F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), member on the matter between 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 (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), member on the matter between 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 15 July 2011, the player from country B, Player A (hereinafter: the player or the Claimant / Counter-Respondent), and the club from country D, Club C (hereinafter: Club C or the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract) valid as from 15 July 2011 until 15 July 2014, i.e. 3 years. 2. According to the contract, Club C undertook to pay to the Claimant / CounterRespondent the following remuneration: “The basic wage for the duration of this contract shall be USD 5,100,000 net. For the period 15 July 2011 until 15 July 2014 payable as follows: USD 425,000 as an advance payment will be paid on 1 August 2011. USD 425,000 as an advance payment will be paid on 1 February 2012. USD 425,000 as an advance payment will be paid on 1 August 2012. USD 425,000 as an advance payment will be paid on 1 February 2013. USD 425,000 as an advance payment will be paid on 1 August 2013. USD 425,000 as an advance payment will be paid on 1 February 2014. USD 2,550,000 to be paid in 36 equal monthly instalments.” 3. The parties further agree on the following clauses: “5. The [Respondent / Counter-Claimant] shall provide the player with copies of all of the rules and regulations applicable by the federation including Professional Player Regulations”. “13. The player is aware of the [Respondent / Counter-Claimant]’s internal disciplinary code in accordance with article (23), chapter (9) of the Professional Player Regulations, and the two parties shall abide by it.” “14. In case the player is found guilty of misconducts, repeating misbehaviours, or violating the federation or the [Respondent / Counter-Claimant]’s regulations, the disciplinary sanctions stipulated in the federation’s regulations including Professional Player regulations shall be applicable to him.” “21. In case of penalties on the player it will be deducted the value of the sanctions of the total contract value.” 4. The internal disciplinary code provides that: “ Article 3: This regulation is deemed complementary to the professional contract signed between the [Respondent / Counter-Claimant] and the player and an integral part of it.” “Article 4: A violator is notified with the punishment in a maximum period of one working week from the date the violation or cause take place. He should sign on the receipt and in case of refusal to do so, the team manager will submit a report of such case and punishment is considered valid”. “ Article 8.3: Behavioural duties: The player committed in general to the following behavioural duties: (3) Maintain good appearance and not to do any work or actions that may cause harm to the image and name of the [Respondent / Counter-Claimant] or negative behaviours banned by the Football Federation of country D and may attract criticism such as abnormal hair cut, neck chains, hair dye and tattoos and likewise actions.” “Article 8.6: Behavioural duties: The player committed in general to the following behavioural duties: (3) Maintaining good behaviour in the private life of the player.” “Article 10.2: deduction of 10% of the monthly wage [for] absence from training […].” “Article 11.1: deduction of 20% of the monthly wage [for] repeat one of the offenses listed in article 10.” “Article 12.18: discount 30% of the monthly wage [for] not abide by the [Respondent / Counter-Claimant]’s official uniform bearing the logo of the sponsor in sports, social, cultural event or any events involving the [Respondent / CounterClaimant].” “Article 13.5: deduction of 40% of the monthly wage [for] assault on a fellow players or employees of the [Respondent / Counter-Claimant].” “Article 14: deduction of 50% of the monthly wage in the following cases: 1. Repeat one of the offenses listed in Article 13. 2. Absence from the main training (before the match without acceptable reason, which could result in exclusion from the match. 3. Refrain from performing training or participating in the matches or from joining the camps because of financial claims. 4. Not to wear [Respondent / Counter-Claimant] uniform during the coronation in addition to deduction of 30% of the tournament bonus.” 5. On 14 July 2012, Club C decided to exclude the Claimant / Counter-Respondent from the training camp and send him back to a city in country D allegedly “following [his] indiscretion and un-ethical behaviour at the team’s training camp in a city in country G [Country G]”. 6. On 27 July 2012, the Respondent / Counter-Claimant decided to impose a reduction of 50% of the player’s monthly salaries of July, August and September 2012 (hereinafter: the first sanction) based on his “violation of camp instructions […] on 13 July 2012 when [he] called a girl to [his] room and had sex with her in clear violation of instructions of the preparatory camp, [which] is a great mistake of a professional player with such high financial value that supposed to be a model for other players”. 7. On 26 August 2012, Club C imposed a supplementary reduction of 5% over the Claimant / Counter-Respondent’s salary of August 2012 (hereinafter: the second sanction) because he refused to receive the notification of the first sanction. 8. On 6 September 2012, the Respondent / Counter-Claimant decided to impose reductions of 10% and 20% of the player’s salary of September 2012 for his absences from training on 3 and 4 September 2012 respectively (hereinafter: the third sanction). 9. On 29 September 2012, Club C imposed a new sanction of 30% reduction of the player’s salary of October 2012 (hereinafter: the fourth sanction) due to “indifference and carelessness when the coach requested from [the Claimant / Counter-Respondent] to make substitution and [he] didn’t have [his] jersey and […] replied that [he did] not know [where the jersey was] and maybe in the dressing room which resulted in exchanging another player”. 10. On 2 October 2012, the Claimant / Counter-Respondent informed the Football Federation of country D of the various fines imposed and requested the help of the latter to “get his wages paid in full without legal dispute involving the FIFA Administration”. 11. On 8 October 2012, Club C replied to the Football Federation of country D confirming its position on all the sanctions imposed on the player so far. 12. On 1 December 2012, the Respondent / Counter-Claimant again imposed a reduction of 10% of the player’s salary of December 2012 (hereinafter: the fifth sanction) based on his alleged absence from 1 December 2012’s training session. 13. On 7 December 2012, the Claimant / Counter-Respondent warned the Respondent / Counter-Claimant regarding its salary arrears towards him in the total amount of USD 460,422.50, corresponding to part of his salaries from July until November 2012 and setting a deadline for Club C to make the payment of the outstanding remuneration by no later than 15 December 2012. Additionally, the player maintained that the reductions of salary were not valid, objecting all misconduct alleged by Club C as to the facts and challenging the legal basis for the imposition of such sanctions, which is not referred to in any decision. Finally, the player argues that Club C did not follow “the procedural requirements of any disciplinary regulations which would be applicable”. 14. On 17 December 2012, the Claimant / Counter-Respondent sent to Club C a notice in connection with an alleged harassment and requested the Respondent / Counter-Claimant to refrain trying to obtain his acceptance to terminate the contract in advance. 15. On 8 January 2013, the Claimant / Counter-Respondent sent a letter to the Respondent / Counter-Claimant observing that his salaries remained unpaid and that he was side-lined from the training camp held in country D. 16. On 17 January 2013, Club C replied to the player’s correspondence stressing that his dues were deposited in his account and that he benefited from the same treatment as any other player. In addition, Club C maintained that the sanctions were taken in accordance with its internal regulations which were approved by the Football Federation of country D and were given to the player before signing the contract. Club C further insisted that the side-lining from the training camp was justified by the fact that “[he] did not exert his full effort to serve the team in this current period”. Finally, Club C pointed out that the Claimant / CounterRespondent “did not show any cooperation with [it] as (…) [he] refused two borrow offers from Club H (Country I) and Club J (Country D)”. 17. On 6 February 2013, the Claimant / Counter-Respondent terminated the contract, in writing, based on partially unpaid salaries as from July until November 2012, fully unpaid salaries as from December 2012 until February 2013 and his exclusion from Club C’s first team. 18. On 11 February 2013, the player lodged a claim against Club C before FIFA for breach of contract, requesting the payment of the total amount of USD 2,944,842.15, broken down as follows: a) USD 890,647.15, plus 5% interest p.a. as from 1 October 2012 as outstanding remuneration; b) USD 2,054,195 plus 5% interest p.a. as from 15 August 2013, as compensation equivalent to the residual value of the contract. 19. The Claimant / Counter-Respondent first sustains that the first and second sanction are unfounded and disproportionate. 20. Regarding the third sanction, the player asserts that he missed the training sessions of 3 and 4 September 2012 because he was called upon by his national team and had previously received approval to miss said training sessions. The player also argues that said sanction is unjustified. 21. As far as the fourth sanction is concerned, the Claimant / Counter-Respondent argues that the facts on its basis are inaccurate and that in any case, said sanction is also unfounded and disproportionate. 22. In continuation, the Claimant / Counter-Respondent explains that he was authorised to be absent on 1 December 2012 since said day was a rest day. In support of his allegation, the player presented a training programme mentioning that no training session was scheduled on 1 December 2012, adding that “this program can be modified”. 23. The Claimant / Counter-Respondent complains that between December 2012 and January 2013, Club C attempted to convince him to sign a loan agreement for a lower salary. 24. Finally, the Claimant / Counter-Respondent alleges that as of the beginning of January 2013, he was not called up for the training camp, was side-lined from the first team and his personal locker was removed. 25. All in all, the Claimant / Counter-Respondent asserts that, as from July 2012, Club C did not comply with its financial obligations towards him as per the contract and, therefore, owes him the following amounts as outstanding remuneration: i) USD 35,417.50, plus 5% interest p.a. as from 1 July 2012; ii) USD 182,307.50, plus 5% interest p.a. as from 1 August 2012; iii) USD 35,417.50, plus 5% interest p.a. as from 1 September 2012; iv) USD 35,417.50, plus 5% interest p.a. as from 1 October 2012; v) USD 35,417.50, plus 5% interest p.a. as from 1 November 2012; vi) USD 70,835, plus 5% interest p.a. as from 1 December 2012; vii) USD 70,835, plus 5% interest p.a. as from 1 January 2013; viii) USD 425,000, plus 5% interest p.a. as from 1 February 2013. 26. On 12 March 2013, Club C replied to the player’s claim and lodged a counterclaim requesting to be awarded with the amount USD 7,475,000, plus 5% interest p.a. as of the date of termination, broken down as follows: - USD 2,550,000 as residual value of the contract; - USD 1,500,000 as non-amortised transfer fee; - USD 3,000,000 “for the loss of the value of the services of the Player”; - USD 425,000 as specificity of sport. 27. In its reply, Club C argues that as from 14 July 2012, the player became a disruptive influence. 28. Club C asserts that the claim of the Claimant / Counter-Respondent is an attempt to challenge the salary reductions, which the player did not appeal in accordance with art. 30 of the Regulations of Professionalism of the Football Federation of country D. 29. Club C further asserts that the internal disciplinary code is, as per its art. 3, complementary to the contract and provides a list of banned actions and behaviours, their sanctions and the system to appeal them. 30. Club C explains that the Claimant / Counter-Respondent admitted the facts that led to the imposition of the first sanction. In addition, Club C sustains that the first sanction and the third sanction were imposed in accordance with arts. 8.3 and 8.6 and 10.2 and 11.1 of the internal disciplinary code, respectively. Regarding the third sanction, Club C argues that there was no international match of the player’s national team considered as obligatory for Club C to release the player. 31. Likewise, Club C supports the fourth sanction on the application of art. 12.18 of the internal disciplinary code. In this respect, Club C emphasises that the player’s lack of professionalism obliged the coach to change his tactical plans and field another player. 32. In turn, Club C asserts that, in connection with the fifth sanction, it is not true that 1 December 2012 was a rest day since the program submitted by the Claimant / Counter-Respondent was susceptible to be modified and had actually been modified. 33. In addition to all the sanctions referred by the Claimant / Counter-Respondent in his claim, Club C points out that a 40% deduction of his salary of January 2013 was imposed on the player in accordance with art “14.5” of the internal disciplinary code (hereinafter: the sixth sanction), due to his alleged behaviour consisting in disrespectfully ignoring and spitting at the head coach and at the goalkeepers’ coach when they greeted him. In support of its assertions, the Respondent / Counter-Claimant submitted two statements made by the abovementioned coaches. 34. Club C states that all the sanctions were validly imposed on the Claimant / Counter-Respondent and that he was properly notified of them due to the fact that he submitted copies of all the sanctions when lodging his claim in front of FIFA. 35. In continuation, Club C asserts that the Claimant / Counter-Respondent turned down two offers made by a club from country I and a club from country D respectively, which were of higher value than his contract with Club C. 36. Club C further explains that in January 2013, the head coach decided to exclude the player from the first team and from the training camp in country D since he “was not exerting his full effort”. In this regard, Club C stresses that it only decided to de-register him at a later stage, after he refused to train with the reserve team. 37. Club C also emphasises that due to the player’s lack of professionalism, it had to buy a new player in replacement for an amount of USD 1,000,000. 38. Furthermore, Club C points out that it had no interest in losing the services of a player in which it had invested a lot of money. 39. In view of the above, Club C alleges that it is actually the Claimant / CounterRespondent who, by missing practices, putting its reputation in jeopardy, disrespecting coaches and failing to return from international duties, breached the contract. 40. Regarding the calculation of the compensation, Club C first stresses that the remaining value of the contract amounts to USD 2,550,000. In addition, Club C sustains that it paid USD 3,000,000 for the transfer of the player in July 2011 and, therefore, the non-amortised transfer fee, which is equivalent to USD 1,500,000 must be taken into consideration. Club C then asserts that “the offer of USD 1,700,000 for the season, as well as an amount of USD 1,300,000 made by Club J must be considered as a minimum amount for the value of the services of the Player at the time when he unilaterally terminated his employment contract” and therefore claims the amount of USD 3,000,000 “for the loss of the value of the services of the Player”. Moreover, Club C claims to be awarded with the replacement costs as well as the amount of USD 425,000 as specificity of sport, allegedly corresponding to six monthly salaries. 41. Finally, Club C requests the imposition of sporting sanctions on the player. 42. In his replica, the Claimant / Counter-Respondent stresses that he was never provided with a copy of the internal disciplinary code. In addition, the player explains that as per Swiss case law, even if it was deemed that he had accepted the latter code by signing the contract, its provisions that are not usual or typical could not be considered as part of the agreement since Club C failed to specifically draw his attention on the content of such provisions. In particular, the Claimant / Counter-Respondent points out that art. 8.1 of the internal disciplinary code provides for very atypical duties, contrary to the principle of personal freedom. Furthermore, the player outlines that the sanctions provided in the internal disciplinary code are clearly disproportionate and contrary to art. 323 a of the Swiss Code of Obligations, which limits the amount that an employer can withhold from an employee’s salary to 10% of his monthly salary. The Claimant / Counter-Respondent eventually emphasises that none of the sanctions makes reference to the internal disciplinary code and to the procedure to appeal them. Nevertheless, the Claimant / Counter-Respondent argues that by means of his correspondence dated 2 October 2012, addressed to the Football Federation of country D, he tried to challenge the sanctions imposed on him but was not heard. In this respect, the player sustains that the way of appeal to the Committee of the Football Federation of country D is delusive and imaginary. 43. As far as the first sanction is concerned, the Claimant / Counter-Respondent underlines that being in a room with a girl is a matter of private life with no impact on his football activities and therefore, cannot be considered as an attitude that may harm the image and name of the Respondent / CounterClaimant. In addition, the player underlines that the attitude for which he had been blamed is not listed in art. 14 of the internal disciplinary code. The player further specifies that in any case, said article only provides for the deduction of 50% of the monthly wage, and not for the reduction of the monthly wage during three months. 44. Regarding the second sanction, the Claimant / Counter-Respondent specifies that he did not refuse the notification but merely refused to sign the document presented to him in order to express his disagreement with the content of the sanction and reserve his rights. 45. Furthermore, the Claimant / Counter-Respondent reiterates that he had been called up by his national team to play against Country K on 7 September 2014 and that in any case, the absence on 3 and 4 September should be considered as one absence and not as a repetition of infringements. 46. As to the fourth sanction, the player rejects the allegations of lack of professionalism and maintains that it was the staff’s responsibility to make sure that he was in possession of a jersey. The Claimant / Counter-Respondent further adds that he wore during 88 minutes the jacket of the Respondent / CounterClaimant and therefore did not fall under art. 12.18 of the internal disciplinary code. 47. The Claimant / Counter-Respondent then outlines that Club C did not submit any element evidencing that the programme of 1 December 2012 had been modified and that he had been informed of it. 48. Concerning the sixth sanction, the Claimant / Counter-Respondent first asserts that he was never informed of it and emphasises that the coaches’ declaration submitted by Club C state that he spat to the ground and not at them as alleged by Club C. 49. In continuation, the Claimant / Counter-Respondent asserts that the offers made by the club from country I and the club from country D were for a lower salary. 50. Considering the foregoing, the player argues that Club C failed to pay him more than three monthly salaries. In addition, the player maintains that Club C excluded him from the team without any valid and justified reason and by doing so, violated his right to work. The Claimant / Counter-Respondent eventually alleges that the Respondent / Counter-Claimant harassed him, trying to force him to accept offers from other clubs and retained his passport at the end of the year 2012. 51. Finally, the Claimant / Counter-Respondent referred to the remuneration received under his new contract and amended his claim for compensation, requesting to be awarded with the amount of USD 354,195, plus 5% interest as of 15 August 2013, as compensation for breach of contract. 52. In its duplica, Club C first repeats its previous considerations regarding the player’s knowledge and acceptance of the internal disciplinary code. 53. Regarding the first sanction, Club C emphasises that the player’s behaviour, i.e. his alleged adultery, took place during a training camp and therefore cannot be considered as a matter of private life. Club C further stresses that it had a discretionary power to sanction such a behaviour which is even more serious considering the particularities of the regime and the culture in country D. 54. As to the second sanction, Club C points out that it was justified by art. 4 of the internal disciplinary code and that the player could have expressed his disagreement by writing “notification received, I don’t agree” on the document instead of refusing to sign it. 55. Club C further explains that the Claimant / Counter-Respondent is unable to prove that he had been called up by his national team in accordance with the procedure established in the FIFA Regulations on the Status and Transfer of Players. In addition, Club C questions why the player was only absent on 3 and 4 September 2012 considering that the game was scheduled on 7 September 2012. Moreover, Club C emphasises that as per the internal disciplinary code, any absence from a training session is deemed a separate infringement. 56. Furthermore, Club C rejects the player’s arguments and reiterates its position as to the fourth and fifth sanctions. 57. Club C then affirms with regards to the sixth sanction, that no matter the direction of the spit, the mere fact of spitting when someone is greeting you is considering a very serious offence in the culture of country D. 58. Finally, Club C sustains that no amount was outstanding and that the player was never deprived of his right to work but only invited to train with the reserve team. 59. In his final comments, the Claimant / Counter-Respondent asserts that Club C failed to submit elements evidencing that it provided him with the internal disciplinary code. 60. On 15 March 2013, the Claimant / Counter-Respondent and Club E concluded an employment contract valid as of 27 February 2013 until 31 December 2014 and according to which the player was entitled to the following remuneration: - From 27 February 2013 until 31 December 2013:  USD 900,000 as basic annual compensation;  USD 300,000 as signing bonus payable by 31 March 2013;  USD 200,000 as signing bonus payable by 31 July 2013; - From 1 January 2014 until 31 December 2014: USD 1,000,000 as annual compensation. 61. Having been invited to do so, Club E only confirmed that it signed a contract with the player, without submitting any further comments. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 11 February 2013. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B, a club from country D and a club from country F. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged in front of FIFA on 11 February 2013, the 2012 edition of said Regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the members of the Chamber acknowledged that the Claimant / Counter-Respondent and the Respondent / Counter-Claimant had signed an employment contract on 15 July 2011, valid as of the date of signature until 15 July 2014. Furthermore, the Chamber took note that on 6 February 2013, and after having put the Respondent / Counter-Claimant in default on several occasions, the Claimant / Counter-Respondent terminated in writing the contractual relationship with the Respondent / Counter-Claimant. 6. In continuation, the Chamber noted that the Respondent / Counter-Claimant considers that the Claimant / Counter-Respondent terminated the employment contract without just cause. On the other hand, the DRC observed that the Claimant / Counter-Respondent claims that he had just cause to do so since the Respondent / Counter-Claimant was no longer interested in his services. In particular, the Chamber took note that the Claimant / Counter-Respondent outlines that the Respondent / Counter-Claimant failed to pay him several salaries, imposed on him several unfounded fines and side-lined from the first team. 7. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant / CounterRespondent and the counterclaim of the Respondent / Counter-Claimant, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant / Counter-Respondent, and which party was responsible for the early termination of the contractual relationship in question. 8. In this respect, the Chamber pointed out that the Respondent / Counter-Claimant asserts having paid all the amounts actually due to the Claimant / CounterRespondent. In particular, the DRC took note that Club C emphasises that the player’s remuneration was reduced by means of six fines imposed on him in accordance with its internal disciplinary code and due to his misbehaviour. 9. Before entering into the specific analysis of the fines, the Chamber had to determine whether the Claimant / Counter-Respondent had accepted to be bound by the internal disciplinary code. In doing so, the DRC referred to clause 13 of the contract which stipulates that “[the Claimant / Counter-Respondent] is aware of the [Respondent / Counter-Claimant]’s internal disciplinary code in accordance with article (23), chapter (9) of the Professional Player Regulations, and the two parties shall abide by it”. In view of the above, the members of the Chamber concurred that the Claimant / Counter-Respondent expressly acknowledged being aware of the content of the internal disciplinary code and accepted to be bound by it. Furthermore, the DRC highlighted that by means of clause 21 of the contract, the Claimant / Counter-Respondent agreed on the mode of execution of the disciplinary sanctions. 10. Having stated the above, the Chamber focused its attention on the analysis of the several fines imposed on the player. As far as the first fine is concerned, the members of the Chamber observed that said fine did not rest upon any article of the internal disciplinary code and, therefore, decided to disregard it due to its lack of legal basis. Equally, the members of the Chamber emphasised that the second fine had no proper rationale and was subject to the first fine being considered valid. Consequently, the DRC decided to set aside the second fine as well. 11. In continuation, the Chamber proceeded to the analysis of the third fine. In this regard, the members of the Chamber, referring to art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, pointed out that the Claimant / Counter-Respondent failed to provide any reliable document evidencing that he was on international duty on 3 and 4 September 2012. Therefore, and considering the Claimant / Counter-Respondent’s unjustified absence, the DRC held that Club C had the right to sanction the player on the basis of art. 10.2 of the internal disciplinary code. Nevertheless, the members of the Chamber agreed that the absence on 4 September could not be deemed as a repeated offence and that the absences on 3 and 4 September 2012 should be considered as one single absence leading to a deduction of 10% of the Claimant / Counter-Respondent’s salary for September 2012. Indeed, the Chamber outlined that for an offence to be considered as a repeated offence, a previous and similar offence must have been sanctioned whereas, in the case at hand, the Respondent / Counter-Claimant noted and sanctioned the absences on 3 and 4 September 2012 at the same time, i.e. on 6 September 2012. Accordingly, the Chamber concluded that the Respondent / Counter-Claimant was entitled to retain 10% of the Claimant / Counter-Respondent’s salary for September 2012, i.e. USD 7,085, due to his absence on 3 and 4 September 2012. 12. Turning its attention to the fourth fine, the Chamber referred one more time to art. 12 par. 3 of the Procedural Rules and held that the Respondent / CounterClaimant did not submit any evidence proving that the sanctioned situation was actually imputable to the player. In any case, the DRC stressed that should the facts reproached to the Claimant / Counter-Respondent have been proven, quod non, a deduction of 30% of the Claimant / Counter-Respondent, although provided for in the internal disciplinary code, would be disproportionate. In light of the foregoing, the DRC decided to disregard the fourth fine imposed on the player. 13. As to the fifth fine, the members of the Chamber first observed that the training programme for December 2012 submitted by the Claimant / Counter-Respondent indicates that no training session was scheduled on 1 December 2012. The DRC further noted that said training programme expressly mentions that “this program can be modified”. In this respect, the members of the Chamber underlined that Club C merely states that the programme was indeed modified but did not present any evidence in support of its assertion. In view of the above, the DRC, making again reference to art. 12 par. 3 of the Procedural Rules, concluded that the player was allowed to be absent on 1 December 2012 and that, therefore, the fine should be deemed null and void. 14. Finally, the members of the DRC turned their attention to the reasons put forward by Club C in order to justify the sixth fine, i.e. the alleged player’s misbehaviour consisting in spitting at the head coach and at the goalkeepers’ coach. In doing so, the DRC observed that the Respondent / Counter-Claimant submitted, in support of its assertions, various witness statements made by members of its own organisation. In this regard, the Chamber deemed it fit to outline that the positions occupied by the witnesses put in doubt the impartiality of their statements and therefore, after making reference to art. 12 par. 3 as well as par. 6 of the Procedural Rules, according to which the evidence shall be considered with free discretion, held that the Respondent / Counter-Claimant did not satisfactorily carry the burden of proof regarding the player’s misconduct in this regard. 15. In light of the above-mentioned considerations, and considering the deduction of 10% of the salary for September 2012, the Chamber concluded that part of the player’s salary for September 2012, half of his salaries for July, October and November 2012, his salaries for December 2012 and January 2013 as well as part of the down payment due on 1 August 2012 and the down payment due on 1 February 2013 were outstanding at the time of the termination of the contract. 16. In continuation, the Chamber analysed the arguments raised by the Respondent / Counter-Claimant in order to justify the player’s exclusion from the first team as well as from the training camp and his later de-registration. In doing so, the DRC noted that Club C explains that the player was first relegated to the reserve team because he “was not exerting his full effort” and was then de-registered due to his refusal to train with the latter team. Apart from observing that the concept of “exerting his full effort” is highly subjective, the Chamber pointed out that Club C did not support its allegations by any concrete evidence. Accordingly, and in view of the content of art. 12 par. 3 of the Procedural Rules, the DRC concluded that the player’s side-lining from the first team was not objectively justified. 17. Having failed to demonstrate that the Claimant / Counter-Respondent’s sidelining resulted from the latter’s behaviour, the Chamber focused its attention on the consequences of said side-lining. In this respect, the Chamber observed that the side-lining occurred in January 2013, as it can be inferred from the documentation provided by the parties in this regard. The indicated period forms part of what is considered to be a crucial phase of preparation for the second part of the season, during which all players are required to display their performance, in order to be able to undergo a selection by the club’s coach for the next season. 18. In view of the aforementioned fact, the DRC was of the opinion that the Claimant / Counter-Respondent had founded reasons to believe that the Respondent / Counter-Claimant was no longer interested in his services for the upcoming second part of the season. 19. On account of all the above circumstances, and in particular considering the Claimant / Counter-Respondent’s side-lining during a crucial period of the season as well as the Respondent / Counter-Respondent’s failure to pay more than four monthly salaries as well as several down payments, the Chamber established that the Respondent / Counter-Claimant had repeatedly been in breach of its contractual obligations towards the Claimant / Counter-Respondent. Consequently, the Chamber decided that the Claimant / Counter-Respondent had just cause to unilaterally terminate the employment contract on 6 February 2013 and that, as a result, the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contact with just cause by the Claimant / Counter-Respondent. 20. In light of the foregoing, the Chamber decided to accept the Claimant / CounterRespondent’s claim with regards to the Respondent / Counter-Claimant’s breach of contract without just cause and, thus, rejected the Respondent / CounterClaimant’s counterclaim. 21. Having established that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract with just cause by the Claimant / Counter-Respondent, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant an amount of money as compensation for breach of contract in addition to any outstanding amounts on the basis of the relevant employment contract. 22. First of all, reverting to the Claimant / Counter-Respondent’s claim for outstanding remuneration, the DRC made reference to its previous considerations and recalled that at the time of the termination, i.e. on 6 February 2013, a total amount of USD 883,562.15, corresponding to the part of the player’s salary for September 2012, half of his salaries for July, October and November 2012 and his salaries for December 2012 and January 2013 as well as part of the down payment due on 1 August 2012 and the down payment due on 1 February 2013, was outstanding. The DRC wished to recall that, to the aforementioned outstanding amounts, it deducted the amount of USD 7,085 as per the fine corresponding to 10% of the player’s salary for September 2012, as determined in its previous considerations 23. Consequently, in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent / Counter-Claimant is liable to pay the Claimant / Counter-Respondent the amount of USD 883,562.15 as outstanding remuneration. 24. In addition, taking into consideration the Claimant / Counter-Respondent’s claim, the Chamber decided to award him interest at the rate of 5% p.a. as from each due date until the date of effective payment. 25. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant / 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. 26. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 27. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent 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. 28. Bearing in mind the foregoing as well as the claim of the Claimant / CounterRespondent, the Chamber proceeded with the calculation of the monies payable to the Claimant / Counter-Respondent under the terms of the contract until 15 July 2014, taking into account that the Claimant / Counter-Respondent’s remuneration which had fallen due up until 6 February 2013 is included in the calculation of the outstanding remuneration. Therefore, the Chamber held that the remuneration due as of 6 February 2013 until 15 July 2014 should be taken into consideration to figure out the amount due as a compensation for breach of contract. In view of the above, the Chamber concluded that the amount of USD 2,054,195 shall serve as the basis for the final determination of the amount of compensation for breach of contract 29. 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 able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 30. The Chamber noted that according to the Respondent / Counter-Claimant’s declarations and the documentation submitted by the intervening parties, the Claimant / Counter-Respondent concluded an employment contract in the relevant period, according to which he received a remuneration of USD 1,900,000. 31. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 32. In view of all of the above, the DRC decided that the Respondent / CounterClaimant must pay the amount of USD 154,195 to the Claimant / Counter- Respondent, which is considered by the DRC to be a reasonable and justified amount as compensation for breach of contract. 33. In addition, taking into account the Claimant / Counter-Respondent’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of 15 August 2013 until the date of effective payment. 34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant / CounterRespondent is rejected. ********** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted. 2. The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected. 3. 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 in the amount of USD 883,562.15 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 October 2012 on the amount of USD 246,057.50; b. 5% p.a. as of 1 November 2012 on the amount of USD 35,417.50; c. 5% p.a. as of 1 December 2012 on the amount of USD 35,417.50; d. 5% p.a. as of 1 January 2013 on the amount of USD 70,835; e. 5% p.a. as of 1 February 2013 on the amount of USD 70,835; f. 5% p.a. as of 2 February 2013 on the amount of USD 425,000. 4. 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 amounting to USD 154,195 plus 5% interest p.a. on said amount as from 15 August 2013 until the date of effective payment. 5. In the event that the amounts plus interest due to the Claimant / CounterRespondent in accordance with the above-mentioned points 2. and 3. are not paid by the Respondent / Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 7. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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: Markus Kattner Acting Secretary General Encl. CAS directives