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 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohamed Al-Saikhan (Saudi Arabia), member Zola Majavu (South Africa), member on the claim presented by the club, Club A, country B as Claimant/Counter-Respondent against the player, Player C, country D, as Respondent/Counter-Claimant and the club, Club E, country D as Intervening Party regarding an employment-related dispute arisen between the parties I.

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 11 June 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Carlos González Puche (Colombia), member Santiago Nebot (Spain), member Mohamed Al-Saikhan (Saudi Arabia), member Zola Majavu (South Africa), member on the claim presented by the club, Club A, country B as Claimant/Counter-Respondent against the player, Player C, country D, as Respondent/Counter-Claimant and the club, Club E, country D as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 11 September 2012, the player from country D, Player C (hereinafter: the Respondent/Counter-Claimant) and the club from country B, Club A (hereinafter: the Claimant/Counter-Respondent), concluded an employment contract, (hereinafter: the contract), valid as from the date of signature until 30 June 2015. 2. According to art. 4 of the contract, the Claimant/Counter-Respondent undertakes to pay the Respondent/Counter-Claimant, inter alia, the following monies: i. USD 8,333 as monthly salary; ii. USD 400,000 as “productivity bonus” per season payable as follow: Season 2012/2013: 1. USD 250,000 payable at the signature of the contract; 2. USD 150,000 payable on 1 January 2013. Season 2013/2014: 3. USD 250,000 payable on 1 July 2013; 4. USD 150,000 payable on 1 January 2014. Season 2014/2015: 5. USD 250,000 payable on 1 July 2014; 6. USD 150,000 payable on 1 January 2015. iii. a furnished apartment and a car during the duration of the contract. 3. According to art. 7 of the contract “The player is committed to the sanction rules provided by the Club. For instance, in case the player extends his leave without written authorisation of the club, he will incur a delay penalty fixed to the amount of five hundred American dollars (500 USD) each day delayed”. 4. On 17 June 2013, the Claimant/Counter-Respondent agreed to loan the Respondent/Counter-Claimant to the club from country G, Club F (hereinafter: Club F), for a period of one year, from 1 July 2013 to 30 June 2014. The parties agreed upon a loan fee of USD 500,000 as well as upon an option of permanent transfer for an amount of USD 1,000,000. 5. On 22 July 2014, the Claimant/Counter-Respondent lodged a claim against the Respondent/Counter-Claimant in front of FIFA for breach of contract without just cause, requesting the payment of EUR 1,000,000 as compensation. Equally, the Claimant/Counter-Respondent requested the imposition of sporting sanctions on the Respondent/Counter-Claimant and that all costs of the proceedings be borne by him. 6. In its claim, the Claimant/Counter-Respondent holds that after the end of the loan, the Respondent/Counter-Claimant did not come back to country B. On 4 and 5 July 2014, the Claimant/Counter-Respondent contacted the Respondent/CounterClaimant by email on XXXX to invite him to resume training, but he did not reply. In this context, the Claimant/Counter-Respondent deems that the Respondent/Counter-Claimant unilaterally terminated the contract without just cause. 7. On 24 September 2014, the Respondent/Counter-Claimant also lodged a claim in front of FIFA against the Claimant/Counter-Respondent for breach of contract without just cause, requesting the payment of the total amount of USD 1,142,000 broken down as follows: i. USD 250,000 corresponding to the outstanding instalment due on 1 July 2014 (cf. point 2.ii. above); ii. USD 25,000 as outstanding remuneration, corresponding to the salaries from July to September 2014 (3 x USD 8,333); iii. USD 150,000, corresponding to the instalment due on 1 January 2015; iv. USD 75,000, corresponding to 9 monthly salaries for the remaining period of contract; v. USD 42,000, corresponding to the costs for the accommodation and the car until the end of the contract ( [USD 2,500 x 12 = USD 30,000] for the accommodation plus, [USD 1,000 x 12 = USD 12,000] for the car); vi. USD 500,000 as compensation for the loss allegedly incurred by the Respondent/Counter-Claimant due to his impossibility to be hired by a new club; vii. USD 100,000 for image and psychological damages. 8. In his claim, the Respondent/Counter-Claimant holds that, at the end of his loan period with Club F, he tried several times to contact the Claimant/CounterRespondent to be informed of the date of the start of the training for the new season and also to invite the Claimant/Counter-Respondent to proceed to the formalities to obtain his visa, but the Claimant/Counter-Respondent allegedly did not react. 9. The Respondent/Counter-Claimant further holds that the Claimant/CounterRespondent did not pay his salaries as from the month of July 2014 as well as the instalment due on 1 July 2014 (cf. points 2.i. and 2.ii. above). 10. Based on the foregoing, the Respondent/Counter-Claimant deems that the Claimant/Counter-Respondent breached the contract without just cause, since it expressed its complete lack of interest in maintaining his services for the 2014/2015 season, by not providing him with a return visa and also by hiring new foreign players and reaching the maximum number of foreigners allowed. In this respect, the Respondent/Counter-Claimant stated that the Claimant/Counter-Respondent excluded him from its list of players for the 2014/2015 season, did not renew his professional license and even started proceedings for the termination of his contract in front of FIFA, without informing him in advance. Thus, the Respondent/Counter-Claimant deems that the Claimant/Counter-Respondent terminated the contract with him without just cause. 11. In its reply to the Respondent/Counter-Claimant’s claim, the Claimant/CounterRespondent maintains its claim and holds that the Respondent/Counter-Claimant is responsible for the termination of the contract since he did not contact the Claimant/Counter-Respondent, ignored the emails sent to him and did not even want to provide his address. The Claimant/Counter-Respondent provided an email conversation between the Claimant/Counter-Respondent and the Respondent/Counter-Claimant in which the Respondent/Counter-Claimant wrote from the email address XXXX on 25 August 2014: “Good morning please I want to ask you if you don’t need me they should tell “; reply of the Claimant/CounterRespondent dated 5 September 2014 “Good Morning, please we need your personal address as soon as possible. Thanks” and reply of the Respondent/Counter-Claimant on the same day: “Like how”. Thus, the Respondent/Counter-Claimant’s claim should be rejected. 12. In his answer to the Claimant/Counter-Respondent’s claim, the Respondent/Counter-Claimant explains that, at the end of his loan with Club F, he flew back to country D to rest for few days, and planned to come back to city H to re-join the Claimant/Counter-Respondent at the beginning of July 2014. According to the Respondent/Counter-Claimant, he was waiting to receive his flight ticket and visa from the Claimant/Counter-Respondent, which he did not receive, therefore, he was blocked in country D. The Respondent/Counter-Claimant underlines that the Claimant/Counter-Respondent did not provide FIFA with any document such as travel document or a visa request formular to allow him to return to country B. 13. Finally, the Respondent/Counter-Claimant deems that the Claimant/CounterRespondent could contact his agent if it could not reach the Respondent/CounterClaimant himself and also claims that, the Claimant/Counter-Respondent, with its claim, only intended to hide the fact that already on 16 July 2014, it replaced him by another foreign player, Player I. 14. In its final comments, the Claimant/Counter-Respondent maintains that the Respondent/Counter-Claimant did not contact the Claimant/Counter-Respondent after his loan and underlines that he violated the contract by returning to country D, without the Claimant/Counter-Respondent’s permission. In addition, the Claimant/Counter-Respondent holds that it did not have the Respondent/Counter- Claimant’s address in order to be able to proceed with the formalities to obtain his visa. 15. In his final position, the Respondent/Counter-Claimant maintains his previous argumentation and rejects entirely the arguments presented by the Claimant/Counter-Respondent. 16. The club from country D, Club E (hereinafter: Club E), the intervening party, denies having induced the Respondent/Counter-Claimant to breach the contract and holds not to be affected by the provisions of art. 17 par. 2 and 4 of the FIFA regulations. In this regard, Club E stressed that it only hired the Respondent/Counter-Claimant on 15 January 2015, which is six months after the termination of his contract with Club A. In addition, Club E points out that there is no reason for the Respondent/Counter-Claimant to leave Club A for a small club, with which he earns two percent of the value of his former contract. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 22 July 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012, 2014 and 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 D and a club from country B. 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 (editions 2012, 2014 and 2015), and considering that the present claim was lodged on 22 July 2014, 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 Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 5. 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. 6. In this respect, the members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. The Chamber recalled that the parties had signed an employment contract valid as from 11 September 2012 until 30 June 2015. 7. In continuation, the Chamber took note that it is undisputed by the parties involved that as from 1 July 2013 until 30 June 2014, the Respondent/CounterClaimant was on loan with the club from country G, Club F (cf. point I.4. above). The Claimant/Counter-Respondent, on the one hand, maintains that the employment contract was terminated by the Respondent/Counter-Claimant without just cause as a result of the latter’s absence as from the end of the loan period. The Respondent/Counter-Claimant, on the other hand, rejects such claim and lodged a counterclaim on 24 September 2014 against the Claimant/Counter- Respondent maintaining that the latter had acted in violation of its contractual obligations. 8. The Chamber highlighted that the underlying issue in this dispute, considering the conflicting positions of the parties, was to determine whether the employment contract had been prematurely and unilaterally terminated with or without just cause by either of the parties. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that is to be held liable for the breach of the employment contract without just cause. 9. In continuation, the Chamber, first and foremost, acknowledged that it has remained undisputed by both parties that the Respondent/Counter-Claimant did not resume his duty with Club A after the end of his loan with Club F on 30 June 2014. In the absence of any formal termination document issued by either party, the DRC deemed it appropriate to consider the uncontested initial date of the player’s absence at the club, i.e. 1 July 2014, as the termination date of the contract by the Respondent/Counter-Claimant. Having established that the contract was to be considered as terminated by the Respondent / CounterClaimant on 1 July 2014, the DRC went on to analyse whether the player in fact had a just cause to unilaterally end his relationship with the club on that date. 10. In this context, the Chamber noted that, according to the Claimant/CounterRespondent, the Respondent/Counter-Claimant was absent as from 1 July 2014 without its authorisation. The Chamber took due note of the documentation presented by the Claimant/Counter-Respondent in this regard, i.e. a copy of the emails dated 4 and 5 July 2014 sent to the Respondent/Counter-Claimant to the email address XXXX, address from which he later on replied, to invite him to come back to the club for the trainings as well as a notary statement dated 21 July 2014 which confirmed the Respondent/Counter-Claimant’s undisputed absence as from 1 July 2014 (cf. point I.6. above). In addition, the Claimant/Counter-Respondent asserted that the Respondent/Counter-Claimant never communicated with it or replied to its emails. 11. The Respondent/Counter-Claimant, for his part, held that he tried to contact the Claimant/Counter-Respondent to obtain information on the start date of the upcoming season as well as for the issuance of his visa, but without success. In addition, according to him, the club did not pay his salaries as from the month of July 2014, as well as the instalment due on 1 July 2014, and did not request the return of his ITC. The members of the Chamber noted that, for these reasons, the Respondent/Counter-Claimant deemed that the Claimant/Counter-Respondent breached the contract without just cause, since it expressed its complete lack of interest in his services for the upcoming season. 12. In continuation, and 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, the members of the Chamber first took into account that the Respondent/Counter-Claimant had not presented any documentary evidence corroborating his assertion that he tried to contact the Claimant/Counter-Respondent after the end of his loan, either to request the issuance of his visa, the return of his ITC or the payment of his remuneration, which he me mentioned in his counter-claim. 13. In addition, the members of the Chamber recalled, as stated above, that the Respondent/Counter-Claimant confirms not having resumed his contract with the Claimant/Counter-Respondent after the end of his loan on 30 June 2014, but claims that the Claimant/Counter-Respondent failed to pay him his “productivity bonus” in the amount of USD 250,000 due on 1 July 2014 (cf. point I.2.ii.5. above) as well as his monthly salaries for July to September 2014. In this respect, the Chamber first noted that a player which uncontestably did not return to his club of origin after the end of a loan cannot possibly be entitled to a “productivity bonus” due for a period in which he was not even present at the club and could not, in good faith, justify his absence by the lack of payment of such bonus. 14. In continuation, based also on the uncontested absence of the player as from 1 July 2014, the Chamber considered that his argument pertaining to the nonpayment of his salaries from July to September 2014 must also be rejected, as such salaries did not fall due prior to the date of termination and could not possibly justify it. 15. Equally, the Chamber addressed the Respondent/Counter-Claimant’s argument that the Claimant/Counter-Respondent did not inform him of the date of the restart of the team’s training. In this respect, the Chamber deemed that this is not a valid cause not come back to the club since the contract signed by and between the parties was valid until 30 June 2015. For this reason, the Chamber considered that it is the obligation of the Respondent/Counter-Claimant to immediately return to the club of origin after the end of his loan. In light of the above, the Chamber concluded that this argument must be rejected. 16. In addition, the Chamber recalled that the Claimant/Counter-Respondent provided enough evidence that the Respondent/Counter-Claimant received the emails sent to him on 4 July, 5 July and 5 September 2014 but did not reply to the first two, requesting his return, and did not provide his address as requested in the third one (cf. point I.11. above). At this point, the Chamber deemed it appropriate to point out that all three emails of the Claimant/Counter-Respondent were sent to the same email address – i.e. XXXX - ; while the first two reminders remained unanswered, the Respondent/Counter-Claimant replied to the third one, confirming the correctness of such address. Thus, the members of the Chamber concluded that the Claimant/Counter-Respondent indeed contacted the Respondent/Counter-Claimant immediately after the end of the loan, requesting that he resume his services, whereas the player only contacted the club almost two months later after the date on which he was supposed to return, asking if the club was still interested in his services. 17. Additionally, the Chamber noted that the flight ticket for which the Respondent/Counter-Claimant was also allegedly waiting to be able to return to country B was not provided for in the contract. Thus, the Chamber decided that this argument must be rejected. 18. On account of the above considerations, the members of the Chamber unanimously reached the conclusion that the Respondent/Counter-Claimant had not submitted any evidence that he in fact intended to resume his contract with the Claimant/Counter-Respondent or that he had a just cause not to do so. In view of the evidence on file, the Chamber concluded that the Respondent/CounterClaimant had breached the employment contract without just cause on 1 July 2014, by not resuming duty after the end of his loan spell with Club F. 19. Having established that no amounts had remained unpaid to the player up until the date of termination, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the player to the club 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 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 Respondent/Counter-Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within the protected period. 20. 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 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. 21. As a consequence, the members of the Chamber determined that the amount of compensation for breach of contract in the present matter 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. Furthermore, the Chamber highlighted that each request for compensation for breach of contract has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter. 22. Having said this, the Chamber turned its attention to the remuneration and other benefits due to the Respondent/Counter-Claimant under the existing contract and/or the new contract. The members of the Chamber deemed it important to emphasise that the wording of article 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) in the calculation of the amount of compensation thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s). 23. In this regard, the Chamber noted that, as per the employment contract signed with the Claimant/Counter-Respondent, the Respondent/Counter-Claimant was entitled to a total salary of USD 500,000 from the date of termination, i.e. 1 July 2014, until the original end of the contract i.e., until 30 June 2015. 24. In continuation, the DRC equally took note of the Respondent/Counter-Claimant’s remuneration with his new club, i.e. Club E, which corresponded to a total amount of USD 8,100, until the original end of the contract with the Claimant/CounterRespondent. 25. Taking into account the aforementioned elements the Chamber concluded that the average remuneration of USD 254,000 for the time remaining of the relevant contract should be taken into account in the calculation of the amount of compensation for breach of contract payable to the Claimant/Counter-Respondent. 26. In this respect and notwithstanding the above, the members of the Chamber however, after considering all the facts of the case, deemed it important to recall that, although it had considered that the Respondent/Counter-Claimant was to be held responsible for having terminated the contract without just cause, one should consider that the Claimant/Counter-Respondent’s behaviour when establishing the amount of compensation payable for breach of contract without just cause. 27. First of all, the Chamber noted that after the first warnings sent to the Respondent/Counter-Claimant in the beginning of July 2014, the Claimant/Counter Respondent only contacted the player once again to obtain his address (cf. point I.11. above) nearly two months later. Having said this, the members of the Chamber also underlined that the Claimant/Counter-Respondent did not appear to have provided full support to the Respondent/Counter-Claimant with regard to the issuance of his visa. 28. On account of all of the above-mentioned considerations, the Chamber decided that the basic amount of compensation calculated in point II.23. above should be mitigated and the Respondent/Counter-Claimant must pay the amount of USD 180,000 to the Claimant/Counter-Respondent as compensation for breach of contract, which was considered a fair and adequate amount of compensation in the present matter. 29. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the Respondent/Counter-Claimant’s new club, i.e Club E, shall be jointly and severally liable for the payment of compensation. 30. In this respect, the Chamber was eager to recall that the joint liability of a player’s new club is independent from the question as to whether this new club has committed an inducement to contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club E is jointly and severally liable for the payment of the relevant compensation. 31. Finally, the DRC decided that the Claimant/Counter-Respondent’ claim pertaining to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s longstanding respective jurisprudence. 32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant/CounterRespondent are rejected and that the counterclaim of the Respondent/CounterClaimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Club A, is partially accepted. 2. The counterclaim of the Respondent/Counter-Claimant, Player C, is rejected. 3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent compensation for breach of contract in the amount of USD 180,000, within 30 days as from the date of notification of this decision. 4. The Intervening Party, Club E, shall be held jointly and severally liable for the payment of the amount mentioned in point II.3. above. 5. In the event that the amount due to the Claimant/Counter-Respondent in accordance with the above-mentioned number III.3. is not paid by the Respondent/Counter-Claimant within the stated time limits, 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. 6. Any further claim lodged by the Claimant/Counter-Respondent is rejected. 7. The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant and the Intervening Party immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 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: Marco Villiger Acting Deputy Secretary General Encl. CAS directives