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 15 October 2015, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Eirik Monsen (Norway), member Theodore Giannikos (Greece), member Taku Nomiya (Japan), 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.

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 15 October 2015, in the following composition: Geoff Thompson (England), Chairman Joaquim Evangelista (Portugal), member Eirik Monsen (Norway), member Theodore Giannikos (Greece), member Taku Nomiya (Japan), 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 25 June 2014, in the framework of a loan, the player from country B, Player A (hereinafter: the player or Claimant / Counter-Respondent), and the club from country D, Club C (hereinafter: the club or Respondent / Counter-Claimant), entered into an employment contract (hereinafter: the contract) valid as from 1 July 2014 until 30 June 2015. 2. In accordance with the contract, the player was entitled to the total amount of EUR 2,700,000, payable as follows: - EUR 800,000 as an advance payment, to be paid after passing the medical examination; - EUR 1,900,000 divided in 12 monthly salaries of EUR 158,333. 3. On 19 March 2015, the player and club signed an “Memorandum of Understanding” (hereinafter: the MOU) which reads: “1 -The First Party [the club] shall pay to the Second Party [the player] the sum of [EUR 400,000] which represents fifty per cent (50%) of the Second Party’s entitlements upon the signature of this MOU and the Second Party hereby accepts and agrees to such payment. In addition, one month’s salary of [EUR 158,000] will be payable at the time of signature of this MOU. 2.- The remaining balance shall be payable following the opening of the bank account of the Second Party/First Party.” 4. From 15 until 18 May 2015, the players of the club were granted holidays. 5. On 15 May 2015, the player sent a fax and an e-mail to the club putting the latter in default for the amount of EUR 1,388,719. By means of said correspondence, the player requested the club’s official position and to proceed with the payment of the due amount within 72 hours of receipt of the e-mail or fax. 6. On 19 May 2015, the player sent another fax and e-mail to the club stating that the notification of 15 May 2015 remained unanswered. As a result, he gave the club a final time limit of 24 hours to pay the due amount, “failing which judicial measures shall be taken.” 7. On 19 May 2015, the club replied to the player’s correspondence “dated 15 May 2015 received by the club and the Football Association of country D on the same day of 19 May.” The club stressed that by signing the MOU, the player recognised to wait for the overdue payments until the club would be authorized by the Minister of Finance to open a new bank account or to reactivate its frozen account. The club also outlined that it did not receive at a later stage any complaints regarding a delay of payment and stressed that a default notice is one of two conditions to terminate a contract with just cause. The club further added that “as consequence, and in accordance with the new Rules of the Football Association of country D as well as the permission to open a new bank account is still pending, the presence of the player is crucial to receive a check from the Sponsor League, on the name of the player (...)”. Finally, the club requested the player to join the team within the next 72 hours to settle this dispute “by receiving a check on his name for the performance from the Sponsor or to retake his work.” 8. On 20 May 2015, the player acknowledged receipt of the club’s letter and email “sent on 20 May 2015”, outlining the situation and advising the club that he shall terminate the contract on 20 May 2015. Another letter was sent the same day, by means of which the player terminated the contract. 9. On 21 May 2015, the club replied to the player’s letter dated 20 May 2015, contesting its content and stressing that the fax of 15 May 2015 had only been sent on 19 May 2015 “with a posterior date”. 10. On 25 May 2015, the player lodged a claim against the club for breach of contract, asserting that he had terminated the contract with just cause as an amount equal to 6 salaries was outstanding. In particular, the player requested the following: - EUR 413,573.28 regarding the unpaid advance payment; - EUR 975,145.85 corresponding to the unpaid monthly salaries; - EUR 1,350,000 or any other sum for the specificity of sport; - 5% interest as from the due dates; - CHF 15,000 as legal costs; - Sporting sanctions to be imposed. 11. The player held that he had only received the amount of EUR 1,311,281.87 from the club, as follows: - EUR 158,333 in July 2014 in cash; - EUR 453,985.35 on 23 December 2014; - EUR 154,162.89 on 23 March 2015; - EUR 386,426.72 on 24 March 2015 “regarding an anticipation of 50% that should have been of EUR 400,000 and paid in July 2014”; - EUR 158,373.91 on 30 April 2015. 12. In its reply to the claim, the club stated that there was no valid reason for the player to terminate the contract since i) the parties had agreed to defer the payments as stipulated in the MOU, ii) the player did not provide adequate notice, and iii) in the alternative, late payment on its own does not justify the unilateral termination of the contract. 13. In relation to the MOU, the club held that the reason behind the renegotiation of the payments dates was the club’s bank issues, in particular, the club could only pay the player once it was authorized by the Minister of Finance to open a new bank account or to reactivate its frozen account. The player was made aware of the foregoing and agreed to defer the payment dates pending the resolution of the bank account issue. At the time of the termination, the club had not yet resolved this issue with the Minister of Finance but had been working towards a solution so that it could fulfil the terms of the agreement. This was also the reason why the club requested the player to return to the club since, apart from having to play the semi-final in the cup on 31 May 2015, the club intended to settle the matter amicably. 14. As regard the notifications, the club held that the player did not give sufficient warning in advance. In particular, the club underlined that the fax dated 15 May 2015: - Did not mention that the player intended to terminate the contract; the 72 hour deadline merely referred to a request from the club to reply; - The club replied to the fax asking the player to return; - The fax was not delivered on 15 May 2015 but rather on 18 May 2015 “as clearly indicated in the top left hand corner of the third page of the letter”. In this respect, the club submitted the fax it apparently received which stipulates “MAY-18-2015 17:18” in the top left corner; - Since the fax was only sent on 18 May 2015, 17:18 time of country B, it was delivered to the club on 18 May 2015, 23:18 time of country D. As a result, the fax was only seen by the club on 19 May 2015, i.e. after the 72 hour deadline had expired. - Upon receipt, the club immediately wrote back to the club asking for the player’s return (cf. par. I./7. above), however he terminated the contract on 20 May 2015. 15. On account of all of the above, the club deemed that the player terminated the contract without just cause and lodged a counterclaim against the player. In particular, the club claims the amount of EUR 290,276 plus interest and EUR 10,000 in legal costs. 16. In his replica, and as to the notifications, the player insisted that: i) On 15 May 2015, it also notified the club by email, as it also did on 19 and “21” May 2015. ii) On 21 May 2015, the club replied by email to the email-address from which the player’s emails were sent. Page 4 of the club’s email of 21 May 2015 even contains the player’s email of 15 May 2015. Therefore it is evident that the club received the e-mail of 15 May 2015. iii) Even if the notification of 15 May 2015 was delivered on a later date, on 19 May 2015, a new notification was sent. iv) In any case, the club was already aware of its debt since it signed the MOU in March 2015. v) The termination letter of 20 May 2015 was sent at 1:20 PM (time of country B), i.e. before the club’s reply to the notification. The club’s reply was dated 19 May 2015 but actually received by the player on 20 May 2015 at 1:48 PM only. The player submitted the receipt document of the club’s fax dated 19 May 2015, the top left corner of which reads: “5/20/2015 1:48 GMT+3 (…)”. According to the player, at the time the club requested his return, he was already on his way to country B, due to the club’s breach of contract. 17. Furthermore, the player indicated that, upon return in country B, he was informed by his colleagues that the club had invaded his home and that it was clear that no amicable settlement would be possible. Also, the player underlined that the club acted abusive in many other cases, e.g. by retaining passports, and that he feared that the same would happen to him. 18. Finally, the player stressed that: i) He indeed initially accepted the late payment of his salaries, which demonstrates his extreme good faith and willingness. ii) The MOU dated 19 March 2015 stipulates that once the club’s account was reopened, he would receive the amounts due. However, surprisingly, during March and April 2015, the club made several payments by bank transfer. This demonstrates that the club’s bank issues had been solved as from 23 March 2015. iii) By May 2015, the situation became unbearable as he had not received his remuneration equal to approximately 6 salaries and he was living in a foreign country where he could not rely on his family and with not enough money to cover his expenses. 19. In sum, the player holds that the late salaries of EUR 1,388,719 are substantial and that he duly notified the club of its debt, therefore having a just cause to terminate the contract. 20. Having been requested to provide its final position, the club indicated that it did not wish to make any further comments. 21. Although have been invited to do so, Club E did not provide its position in the present matter. 22. Upon request of FIFA, the player indicated that he did not receive any remuneration from another club in May and June 2015; the loan agreement between the club and Club E was valid until 30 June 2015 and Club E was therefore not obliged to register him or pay his salary. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 25 May 2015. Consequently, the 2015 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 and par. 2 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 and a club from country D, with the involvement of a club from country F. 3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 25 May 2015, the 2015 edition of said regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts 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. First of all, the members of the Chamber acknowledged that, on 25 June 2014, the player and the club concluded an employment contract valid as from 1 July 2014 until 30 June 2015 in accordance with which the player was entitled to a monthly salary of EUR 158,333, as well as an advance payment of EUR 800,000. 6. Furthermore, the Chamber acknowledged that on 19 March 2015 the player and the club signed the MOU by means of which they agreed upon a payment plan for the apparent outstanding remuneration. 7. The Chamber further observed that the player held that he had terminated the contract on 21 May 2015 with just cause, since the club had failed to pay him the amount of EUR 1,388,719. On the other hand, the Chamber duly noted that the club held that the player had terminated the contract without just cause on 21 May 2015 since i) the parties had agreed to defer the payments as stipulated in the MOU, ii) the player did not provide adequate notice, and iii) late payment on its own does not justify the unilateral termination of the contract. 8. On account of the above, the Chamber duly noted that it had to examine whether or not the decision of the player to terminate the contract with the club on 21 May 2015 was with or without just cause. 9. In this context, the Chamber first of all analysed the entitlements of the player under the contract until 21 May 2015. The Chamber notes that by 21 May 2015, the player should have received 10 monthly salary payments (i.e. July 2014 until April 2015) in the total amount of EUR 1,583,330 as well as the advance payment of EUR 800,000. It is therefore that the player on 21 May 2015 was supposed to have received from the club the total amount of EUR 2,383,330. Yet, the player asserted that he only received the amount of EUR 1,311,281.87, leaving a balance of EUR 1,072,048.13. 10. In this respect, the Chamber wished to underline that the club did not contest that, until 21 May 2015, it had only paid the player the amount of EUR 1,311,281.87, as follows: - EUR 158,333 in July 2014 in cash; - EUR 453,985.35 on 23 December 2014; - EUR 154,162.89 on 23 March 2015; - EUR 386,426.72 on 24 March 2015 - EUR 158,373.91 on 30 April 2015. 11. Having established the above, the Chamber however observes that one of the arguments raised by the club is that the parties, by signing the MOU, agreed to defer the payments. 12. Having analysed the content of the MOU, the Chamber finds that the parties agreed that the club would pay the player an amount of EUR 583,333 upon signature of the MOU and that the remaining outstanding balance would be paid “following the opening of the bank account of the Second Party/First Party.” In this context, the Chamber finds it essential to stress that the club did not contest that it made payments to the player on 23 and 24 March as well as on 30 April 2015. From such payments, the Chamber derives that the bank issues of the club had in fact been solved – at the least as from 23 March 2015 - and that thus the remaining balance should have been paid immediately by the club to the player. 13. As to the argument of the club that the player did not provide adequate notice, the Chamber refers to the player’s replica, in particular, to the documentation submitted in relation to the emails sent by the player to the club on 15, 19 and 20 May 2015. The Chamber further observes that the Respondent did not contest in its duplica having received such emails. What is more, the Chamber is of the opinion that the club was well aware of its lack of fulfillment of the contract in view of the fact that it signed the MOU and in view of the fact that the amount of outstanding remuneration was significant, i.e. EUR 1,072,048.13, which corresponds to almost 7 monthly salaries. 14. The Chamber deems it important to point out that, thus, until 21 May 2015, the player should have received the amount of EUR 2,383,330 from the club corresponding to 10 monthly salaries of EUR 158,333 and the advance payment of EUR 800,000. Yet, the club recognised having only paid the player the amount of EUR 1,311,281.87. Furthermore, the club recognised having been aware of its outstanding obligations as it signed the MOU and did not dispute that it received the emails of the player dated 15, 19 and 20 May 2015. 15. Having taken into account all the previous considerations, the Chamber decided that it could be established that the club had seriously neglected its contractual obligations towards the player in a continuous and constant manner, i.e. the club had failed to remunerate the player for a substantial period of time and for a significant amount of money, without providing any valid reasons. Therefore, the Chamber considered that the club was found to be in breach of the employment contract and that the breach was of such seriousness that, in line with the Chamber’s long-standing and well-established jurisprudence, the player had a just cause to unilaterally terminate the contractual relationship with the club on 21 May 2015, having previously put the club in default of payment of outstanding amounts. 16. On account of all the above, the Chamber established that the player had terminated the employment contract with just cause on 21 May 2015 and that, consequently, the club is to be held liable for the early termination of the employment contact with just cause by the player. 17. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the player. 18. First of all, the members of the Chamber concurred that the club must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the club is liable to pay to the player the remuneration that was outstanding at the time of the termination i.e. the amount of EUR 1,072,048.13. 19. Furthermore, and considering the player’s claim for interest, the Chamber ruled that the club must pay 5% interest on the amount of EUR 1,072,048.13 as from the respective due dates as indicated by the player, these indications having remained undisputed by the club. 20. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract. 21. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player 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. 22. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 23. Having recalled the aforementioned, and in order to evaluate the compensation to be paid by the club, the members of the Chamber took into account the remuneration due to the player in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the player after the early termination occurred. In this respect, the Chamber concluded that the remaining value of the contract as from its early termination by the player until the regular expiry of the contract amounts to EUR 316,666 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract. 24. In continuation, the Chamber remarked that the player had not received any remuneration in the months of May and June 2015 and equally took into account that the employment relationship with the club was the consequence of a loan agreement between the club and Club E. 25. In view of all of the above, the Chamber decided that the club must pay the amount of EUR 316,666 to the player as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount as compensation for breach of contract. 26. In addition, taking into account the player’s request, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amount of compensation for breach of contract as of the date on which the claim was lodged, i.e. 25 May 2015, until the date of effective payment. 27. Moreover, the Dispute Resolution Chamber decided to reject the player’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 28. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the player is rejected and that the counterclaim of the club is rejected too. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted. 2. The claim 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 the present decision, outstanding remuneration in the amount of EUR 1,072,048.13 plus 5% interest p.a. until the date of effective payment as follows: - 5% p.a. as of 2 July 2014 on the amount of EUR 413,573.28; - 5% p.a. as of 1 January 2015 on the amount of EUR 25,142.85; - 5% p.a. as of 1 February 2015 on the amount of EUR 158,333; - 5% p.a. as of 1 March 2015 on the amount of EUR 158,333; - 5% p.a. as of 1 April 2015 on the amount of EUR 158,333; - 5% p.a. as of 1 May 2015 on the amount of EUR 158,333. 4. The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of EUR 316,666 plus 5% interest p.a. on said amount as from 25 May 2015 until the date of effective payment. 5. In the event that the amounts due to the Claimant / Counter-Respondent in accordance with the above-mentioned numbers 3. and 4. 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