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 26 May 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Wouter Lambrecht (Belgium), member Zola Percival Majavu (South Africa), 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 (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 26 May 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Wouter Lambrecht (Belgium), member Zola Percival Majavu (South Africa), 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 27 January 2015, the club from country D, Club C (hereinafter: Respondent or club), and the club from country B, Club E (hereinafter: Club E), concluded a transfer agreement, by means of which the parties agreed, inter alia, that “for the definitive buying the International Transfer Certificate (“ITC”) of the player, the [club] shall pay to [Club E] the total amount of (Two Hundred Thousand US Dollars) net, in three instalments as follows”: - USD 50,000 on the date of the signature; - USD 100,000 before the end of September 2015; and - USD 50,000 before the end of January 2016. 2. Clause 4 of the transfer agreement establishes that “The agreement is cancelled if the [club] delayed on paying the amount agreed on. And the [club] is obligated to return the player to [Club E]”. 3. According to clause 5 of the transfer agreement, “The relationship between the player and [Club E] in connection with the handing over of his International Transfer Certificate will end after the payment of the second instalment”. 4. On 28 January 2015, the player from country B, Player A (hereinbefore and hereinafter: Claimant or player) and the Respondent concluded an employment contract (hereinafter: contract), valid from 27 January 2015 until 27 July 2018. 5. According to clause 4.4 of the contract, “The total value of the contract: (USD 420,000) of which (USD 60,000), divided as follows: (USD 30,000), submitted divided held on the first three payments (USD 5,000) when signing and (USD 15,000) after the arrival of international card and (USD 10,000) after two weeks of the arrival of international card. The remainder (USD 30,000) for the first six months of contract salaries. The remainder (USD 360,000) is divided as follows (USD 90,000) paid in three instalments of (USD 30,000) for each batch dated 08.15.2015 and 08.15.2016 and m 15.08.2017 and the remaining amount (USD 270,000) monthly salary for three years the last of the player by contract (USD 7,500) for each club to pay for each airline ticket back and forth to his season”. 6. Clause 13.6 of the contract establishes that “The permanence of the player on the team is associated with his physical performance and the satisfactions of the coach. If there is any lacking in one of these conditions the club has the right to cancel the contract and is committed to player the amount of 3 month’s salary. the amount will set the club free from any financial obligation towards the player and the player does not have the right to demand any other payment. The club must notify the player before the cancelling in suitable time”. 7. In August 2015, the Respondent terminated the contract with the Claimant in writing stating the following: “Club C’s board would like to thank you for the period you have spent at the club, doing your best and your effort with the team. But because of the circumstances the club has faced, we are sorry to inform you of the board’s decision of cancelling your contract with the club from 1st of August 8, 2015 and now you can back as a player in Club E according to your transfer agreement.” 8. On 26 August 2015, the Claimant lodged a claim before FIFA against the Respondent for breach of contract, requesting the aggregate amount of USD 360,000, composed as follows: - USD 90,000, corresponding to three equal instalments of USD 30,000 due, respectively, on 15 August 2015, 15 August 2016 and 15 August 2017; - USD 270,000 corresponding to 36 monthly salaries of USD 7,500 each for the seasons 2015/2016, 2016/2017 and 2017/2018. 9. According to the Claimant, the Respondent paid his salaries until the end of the season 2014/2015, on 16 May 2015, when the Claimant departed to country B, “hoping to come back for the 2015/2016 season sometime before August 2015 to resume training”. Since he did not hear from the Respondent regarding the return to training, the Claimant contacted the Respondent in writing, on 2 August 2015, requesting the flight ticket to join the club. The Respondent allegedly never replied to such letter. 10. Moreover, the Claimant held that, on 10 August 2015, the Respondent terminated the contract via email enclosing a copy of an undated termination letter but which letter indicates a termination as of 1st August 2015. The Claimant highlighted that the email was sent on 10 August 2015 and the notice of termination backdated to 1 August 2015, a day before the Claimant sent the request for flight tickets. 11. In addition, the Claimant held that, on 15 August 2015, the Respondent had to pay USD 30,000 to the Claimant. According to the Claimant, the Respondent wanted to avoid paying such amount. 12. The Claimant stated that he contacted the Respondent on 12 August 2015, rejecting the termination of the contract and offering to negotiate a mutual termination, which remained unanswered by the Respondent. 13. Finally, the Claimant held having contacted Club E, since the Respondent asked him to return to the latter, but Club E explained that he could not return since he was registered with the Respondent. 14. In reply to the claim, the Respondent held that the duration of the contract with the Claimant depended on the execution of the transfer agreement it had signed with Club E. 15. In this respect, the Respondent maintained that, in accordance with clause 4 of the transfer agreement, the agreement was actually a temporary transfer agreement with an option for the definitive transfer of the player, considering that the definitive transfer would only transpire in the event that the Respondent paid the three contractual instalments. 16. In this context, the Respondent stated having notified Club E, on 12 July 2015, of the interruption of the transfer agreement and that it would return the ITC for the player upon request. 17. Subsequently, the Respondent allegedly informed the Claimant on 1 August 2015 that it did not wish to continue with the contract in accordance with its clause 13.6 and that he should return to Club E. 18. In this regard, the Respondent held that it was advised by the assistant coach not to continue with the contract with the Claimant due to his performance. 19. The Respondent further asserted that, on 31 August 2015, it again notified the Claimant of the reasons for the termination and informed him that three monthly salaries were at his disposal as compensation. 20. In conclusion, the Respondent held the following: - that it is not responsible for any kind of unilateral breach of contract; - that it properly cancelled the transfer agreement, notifying Club E; - that it also properly notified the Claimant about the end of the contract; - that it has no other obligation towards the Claimant than the payment of the amount of USD 22,500, corresponding to three monthly salaries, as established in the contract. 21. The Respondent further asked that the Claimant bears any procedural costs imposed. 22. In his replica, the Claimant insisted on his claim and stated that the Respondent is clearly trying to avoid the consequences of a contractual breach, only now alleging that the contract was terminated due to alleged poor performance and enclosing a statement of the assistant coach. The Respondent terminated the contract due to circumstances it was facing, as clearly stated in the termination letter, and the Respondent even thanked the Claimant for his efforts in said letter. 23. The Claimant held that the Respondent damaged his career, terminating the contract and leaving him with no chance to play for another club. Moreover, the Claimant held that he rejected offers to have trials at other clubs. 24. Moreover, according to the Claimant, the Respondent is also trying to justify the termination on the basis of the transfer agreement to which the Claimant is not even a party. The Claimant highlights that the disagreement between the Respondent and Club E cannot harm the Claimant. 25. In its duplica, the Respondent recalled its previous arguments and added that the Claimant was aware, when he left in May 2015, that the Respondent did not want to continue with the contract, reason why the Claimant was invited for a trial by another club. Therefore, according to the Respondent, the Claimant had enough time to either find a new club or return to Club E. 26. According to the information contained in the Transfer Matching System (TMS), the player signed an employment contract with the club from country B, Club F, valid from 16 May 2016 until 31 October 2017, establishing a total remuneration of 16,750. 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 26 August 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; 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 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. 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 on 26 August 2015, the 2015 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. In addition, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS). 5. In this respect, the DRC acknowledged that the Claimant and the Respondent signed a contract on 28 January 2015, valid from 27 January 2015 until 27 July 2018. Furthermore, the DRC took note that previously, on 27 January 2015, the Respondent had signed a transfer agreement with Club E for the transfer of the Claimant to the Respondent. 6. In this context, the Chamber took note that the Claimant lodged a claim against the Respondent for breach of contract, requesting compensation in the total amount of USD 360,000, corresponding to the residual value of the contract until 27 July 2018. More specifically, the Claimant indicated that, on 10 August 2015, the Respondent terminated the contract in writing without just cause, which he promptly rejected on 12 August 2015. 7. The DRC took note that the Respondent, for its part, denied that it terminated the contract without just cause, but accepted to pay USD 22,500 as compensation in accordance with clause 13.6 of the contract. The Respondent further argued, inter alia, that it had properly notified the Claimant of the termination of the contract and Club E of the termination of the transfer agreement, which, according to the Respondent, in fact was an agreement for the temporary transfer of the player only. 8. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of both parties, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Respondent. The DRC also underlined that, subsequently, if it were found that the employment contract was terminated without just cause, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation without just cause. 9. In this respect, the Chamber acknowledged that the Respondent held that although it was established in the contract that it was valid until 27 July 2018, its duration depended on the execution of the transfer agreement. In particular, the DRC took note of the Respondent’s argument that the transfer agreement concluded with the Claimant’s former club, Club E, was actually a temporary transfer with an option for the definitive transfer of the player in accordance with clause 4 of the transfer agreement, which option was not exercised by the Respondent by not paying the instalments agreed in the transfer agreement. 10. Considering the argument of the Respondent regarding the duration of the contract, the members of the DRC reverted to the transfer agreement and in particular, to clause 4, which establishes that “The agreement is cancelled if the [club] delayed on paying the amount agreed on. And the [club] is obligated to return the player to [Club E]”. In this regard, the members of the DRC concluded that, contrary to the position of the Respondent, the transfer agreement is in fact in relation to a definitive transfer of the player with a clause that would entitle the former club to cancel the agreement if the amount agreed upon is not paid in a timely manner. 11. Moreover, in any case, the members of the DRC were eager to emphasise that the transfer agreement and the employment contract are two separate agreements, independent from one another, which carry separate obligations that need to be fulfilled by the different contractual parties. Accordingly, the Chamber highlighted that the employment relation between the Respondent and the Claimant was governed by the employment contract, the obligations of which were to be respected by the respective contractual parties independently from the transfer agreement. 12. On account of the above, the Chamber agreed that the Respondent’s argumentation regarding the transfer agreement could not be upheld and concluded that the contract signed by and between the Claimant and the Respondent was valid until 27 July 2018. 13. In continuation, the DRC reverted to the Respondent’s argument that it decided to cease the employment relationship with the Claimant due to his performance and that it had notified the Claimant accordingly. 14. In this respect, the Claimant alleged that the Respondent was trying to avoid the consequences of the contractual breach, raising arguments before FIFA that were not invoked before, in particular on the occasion of the termination of the contract. The Claimant highlighted that the Respondent terminated the contract due to circumstances the club was facing at that moment and even thanked the player for his efforts. 15. In this context, the Chamber was keen to emphasize that, in accordance with its longstanding and well-established jurisprudence, the unsatisfactory performance of a player does not constitute a just cause for a club to prematurely terminate the employment relationship, as this judgement is subjective and unmeasurable. Thus, due to the subjective and arbitrary nature of such grounds for dismissal, the Chamber concluded that this argument of the Respondent in order to justify the unilateral termination of the contract could not be sustained. 16. In addition, the Chamber took note of the Claimant’s argument that the Respondent had neither invoked the transfer agreement nor his performance as reasons for his dismissal on the occasion of the termination of the contract. 17. At this point, the DRC acknowledged that, in the termination letter issued by the Respondent to the Claimant, the Respondent stated that it “would like to thank you for the period you have spent at the club, doing your best and your effort with the team. But because of the circumstances the club has faced, we are sorry to inform you of the board’s decision of cancelling your contract with the club from 1st of August 8, 2015 and now you can back as a player in Club E according to your transfer agreement.” 18. Therefore, the members of the DRC considered that, indeed, the Respondent had not invoked any of the aforementioned reasons when proceeding with the termination of the contract with the Claimant, merely referring to ”circumstances” faced by the Respondent in its notice of termination. 19. On account of all the above, the members of the Chamber decided that the Respondent terminated the contract without just cause on 10 August 2015, date on which the termination was notified to the Claimant. In this respect, the Chamber took into account that in his letter of 12 August 2015 addressed to the Respondent the Claimant refers to the receipt of the Respondent’s notice of termination on 10 August 2015. The Chamber further took into account that the Respondent had not presented convincing documentation corroborating its allegation that the notice of termination was sent to the Claimant on 1 August 2015. 20. In continuation, prior to establishing the consequences of the breach of contract without just cause by the Respondent in accordance with art. 17 par. 1 of the Regulations, the Chamber took note that there was no unpaid remuneration at the moment when the contract was terminated by the Respondent. 21. Having established the above, the Chamber turned its attention to the question of the consequences of the termination of the contract by the Respondent without just cause on 10 August 2015. 22. 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. 23. 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 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 contract at the basis of the matter at stake. 24. 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. 25. 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. 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. 26. On the basis of the contract signed by the Claimant and the Respondent, which was to run for three years more, i.e. until 27 July 2018, after the breach of contract occurred, the Chamber concluded that the amount of USD 360,000 (3 instalments of USD 30,000 each for each season and 36 monthly salaries of USD 7,500 each for the seasons 2015/2016, 2016/2017 and 2017/2018) serves as the basis for the final determination of the amount of compensation for breach of contract. 27. In continuation, the Chamber verified as to whether the Claimant 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. 28. The Chamber noted that, according to the information in the TMS, he signed an employment contract with Club F, valid from 16 May 2016 until 31 October 2017, establishing a total remuneration of 16,750, which corresponds approximately to USD 4,400. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 355,600 to the Claimant as compensation for breach of contract in the case at hand. 30. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is 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 compensation for breach of contract in the amount of USD 355,600, within 30 days as from the date of notification of this decision. 3. In the event that the amount due to the Claimant is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent 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. 58 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 Deputy Secretary General Encl: CAS directives