F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the player I, from country G, as Claimant/Counter-Respondent 1 against the club Club A, from country E as Respondent/Counter-Claimant with the involvement of the club Club X, from country X as Counter-Respondent 2 regarding a contractual dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the player I, from country G, as Claimant/Counter-Respondent 1 against the club Club A, from country E as Respondent/Counter-Claimant with the involvement of the club Club X, from country X as Counter-Respondent 2 regarding a contractual dispute between the parties I. Facts of the case 1. On 2 September 2010, the player I, from country G born on 2 January 1985, (hereinafter: the player) and the Club A from country E (hereinafter: Club A) entered into an employment contract valid from 1 September 2010 until 30 June 2014; i.e. approx. four years (hereinafter: the contract). 2. According to clause 4.A. of the contract, Club A agreed to pay the player, inter alia, the following amounts: • Season 2010/2011 – EUR 1,200,000. • Season 2011/2012 – EUR 1,200,000. EUR 360,000 to be paid as advance payment on 1 September 2011 and the remaining amount to be paid as monthly salaries, in arrears, on the first week of the following month; • Season 2012/2013 – EUR 1,200,000; and • Season 2013/2014 – EUR 1,500,000. 3. On 28 November 2010, Club A and the player concluded a “Contract Extension” (hereinafter: the contract extension), by means of which clause 16 of the contract was amended, thereby stipulating the following: “[I]n case the player terminates the aforementioned contract by himself for any reason; he will be entitled to pay to [Club A] (10,000,000) euro and the player is entitled for (10%) from the amount (3,000,000) euro will be paid from [Club A] to the player. Also, in case [Club A] receives more than (10,000,000) euro then the extra amount above (10,000,000) euro will be divided equally between [Club A] and the player.” 4. By letter dated 26 January 2012 addressed to Club A, the country X club, Club X (hereinafter: Club X), inquired about a possible transfer of the player to Club X. Club X also requested Club A from country E to confirm the applicable conditions for such potential transfer. 5. By letter dated 26 January 2012, Club A informed Club X that it “[h]ad no objection to transfer the [player] to [Club X] in fee of (4,500,000) EUR (…)”. However, Club A and Club X ultimately did not agree on the transfer of the player. 6. On 31 January 2012, the player signed an employment contract with Club X valid until the end of the season 2013/2014. According to said contract, the player is entitled to a monthly salary of EUR 10,000. 7. On 9 February 2012 the Single Judge of the FIFA Players’ Status Committee authorized the provisional registration of the player with Club X. PLAYER’S CLAIM: 8. On 3 January 2012, the player filed a claim with FIFA against Club A for breach of contract, stating that he was “de-registered” from Club A and that the latter had failed to pay him the amount of EUR 180,000 as had been contractually agreed. The player therefore asserted that Club A had acted in breach of contract and requested (i) that FIFA would “recognize the unilateral termination of the contract” by Club A and (ii) the payment of compensation in an aggregate amount of EUR 3,400,000. 9. In support of his claim, the player affirmed that on 24 October 2011 Club A decided to replace two foreign players in the team. The player further stated that, at that time, Club A already had the maximum number of foreign players allowed by local regulations and that, in order to register two new foreign players, it proceeded to de-register two of its foreign players, including himself. 10. The player sustained that, as a result of his “de-registration” from Club A, he was no longer able to play in official competitions and, as such, he was prevented from exercising his profession. 11. The player also asserted that on 24 October 2011, the Disciplinary Committee of the Football Association of country E (hereinafter: the Football Association of country E) had imposed a four match suspension upon him, as a result of two yellow cards preceding a red card showed during an official match. In this regard, the player expressed the view that his “de-registration” would also be prejudicial to him because, when not registered, he could not serve the aforementioned disciplinary sanction and, thus, his return to competition would be delayed. 12. Furthermore, the player claimed that Club A had failed to pay him the amount of EUR 180,000, which, according to him, should have been paid on 1 September 2011. 13. The player also asserted that, following his “de-registration”, he was prevented from training with Club A’s professional team. 14. Finally, the player claimed that, despite having requested Club A to do so, the latter never provided explanations as to why it had decided to “de-register” him, as well as to the reasons for which it had failed to make the payment of the amount due and forbidden him from training with the professional team. CLUB A’S REPLY TO THE PLAYER’S CLAIM: 15. On 27 April 2012, Club A presented its response to the player’s claim, rejecting it in its entirety. 16. Club A stated that it had made arrangements for the player to leave country E on 25 December 2011 and until 14 February 2012, in view of his participation in the Cup Competition (hereinafter: the Cup Competition) for his national team, and to have booked the player’s flight tickets in accordance thereto. Club A also mentioned that, despite the fact that it had agreed to release him for almost a month before the Cup Competition, the player still requested to go to country X before the Cup Competition in order to rest, and that Club A had refused such request. 17. Club A further stated that, notwithstanding the above, on 20 December 2011, the player left country E without permission, thereby failing to attend the club’s training sessions from 20 to 25 December 2011. 18. In this regard, Club A suggested that the real reason why the player wanted to go to country X at that point was to negotiate his transfer to Club X. 19. Moreover, Club A sustained that, on 28 January 2012, a meeting was held in country E between Club A and the player’s representatives, where the latter allegedly informed Club A that the player was not willing to come back and that “[a] country X club would make an offer for [the player] shortly.” Club A assured that it never heard back from Club X (or any other country X club) in this respect. 20. According to Club A, by leaving country E without authorization, the player breached the contract and Club A was thereon entitled to terminate it. Club A stated, however, that it decided not to terminate the contract and that it was the player who ended up doing so by refusing to come back to the club. 21. Regarding the allegedly outstanding amount of EUR 180,000, Club A clarified that those refer to 50% of the advance payment of EUR 360,000 to be paid in connection with the 2011/2012 season. According to Club A, in advance of the 2011/2012 season, it informed the player that, as was normal practise in the club, it would pay the advance payment for the season in two instalments, and that the player agreed to this. Club A further stated that this happened with all other players of the squad. Moreover, Club A affirmed that on 26 September 2011, the player was informed that the first instalment of the advance payment had already been transferred and that the second instalment would be paid later in the season and that the player allegedly did not object to this. 22. In continuation, Club A sustained that had the player not agreed to the payment in instalments, he would have complained at an earlier stage. Club A asserted that the first time that the issue was ever mentioned was in an e-mail sent to it by the player on 23 January 2012. Moreover, Club A stated that, notwithstanding the above, it expressly replied to said e-mail that it was available to immediately make the payment of such second instalment as a matter of courtesy. 23. In continuation, Club A sustained that, according to the Court of Arbitration for Sport’s (hereinafter: the CAS) established jurisprudence, such alleged late payment would still not constitute “just cause”. In fact the club pointed out that the amount at stake represents only 3% of the value of the player’s salaries and benefits and, therefore, could not be understood as being “material” enough so as to entitle the player “not to be reasonably expected to continue with the contractual relationship.” 24. Club A also maintained that another precondition for termination of the contract by the player is the “advance warning requirement.” Club A expressed the view that the player should have warned it and allowed it to conform to any obligations outstanding. 25. In what concerns the player’s allegation that Club A had breached the contract by de-registering him, the latter club contended that the player’s “de-registration” was “strictly temporary in nature, and it concerned a period during which [the player] was almost completely unavailable for selection by [Club A].” In fact, Club A asserted that, as a result of the player’s disciplinary suspension from official matches (cf. point I. 11 above) and his selection for the national team of Country G for competition at the CUP Competition, the player was only going to be available for selection for “a maximum of 4 of the upcoming 17 matches to be played by [Club A].” Club A decided, therefore, that, “rather than having one of the three places for foreign players left unoccupied for 13 of the 17 matches due to [the player]’s absence, this place would be filled by player R, from country B, during his absence.” 26. Club A went on to state that “it is quite common in country E for players to be temporarily de-registered and then re-registered for a particular competition” Moreover, Club A asserted that the “de-registration” “in no way affects his contract with a club and he still benefits from the advantages of the contract and is bound by his obligations thereunder” and that “In the absence of any specific agreement regarding team selection in a player’s contract, there can be no doubt that a club has the right to exercise its discretion to select a team that is in the club’s best interests and, by extension, the right not to select a player for a particular match or matches.” 27. Club A stated that the player and his agent were fully aware that the player would be re-inserted in the list of foreign players eligible to play in the league before the closing of the second transfer window and that this was never contested. 28. To the player’s allegation that the “de-registration” would also be prejudicial to him because, when not registered, a player may not serve the disciplinary sanction awarded by the Football Association of country E (and thus, his return to competition would be delayed), Club A asserted that such is not the case and that the Football Association of country E had confirmed that the player “would have been eligible to play immediately after his re-registration during the January transfer window”. 29. Club A added that during the period of time following his “de-registration” until his departure from country E, the player continued to train regularly with it and to receive his remuneration according to the contract. CLUB A’S COUNTERCLAIM: 30. Club A also filed a counter-claim against the player for unilateral termination without just cause and requested (i) that the player and Club X be ordered, on a joint and several basis, to pay the club an amount of EUR 9,700,000 plus 5% interest from 20 December 2011, as compensation for breach of contract, on the basis of clause 16 of the contract as amended by the contract extension (cf. point I. 3 above); and (ii) the reimbursement of legal costs. According to Club A, the first paragraph of such clause 16 constitutes a “Compensation Clause”, while the second paragraph constitutes a “Transfer Clause”, that is, that the former is applicable if Club A is owed compensation following termination by the player, while the latter is applicable if Club A receives money for the player as a transfer fee. 31. According to Club A, the aforementioned clause 16 evidences that there was a clear agreement between the parties that the player’s value was EUR 10,000,000 as set out in the alleged compensation clause. Club A explained that the reason why said compensation clause provides that the player would be entitled to 10% of the difference between the amount originally paid by it and the amount it would receive for the termination of the contract was because “the parties agreed that a fair compensation for a new club to pay for the player would be EUR 10,000,000, but the player and his agent wanted to receive 10% of the club’s “profit”, in recognition of the player’s role “in increasing his value” through his performances at the club”. 32. Club A sustained, in addition, that the terms of the alleged transfer clause demonstrate that the parties had agreed that the player would not be transferred for any amount less than EUR 10,000,000, as this was the amount it would receive in case of breach. 33. In light of the above, Club A maintained that the compensation clause must be enforced according to art. 17 par. 2 of the FIFA Regulations on the Status and Transfer of Players. 34. On a subsidiary basis, Club A sustained that the calculation of compensation according to art. 17 par. 1 of the FIFA Regulations on the Status and Transfer of Players would lead to an amount of EUR 8,206,736, as follows: • EUR 4,889,239 (player’s acquisition fee plus agent fee deducted of the amortisation of the 15 months that the player played for Club A); • EUR 317,497 as the total replacement cost of the player by the country I player T; • EUR 3,000,000 as damages according to the “specificity of sport” principle. In this regard, Club A pointed out to the fact that the player (who, in the opinion of Club A, was an established player, with still more than two years of contract) left in the middle of the season without notice and left Club A with less than one week to find a replacement. In addition, Club A recalled that the termination of the contract took place during the protected period. 35. Club A also pointed out that the only reason why it indicated to Club X in a first stage that it was willing to release the player for EUR 4,500,000 (cf. point I. 5 above) was because it was, allegedly, “[d]esperate to resolve the issue before the closure of January transfer window, so it was willing to accept EUR 4.5M in cash in order to arrange a replacement (…)”. Club A reiterated that clause 16 of the contract clearly evidences that the parties valued the player at EUR 10,000,000 and that awarding EUR 4,500,000 would simply reward the bad faith of the player and of Club X who successfully created a trap which put Club A under pressure and led it to making “[s]uch a low offer.” 36. Club A also requested the application of sporting sanctions upon the player and upon Club X for inducing the breach of contract. In what concerns Club X, Club A sustained that the former had behaved in bad faith during the process. Club A pointed out to the fact that the player’s lawyer, Mr. K, was also, already at the time (and had been in the past), representing Club X, and that said lawyer was, at the time, also part of Club X’s management structure. Club A added that after the player had gone missing, his agent informed Club A that it should get in touch with Mr. K and that this constitutes evidence that said lawyer was already arranging the transfer of the player to Club X. PLAYER AND CLUB X’ JOINT REPLICA AND ANSWER TO THE COUNTERCLAIM OF CLUB A: 37. On 2 August 2012, the player and Club X presented their joint response to Club A’s position as to the player’s claim, respectively its counter-claim. The player stated that, according to the FIFA Regulations on the Status and Transfer of Players, a player under contract must be registered with an association and that the FIFA regulatory framework does not have any rule permitting the “de-registration” of a player. 38. The player also maintained that his “de-registration” prevented him from working, as well as from serving his match suspension. The player further stated that the evidence produced by Club A in this respect was issued by the Football Association of country E and does not have any legal basis. 39. The player affirmed that after his “de-registration” Club A excluded him from the “daily life of the professional team”, including training. 40. In continuation, the player asserted that Club A’s argument that he would be absent for a significant period due to selection by his national team to the CUP Competition 2012, does not make sense given that, on the date of the “de-registration”, i.e. on 24 October 2011, there was still no official confirmation that he would be selected to the national team. 41. Regarding Club A’s allegation that he had given his consent to the payment of EUR 360,000 in two instalments, the player asserted that Club A did not present any written document to that effect. The player further claimed that he realised that, on 18 December 2011, Club A had promised to pay all outstanding amounts to the other players, except to him. 42. The player explained that he realised that Club A had no intention of solving the issue and decided to leave the country E on 20 December 2011. He claimed that he left country E to go to country X to “consult with his lawyer before Christmas and New Year’s Eve.” 43. The player also stated that the signing of the player T by Club A on 29 January 2012 constitutes evidence that when the meeting of 28 January 2012 between the parties allegedly took place in country E, Club A had already decided not to “re-register” the player. The player further stated that Club A proceeded to register Player T using the same administrative procedure in violation of the applicable rules, i.e. “de-registering” the player R. 44. The player concluded by stating that, given that it was the last day of the registration period in several associations around the world, he decided to sign a contract with Club X on 31 January 2012, where he is allegedly earning “ten times less”. 45. Club X, on the other hand, declared not to have induced any breach of contract by the player. CLUB A’S FINAL POSITION: 46. On 25 September 2012, Club A submitted its final position to the player and Club X’ joint submission and stated that neither the player nor Club X had provided any evidence to support their contentions and that, accordingly, it did not consider necessary to respond again to their “[i]ncorrect and entirely unsubstantiated factual allegations (…). 47. According to information contained in the Transfer Matching System (TMS), on 7 September 2012, Club X and Sport Club M signed a loan agreement for the transfer of the player to the latter club until 30 June 2013. According to the employment contract signed between the player and Sport Club M, the former is entitled to a total remuneration of EUR 550,000 for the duration of that contract. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 3 January 2012, thus after 1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 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 2010; hereinafter: Regulations) 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 country G player and a country E club, with the involvement of a country X club. 3. Furthermore, the DRC analyzed which 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 Regulations (edition 2010) and also considering that the present claim was lodged in front of FIFA on 3 January 2012, the edition 2010 of said 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 analysis of the substance of the dispute at stake. The members present at the meeting first of all recalled that on 2 September 2010, the player and Club A had entered into an employment contract set to expire on 30 June 2014. 5. In continuation, the Chamber acknowledged that it had been uncontested by the parties that, in a meeting that took place in country E at the end of January 2012, the representatives of the player informed Club A that he would not return to country E. The Chamber noted, furthermore, that it was not disputed that the player had signed an employment contract with Club X on 31 January 2012, valid until the end of the season 2013/2014. 6. In light of the above, the members of the Chamber considered that, by informing Club A that he would not return to country E, the player effectively and prematurely put an end to the contract at the end of January 2012. 7. The members of the Chamber acknowledged that it is at this juncture that the parties have divergent positions. In fact, while the player considers that he had just cause to unilaterally terminate the contract, Club A, on the other hand, sustains that, not only did the player not have any just cause, but he was already in breach of contract at that point in time. 8. In this regard, the Chamber noted that the player considers having had just cause to terminate the contract, based, essentially, on two allegations: (i) the fact that Club A had failed to pay him the amount of EUR 180,000, i.e. 50% of the advance payment agreed for the 2011/2012 season, which according to the employment contract was due on 1 September 2011 (cf. point I. 2 above); and (ii) the fact that Club A had “de-registered” him in October 2011, thus preventing him from exercising his profession and from serving the match suspension handed by the Football Association of country E. 9. Regarding the player’s allegation that Club A had failed to pay him 50% of the advance payment for the season 2011/2012, the members present at the meeting took due note of Club A’s respective position and, in particular, acknowledged Club A’s allegation that the player had agreed to receive the advance payment in two instalments, as apparently was normal practise at Club A. In this context, the members of the Chamber also acknowledged Club A’s view that had the player not agreed to the payment in two instalments, he would have complained at an earlier stage. The Chamber also noted Club A’s statement that the first time player voiced this particular issue with it was in an e-mail sent by his legal representative on 23 January 2012. 10. In this regard, the Chamber emphasized that the parties had expressly agreed in the contract that the advance payment would have to be made on 1 September 2011 and that such provision does not seem to award any flexibility to Club A regarding such deadline for payment. 11. The members of the Chamber considered important to note, however, that, absent any express rule to the contrary, an agreement between two parties does not have to follow any specific form and may, in fact, simply result, for example, from an oral agreement. The Chamber noted, however, that parties opting to conclude their agreements in a non-written form may obviously face increased challenges in proving their allegations and, thus, do so at their own risk. 12. In light of the aforementioned and of the burden of proof principle contained in art. 12 par. 3 of the Procedural Rules, according to which any party deriving a right from an alleged fact shall carry the respective burden of proof, the Chamber stressed that it was clearly up to Club A to provide compelling evidence demonstrating that, despite what had been explicitly agreed in the contract, the parties had, in fact, agreed on an amendment of the contractual provision at stake and, specifically, on a payment of the advance agreed for the 2011/2012 season in two instalments. 13. To this end, the DRC acknowledged that Club A had provided several written testimonies attesting the veracity of its allegations. However, the Chamber emphasized that, according to its established jurisprudence, testimonies provided by individuals who have contractual relationships or are closely linked to the party intending to prove an allegation, are of limited credibility, as their impartiality and independence may, for obvious reasons, be affected. 14. Finally, the Chamber also acknowledged Club A’s claim that, the fact that the player did not raise any issue with regard to the payment of the relevant advance until January 2012, constitutes evidence that an agreement for the payment in two instalments did take place. In this respect, the members of the Chamber wished to point out that, in fact, it is somewhat odd that the player was not in a position to provide any evidence that he had complained about Club A’s alleged failure to make the agreed payment sometime after the contractual due date of the payment of the relevant advance, i.e. 1 September 2011. However, the DRC considered that such alleged behaviour by the player constituted a mere circumstantial fact which was not strong nor definitive enough to allow for the conclusion that the agreement expressly laid down in the contract had been amended by mutual agreement. 15. The Chamber considered, therefore, that, by not making the advance payment agreed for the 2011/2012 season in full on its contractual due date, i.e. 1 September 2011, Club A did not fully fulfil its contractual obligations towards the player. 16. Notwithstanding the above, the DRC wished to emphasize that, according to the principle of contractual stability, the unilateral termination of a contract must be considered as an absolute last resort, where, given the particularities of the situation at stake, it could not be expected that one of the parties could reasonably continue to be bound by the contractual relationship. In what concerns financial obligations, one of the consequences of the aforementioned principle is that only a persistent and substantial non-compliance of these obligations could justify the unilateral termination of a contract. 17. In this respect, the members of the Chamber acknowledged that, according to the documentation provided by Club A, at the end of December 2011 up until the moment the player terminated the contract towards the end of January 2012, it had fulfilled every single financial obligation under the contract but the payment of 50% of the advance payment as established above. Club A had, in fact, already paid the player an amount of approximately EUR 2,000,000. 18. The Chamber also wished to emphasize that the player did not dispute having received the aforementioned amounts and, in fact, had not contested having received all salaries that were due under the contract up until when he decided not to return to country E at the end of January 2012. 19. In light of the above, the Chamber came to the unanimous conclusion that the non-payment of part of the advance payment for the season 2011/2012 cannot be considered a persistent and material non-fulfilment of Club A’s contractual obligations justifying the early unilateral termination of the contract by the player. 20. In continuation, with regard to the issue of the player’s “de-registration”, the Chamber, first and foremost, emphasized that the fact that the player had been “de-registered” by Club A and that such “de-registration” had taken place on 24 October 2011 had not been disputed. 21. Furthermore the members of the Chamber noted the player’s position in this regard that, on the one hand, the “de-registration” of a player is not admitted under the Regulations and that, on the other hand, as a result of his “de-registration”, he was no longer able to play in official competitions for Club A and, as such, was prevented from carrying out his profession. 22. The Chamber then focused on Club A’s allegations in connection with this specific issue. The Chamber noted that Club A sustained that the “de-registration” was temporary in nature given that the player would allegedly be “re-registered” during the following January 2012 registration period. The Chamber also acknowledged Club A’s argument that, in addition, the de-registration concerned a period during which the player would be unavailable for the vast majority of Club A’s official matches as a result of his match suspension and his call up to participate in the Cup Competition for his national team. 23. In continuation, the members of the Chamber also took due note of Club A’s position that, in the absence of any specific agreement regarding team selection in a player’s contract, a club has the right to exercise its discretion to select a team that is in the club’s best interests and, by extension, the right not to select a player for particular matches and that, as such, the “de-registration” of the player should not be treated any differently. 24. In light of the above, first of all, the members of the Chamber considered important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. 25. Furthermore, the members of the DRC acknowledged Club A’s argument that “de-registering” a player is no different from such player not being selected for a particular match or not being included in the roster for a particular competition. The Chamber, however, respectfully disagreed with such argument and considered that said circumstances are distinct from the ones present in the dispute at stake. In fact, in relation to the non-selection of a player for a particular match, the Chamber noted that such decision is, typically, of a technical nature, resulting from the fact that a manager considers other players to be in a better position at that specific moment to help the team reach its goals. However, a “de-registration” of a player is a significantly different scenario since that by “de-registering” a player, even for a limited time period, a club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, is violating one of his fundamental rights as a football player. 26. Therefore, the Chamber established that the “de-registration” of a player could in principle constitute a breach of contract since it de facto prevents a player from being eligible to play for his club. 27. Notwithstanding the above, the DRC considered important to point out that Club A equally sustains that the player had accepted his “de-registration” and had apparently been satisfied that he would be “re-registered” during the January transfer window. 28. In this context, the Chamber, first of all, paid particular attention to the date on which the “de-registration” of the player was carried out by Club A, i.e. 24 October 2012. 29. The members of the Chamber also remarked that the player had alleged that, after his “de-registration”, he had been excluded from training. The DRC took due note that, on the other hand, Club A had firmly disputed this allegation and had sustained that, during the period of time following his “de-registration” until his departure from country E, the player continued to train regularly and to receive his remuneration according to the contract. 30. In this respect, the members of the Chamber paid particular attention to the training attendance lists provided by Club A which seem to confirm that, between his “de-registration” and his departure from country E, the player had consistently been able to participate in trainings with the team. In this regard, the Chamber wished to emphasize that faced, notably, with this piece of evidence, in his replica the player merely reaffirmed that he had been prevented from training as originally alleged, but had not specifically disputed the existence/authenticity of such attendance list nor provided any explanation as to its contents. 31. In light of the aforementioned, the members of the Chamber were not convinced that the player had been prevented from training with the team and decided to disregard such allegation of the player. 32. The DRC then turned its attention to the fact that it had also remained undisputed that the player had received his remuneration in full (with the exception of 50% of the advance payment for that season, as previously discussed) up until his departure from country E in December 2011. 33. Finally, the Chamber acknowledged that the player did claim that he had allegedly been caught by surprise by his “de-registration” and had requested “explanations” from Club A in several instances, however, the Chamber once again noted that any party claiming a right in the basis of an alleged fact shall carry the burden of proof, and that the player had not provided the DRC with any evidence to support its submission. The Chamber decided, therefore, that such allegation cannot be accepted. 34. Bearing in mind the factual sequence of events as previously established, the Chamber considered that it had to conclude that, despite having been “de-registered” on 24 October 2011, the player (i) had kept attending the training sessions with the team, (ii) had kept collecting his remuneration in full until his departure in December 2011 and (iii) had not been able to demonstrate that he had ever disputed his “de-registration”. Thus, the members of the Chamber had no option other than to conclude that this course of action suggested that the player had, in fact, consented to his “de-registration” from Club A. 35. In fact, the Chamber did not consider plausible that, had the player considered his “de-registration” as an intolerable breach of contract by Club A (to the extent that it served as a basis of his claim with FIFA) he would not have complained immediately after becoming aware of this fact or, at least, sometime between that moment and the date when he left country E in December. 36. In light of the above, the Chamber concluded that, by consenting to his “de-registration”, the player legitimized an action which could, in principle, have been considered a breach of contract, had it not been tacitly authorized by him. 37. Based on the aforementioned conclusions and having assured itself that the player had not presented any other evidence suitable to corroborate his allegation that he had just cause to terminate the contract, the Chamber had no option other than to consider that the player had terminated the contract unilaterally and without just cause at the end of January 2012. Consequently, the members of the DRC concurred that the claim of the player for compensation for breach of contract against Club A must be rejected. 38. Before proceeding further and for the sake of good order, the members of the Chamber wished to point out that, by having left country E on 20 December 2011 without authorization (a fact which remained undisputed between the parties) the player had consciously disrespected Club A’s instructions in that respect. 39. Having established that the player did not have a just cause to unilaterally terminate the contract at the end of January 2012, the Chamber turned its attention to the question of the consequences of such breach of contract during the protected period committed by the player. 40. In this context, the members of the Chamber first of all referred to item 7. of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period is the “period of three seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional (…)”. In this regard, the DRC pointed out that the player, whose date of birth is 2 January 1985, was 25 years of age when he signed his employment contract with Club A on 2 September 2010, entailing that the unilateral termination of the contract occurred within the applicable protected period. 41. The DRC established that, in accordance with art. 17 par. 1 of the Regulations, the player is liable to pay compensation to Club A. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the Regulations, the Chamber established that Club A’s new club, i.e. Club X, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the player’s new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS. Notwithstanding the aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. In any event, the Chamber determined that it would attend to the question of the possible inducement to breach of contract by Club X at a later stage of its deliberations, i.e. after having discussed the issue of the compensation due to Club A. 42. Prior to proceeding to the calculation of the amount of compensation for breach of contract due to Club A, the members of the Chamber first of all concurred that Club A must fulfill its outstanding obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”. As stated above, the remuneration that was outstanding at the time of the termination, i.e. the end of January 2012, amounts to EUR 180,000, which corresponds to 50% of the advance payment which became due, according to clause 4.A. of the contract, on 1 September 2011. 43. The aforementioned having been established and reverting to the notion of compensation for breach of contract, the Chamber lent emphasis on the primacy of the principle of the maintenance of contractual stability, which represents the backbone of the agreement between FIFA/UEFA and the European Commission signed in March 2001. This agreement and its pillars represent the core of the former (editions 2001, 2005 and 2008) as well as of the 2010 edition of the Regulations, which all stakeholders – including player and club representatives – agreed upon in 2001. 44. Above all, the Chamber was eager to point out that the measures provided for by the above Regulations concerning in particular compensation for breach of contract without just cause serve as a deterrent aimed at discouraging the early termination of employment contracts by either contractual party and that a lack of a firm response by the competent deciding authorities would represent an inappropriate example towards all the football actors. 45. In this respect, awarding compensation in favour of the damaged party (either the player or the club, as the case may be) has proven to be an efficient means and has always found a widespread acceptance since it guarantees that the fundamental principle of the respect of the contracts is duly accounted for. 46. Above all, it was emphasised that the criteria contained in art. 17 of the Regulations are applied with the principle of reciprocity for clubs and players, signifying that both clubs and professionals who are seen to have committed a breach of contract without just cause will in all cases be subject to pay compensation and, under specific circumstances, also be subject to the imposition of sporting sanctions. 47. Having stated the above, 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 reiterated 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 player under the existing contract and/or the new contract(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party. 48. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the relevant employment contract between the player and Club A contains a provision by means of which the parties had beforehand agreed upon an amount of compensation for breach of contract. 49. In this respect, the Chamber acknowledged Club A’s view that the first paragraph of clause 16 of the contract (as amended by the contract extension) would constitute a “Compensation Clause” and would be applicable if Club A was owed compensation following the unlawful termination of the contract by the player. 50. The members of the Chamber then proceeded to closely examine the wording of said clause 16 of the contract. The Chamber considered noteworthy to mention, from the outset, that, due to their important objective of setting forth, in advance, the indemnity to be payable by a party in case of breach of contract, compensation clauses should be clear and give no room for ambiguity. In other words, the DRC emphasized that, as a deciding body, when assessing the existence or not of a compensation clause, it must be in a position to clearly establish the precise intention of the parties as to that matter. 51. After having carefully analysed the clause at stake, the Chamber concluded that its respective wording does not allow for a clear understanding of the intention of the parties to the contract. 52. In light of the above, the Chamber considered that the alleged compensation clause cannot be considered by the DRC when establishing the amount of compensation for breach of contract. What is more and for the sake of good order, the Chamber wished to emphasize that, in any case, the clause at stake was not reciprocal, meaning that it did not foresee the consequences of the unilateral termination without just cause by the club, and that as such it could not be seen as enforceable. 53. As a consequence, the members of the Chamber determined that the prejudice suffered by Club A in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC 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, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years. 54. Consequently, in order to estimate the amount of compensation due to Club A in the present case, the Chamber firstly turned its attention to the remuneration and other benefits due to the player under the existing contract and the new contract(s), which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasize that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the 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). 55. In this regard, the DRC established, on the one hand, that the employment contract between Club A and the player, signed on 2 September 2010, had been set to expire on 30 June 2014. The player had undisputedly received his salary until and including December 2011, entailing that the total value of his employment agreement with Club A for the remaining contractual period of 30 months appeared to be composed of the amount of EUR 504,000 for the months of January 2012 to June 2012, as well as the amount of EUR 1,200,000 for the season 2012/2013 and the amount of EUR 1,500,000 for the season 2013/2014, for an aggregate amount of EUR 3,204,000. 56. On the other hand, the DRC noted that the annual remuneration earned by the player under the terms of his employment contract with Club X amounted to EUR 80,000 for the remaining of the 2011/2012 season, EUR 120,000 for season 2012/2013 and EUR 120,000 for season 2013/2014. The Chamber wished to emphasize, however that it appears that the player was transferred on loan from Club X to the club Sport Club M, where he signed an employment contract valid from 9 September 2012 to 30 June 2013, providing for a total remuneration of EUR 550,000, upon the termination of which he would presumably return to Club X. Consequently, the members of the Chamber established that the value of the new employment contracts concluded between the player and, respectively, Club X and Sport Club M, amount to a total of EUR 750,000 for the period of time that was remaining since the unilateral termination of the contract by the player until its contractual expiry, i.e. from January 2012 to 30 June 2014. 57. Having stated the above, the DRC recalled that the remuneration paid by the player’s new club(s) is particularly relevant in so far as it reflects the value attributed to his services by his new club at the moment the breach of contract occurs and possibly also provides an indication towards the player’s market value at that time. In this regard, the DRC took due note that the player appeared to have reduced his income considerably by concluding an employment contract with Club X. 58. The members of the Chamber then turned to the essential criterion relating to the fees and expenses paid by Club A for the acquisition of the player’s services in so far as, due to the early termination of the employment contract, these could not be amortized over the full term of the contract. The Chamber recalled that a transfer compensation of EUR 7,000,000 had been paid by Club A to the Club Y, from country X for the player‘s transfer and that this had been properly demonstrated by the documentation provided by Club A. 59. The members of the Chamber also noted that Club A had claimed to have agreed to a payment of a total amount of EUR 255,000 in agent fees, of which EUR 200,000 had already been paid and the remaining EUR 55,000 would be paid in the future. In this respect, the Chamber wished to point out that Club A had only provided evidence of the payment of EUR 200,000 in agent fees and that, therefore, only this amount can be considered by the DRC at the time of passing its decision. 60. According to article 17 par.1 of the Regulations, the aforementioned amount shall be amortised over the term of the contract. As stated above, the player was in principle still bound to Club A for another 30 months when he terminated the contract, which had been signed by the parties for a total period of 46 months. Therefore, the members of the Chamber calculated, on a pro rata basis, that as a result of the player’s termination of contract in January 2012, Club A has thus been prevented from amortising the amount of EUR 4,695,652, relating to the transfer compensation and the agent fees that it paid in order to acquire the player’s services, which, at that time, Club A trusted to be able to make use of during approximately four years. 61. In continuation, the Chamber recalled that art. 17 par. 1 of the Regulations provides for a list of criteria that is non-exhaustive and that any other objective criteria may be taken into account. In this regard, the Chamber decided that it could not avoid taking into consideration the offer made by Club A to Club X on 26 January 2012 for the transfer of the player (cf. point I. 5 above). The members of the Chamber emphasized that, as has been confirmed in several CAS decisions on this matter, offers made by third parties may be relevant for the evaluation of the damage suffered by the club, as they provide important information regarding the potential market value of the player. In continuation, the Chamber stated that, if an offer made by a third party can assist in the determination of the player’s value and, therefore, in the calculation of a club’s damages, then one must conclude that an offer made precisely by the club that suffered the damage must be considered an even more accurate reflection of the value that it attributes to the player at stake and, therefore, to the damage it sustained. 62. In this context, however, the Chamber acknowledged Club A’s argument that the circumstances in which the offer was made (close to the end of the relevant registration period and, thus, with limited time for a substitute player to be signed) should be taken into account for purposes of determining if the offer which was made by Club A to Club X on 26 January 2012 constitutes an accurate reflection of the value attributed to the player by Club A. The Chamber considered, nonetheless, that negotiations under reasonably tight deadlines are a natural consequence of the necessary existence of registration periods and of the volatile nature of the transfer market. Furthermore, the DRC was eager to note that the registration period in country E would only close on 30 January 2012, i.e. four days only after the offer in question was made, and thus that one may doubt that, had Club A considered that player had a higher market value, it would not have made a higher offer in a first stage and only lower such offer in the subsequent days depending on the reaction of Club X. 63. In light of the above, the members of the Chamber were not convinced that the offer of EUR 4,500,000 made by Club A to Club X does not reflect the value that the former attributed at that time to the player. As such, the Chamber considered that such an offer is a decisive and objective element that must be considered. 64. The Chamber then turned its attention to the aspect relating to the “specificity of sport” which is equally explicitly referred to in art. 17 par. 1 of the Regulations. At the outset, the DRC recalled that this important aspect has been recognised by the European Union and has repeatedly been referred to by the CAS for the purpose of establishing the applicable amount of compensation in case of contractual breach, ensuring that the decisions rendered are not only just and fair from a strictly legal point of view, but that they also correspond to the specific needs and interests of the football world and its stakeholders. In this regard, and with reference to the respective jurisprudence of the CAS, the DRC recalled that the specificity of sport allows for it to take into account the circumstance that players can be considered the main asset of a club in terms of their sporting value but also from a rather economic point of view. 65. In light of the foregoing, the DRC considered that the sporting damage caused to Club A by the player’s breach of contract without just cause was particularly important. In this respect, the Chamber highlighted that the player had had a high performance standard and had been important to Club A in terms of its sporting results, justifying the considerable amount of money invested to sign him. The Chamber also pointed out that when the player unilaterally terminated the contract, there was still a considerable amount of time due under the contract and that it was undisputed that the termination had taken place within the protected period, which must be considered as an aggravating factor. 66. On the other hand, the Chamber considered that it should also take into consideration the fact that the player had accepted a considerable lower salary at Club X and that it could be safely inferred that the issue of his remuneration was not likely the driver behind the player’s decision to unilaterally terminate the contract. 67. In continuation, the members of the Chamber considered important to recall that, although it had considered that the player was to be held responsible for having terminated the contract without just cause, one should not omit the fact that Club A’s behaviour during the months leading up to the unilateral termination of the contract by the player had not been without its flaws. In particular, the Chamber recalled that Club A had not paid the advance payment for the 2011/2012 season in full and was also at the origin of the decision to “de-register” the player in order to be able to sign another foreign player, decision which, in principle and for the reasons highlighted hereinbefore (cf. points II. 24 to 26 above), and had the player not de facto consented to it, could have been deemed irregular. 68. Consequently, on account of all of the above-mentioned considerations as well as the specificities of the matter at hand, the Chamber decided that the player must pay the amount of EUR 4,500,000 to Club A as compensation for breach of contract. Furthermore, Club X is jointly and severally liable for the payment of the relevant compensation. 69. In continuation, the Chamber focused on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on any player found to be in breach of contract during the protected period. 70. With regard to the quoted provision, the Chamber emphasised that a suspension of four months on a player’s eligibility to participate in official matches is the minimum sporting sanction that can be imposed for breach of contract during the protected period. This sanction, according to the explicit wording of the relevant provision, can be extended in case of aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision does not provide for a possibility to the deciding body to reduce the sanction under the fixed minimum duration in case of mitigating circumstances. 71. In this regard, the Dispute Resolution Chamber recalled that the breach of contract by the player had occurred during the applicable protected period. Consequently, the Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the player had to be sanctioned with a restriction of four months on his eligibility to participate in official matches. 72. Notwithstanding the above, the Chamber noted that, according to Club A own submissions, it had “de-registered” the player on 24 October 2011 with the view of only “re-registering” him before the closing of the January 2012 registration period. The Chamber was, thus, eager to emphasize that between the date of his “de-registration” and the unilateral termination of the contract by the player at the end of January 2012, the player had de facto not been eligible to play in any official matches as a result of said “de-registration”. In light of the above, the Chamber decided that these three months during which the player was ineligible to play for Club A in view of his “de-registration” must be taken into account when assessing the suspension provided for in art. 17 par. 3 of the Regulations, and consequently that the player must serve only one month out of the four month restriction on playing in official matches. 73. On a side note and for the sake of good order, the DRC deemed it appropriate to clarify that, in the sense of the Regulations, the player had uninterruptedly remained registered at the Football Association of country E until his transfer to Club X. In fact, according to the information contained in the TMS, the player was officially registered at the Football Association of country E until he was provisionally registered at the Football Federation of country X for Club X on 10 February 2012, based on the decision of the Single Judge of the Players’ Status Committee of 9 February 2012 (cf. art. 5 par. 1 in connection with art. 9 par. 1 of the Regulations). 74. Finally, the members of the Chamber turned their attention to the question of whether, in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e. Club X, must be considered to have induced the player to unilaterally terminate his contract with Club A without just cause during the protected period, and therefore shall be banned from registering any new players, either nationally or internationally, for two registration periods. 75. In this respect, the Chamber recalled that, in accordance with the aforementioned provision, it shall be presumed, unless established to the contrary, that any club signing a professional player who has terminated his previous contract without just cause has induced that professional to commit a breach. 76. Having stated the above, the members of the Chamber summarised that it had remained undisputed that the player’s legal representative was and had been for some time also the legal representative of Club X (including in these proceedings). In light of the above, the Chamber had to consider that Club X had, for quite some time, been well aware of the player’s contractual situation with Club A. In fact, the members of the Chamber wished to emphasize that the fact that Club X had sent a letter to Club A on 26 January 2012, in order to inquire about the possibility of a transfer of the player to Club X demonstrates precisely that the latter club was aware that, at that time, there was still a valid employment contract between the player and the Club A, otherwise it would have signed the player as a free agent without attempting to negotiate the terms of a possible transfer of the player. 77. In light of the aforementioned and given that Club X did not provide any specific or plausible explanation as to its possible non-involvement in the player’s decision to unilaterally terminate his employment contract with Club A, the DRC had no option other than to conclude that Club X had not been able to reverse the presumption contained in art. 17 par. 4 of the Regulations and that, accordingly, the latter had induced the player to unilaterally terminate his employment contract with Club A. 78. In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the Regulations, Club X shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 79. In conclusion, the DRC decided that the counter-claim of Club A is partially accepted and that the player has to pay to Club A EUR 4,500,000, plus 5% interest p.a. over said amount as from the date of this decision, as compensation for the unilateral termination of the contract without just cause during the protected period. In this respect, the DRC also determined that Club X is jointly and severally responsible for the payment of the above-mentioned amount of compensation plus interest to Club A. 80. Furthermore, the Chamber decided that the player shall be sanctioned with a restriction of four months on his eligibility to participate in official matches. As previously mentioned (cf. point II. 72 above), the Chamber considered that the player must serve only one month of restriction on playing in official matches, and that said restriction shall be applicable with immediate effect as of the date of notification of the present decision. 81. And finally, the Chamber established that Club X shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 82. In addition, the Chamber held that Club A’s claims for the reimbursement of legal costs were rejected in accordance with art. 18 par. 4 of the Procedural Rules as well as the Chamber’s respective longstanding jurisprudence. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent 1, Player I, is partially accepted. 2. The Respondent/Counter-Claimant, Club A, has to pay the amount of EUR 180,000 to the Claimant/Counter-Respondent 1 within 30 days of notification of the present decision. 3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. The Claimant/Counter-Respondent 1 is directed to inform the Respondent/Counter-Claimant directly and immediately of the account number to which the remittance is to be made and to notify the DRC of every payment received. 5. Any further request filed by the Claimant/Counter-Respondent 1 is rejected. 6. The counter-claim of the Respondent/Counter-Claimant, Club A, is partially accepted. 7. The Claimant/Counter-Respondent 1, Player I, has to pay to the Respondent/Counter-Claimant the amount of EUR 4,500,000, plus 5% interest p.a. as from 16 November 2012, within 30 days of notification of the present decision. 8. The Counter-Respondent 2, Club X, is jointly and severally liable for the payment of the compensation stated in point 7. above. 9. If the amount mentioned in the point 7. above is not paid within the aforementioned time limit, the matter will be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 10. The Respondent/Counter-Claimant is directed to inform the Claimant/Counter-Respondent 1 and the Counter-Respondent 2 directly and immediately of the account number to which the remittance is to be made and to notify the DRC of every payment received. 11. A restriction of four months on his eligibility to play in official matches is imposed on the Claimant/Counter-Respondent 1, Player I, of which three months are deemed to have already been served. This sanction applies with immediate effect as of the date of notification of the present decision. 12. The Counter-Respondent 2, Club X, shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision. 13. Any further request filed by the Respondent/Counter-Claimant is rejected. ***** 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 Deputy Secretary General Encl. CAS directives