence of FIFA based on art. 14 of the contract and then, at a later stage, did it resting upon art. 18 of said contract. 11. Having established that the first criteria for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the DRC deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body. 12. Nevertheless, and for the sake of completeness, the members of the Chamber deemed it interesting to point out that the version of the Regulations of the FAH NDRC provided by the Respondent came into force on 3 August 2015, i.e. after the termination of the contract on 29 May 2015, and consequently, could not be applicable, in any case, to the matter at stake as they did not correspond in time with the event giving rise to the dispute. 13. In view of the above, the DRC established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that it is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 14. Subsequently, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that, in accordance with art. 26 par. 1 and 2 of the aforementioned Regulations on the Status and Transfer of Players (edition 2016) and considering that the claim in front of FIFA was lodged on 21 September 2015, the 2015 edition of said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance. 15. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 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. 16. In this respect, the DRC first observed that it was uncontested, as well as confirmed by the FAH, that the Respondent in the present procedure, must be regarded as the legal successor of P FC. 17. In continuation, the Chamber acknowledged that, on 15 January 2015, the parties signed an employment contract, valid as from 14 January 2015 until 31 May 2016. 18. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent, indicating that on 29 May 2015, the Respondent unilaterally terminated the contractual relationship without any valid reasons. 19. In continuation, the Chamber took note that the Respondent insists that it terminated the contract with just cause, since it was undergoing financial distress, and had lost its licence to play in the H Premier League. 20. In this respect, the Chamber recalled its longstanding and well-established jurisprudence according to which financial and sporting difficulties are not deemed as a valid reason to terminate a contract. 21. On account of the above, and considering that the Respondent did not invoke any other reason for the early termination of the contract, the Chamber decided that the Respondent had no just cause to unilaterally terminate the employment relationship on 29 May 2015 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause. 22. In this context, 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 firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant 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. 23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 24. 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 consideration when calculating the amount of compensation payable. 25. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until 31 May 2016. Therefore, the Chamber held that the remuneration due as of June 2015 until 31 May 2016 should be taken into consideration to figure out the amount due as a compensation for breach of contract. In view of the above, the Chamber concluded that the amount of xxx 1,123,200 shall serve as the basis for the final determination of the amount of compensation for breach of contract. 26. In continuation, the Chamber verified as to 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 able to reduce his loss of income. 27. The Chamber noted that according to the Claimant’s declarations and the documentation submitted, the Claimant concluded a new employment contract, according to which he was entitled to receive, for the relevant period, a remuneration equivalent to xxx 33,300. 28. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 29. In view of all of the above, the DRC decided that the Respondent must pay the amount of xxx 1,089,900 to the Claimant, which is considered by the DRC to be a reasonable and justified amount as compensation for breach of contract. 30. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 21 September 2015, until the date of effective payment. 31. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of HKD 1,089,200 plus 5% interest p.a. on said amount as from 21 September 2015 until the date of effective payment. 4. In the event that the abovementioned amount plus interest is not paid within the stated time limit, 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 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. 58 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