F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, country B, as Claimant against the club, Club C, country D, as Respondent regarding an employment-related dispute arisen between the parties. I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, country B, as Claimant against the club, Club C, country D, as Respondent regarding an employment-related dispute arisen between the parties. I. Facts of the case 1. On 13 January 2011, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid for 4.5 seasons, i.e. half of the 2010/2011 season, as well as the 2011/2012, 2012/2013, 2013/2014 and 2014/2015 seasons. 2. According to the contract, the Claimant was entitled to the following remuneration:  Season 2010/2011: o salary of 26,433 per month x 5 (Total: 132,165), o bonus per point accumulated in the League (up to the first 25 points): 4,238 if the player actually participated in the specific match; 50% if the player is registered for the game, sits on the bench as substitute but does not actually participate in the match; in case the player is not registered to participate in the match he will not be entitled to any bonus. The maximum payment of bonus payable amounts to 105,950, o Championship bonus: 49,000, o Cup bonus: 49,000, o European league appearance bonus: 49,000 “In case the club will win the Championship/Cup and will appear in a European league, the player will not be entitled to double bonus”  Season 2011/2012: o salary of 28,841 per month x 12 (Total: 346,092), o Bonus per point accumulated in the League (up to the first 50 points): 4,623 if the player actually participated in the specific match; 50% (2,311.5) if the player is registered for the game, sits on the bench as substitute but does not actually participate in the match; in case the player is not registered to participate in the match he will not be entitled to any bonus. The maximum payment of bonus payable amounts to 231,150, o Same Championship, Cup and European league appearance bonus scheme as previous season (see above),  Season 2012/2013: o salary of 31,249 per month x 12 (Total: 374,988), o bonus per point accumulated in the League (up to the first 50 points): 5,009 if the player actually participated in the specific match; 50% (2,504.5) if the player is registered for the game, sits on the bench as substitute but does not actually participate in the match; in case the player is not registered to participate in the match he will not be entitled to any bonus. The maximum payment of bonus payable amounts to 250,450, o Same Championship, Cup and European league appearance bonus scheme as previous seasons,  Seasons 2013/2014 and 2014/2015 (same amounts per season): o salary of 33,657 per month x 12 (Total: 403,884), o bonus per point accumulated in the League (up to the first 50 points): 5,394 if the player actually participated in the specific match; 50% (2,697) if the player is registered for the game, sits on the bench as substitute but does not actually participate in the match; in case the player is not registered to participate in the match he will not be entitled to any bonus. The maximum payment of bonus payable amounts to 269,700, o Same Championship, Cup and European league appearance bonus scheme as previous seasons. 3. Furthermore, the Claimant was entitled, for each season, to accommodation paid by the Respondent, a car and 3 flight tickets to country B for himself, his wife and child. 4. Art. 7 of the contract stipulates that “the Club, at its sole discretion and for every season, shall have the right to terminate this agreement and the end of every football season (by 30.06 of every year). For the avoidance of doubt, at such termination the Player shall not be entitled for any compensation and/or other payment from the Club”. 5. On 29 June 2011, the club issued a letter of termination of the contract to the Claimant, which reads as follows: “We hereby notify you that the Club decided to terminate the agreement with you, effective as of today, 29.6.11”. 6. On 6 July 2011, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter had terminated the contract without just cause and claiming the total amount of 4,838,196 as follows:  1,661,017, representing, according to the player, the total amount due under the contract as salaries,  1,126,950, representing, according to the player, the “estimated bonuses that would had to be paid during the contract”,  750,000 as estimated value of the flight tickets, car and accommodation throughout the normal duration of the contract,  1,300,229 as penalty for the termination of the contract during the protected period and without any formal reason. 7. In support of his claim, the Claimant alleged that he played his first match with the club on 29 January 2011 and participated in a total of 13 matches during the season 2010/2011, with a total of 11 points won by the Respondent. 8. The Claimant further explained that on 29 June 2011 he received the Respondent’s letter of termination of the contract, without any further explanations. 9. In its reply, the Respondent rejected the Claimant’s claim entirely, alleging that the claim is a “conspiracy” and that there appears to be a direct link between this claim and an earlier claim filed by the Claimant’s former club, the Club E from country B (hereinafter: Club E) against the Respondent, the Claimant and another club from country D, Club F (hereinafter: Club F) (hereinafter: the original claim). 10. The Respondent explained that in the original claim, Club E had alleged being the “sole owner of the Player’s Sporting Rights and Federative Rights” and that the transfer of the Claimant from Club F to the Respondent in January 2011 was invalid, entitled Club E to compensation and justified the imposition of sporting sanctions on the Claimant, the Respondent and Club F. Thus, the Respondent suspects that in filing the current claim, Club E, Club F and probably also the Claimant are unlawfully cooperating in order to cause sporting sanctions and financial damages to the Respondent. In this regard, the Respondent emphasized that Club E’s legal representative in the context of the original claim is also representing the Claimant in the current proceedings. 11. As to the facts of the present matter, the Respondent stated having purchased the rights of the Claimant in January 2011 for an amount of USD 105,000, expecting the Claimant to be one of its key players. 12. In continuation, the Respondent made reference to art. 7 of the contract (see point I.4. above; hereinafter: the termination clause), which entitled the Respondent to terminate the contract at the end of each season, and alleged that this clause had been the object of negotiations between the parties, and that the Claimant had been represented throughout the negotiations by a licensed players’ agent, Mr G. The Respondent stated that the termination clause is also in the Claimant’s benefit since, in the event it is exercised, the Claimant would be effectively released from all his obligations towards the Respondent without any liability. 13. The Respondent further explained that in the original claim, Club E had requested sporting sanctions against the Claimant, which effectively meant that the Respondent would be forced to suspend the Claimant for a substantial period of time. This suspension would have resulted in the Respondent not being able to include the Claimant in its matches nor to sign another player to replace him until the next registration period. Therefore, facing this situation, the Respondent was forced to release the Claimant. 14. The Respondent is of the opinion that it lawfully terminated the contract by exercising its right as per the termination clause, while emphasising that the Claimant was released from the Respondent and free to sign with any other club without the need for the Respondent’s approval nor any obligation to compensate it. Meanwhile, the termination of the contract even had an adverse effect on the Respondent, since it was, due to the above-described circumstances, forced to release the Claimant without any compensation, having purchased him only a few months earlier for the amount of USD 105,000. 15. The Respondent alleges that the Claimant deceived them since at the time of negotiating and signing the contract, he knew that he had a valid and binding contract with Club E, and in spite of this, he did not inform the Respondent, even though he had a legal obligation to do so. 16. In addition, the Respondent affirmed that there is no legal provision which prohibits the unilateral termination of the contract. Equally, the Respondent pointed out that under country D’s law the contract, including the termination clause complies with all legal requirements and there is no legal provision which prohibits including such clause in the contract, the exercise of the termination clause or the manner in which it was exercised. 17. Finally, the Respondent clarified that in its opinion, even if the contract had been unlawfully terminated, the damages claimed by the Claimant are totally unreasonable and not in line with the terms of the contract. The Respondent asserted that “the player is not entitled to special compensation, such as bonuses for points accumulated in such matches, bonuses for achievements that were not yet achieved (country D’s championships, country D’s cup and European League), accommodation, car allowance, airline fair for the period in which he is not residing in country D”. 18. In his replica dated 3 March 2014, the Claimant maintained his claim, adding a claim for 5% interest on the total amount of compensation of 4,838,196 “since the end of the employment contract”, and entirely rejected the Respondent’s arguments, in particular with regard to the existence of any kind of “conspiracy”. The Claimant’s legal representative (hereinafter: the legal representative) wished to emphasize that he filed Club E’s claim months before the Respondent terminated its contract with the Claimant without just cause. Therefore the legal representative pointed out that he could not know that the Respondent would terminate the contract on 29 June 2011, when he filed a claim with FIFA on behalf of Club E in February 2011. 19. Furthermore, the legal representative alleged that it had sent a letter to the Respondent, on behalf of Club E, already on 16 February 2011, looking for an amicable solution. However, the Respondent did not contact the legal representative at that time. Thereafter, the Claimant contacted the legal representative through a agent from country H acquainted with the legal representative. Furthermore, the legal representative stressed that the Claimant always knew that he was representing Club E in the original claim. 20. In continuation, the Claimant affirmed that there is no connection between the original claim and the present claim, since the facts and arguments are different from one another, even though it involves the same parties. 21. In particular, the Claimant denied that the termination of the contract was motivated by the existence of irregularities in “the incorporation of the player to [the club]”. According to the Claimant, while the Respondent was first contacted by the legal representative regarding the original claim in February 2011, the termination of the contract only occurred in June 2011, i.e. four months after the Respondent became aware of the original claim. Furthermore, the Respondent terminated the contract without any kind of prior summon in order for the Claimant to explain “his real role on the problems related the incorporation, neither any kind of attempt to contact with Club E and/or with [the legal representative] to clarify the situation”. 22. Thus the Claimant is of the opinion that the Respondent terminated the contract because it was not interested in his services anymore, and that they used the argument of a conflict in relation to his registration as an excuse. 23. In addition, the Claimant stressed that the letter of termination dated 29 June 2011 did not mention any of the Respondent’s allegations against him. 24. According to the Claimant, in any case, the problems linked to his transfer to the Respondent cannot be considered as a just cause to terminate the contract, and the Claimant is not responsible for these problems. All problems in this matter are caused due to the fact that the Football Association of country D authorised the Claimant’s registration in favour of the Respondent while he was previously on loan with Club F, a circumstance which allowed Club F to earn “USD 100,000” and to sell a player “who was not registered in their favour”. 25. Furthermore, the Claimant underlined that no sanctions had been imposed on him by the DRC by the time the Respondent decided to terminate the contract. 26. Finally the Claimant argued that the termination clause is null and void in accordance with the jurisprudence of the DRC due to a lack of reciprocity. 27. With regard to his damage, the Claimant held that he tried to find new employment following the termination of the contract, but it has proven difficult to find a club at a high level, for more than three seasons, due to him being already 30 years old. The Claimant underlined that the main reason why he accepted to sign a contract with the club was that they were offering a long-term contract which would provide him contractual stability. 28. In its final position, the Respondent reiterated its previous allegations and emphasised that granting the Claimant’s claim would be unfair, as it was forced to release the Claimant due to the fact that with the original claim it was made aware that the Claimant had a contract valid for the same period of time with Club E. Furthermore, the Claimant allegedly acted in clear bad faith and thus the Respondent had a just cause to terminate the contract. 29. The Respondent also underlined that, contrary to the Claimant’s assertions, it made all possible attempts to mediate all conflicting arguments of the different parties involved, to no avail. 30. Finally, the Respondent once more highlighted the fact that the Claimant’s legal representative places himself in a conflict of interest since he represents the Claimant in these proceedings, while continuing to represent Club E in the original claim. The fact that the original claim was filed before the claim in the present matter does not resolve such conflict. 31. Asked about his contractual situation after the termination of the contract, the Claimant failed to respond within the prescribed time limit. According to information available in the Transfer Matching System (TMS), the Claimant signed an employment contract with the club from country I, Club J, valid as from 1 October 2011 until 30 August 2012, earning a salary of USD 10,000 per month (in total USD 110,000). Thereafter he was not registered with any other club. 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 6 July 2011. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. 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 2012) 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 and an club from country D. 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 2012), and considering that the present claim was lodged on 6 July 2011, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the 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 considered pertinent for the assessment of the matter at hand. 5. In doing so and first of all, the DRC recalled that the parties were bound by a contract valid for 4 ? seasons, i.e. as from January 2011 until the end of the 2014/2015 season. Furthermore, it remains uncontested that on 29 June 2011, the Respondent sent a letter to the Claimant informing the latter of its decision to put an end to the contract. 6. It is this context that the Claimant filed a claim for breach of contract without just cause, claiming the total amount of 4,838,196 plus interest as compensation. 7. In answer to the claim, the Respondent presented a two-fold argumentation as to why it deemed having had a just cause to terminate the contract: (i) the Claimant had deceived them by not informing them that he had a contract with Club E from country B (hereinafter: Club E) valid over the same period of time and that due to this, the Respondent was facing a claim whereby it could be potentially sanctioned, as well as the Claimant himself, thus, it decided to terminate the contract due to said “conspiracy” allegedly orchestrated by Club E, the club from country D Club F (hereinafter: Club F) and the Claimant; (ii) the Respondent was in any case entitled to terminate the contract by the end of each season in accordance with art. 7 of the contract. 8. Thus, and in view of the parties’ divergent positions, the Chamber established that it first had to determine whether the Respondent had a just cause to terminate the contract. If it were found to have breached the contract without just cause, the Chamber would have to determine the consequences thereof. 9. With the aforementioned established, the DRC went on to analyse the Respondent’s argumentation as to why it deemed having been entitled to unilaterally put an end to the contract on 29 June 2011. 10. In this respect, and tackling the Respondent’s argument in relation to art. 7 of the contract, the Chamber concurred that it had to analyse the validity of such clause. Art. 7 of the contract stipulates: “the Club, at its sole discretion and for every season, shall have the right to terminate this agreement and the end of every football season (by 30.06 of every year). For the avoidance of doubt, at such termination the Player shall not be entitled for any compensation and/or other payment from the Club”. 11. In this respect, the Chamber held that it could not recognise said clause as it clearly provides for a unilateral termination right to the sole benefit of the Respondent without any compensation due to the Claimant. 12. In addition, the DRC could not give credit to the Respondent’s assertion that the relevant contractual clause was also to the benefit of the Claimant, as he would be equally free to seek a new club without any compensation being due to the Respondent. Indeed, the fact that the Claimant would have had to seek a new club, without any guarantee of finding a new club offering the same conditions as the Respondent, when he had signed a 4 ? season contract just 6 months prior to the contract’s termination can only be seen as damaging to the Claimant rather than a benefit. 13. Therefore, the Chamber decided that the Respondent could not legitimately terminate the contract with the Claimant by making use of the contractual provision stipulated in art. 7 of the contract. 14. The Chamber then analysed whether the reasons given by the Respondent, i.e. the existence of a so-called “conspiracy” between the Claimant, Club E and Club F as well as the alleged impending risk of sporting sanctions to be imposed on the Claimant but also on the Respondent itself, could be seen as a just cause to terminate the contract. 15. In this regard, the DRC was eager to emphasise that at the time the Respondent terminated the contract, there had been no ruling on the dispute involving Club E, the Claimant, Club F and the Respondent (hereinafter: the original claim). In other words, nothing indicated that neither the Claimant nor the Respondent would be sanctioned in the context of the original claim. In any case, the Respondent could not provide any evidence that, by entering into an employment contract with the Respondent in January 2011, the Claimant had deliberately acted in a manner which would have hurt the Respondent’s interests. 16. In light of the above considerations, the Chamber came to the unanimous conclusion that the Respondent had no just cause to terminate the contract binding it to the Claimant on 29 June 2011 and that, consequently, the Respondent is to be held liable for the early termination of the contract without just cause. 17. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the contract by the Respondent without just cause on 29 June 2011. 18. The members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the contract at the basis of the present dispute contain 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 contract at the basis of the matter at stake. 20. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 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. 21. The members then turned their attention to the Claimant’s claim for compensation in the total amount of 4,838,196 as follows:  1,661,017, representing, according to the player, the total amount due under the contract as salaries,  1,126,950, representing, according to the player, the “estimated bonuses that would had to be paid during the contract”,  750,000 as estimated value of the flight tickets, car and accommodation throughout the normal duration of the contract,  1,300,229 as penalty for the termination of the contract during the protected period and without any formal reason. 22. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. Indeed, 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. 23. On the basis of the contract signed between the Claimant and the Respondent, which was to run for four more seasons, i.e. until the end of the season 2014/2015, when the breach of contract occurred, the Chamber concluded that the amount of 1,528,848 (total salaries due for the seasons 2011/2012 to 2014/2015) serves as the basis for the determination of the amount of compensation for breach of contract. 24. In continuation, and with respect to the amounts which the Claimant earned with his new club, Club J, the DRC acknowledged that the Claimant earned the total amount of USD 110,000, which corresponded to approximately 410,000 at the time the Claimant signed the relevant contract. In this regard, the DRC concluded that the amount of 410,000 had to be deducted from the basis of the compensation for breach of contract due to the Claimant’s general obligation to mitigate his damage. 25. In addition, and in view of the same general principle of mitigation of the damage, the DRC took into account the fact that after his contract with the Club J expired in August 2012, the Claimant did not find a new club, whilst the contract with the Respondent was due to run until the end of the season 2014/2015. Thus, the Claimant would have had opportunities, during the period between the expiry of the contract with the Club J and the end of the season 2014/2015 to seek other employment opportunities. 26. In light of all of the above, the Chamber decided that the Claimant shall be awarded the amount of 847,000 as compensation for breach of contract, which is deemed a fair and equitable amount given the specific circumstances of the present matter. 27. Having established the aforementioned, the Chamber went on to analyse the Claimant’s further requests. In this regard, the DRC was eager to emphasise that, with regard to the Claimant’s claim for the amount of 1,126,950 for “estimated bonuses that would had to be paid during the contract”, the payment and the amount of such bonuses are linked to matches to be played in the future, i.e. after the termination of the relevant contract, and, therefore, are fully hypothetical. Consequently, the Chamber decided to reject such claim. 28. Furthermore, the Chamber found that it could not accept the Claimant’s claim in the amount of 750,000 as estimated value of the flight tickets, car and accommodation throughout the normal duration of the contract. Indeed, while the Claimant did not substantiate his claim for flight tickets and car as well as accomodation costs due up until the termination of the contract, the amounts due after the termination of the contract can also not be granted as there is no indication of a specific amount due to the Claimant in the contract. 29. Equally, the DRC decided to reject the Claimant’s claim for the amount of 1,300,229 as penalty for the termination of the contract during the protected period and without any formal reason, as he did not provide any evidence of a specific damage in this regard, and there is no contractual basis for such claim either. 30. Finally, the Chamber had to declare the Claimant’s claim for 5% interest over all amounts claimed inadmissible due to the fact that such claim, which was received on 3 March 2014, is barred by the statute of limitations (cf. art 25 par. 5 of the Regulations), the breach of the contract having occurred on 29 June 2011, i.e. more than 2 years prior to the relevant claim having been lodged. 31. In conclusion, the Chamber decided that the Claimant’s claim is partially accepted and that the Respondent must pay the Claimant the amount of 847,000 as compensation for breach of contract. Any further claims are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, Player A, compensation for breach of contract in the amount of 847,000 within 30 days as from notification of the decision. 3. Any further claims lodged by the Claimant, Player A, are rejected. 4. If the aforementioned amount is not paid within the above-mentioned 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 FIFA’s Disciplinary Committee for consideration and a formal decision. 5. The Claimant, Player A, is directed to inform the Respondent, Club C, 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 findings of the decision (art. 15 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber): A request for the grounds of the decision must be received, in writing, by the FIFA general secretariat within 10 days of receipt of notification of the findings of the decision. Failure to do so within the stated deadline will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal. For the Dispute Resolution Chamber Jérôme Valcke Secretary General