F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 17 August 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 August 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Pavel Pivovarov (Russia), 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

arisen between the parties

I. Facts of the case

1. On a not specified date, the Player of Country B, Player A, (hereinafter: the Claimant) and the Club of Country D, Club C, (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from July 2016 until 30 June 2017.

2. According to art. 9.1 of the contract, the Respondent undertook to pay the Claimant a monthly salary of EUR 6,000, payable –pursuant to art. 9.5 of the contract– on the 25th day of the following month, and a signing fee amounting to EUR 17,000, payable as follows:

a) EUR 12,000 on 25 July 2016;

b) EUR 5,000 on 25 January 2017.

3. Art. 9.2 of the contract stipulates the following bonuses:

“ - 400 euro net / point regular season (26 games), […] as:

- 100% start the game in,

- 75% on the bench – come in min 1’,

- 50% on the bench – not played,

- 10% out of 18 players”.

4. Equally, in accordance with art. 9.3 of the contract, the Respondent committed to pay the Claimant EUR 300 per month for the rent of a house and, pursuant to art. 9.4, to provide him with “2 plane tickets / season retour Country D – Country B”.

5. On 4 November 2016, the Claimant sent a letter to the Respondent requesting the payment, within the following 10 days, of the amount of EUR 25,982, corresponding to:

a) EUR 20,000 for outstanding salaries;

b) EUR 4,040 for bonuses;

c) EUR 1,200 for rent allowance;

d) EUR 742 for flight tickets.

6. On 7 November 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the amount of EUR 85,122, plus 5% interest as from the relevant due dates, broken-down as follows:

a) EUR 20,000 for outstanding salaries corresponding to part of the month of July 2016 and to the months of August, September and October 2016;

b) EUR 4,040 for bonuses corresponding to the “points gained by the squad” in 14 matches played by the team in the regular season;

c) EUR 1,200 for rent allowance for the months from August until November 2016;

d) EUR 742 for two round-trip flight tickets Country B-Country D;

e) EUR 5,000 for the second instalment of the signing fee;

f) EUR 48,000 for compensation for breach of contract, corresponding to the remaining monthly salaries as from November 2016 until June 2017;

g) EUR 2,100 for compensation for breach of contract, corresponding to the rent allowance for the months as from December 2016 until June 2017;

h) EUR 4,040 for compensation for breach of contract, corresponding to bonuses “for points gained by the team in the remaining 13 games of the regular season”.

7. In his claim, the Claimant stated that, despite his requests, the Respondent did not pay him the requested outstanding remuneration and argued that, in view of the Respondent’s alleged breach of contract, he was entitled to receive the claimed amount. As to the outstanding bonuses, the Claimant presented a document which shows a list of his match appearances, in the period between 22 July and 6 November 2016.

8. On 25 November 2016, the Claimant wrote a letter to the FIFA’s Administration, alleging that the Respondent did not allow him to train and play with the team and insisted on the non-payment. As a consequence thereof, the Claimant informed that, on 17 November 2016, he sent a notice of termination of the contract to the Respondent.

9. Despite having been invited by FIFA to provide its position on the claim, the Respondent did not reply.

10. According to the TMS, on 16 January 2017, the Claimant signed a new employment contract with the Football Club of Country E, valid as from the date of signature until 31 May 2017, providing a total salary of 54,000.

11. Upon request of the FIFA Administration, the Claimant informed that, on 15 May 2017, he entered into another employment contract with the Football Club of Country E, valid as from 1 June 2017 until 31 May 2018, providing a total salary of 200,000.

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 7 November 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), 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 of Country B and a Club of Country D.

3. The competence of the Chamber having been established, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 2016), and considering that the present matter was submitted to FIFA on 7 November 2016, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging all the above-mentioned facts 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.

5. First, the Chamber noted that the parties entered into an employment contract valid as from July 2016 until 30 June 2017.

6. Moreover, the DRC acknowledged that, on 4 November 2016, the Claimant put the Respondent in default of outstanding remuneration, for the period between July and October 2016, in the amount of EUR 25,982.

7. Subsequently, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he terminated the contract with just cause, since the Respondent allegedly failed to pay his remuneration. Consequently, the Chamber observed that the Claimant asked to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. Furthermore, the Chamber also noted that the Claimant, after having lodged the claim, informed the FIFA’s Administration that he sent a notice of termination of the contract to the Respondent on 17 November 2016.

8. Equally, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

9. Along those lines, as a consequence of the aforementioned consideration, the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation on file; in other words, upon the statements and documents presented by the Claimant.

10. In this context, the members of the Chamber took into consideration that, according to documentation provided by the Claimant, at the time he terminated the contract, the Respondent failed to pay his remuneration in the total amount of EUR 25,982, corresponding to:

- salaries for the months from July until October 2016 in the amount of EUR 20,000;

- match bonuses for the period between July and November 2016 in the amount of EUR 4,040;

- rent allowance for the months from August until November 2016 in the amount of EUR 1,200;

- reimbursement of two round-trip flight tickets Country B-Country D in the amount of EUR 742.

11. In relation to the above-mentioned request, the members of the Chamber recalled that, according to the contract, the Claimant was entitled to a monthly salary of EUR 6,000, plus the amount of EUR 17,000 payable in two instalments, of EUR 12,000 on 25 July 2016 and of EUR 5,000 on 25 January 2017 respectively. Furthermore, the Respondent committed to pay the Claimant a monthly rent allowance of EUR 300 for a house and to provide him with “2 plane tickets / season retour Country D – Country B“.

12. In addition, the members of the Chamber noted that, as specified in the contract (cf. point I.3 above), the Claimant was entitled to a series of bonuses referred to his participation in official matches.

13. In this respect, the Chamber recalled the basic principle of the burden of proof, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In particular, the members of the Chamber noted that the Claimant provided sufficient evidence, in order to substantiate that said bonuses were effectively due by the Respondent in the light of the Claimant’s participation in the relevant matches.

14. On account of the aforementioned and, in particular in view of the considerations made above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 17 November 2016, the total amount of EUR 25,892, corresponding to his salaries for the period between July and October 2016, to the match bonuses from July until November 2016, to the rent allowance from August until November 2016 and to the reimbursement of the flight tickets.

15. Consequently, and considering that the Respondent had for a significant period of time (i.e. more than three months) been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

16. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination. In this regard, the members of the Chamber determined that the Respondent was not only to pay the amount of EUR 25,892 as outstanding remuneration to the Claimant, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations.

17. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent 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.

18. 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.

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 consideration when calculating the amount of compensation payable.

20. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2017 and concluded that the player would have received a total remuneration of EUR 55,100, equal to eight monthly salaries plus the second instalment of the signing fee (cf. point I.2 above) and the rent allowance of seven months, had the contract been executed until its expiry date.

21. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, 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.

22. Indeed, the Claimant found employment with the Football Club of Country E, with which he signed a contract valid as from 16 January 2017 until 31 May 2017, with a total salary of 54,000, corresponding to approximately EUR 37,000.

23. Furthermore, the Claimant signed a further contract with the above-mentioned Club of Country E valid as from 1 June 2017 until 31 May 2018, with a total salary of 200,000, corresponding to approximately EUR 135,000.

24. Consequently, the Chamber established that the value of the new employment contracts as from 16 January until 30 June 2017 amounted to the total amount of EUR 48,250, which exceeds the residual value of the contract with the Respondent for the same period of time. Therefore, the Chamber decided that, even though the Respondent is liable for the early termination of the employment contract with just cause by the Claimant, there is no amount that should be awarded to the Claimant as compensation for breach of contract for the period as from 16 January until 30 June 2017, since the Claimant has been able to fully mitigate his damages for said time period.

25. However, the members of the Chamber noted that, as from 17 November 2016 until the signature of his new employment contract on 16 January 2017, with the Football Club of Country E, the Claimant remained unemployed and, therefore, decided that he should be entitled to receive compensation for this specific period of time, i.e. for a period of two months.

26. In accordance with the contract at the basis of the present dispute, during the above-mentioned period, the Claimant was entitled to receive the amount of EUR 12,600, corresponding to two monthly salaries plus two monthly rent allowances.

27. Consequently, the Chamber decided that the Respondent is liable to pay compensation for breach of contract in the amount of EUR 12,600 to the Claimant.

28. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by 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 25,892.

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 12,600.

4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant 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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives