F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodore Giannikos (Greece), member on the matter involving the player, Player A, Country B, as Claimant / Counter-Respondent and the club, Club C, Country D, as Respondent / Counter-Claimant and the club, Club E, Country F as Intervening party regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodore Giannikos (Greece), member on the matter involving the player, Player A, Country B, as Claimant / Counter-Respondent and the club, Club C, Country D, as Respondent / Counter-Claimant and the club, Club E, Country F as Intervening party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 January 2012, the Player from Country B, Player A (hereinafter: the Claimant / Counter-Respondent) and the Club from Country D, Club C (hereinafter: the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract) valid as of the date of signature until 31 December 2013. 2. Pursuant to article 5 par. 1 and par. 2 of the contract, the Claimant / CounterRespondent is to receive the following fixed remuneration:  EUR 1,000,000 net as sign-on fee payable within seven working days “upon execution of the contract and Football Association of Country D’s receipt of the effective International Transfer Certificate (ITC)”;  EUR 7,000,000 net as annual salary. 3. Article 5 par. 3 of the contract provides, inter alia, for the following bonuses:  USD 5,000 for each match won in the Super League of Football Association of Country D in the event the Claimant / Counter-Respondent plays more than 45 minutes, or USD 2,500 in the event the Claimant / Counter-Respondent makes an appearance as a substitute;  USD 2,000 for each match drawn in the Super League of Country D, or USD 1,000 in the event the Claimant / Counter-Respondent makes an appearance as a substitute. 4. According to article 7 par. 6 of the contract, “Party A [the Respondent / CounterClaimant] shall conduct work visa and bear the related expenses for Party B [the Claimant / Counter-Respondent]”. 5. Article 8 of the contract provides for all of the Claimant / Counter-Respondent’s obligations as well as the sanctions resulting from the Claimant / CounterRespondent’s breach. In particular, article 8 stipulates the following:  par. 8 lit. 1 “a penalty of USD 10,000 will be imposed for each absence from training session (unless through sickness or injury) without authorization or the approval of the club. (…) More than three times’ training absences by Party B [the Claimant / Counter-Respondent] shall constitute the Material Breach of the Contract”.  par. 10 “when Party B [the Claimant / Counter-Respondent] accepts media interview with Party A [the Respondent / Counter-Claimant]’s permission, his responses shall be limited to the scope which has been confirmed by Party A [the Respondent / Counter-Claimant] (…)”. 6. Article 9 par. 4 of the contract foresees that “if the contract is intentionally terminated by Party B [the Claimant / Counter-Respondent], Party B [the Claimant / Counter-Respondent] shall compensate Party A [the Respondent / Counter-Claimant] with Euro 7 million”. 7. Article 9 par. 5 (2) further stipulates that “Party B [the Claimant / CounterRespondent] may inform Party A [the Respondent / Counter-Claimant] to terminate the contract if Party A [the Respondent / Counter-Claimant] (…) fails to make payments due under this Agreement, if said failure is not remedied within 28 days of notification thereof; provided that, all the amount due according to the Contract shall be immediately payable to Party B [the Claimant / Counter-Respondent]”. 8. Pursuant to article 11 par. 2 of the contract, “Party B [the Claimant / CounterRespondent] shall get Party A [the Respondent / Counter-Claimant]’s written consent in advance, if Party B [the Claimant / Counter-Respondent] wants to be transferred to other club during the contract period, furthermore, Party B [the Claimant / Counter-Respondent] shall discuss the related transfer fee with Party A [the Respondent / Counter-Claimant]”. 9. According to article 15 par. 2 of the contract, “any disputes in respect of matters of football, discipline, or transfers shall be submitted to the arbitration commission of Football Association of Country D, and the arbitral award shall be final (when the subject matter of the dispute is of a domestic variety). Any other dispute of a more international nature, involving for example any international transfer or any matters which falls under the ambit of any FIFA regulations, shall be submitted to the arbitration committee of FIFA, and FIFA’s decision is final.” 10. Article 17 par. 6 of the contract states that “matters uncovered in this contract shall be managed in accordance with the laws, regulations, rules of Country D and relevant provisions of FIFA and Football Association of Country D”. 11. The contract also states that the Respondent / Counter-Claimant is to provide the Claimant / Counter-Respondent with accommodation. 12. On 31 December 2012, the parties amicably put an end to the contract (hereinafter: the termination agreement) by means of a document named “Confirmation on the Termination of the Agreement” and stating that “both parties have no disputes about such termination”. 13. On 1 January 2013, the parties concluded a “supplementary agreement” (hereinafter: the supplementary agreement). 14. Article 1 of the supplementary agreement stipulates that “Parties mutually agree that the contract (…) signed by both parties shall be terminated from January 10, 2013”. 15. Article 2 of the supplementary agreement also states the following: “The Party A [the Respondent / Counter-Claimant] agrees to pay Party B [the Claimant / Counter-Respondent] before January 10, 2013: - the remaining salary, bonus and expenses due according to the Contract. This amount will be on the 10th of January equal to EUR 1,785,380. - a fixed compensation equal to EUR 1,000,000 (net). Party B [the Claimant / Counter-Respondent] accepted this termination on the contract in consideration of the payment by Party A [the Respondent / CounterClaimant] before the January 10, 2013, of the unpaid salaries and fixed compensation (2,785,380). If the payment is not made at this precise date the contract will be considered terminated January 10, 2013 by party A [the Respondent / Counter-Claimant], salary shall be due from January 1 to January 10, 2013 and this shall constitute a material breach of the contract by Party A [the Respondent / Counter-Claimant].” 16. On 21 January 2013, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant in default regarding the non-payment of the amounts foreseen in the supplementary agreement. 17. On 11 February 2013, the Claimant / Counter-Respondent lodged a complaint before FIFA against the Respondent / Counter-Claimant, requesting the payment of the following amounts:  EUR 1,975,902 as outstanding amounts broken down as follows: - EUR 409,095 as 90% of his salary of September 2012, plus 5% interest p.a. as of 30 September 2012; - EUR 454,545 as salary of October 2012, plus 5% interest p.a. as of 31 October 2012; - EUR 454,545 as salary of November 2012, plus 5% interest p.a. as of 30 November 2012; - EUR 454,545 as salary of December 2012, plus 5% interest p.a. as of 31 December 2012; - EUR 188,172 as pro-rata salary from 1 to 10 January 2013; - EUR 1,500 as match bonus for the match drawn against Club G in Super League of Country D on 25 August 2012, plus 5% interest p.a. as of 31 August 2012; - EUR 1,500 as match bonus for the match drawn against Club H in Super League of Country D on 22 September 2012, plus 5% interest p.a. as of 30 September 2012; - EUR 3,000 as match bonus for the match won against Club I on 15 September 2012, plus 5% interest p.a. as of 30 September 2012; - EUR 3,000 as match bonus for the match won against Club J on 29 September 2012, plus 5% interest p.a. as of 30 September 2012; - EUR 6,000 as accommodation expenses for September 2012.  EUR 7,000,000 as compensation corresponding to the residual value of the contract, i.e. calendar year 2013. 18. In this respect, the Claimant / Counter-Respondent states that the Respondent / Counter-Claimant failed to meet its primary obligation of payment. The Claimant / Counter-Respondent alleges that by the end of December 2012, the Respondent / Counter-Claimant had not paid his salary for more than three months, i.e. most of September 2012 until December 2012, as well as his bonuses for the aforementioned matches and his accommodation expenses for September 2012. The Claimant / Counter-Respondent further holds that the Respondent / CounterClaimant never honoured its obligation of payment on time. In this regard, the Claimant / Counter-Respondent lists each payment made by the Respondent / Counter-Claimant in order to evidence the repeated delays in the payment of his salary and underlines that the last payment was made on 31 October 2012, allegedly representing 10% of his salary of September 2012. The Claimant / CounterRespondent also refers to exchanges of e-mails dated 31 July 2012 until 10 August 2012 between his legal representative and the Respondent / Counter-Claimant regarding outstanding payments. 19. In this context, aware of the Respondent / Counter-Claimant’s inability to pay further remuneration, the Claimant / Counter-Respondent sustains that, even though he was allegedly entitled to lodge a claim for breach of contract by the Respondent / Counter-Claimant, he agreed upon an amicable termination of the contract but subject to the main prerequisite of all outstanding amounts under the contract being paid beforehand. In this context, the Claimant / Counter-Respondent provided exchanges of e-mails dated 28 November 2012 and 11 December 2012 between his legal representative and the Respondent / Counter-Claimant. 20. Subsequently, the Claimant / Counter-Respondent alleges that the Respondent / Counter-Claimant did not comply with article 2 of the supplementary agreement which had set the deadline of 10 January 2013 to pay the amount of EUR 2,785,380. In particular, the Claimant / Counter-Respondent underlines the new deadlines of 20 and 31 January 2013 set by the Respondent / Counter-Claimant, via e-mails dated 11 and 13 January 2013, in order to proceed to the said payment, but it apparently never occurred. 21. Consequently, the Claimant / Counter-Respondent deems that the Respondent / Counter-Claimant failed to comply with its obligation of payment provided for under the supplementary agreement, which constitutes a material breach of the employment contract as stated in article 2 of the said supplementary agreement. Therefore, the Claimant / Counter-Respondent considers that article 9.4 – a contrario and pursuant to the principle of reciprocity – and article 9.5.2 of the contract shall apply in order to determine the amount for compensation. 22. In its statement of defence, the Respondent / Counter-Claimant first of all contested the jurisdiction of the FIFA Dispute Resolution Chamber (hereinafter: the DRC) on the basis of the arbitration clause contained in the contract (cf. point 9 above). Referring to article 15 par. 2 of the contract as well as article 5 of the Regulations of the Football Association of Country D Arbitration Commission, that were provided by the Respondent / Counter-Claimant, the latter holds that the Claimant / CounterRespondent should have lodged his claim before the relevant deciding body of the Football Association of Country D insofar as the present matter is about salary payments and termination of a contract concluded in Country D and therefore, involves “domestic factors only”. 23. Alternatively, in the event the DRC declares itself competent to adjudicate the present matter, the Respondent / Counter-Claimant submitted its position as to the substance of the dispute. The Respondent / Counter-Claimant alleges having complied with its contractual obligation of payment of remuneration to the Claimant / Counter-Respondent. In particular, the Respondent / Counter-Claimant asserts having informed the Claimant / Counter-Respondent about the fact that Country D’s foreign exchange control would have an impact on salary payments and the Claimant / Counter-Respondent apparently agreed. In this respect, the Respondent / Counter-Claimant refers to article 9.5 of the contract which provides the Respondent / Counter-Claimant with a period of grace of 28 days in case of failure to pay. The Respondent / Counter-Claimant further underlines that the Claimant / Counter-Respondent never complained about such delays until the claim lodged in February 2013. 24. Subsequently, the Respondent / Counter-Claimant affirms that it was the Claimant / Counter-Respondent’s will to terminate the contract. The Respondent / CounterClaimant holds that the parties concluded the supplementary agreement because the Claimant / Counter-Respondent was apparently not willing to stay. The Respondent / Counter-Claimant further alleges that it agreed upon the payment of EUR 2,785,380 as foreseen in article 2 of the supplementary agreement, subject to the condition of the Claimant / Counter-Respondent signing with no other club for the next year. In particular, the Respondent / Counter-Claimant refers to article 11 par. 2 of the contract and explains that the supplementary agreement did not aim at allowing the Claimant / Counter-Respondent to be transferred to another club and at the same time receiving the aforementioned payment. 25. In this regard, the Respondent / Counter-Claimant alleges that the termination agreement was in fact signed on 25 January 2013 although it provided for the termination of the contract as of 31 December 2012. In particular, the Respondent / Counter-Claimant explains that after the signature of the supplementary agreement, the Claimant / Counter-Respondent requested it to sign a declaration stating that the he was a free agent so he could sign with a new club and thus, the termination agreement was signed by the parties. 26. In this context, the Respondent / Counter-Claimant deems that the supplementary agreement was superseded by the termination agreement due to the following reasons: a) the date of termination set in the supplementary agreement, i.e. 10 January 2013, was actually changed to 31 December 2012; b) if the Claimant / Counter-Respondent believed that the supplementary agreement was still valid, he should have lodged a claim to FIFA due to the termination of the contract without just cause by the Respondent / CounterClaimant or asked for the issuance of the provisional ITC to allow the Claimant / Counter-Respondent to be registered immediately instead of signing the termination agreement on 25 January 2013; c) by signing the termination agreement, the Respondent / Counter-Claimant agreed upon the transfer of the Claimant / Counter-Respondent without asking the new club to pay any transfer compensation and, in exchange, the Claimant / Counter-Respondent apparently assented not to claim any outstanding amount to the Respondent / Counter-Claimant. In order to corroborate its allegation, the Respondent / Counter-Claimant quotes the termination agreement: “We, Club C and Player A (…) hereby agree and confirm that the “Contract for the Foreign Players of Super League of Country D” which was entered by us on January 1, 2012, has been mutually terminated on the date of December 31, 2012. Both parties have no dispute about such termination”. In this respect, the Respondent / Counter-Claimant submitted a copy of the termination agreement dated 31 December 2012 enclosed to an e-mail dated 25 January 2013 sent by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent. 27. The Respondent / Counter-Claimant further considers that the Claimant / CounterRespondent acted in bad faith since after signing the termination agreement – allegedly on 25 January 2013 – the Claimant / Counter-Respondent joined the Club from Country F, Club E, on 1 February 2013. In particular, the Respondent / CounterClaimant alleges that the Claimant / Counter-Respondent has been preparing to join the said Club from Country F, without informing the Respondent / Counter-Claimant in advance. 28. Moreover, the Respondent / Counter-Claimant alleges that in the event the breach of the contract is confirmed, it should be due to the Claimant / CounterRespondent’s fault. The Respondent / Counter-Claimant points to the Claimant / Counter-Respondent’s performance which apparently was unsatisfactory. In particular, the Respondent / Counter-Claimant stresses that on 19 May 2012, the Claimant / Counter-Respondent was sanctioned with a yellow card during a match against the Club from Country D, Club K, which led to the Claimant / CounterRespondent’s suspension for the following home match against the Club from Country D, Club L. The Respondent / Counter-Claimant also recalls that on 21 May 2012, the Claimant / Counter-Respondent was absent from training without reason and without informing the Respondent / Counter-Claimant in advance. In this respect, the Respondent / Counter-Claimant refers to an e-mail sent to the Claimant / Counter-Respondent on 22 May 2012, informing him about the imposition of a fine amounting to USD 15,000 pursuant to article 8 of the contract. 29. Furthermore, the Respondent / Counter-Claimant insists that it was the Claimant / Counter-Respondent who breached the contract by not behaving correctly and, in particular, by giving an interview without the Respondent / Counter-Claimant’s authorisation on 21 May 2012 in breach of article 8 par. 10 of the contract. The Respondent / Counter-Claimant also asserts that the Claimant / Counter-Respondent came back from his leave on 9 June 2012, while he was granted until 7 June 2012, and did not resume training on that date, as stated in the e-mail dated 9 June 2012 sent to the Claimant / Counter-Respondent. The Respondent / Counter-Claimant further states that on 19 June 2012, the Claimant / Counter-Respondent claimed being injured. According to the diagnosis of the Respondent / Counter-Claimant’s doctor dated 27 April 2013, such injury did not influence training. 30. In this respect, as a result of his alleged misbehaviour, the Respondent / CounterClaimant decided to impose on the Claimant / Counter-Respondent a fine representing 10% of the Claimant / Counter-Respondent’s annual salary, i.e. EUR 700,000. In this respect, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent was informed that the amount of EUR 350,000 – as first instalment of the fine – would be deducted from his salary of June 2012, in its e-mails dated 19 June 2012 and 9 July 2012 sent to the Claimant / CounterRespondent / Counter-Claimant. 31. In this context, on 10 May 2013, the Respondent / Counter-Claimant lodged a counterclaim in front of FIFA against the Claimant / Counter-Respondent for breach of contract, requesting the following:  EUR 7,000,000 as compensation pursuant to article 9 par. 4 of the contract ;  EUR 750,000 as the non-amortised sign-on fee and transfer fee for the Claimant / Counter-Respondent;  “EUR 420,000,000” as damages for “loss of the high quality professional services of the player and specificity of sport”;  Compensation for the infringement of portrait rights. 32. In his replica, the Claimant / Counter-Respondent maintains that FIFA has jurisdiction to deal with the matter at stake. In particular, referring to article 15 par. 2 second sentence of the contract, the Claimant / Counter-Respondent asserts that the matter at stake is of an international dimension – since it is a dispute between a Player from Country B and a Club from Country D – and is about outstanding salaries and compensation due to the alleged breach of contract by the Respondent / Counter-Claimant and thus, falls under the competence of FIFA. Besides, the Claimant / Counter-Respondent emphasises that the NDRC of the Football Association of Country D does not comply with the prerequisites of article 3 of the FIFA Circular letter no. 1010 and art. 22 b) of the FIFA Regulations. In this respect, the Claimant / Counter-Respondent points to the lack of information regarding the terms and conditions to appoint the members of the NDRC of Football Association of Country D as well as the non-conformity with the principle of equal representation of the clubs and the players. 33. With respect to the yellow card received during a match as well as his absence from training on 21 May 2012, the Claimant / Counter-Respondent contested the fine of USD 15,000 imposed by the Respondent / Counter-Claimant in this respect, by means of an e-mail dated 25 May 2012. Regarding his alleged absence on 19 June 2012 because of an injury, the Claimant / Counter-Respondent refutes the Respondent / Counter-Claimant’s allegation, as well as the diagnosis of its doctor, by explaining that he did complain about a leg injury, by means of an e-mail dated 20 June 2012 sent to the Respondent / Counter-Claimant, but since the doctor of the Respondent / Counter-Claimant apparently refused to do an X-ray, he had to attend training. 34. As to his late return from vacation, the Claimant / Counter-Respondent sustains that he was willing to come back on the date initially set by the Respondent / CounterClaimant but he was informed that his visa had expired shortly before and thus, was compelled to obtain his visa in emergency during his last days of vacation. By means of an e-mail sent to the club on 11 June 2012, the Claimant / Counter-Respondent points to the Respondent / Counter-Claimant’s negligence because it apparently did not provide the Claimant / Counter-Respondent with a work visa as set forth in article 7 par. 6 of the contract. 35. Regarding his interview given on 21 May 2012, the Claimant / Counter-Respondent asserts that the translation provided by the Respondent / Counter-Claimant reflects the impressions of the journalist only. In any event, the Claimant / CounterRespondent holds that it is without prejudice to the Respondent / CounterClaimant’s interests and does not breach article 8 of the contract. 36. In this respect, the Claimant / Counter-Respondent points to the fine of EUR 700,000 (cf. point 30 above) and states that he was not convened or had his rights represented during the proceedings relating to the aforementioned disciplinary sanctions. The Claimant / Counter-Respondent further holds that the fine of EUR 700,000 was imposed on the Claimant / Counter-Respondent in order to cover up the financial issues faced by the Respondent / Counter-Claimant and thus, its inability to pay his salary from June 2012, as addressed in a press article dated 30 August 2012 relating the financial issues of the Respondent / Counter-Claimant. The Claimant / Counter-Respondent further sustains that after having contested this fine, the Respondent / Counter-Claimant apparently agreed to call it off, as stated in an e-mail dated 19 July 2012. 37. In continuation, the Claimant / Counter-Respondent maintains that the termination agreement was signed by the parties on 31 December 2012 and that the supplementary agreement, signed on 1 January 2013, had set the date of termination of the contract on 10 January 2013. Thus, the Claimant / CounterRespondent deems that because he was no longer bound to the Respondent / Counter-Claimant as from 10 January 2013, he was entitled to sign with another club without any transfer compensation being due to the Respondent / CounterClaimant. 38. In this respect, the Claimant / Counter-Respondent provides a letter dated 14 January 2013 from the Respondent / Counter-Claimant confirming that the parties had terminated the contract amicably as from 10 January 2013 and that the Claimant / Counter-Respondent could train and sign with a new club, the content of which was amended by the Respondent / Counter-Claimant by means of a letter dated 21 January 2013 as follows: “As Club C and Player A has reached a Supplementary Agreement on January 1, 2013 to amicably terminate the original “Work Contract for the Foreign Players of Super League of Country D”, which was signed on January 1, 2012. Therefore, we hereby confirm that Player A is free agent player now”. 39. Furthermore, the Claimant / Counter-Respondent emphasises that the amounts set forth in the supplementary agreement are still due and that the aforementioned confirmation letters do not cancel or amend the supplementary agreement and were addressed to the Football Association of Country D in order to allow the transfer of the Claimant / Counter-Respondent before the end of the transfer window in January 2013. 40. Therefore, according to the Claimant / Counter-Respondent, neither the termination agreement nor the letters of confirmation of the termination are to be considered as having superseded the supplementary agreement. The Claimant / CounterRespondent also holds that no further document was signed by himself that could indicate that he waived his right to claim for outstanding amounts and compensation. 41. In view of all the above, the Claimant / Counter-Respondent reiterates his entire claim. 42. In its duplica, the Respondent / Counter-Claimant held that FIFA has no jurisdiction since, in accordance with Law of Country D, employment-related disputes are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission”, referring in this respect to various articles of the Regulations on the Management of Employment of Foreigners in Country D (1996 edition) as well as the Labour Law of Country D on Mediation and Arbitration (2008 edition). 43. Article 5 of the Labour Law of Country D on Mediation and Arbitration states that “Where a labor dispute arises, the parties are not willing to have a consultation, the consultation fails or the settlement agreement is reached but not performed, an application for mediation may be made to an mediation institute. Where the parties are not willing to mediate, the mediation fails or the mediation agreement is reached but not performed, an application for arbitration may be made to the labor dispute arbitration commission. Where there is objection to the arbitral award, litigation may be initiated to a people’s court unless otherwise specified herein”. 44. The Respondent / Counter-Claimant further maintains that in the event the said “compulsory jurisdiction” is disregarded, the NDRC of the Football Association of Country D shall be the sole deciding body to adjudicate the present case. 45. The Respondent / Counter-Claimant also asserts that the national law of Country D applies to the matter at stake as “the governing law” according to articles 1 and 17 par. 6 of the contract. 46. Moreover, the Respondent / Counter-Claimant alleges that the Claimant / CounterRespondent apparently does not deny that he had been continuously absent from training and matches since May 2012 and that the reasons provided by the Claimant / Counter-Respondent should not be taken into account, albeit he believed that they were all approved by the Respondent / Counter-Claimant. The Respondent / Counter-Claimant further holds that it never received any leave of absence in advance and that the Claimant / Counter-Respondent should have known about the expiration of his own visa and then inform the Respondent / Counter-Claimant to be prepared in advance. Therefore, the Respondent / Counter-Claimant deems that the sanctions imposed on the Claimant / Counter-Respondent for these reasons were justified. 47. Regarding the termination of the contract, the Respondent / Counter-Claimant stresses once again that if it had been aware that the Claimant / CounterRespondent had already sought for a new club, then the Respondent / CounterClaimant would not have agreed upon any compensation. Moreover, the Respondent / Counter-Claimant would have asked for the new club of the Claimant / Counter-Respondent to pay a transfer compensation. 48. Furthermore, the Respondent / Counter-Claimant acknowledges the signature of the confirmation letter dated 14 January 2013. However, the Respondent / CounterClaimant reiterates that the last document signed was the termination agreement on 25 January 2013, stating that “both sides have no dispute”. 49. In any event, the Respondent / Counter-Claimant holds that from October 2012, the parties started to negotiate on the early termination of the contract. Therefore, the Respondent / Counter-Claimant deemed having a legitimate reason not to pay the Claimant / Counter-Respondent’s outstanding salaries. The Respondent / Counter- Claimant even states that the Claimant / Counter-Respondent apparently showed understanding and agreed upon the non-payment. 50. In this context, the Respondent / Counter-Claimant concludes by explaining that: (i) in the event the contract is deemed to be terminated by mutual agreement, compensation and outstanding amounts shall not be due by the Respondent / Counter-Claimant since the parties allegedly agreed having no disputes regarding the terminated contract pursuant to the termination agreement; (ii) in the event the contract is deemed terminated unilaterally and without just cause, it is due to the Claimant / Counter-Respondent’s breach of contract, i.e. his absences and misbehaviour; (iii) in the event the contract is deemed terminated by the Respondent / CounterClaimant and that the Claimant / Counter-Respondent is to receive compensation, the club alleges that: a. the amount to be paid as compensation shall be based on the “supplementary agreement”, corresponding to EUR 1,000,000; b. then, the aforementioned amount should be mitigated according to the Claimant / Counter-Respondent’s alleged remuneration with his new clubs. Therefore, the Respondent / Counter-Claimant is of the opinion that compensation is no longer applicable. 51. As regards Club E, the latter solely refuses to be involved in the matter at stake. Club E holds that it is not liable in the sense of article 17 par. 2 and par. 4 of the FIFA Regulations since the Claimant / Counter-Respondent and the Respondent / Counter-Claimant had agreed upon an amicable termination of the contract on 31 December 2012. In this regard, Club E provides a letter from the Football Association of Country D dated 30 January 2013 acknowledging the amicable termination of the contract as of 31 December 2012. Club E further states that only the Claimant / Counter-Respondent is entitled to receive compensation. 52. Upon FIFA’s request, the Claimant / Counter-Respondent confirmed that he signed a contract with Club E on 30 January 2013, valid as of 31 January 2013 until 30 June 2013. The contract states that the Claimant / Counter-Respondent is entitled to a gross fixed remuneration amounting to EUR 1,851,000 for the whole contractual term. In this regard, the Claimant / Counter-Respondent asserted that he received the amount of EUR 1,006,682 from Club E, as indicated in an e-mail dated 3 September 2013 sent by a representative of Club E to the Claimant / CounterRespondent. 53. Subsequently, on 5 July 2013, the Claimant / Counter-Respondent concluded a contract with the Club from Country N, Club M, valid as of the date of signature until 30 June 2014. Pursuant to the said contract, the Claimant / CounterRespondent is entitled to the amount of 40,000 as weekly salary. According to the Claimant / Counter-Respondent, the contractual remuneration with Club M is gross as well and, in this regard, he alleges having received the amount of EUR 743,000 from the Club from Country N. 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 11 February 2013. Consequently, the Rules Governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; 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 2014; hereinafter: the Regulations) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Player from Country B, a Club from Country D and a Club from Country F. 3. However, the Chamber acknowledged that the Respondent / Counter-Claimant contested the competence of FIFA’s deciding bodies on the basis of art. 15 par. 2 of the contract, relating the competence of the NDRC of the Football Association of Country D, as well as art. 17 par. 6 combined with art. 5 of the labour law of Country D, stating that under laws and regulations of Country D, employmentrelated disputes fall within the compulsory jurisdiction of the “labor dispute arbitration commission”. 4. Equally, the Chamber noted that the Claimant / Counter-Respondent rejected such position and insisted that FIFA has jurisdiction to deal with the present matter on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players as well as art. 3 of the FIFA Circular letter no. 1010. 5. In view of the above, the Chamber first of all referred to the contents of the employment contract concluded between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant, and in particular to art. 15 par. 2 of the contract according to which “any disputes in respect of matters of football, discipline, or transfers shall be submitted to the arbitration commission of Football Association of Country D, and the arbitral award shall be final (when the subject matter of the dispute is of a domestic variety). Any other dispute of a more international nature, involving for example any international transfer or any matters which falls under the ambit of any FIFA regulations, shall be submitted to the arbitration committee of FIFA, and FIFA’s decision is final”. 6. In this respect, the DRC was of the firm opinion that the present matter regards an employment-related dispute with an international dimension, i.e. a Player from Country B, a Club from Country D and a Club from Country F, rather than with domestic factors as sustained by the Respondent / Counter-Claimant’s narrow interpretation of art. 15 par. 2 of the contract. In this respect, the Chamber further observed that there is no evidence that the parties had actually intended to restrict the application of this contractual clause to these particular topics. Equally, the Chamber highlighted that the clause explicitly mentions that FIFA is competent for the settlement of disputes. Hence, the members of the DRC concluded that, in accordance with art. 15 par. 2 of the contract, the parties had agreed upon FIFA’s dispute resolution system in case of potential disputes. 7. As a result, the DRC decided that the Respondent / Counter-Claimant’s argument pertaining to the competence of the NDRC of the Football Association of Country D should be rejected. 8. However, the Chamber also noted that the Respondent / Counter-Claimant held that employment-related disputes in Country D are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission” and that, as a result, the Claimant / Counter-Respondent should have lodged his claim in front of the Labour-dispute Arbitration Commission. After a thorough analysis of the documentation provided by the Respondent / Counter-Claimant, the Chamber concluded that the Respondent / Counter-Claimant had not been able to prove that employmentrelated disputes in Country D are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission”, in particular referring to the fact that art. 5 of the Labour Law of Country D on Mediation and Arbitration explicitly states that an application for arbitration may be made. 9. In view of the foregoing consideration, the Chamber fails to understand the Respondent / Counter-Claimant’s line of argumentation when it i) has agreed upon the competence of the arbitration committee of the Football Association of Country D for national disputes and ii) has agreed upon the competence of FIFA for international disputes. With these considerations in mind, the Chamber is of the view that, at the moment of signing the relevant employment contract, the parties had clearly agreed upon football dispute resolution in order to have their potential disputes settled. 10. For the sake of completeness, the DRC wishes to emphasise that the Claimant / Counter-Respondent relied in good faith on the content of art. 15 par. 2 of the contract when he lodged his claim in front of FIFA, which article granted him the possibility to refer matters to FIFA. Equally, it is the Chamber’s view that the Respondent / Counter-Claimant failed to explain why it had agreed upon the football dispute resolution system of FIFA (or even of the Football Association of Country D for domestic matters), if indeed employment-related disputes are of the compulsory competence of a national body in Country D. 11. Subsequently, the Chamber addressed the Respondent / Counter-Claimant’s allegation pertaining to the exclusive jurisdiction clause, inter alia referred to in art. 17 par. 6 of the contract according to which “matters uncovered in this contract shall be managed in accordance with the laws, regulations, rules of Country D and relevant provisions of FIFA and Football Association of Country D”. The Chamber concluded that such clause is not, as alleged by the Respondent / Counter-Claimant, a clause of choice of forum, but rather a choice of law. Furthermore, the said clause, while referring to the laws, regulations and rules of Country D, also specifically refers to “the relevant provisions of FIFA”. 12. Consequently, the DRC affirmed that art. 17 par. 6 of the contract does not provide either for the exclusive jurisdiction of the domestic Labour-dispute Arbitration Commission in case of dispute between the parties to the contract. 13. As a result, the Chamber established that the Respondent / Counter-Claimant’s objection towards the competence of FIFA has to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations, to adjudicate on the present matter. 14. Subsequently, the members of the Chamber analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2012 and 2014) and considering that the claim in front of FIFA was lodged on 11 February 2013, the 2012 edition of said 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 Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considers pertinent for the assessment of the matter at hand. 16. The Chamber first of all duly noted that on 1 January 2012, the Claimant / CounterRespondent and the Respondent / Counter-Claimant entered into an employment contract valid as from the date of signature until 31 December 2013. 17. The DRC further observed that, according to the Claimant / Counter-Respondent, on 31 December 2012, the parties signed a termination agreement by means of which they declared having no disputes and, on 1 January 2013, concluded a supplementary agreement by means of which the parties agreed upon the termination of the contract as from 10 January 2013, as well as the payment by the Respondent / Counter-Claimant of the amount of EUR 1,785,380 corresponding to outstanding amounts based on the contract and the amount of EUR 1,000,000 as compensation by 10 January 2013. 18. Furthermore, the Chamber duly noted that the Respondent / Counter-Claimant, on the other hand, held that the termination agreement was actually signed on 25 January 2013 and, therefore, superseded the supplementary agreement so that the parties have no dispute, in the sense that the Claimant / Counter-Respondent renounced the amounts set forth in the supplementary agreement in exchange of the Respondent / Counter-Claimant waiving its right to claim any amount on the subsequent transfer of the Claimant / Counter-Respondent to a new club. 19. At this stage of the procedure, the DRC deemed it appropriate to recall the content of art. 12 par. 3 of the Procedural Rules which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this respect, the DRC was of the firm opinion that it could not be established that the termination agreement was signed subsequently to the supplementary agreement. In this regard, the DRC further underlined that the Respondent / Counter-Claimant did not provide any other piece of evidence that could sufficiently prove that the Claimant / Counter-Respondent had, indeed, signed the termination agreement on 25 January 2013. What is more, the members of the Chamber posed the question that, if it was the case, what is the reason to call the second agreement “supplementary agreement” if it was signed before the termination agreement. 20. In view of the aforementioned, the DRC established that the Respondent / CounterClaimant did not sufficiently substantiate its allegations regarding the signing of a termination agreement subsequently to the supplementary agreement, and thus, rejected the argument of the Respondent / Counter-Claimant in this respect. The members of the Chamber thus agreed that the termination agreement was signed on 31 December 2012 and that the supplementary agreement was signed on 1 January 2013. 21. As a result, the DRC concluded that the effective date of termination of the contract by mutual consent was 10 January 2013 as per the supplementary agreement. In addition and in this context, the DRC concurred that the amounts foreseen in the said supplementary agreement were thus to be paid by 10 January 2013 by the Respondent / Counter-Claimant. 22. In this respect, the Chamber observed that it had remained uncontested by the Respondent / Counter-Claimant that the amount of EUR 2,785,000, set forth in the supplementary agreement, had remained unpaid. The Chamber further noted that, on 21 January 2013, the Claimant / Counter-Respondent put the club in default for the non-payment of said amount, the payment of which was postponed on two occasions by the Respondent / Counter-Claimant. 23. In view of the above, the DRC concluded that it did not find any valid reason or any sufficient evidence for the non-payment of the amount of EUR 2,785,380 and, therefore, it could be established that the Respondent / Counter-Claimant had failed to pay to the Claimant / Counter-Respondent the amount as agreed upon between the parties in the supplementary agreement dated 1 January 2013. At this point, the members of the Chamber went on to deliberate the consequences of the failure of payment by the Respondent / Counter-Claimant. 24. To this end, the DRC referred to art. 2 in fine of the supplementary agreement which stipulates that “If the payment is not made at this precise date the contract will be considered terminated January 10, 2013 by party A [the Respondent / Counter-Claimant], salary shall be due from January 1 to January 10, 2013 and this shall constitute a material breach of the contract by Party A [the Respondent / Counter-Claimant]”. In this regard, the DRC was of the opinion that such clause implies that in case of a breach of the supplementary agreement, i.e. in case of nonpayment of the relevant amount within the stated time limit, the employment contract becomes enforceable again and, therefore, the Claimant / CounterRespondent should be entitled to claim amounts based on the employment contract. In other words, the members of the Chamber stressed that, by drafting the aforementioned art. 2 of the supplementary agreement as it reads, the clear intention of the parties was to turn back to the employment contract if the Respondent / Counter-Claimant did not comply with its obligations as per the supplementary agreement. 25. As a consequence, the DRC decided that the counter-claim of the Respondent / Counter-Claimant had to be rejected and that the Claimant / Counter-Respondent was entitled to claim from the Respondent / Counter-Claimant amounts based on the contract signed on 1 January 2012. 26. Subsequently, the members of the Chamber concurred that the Respondent / Counter-Claimant must, firstly, fulfil its obligations as per the employment contract, in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent the remuneration that was outstanding at the time of the termination, i.e. 10 January 2013. Based on the allegations and the documentation provided by the Claimant / Counter-Respondent, and in the absence of the contrary by the Respondent / Counter-Claimant, the DRC came to the conclusion that the Respondent / Counter-Claimant is liable for the payment of the outstanding salaries amounting to EUR 1,772,730, i.e. 90% of his salary for September 2012 and his salary in full from October to December 2012. 27. With regard to the Claimant / Counter-Respondent’s claim for unpaid bonuses, the DRC referred to the contract, the supplementary agreement and the allegations of the Claimant / Counter-Respondent in this respect, determining that the Claimant / Counter-Respondent had substantiated said request while the Respondent / Counter-Claimant had not disputed such allegations. Consequently, the Chamber decided that the Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent the amount of USD 14,000 as per art. 5 par. 3 of the contract. 28. Regarding the Claimant / Counter-Respondent’s claim pertaining to rent expenses, the DRC recalled the basic principle of the burden of proof as set forth in art. 12 par. 3 of the Procedural Rules. In this context, and in the absence of documentation provided in this respect and considering that the contract at the basis of the dispute does not contain any specific amount to be covered by the Respondent / CounterClaimant, the Chamber decided to reject this request from the Claimant / CounterRespondent. 29. As a consequence, the DRC decided that the Respondent / Counter-Claimant is liable to pay the total amount of EUR 1,772,730 and USD 14,000 to the Claimant / Counter-Respondent corresponding to the outstanding remuneration as per the employment contract, up to 10 January 2013. 30. In addition, taking into consideration the Claimant / Counter-Respondent’s claim for interest and in accordance with its well-established jurisprudence, the DRC decided to award the Claimant interest at the rate of 5% p.a. as of the due date of each payment. 31. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is entitled to receive compensation for breach of contract from the Respondent / Counter-Claimant. 32. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant / Counter-Respondent 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. 33. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this respect, the Chamber acknowledged that the contract contained the following provisions:  Article 9 par. 4 of the contract foresees that “if the contract is intentionally terminated by Party B [the Claimant / Counter-Respondent], Party B [the Claimant / Counter-Respondent] shall compensate Party A [the Respondent / Counter-Claimant] with Euro 7 million”.  Article 9 par. 5 (2) of the contract further stipulates that “Party B [the Claimant / Counter-Respondent] may inform Party A [the Respondent / Counter-Claimant] to terminate the contract if Party A [the Respondent / Counter-Claimant] (…) fails to make payments due under this Agreement, if said failure is not remedied within 28 days of notification thereof; provided that, all the amount due according to the Contract shall be immediately payable to Party B [the Claimant / CounterRespondent]”. 34. In addition, the Chamber recalled that the Claimant / Counter-Respondent based his claim for compensation for breach of contract on the principle of reciprocity and the interpretation a contrario of art. 9 par. 4 of the contract as well as art. 9 par. 5 (2) of the contract. 35. On account of the aforementioned, the DRC reasoned that, in accordance with art. 9 par. 5 (2) of the contract, if the Claimant / Counter-Respondent terminated the contract with just cause due to unpaid remuneration, he would receive an amount corresponding to the value of his remuneration as from the date of termination of the contract until the date of its normal expiry. Whereas, in accordance with art. 9 par. 4 of the contract, if the Claimant / Counter-Respondent would terminate the contract without just cause, the Respondent / Counter-Claimant would receive compensation in the amount of EUR 7,000,000. In this respect, the Chamber was eager to emphasise that the latter clauses are disproportionate. This is, they would in principle allow for the Respondent / Counter-Claimant, on the one hand, to receive the fixed amount of EUR 7,000,000 in any case where the Claimant / Counter-Respondent would be found to have terminated the contract without just cause and irrespective of when the termination would occur. On the other hand, in case the Claimant / Counter-Respondent would terminate the contract with just cause, he would be entitled to receive an amount which would depend on the moment when he would terminate the contract. 36. With the aforementioned in mind, the DRC decided that it cannot apply the compensation clauses under the contract in view of the fact that they establish disproportionate rights for the parties to the contract. Consequently, the deciding body concluded that art. 9 par.5 (2) of the contract must be disregarded in the assessment of the amount of compensation to be awarded to the Claimant / Counter-Respondent. 37. Therefore, 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasised 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. 38. In order to estimate the amount of compensation due to the Claimant / CounterRespondent in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant / CounterRespondent under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 39. The Chamber pointed out that the contract signed by the Claimant / CounterRespondent and the Respondent / Counter-Claimant was to run for another 12 months, i.e. until 31 December 2013, after the termination of the contract occurred. Furthermore, the Chamber understood that for this relevant period, the Claimant / Counter-Respondent was entitled to receive a total salary of EUR 7,000,000. Consequently, the Chamber concluded that the amount of EUR 7,000,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 40. In continuation, the Chamber verified as to whether the Claimant / CounterRespondent 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 Claimant / Counter-Respondent’s general obligation to mitigate his damages. 41. The Chamber recalled that, on 30 January 2013, the Claimant signed an employment contract with Club E, valid until 30 June 2013, in accordance with which the Claimant / Counter-Respondent was to receive a total gross fixedremuneration of EUR 1,851,000 during the said period of time. Subsequently, on 5 July 2013, the Claimant / Counter-Respondent signed an employment contract with Club M valid as of the date of signature until 30 June 2014, in accordance with which he was entitled until 31 December 2013 to a gross remuneration of 1,040,000 equivalent to EUR 1,400,000. The DRC further noted that the Claimant / CounterRespondent provided documentary evidence stating that the Claimant / CounterRespondent effectively received the amount of EUR 1,006,682 from Club E. 42. Consequently, on account of all of the above-mentioned, the DRC determined that the Respondent must pay the amount of EUR 4,593,318 as compensation for breach of contract in the case at hand. 43. The Dispute Resolution Chamber concluded its deliberations by in the present matter by establishing that the claim of the Claimant / Counter-Respondent is thus partially accepted and any further claims lodged by the Claimant / CounterRespondent are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent is admissible. 2. The claim of the Claimant / Counter-Respondent is partially accepted. 3. The counter-claim of the Respondent / Counter-Claimant is rejected. 4. The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, outstanding remuneration amounting to EUR 1,772,730 and USD 14,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 31 August 2012 on the amount of USD 2,000; b. 5% p.a. as of 1 October 2012 on the amount of USD 12,000; c. 5% p.a. as of 1 October 2012 on the amount of EUR 409,095; d. 5% p.a. as of 31 October 2012 on the amount of EUR 454,545; e. 5% p.a. as of 1 December 2012 on the amount of EUR 454,545; f. 5% p.a. as of 31 December 2012 on the amount of EUR 454,545. 5. In the event that the amounts foreseen in point 4. plus interest are not paid within the stated time limit by the Respondent / Counter-Claimant, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 6. The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 4,593,318. 7. In the event that the amount set forth in point 6. is not paid by the Respondent / Counter-Claimant 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. 8. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 9. The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 E-Mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives