F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 28 January 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, country F, on 28 January 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theodore Giannikos (Greece), member

Theo van Seggelen (Netherlands), member

on the matter between the player,

Player A, country B

as Claimant / Counter-Respondent I

and the club,

Club C, country D

as Respondent / Counter-Claimant

and the club,

Club E, country F

as Counter-Respondent II

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 1 July 2009, the player from country B, Player A (hereinafter: Claimant/Counter-Respondent I or player), and the club from country D, Club C (hereinafter: Respondent/Counter-Claimant or club) concluded an employment contract (hereinafter: first contract), valid as of 1 July 2009 until 31 May 2010, with an extension option for the 2010/2011 season.

2. According to the first contract, the Respondent/Counter-Claimant undertook to pay the player a total amount of EUR 325,000 during the 2009/2010 season, as follows:

- EUR 75,000 as “advance payment” on 30 July 2009;

- EUR 150,000 in ten instalments of EUR 15,000 each between 5 August 2009 and 5 May 2010;

- EUR 100,000 during the period of 34 matches, i.e. EUR 2,941 per match.

3. According to the first contract, in the event of the extension option being exercised, the Respondent/Counter-Claimant undertook to pay the player a total amount of EUR 400,000 during the 2010/2011 season, as follows:

- EUR 100,000 as “advance payment” on 30 July 2010;

- EUR 175,000 in ten instalments of EUR 17,500 each between 5 August 2010 and 5 May 2011;

- EUR 125,000 during the period of 34 matches, i.e. EUR 3,676 per match.

4. Regarding the above-mentioned “per match” amounts, the first contract further defines that “The amount to be paid per match shall be 100% if the player plays in the first eleven, 75% if he joins the game when it is in progress and 50% if he is in the first 18 but does not participate in the game. Such match payments shall be made at the end of the season latest. Match payments are made only for league matches.”

5. In addition, the first contract defines that “The club will provide to the Player a mid class house and a car during the term the contract is valid.”

6. On 22 February 2011, the Claimant/Counter-Respondent I and the Respondent/Counter-Claimant signed a new employment contract (hereinafter: second contract) valid as of 1 June 2011 until 31 May 2014.

7. The second contract defines an extra payment in the amount of EUR 75,000 during the 2010/2011 season, payable to the Claimant/Counter-Respondent I as follows:

- EUR 25,000 on 1 March 2011;

- EUR 25,000 on 1 May 2011;

- EUR 25,000 on 1 July 2011.

8. According to the second contract, the Respondent/Counter-Claimant undertook to pay a total amount of EUR 675,000 to the Claimant/Counter-Respondent I during the 2011/2012 season, as follows:

- EUR 300,000 as “advance payment” on 30 August 2011;

- EUR 375,000 in ten instalments of EUR 37,500 each between 5 September 2011 and 5 June 2012.

9. Furthermore, the Respondent/Counter-Claimant undertook to pay the Claimant/Counter-Respondent I a total amount of EUR 700,000 during the 2012/2013 season and EUR 725,000 during the 2013/2014 season.

10. The second contract further defines that “The player has a fixed transfer fee of EUR 2,500,000. If the player is sold within transfer registration periods at a minimum price of EUR 2,500,000, EUR 500,000 of the said price shall be paid to Player A.”

11. According to the second contract, the Respondent/Counter-Claimant provides the Claimant/Counter-Respondent I with “a house and a car, whose rental payments will be made by the Club”. Furthermore, the player, his wife and his children are entitled to “2 economy class round trip tickets (2 for each person) to country G (country B or country G) of the player for each season during the validity term of the present contract.”

12. On 19 July 2011, the Claimant/Counter-Respondent I sent a default notice to the Respondent/Counter-Claimant, requesting payment of outstanding remuneration in the amount of EUR 181,252.98 and 18,400 corresponding to:

- EUR 2,941.17 as one match bonus of the 2009/2010 season;

- EUR 75,000 as extra payments;

- EUR 103,311.81 as salaries;

- 4,000 as “draw bonus”;

- 14,400 as housing allowance for 12 months.

13. On 1 August 2011, the Claimant/Counter-Respondent I sent another default notice to the Respondent/Counter-Claimant, requesting payment of outstanding remuneration in the amount of EUR 481,252.80 and 18,400, corresponding to the amount claimed on 19 July 2011 plus EUR 300,000 related to the 2011/2012 season. In this letter, the Claimant/Counter-Respondent I warned the Respondent/Counter-Claimant that he would terminate his contract if the debt would not be settled by 3 August 2011.

14. On 3 August 2011, the Claimant/Counter-Respondent I sent another letter to the Respondent/Counter-Claimant extending the deadline for the above-mentioned payment until 4 August 2011.

15. On 15 August 2011, the Claimant/Counter-Respondent I lodged a claim against the Respondent/Counter-Claimant in front of FIFA for outstanding remuneration in the amount of EUR 178,303.80 and 18,400, corresponding to:

EUR 100,000 as advance payment due on 30 July 2010;

+ EUR 175,000 as salaries during the 2010/2011 season;

+ EUR 115,808.80 as match bonuses;

+ EUR 75,000 as extra payments;

= EUR 465,808.80

- EUR 287,500 corresponding to payments received;

= EUR 178,308.80

The additional amount of 18,400 corresponds to 4,000 as a match bonus and 14,400 as housing allowance for 12 months.

16. On 21 September 2011, the Claimant/Counter-Respondent I amended his claim in front of FIFA by requesting to be awarded a further amount of EUR 300,000 as advance payment that fell due on 30 August 2011. Therefore, according to the Claimant/Counter-Respondent I the claimed outstanding remuneration on said date amounted to EUR 478,308.80 and 18,400.

17. On 12 January 2012, the Claimant/Counter-Respondent I sent another letter to the Respondent/Counter-Claimant, requesting payment in the total amount of EUR 346,808.90, corresponding to:

EUR 478,308.80 corresponding to the amount claimed in front of FIFA;

+ EUR 187,500 corresponding to salaries of September 2011 to January 2012;

= EUR 665,808.80

- EUR 319,000 payments received between June and December 2011;

= EUR 346,808.80

In this letter, the Claimant/Counter-Respondent I warned the Respondent/Counter-Claimant that he would terminate the employment contract if the debt would not be settled by 16 January 2012.

18. On 16 January 2012, the Respondent/Counter-Claimant made a payment in the amount of EUR 266,809 to the Claimant/Counter-Respondent I.

19. On 17 January 2012, the Claimant/Counter-Respondent I terminated the contract in writing due to “consistently late and missing payments”.

20. On 19 January 2012, the Claimant/Counter-Respondent I signed an employment contract with the club from country F, Club E (hereinafter: Counter-Respondent II) valid as from 19 January 2012 until 30 June 2015.

21. According to the employment contract with the Counter-Respondent II, Club E undertook to pay the Claimant/Counter-Respondent I, inter alia, the following monies:

- 28,500 as monthly salary (342’000 per year);

- 1’500 as a lump-sum for monthly expenses (18,000 per year);

- 120,000 as instalment on 1 February 2012;

- 60,000 as an instalment on 1 September 2012;

- 60,000 as an instalment on 1 February 2013;

- 60,000 as an instalment on 1 September 2013;

- 60,000 as an instalment on 1 February 2014.

22. Furthermore, the contract with the Counter-Respondent II guaranteed a yearly minimum income of 480,000.

Claim of the Claimant/Counter-Respondent I against the Respondent/Counter-Claimant:

23. On 15 August 2011, the Claimant/Counter-Respondent I lodged a claim against the Respondent/Counter-Claimant in front of FIFA initially for outstanding remuneration only (cf. points I./15. and I./16. above). Following several amendments, on 6 December 2013, the Claimant/Counter-Respondent I claimed that the Respondent/Counter-Claimant is to be held liable for the early termination of the contract and he requested payment of the following monies:

- EUR 74,999.80 corresponding to outstanding remuneration until 17 January 2012;

- EUR 962,500 as compensation for breach of contract.

24. In his arguments, the Claimant/Counter-Respondent I held that the Respondent/Counter-Claimant was “systematically defaulting on the salary payments between June 2011 and January 2012”. Furthermore, the Claimant/Counter-Respondent I argued that after several default letters to the Respondent/Counter-Claimant, the amount of EUR 74,999.80 remained outstanding on 16 January 2012.

25. According to the Claimant/Counter-Respondent I, remuneration in the amount of EUR 74,999.80 remained outstanding, since originally a debt in the amount of EUR 964,147.65 existed and the Respondent/Counter-Claimant only remitted payments in the amount of EUR 889,147.85.

26. The Claimant/Counter-Respondent I specified the initially outstanding amount of EUR 964,147.65 as follows:

- EUR 2,941.17 corresponding to a match bonus resulting of a game played on 16 May 2010;

- EUR 1,716.89 corresponding to 4,000, in accordance with a match bonus for a game played on 20 May 2011;

- EUR 100,000 corresponding to the “advance payment” due on 30 July 2010;

- EUR 175,000 corresponding to the annual salary (2010/2011 season) of the first contract;

- EUR 115,808.80 corresponding to match bonuses arising from the 2010/2011 season;

- EUR 75,000 corresponding to the extra payment during the 2010/2011 season;

- EUR 6,180.79 (14,400) corresponding to housing allowance of the 2011/2012 season;

- EUR 300,000 corresponding to the “advance transfer payment” of the second contract due on 30 August 2011;

- EUR 187,500 corresponding to the salaries of September 2011 to January 2012 (5 x EUR 37,500).

27. Furthermore, the Claimant/Counter-Respondent I acknowledged having received payments from the Respondent/Counter-Claimant in the total amount of EUR 889,147.85, as follows:

- EUR 286,500 between August 2010 and May 2011;

- EUR 1,000 in June 2011;

- EUR 5,000 on 17 August 2011;

- EUR 10,000 on 30 September 2011;

- EUR 5,000 on 19 October 2011;

- EUR 153,000 on 1 November 2011;

- EUR 150,000 on 1 December 2011;

- EUR 266,809 on 16 January 2012;

- EUR 1,716.89 (corresponding to 4,000) on an unknown date;

- EUR 6,180,79 (corresponding to 14,400) on an unknown date;

- EUR 2,941,17 on an unknown date;

- EUR 1,000 on an unknown date.

28. Regarding the claimed compensation, the Claimant/Counter-Respondent I argued that he had just cause to terminate the contract and that he is entitled to the residual value of the second contract plus six additional monthly salaries for “moral prejudice suffered”, from which the “minimum salary guarantee” of his new contract with the Counter-Respondent II shall be deducted.

29. In detail, the player presented the following calculation of the claimed compensation:

EUR 262,500 corresponding to salaries after the termination (2011/12 season);

+ EUR 700,000 corresponding to the remuneration of the 2012/2013 season;

+ EUR 725,000 corresponding to the remuneration of the 2013/2014 season;

+ EUR 225,000 corresponding to additional compensation for “moral prejudice”;

= EUR 1,912,500

- EUR 950,000 (28,5 months of the “minimum salary” on the basis of the new contract);

=EUR 962,500

Claim of the Respondent/Counter-Claimant against the Claimant/Counter-Respondent I and the Counter-Respondent II:

30. On 18 January 2012, the Respondent/Counter-Claimant lodged a claim against the Claimant/Counter-Respondent I and the Counter-Respondent II for breach of contract without just cause with the following requests:

- To be awarded payment of EUR 2,000,000 as compensation for breach of contract by the Claimant/Counter-Respondent I;

- To declare that the Counter-Respondent II is jointly liable for the payment of the compensation;

- To impose a sporting sanction on the Claimant/Counter-Respondent I.

31. The Respondent/Counter-Claimant held that it fulfilled all of its financial obligations towards the player with the payment made on 16 January 2012 and it argued that it actually paid EUR 41,478.10 in excess of the Claimant/Counter-Respondent I’s entitlements.

32. According to the Respondent/Counter-Claimant, the Claimant/Counter-Respondent I was entitled to receive the total amount of EUR 1,263,075.82 during the contractual relation, which amount was detailed as follows:

- EUR 75,000 as “advance payment” on 30 July 2009;

- EUR 150,000 as salaries during the 2009/2010 season;

- EUR 85,289 as “per match payments” during the 2009/2010 season;

- EUR 100,000 as “advance payment” on 30 July 2010;

- EUR 175,000 as salaries during the 2010/2011 season;

- EUR 115,808.82 as “per match payments” during the 2010/2011 season;

- EUR 75,000 as “extra payments” during the 2010/2011 season;

- EUR 300,000 as “advance payment” on 30 August 2011;

- EUR 187,500 as salaries during the 2010/2011 season;

= EUR 1,263,597.82

33. The Respondent/Counter-Claimant further held that it paid the total amount of EUR 1,305,075.92 to the Claimant/Counter-Respondent I.

34. Moreover, the Respondent/Counter-Claimant maintained that the Claimant/Counter-Respondent I acted in bad faith by terminating the employment contract after having received the aforementioned payment on 16 January 2012.

35. Furthermore, the Respondent/Counter-Claimant explained that a compensation of EUR 2,000,000 would cover the club’s “loss and damage”, since said amount, according to the “fixed transfer fee” in the second contract, could have been the benefit for the club from country D in case of a transfer of the player.

36. Regarding the Claimant/Counter-Respondent I’s new club, the Respondent/Counter-Claimant argued that the Counter-Respondent II “has reached agreement with the player before the players’ contract termination with Club C and player has in bad faith unilaterally terminated his contract and the player has signed labor agreement with respondent club [the Counter-Respondent II] within two days.”

The reply of the Claimant/Counter-Respondent I to the claim of the Respondent/Counter-Claimant:

37. The Claimant/Counter-Respondent I reiterated his position and requested that the claim of the Respondent/Counter-Claimant be rejected.

38. Furthermore, the Claimant/Counter-Respondent I disputed the Respondent/Counter-Claimant’s allegation that it fulfilled all of its financial obligations and even “overpaid” the amount of EUR 41,478.10. The player repeated that there was an outstanding amount of EUR 74,999.80 and, in consequence, that he had just cause to terminate the contract.

39. Furthermore, the Claimant/Counter-Respondent I held that the Respondent/Counter-Claimant’s calculation was incorrect, since, when calculating the player’s total remuneration (cf. point I./32. above), the Respondent/Counter-Claimant failed to take into account certain parts of the player’s remuneration, such as “collective match bonuses, flight tickets refund, house allowances and car allowances”, which were included in his employment contracts.

40. Moreover, the Claimant/Counter-Respondent I pointed out that the Respondent/Counter-Claimant included “collective match bonuses” amounting to EUR 116,127 in the calculation of the amount of EUR 1,305,075.92, which amount was actually paid to him. The player sustained that the amount of EUR 116,127 cannot be taken into account in the calculation, since collective match bonuses were not related to the employment contract. In addition, the player pointed out that said amount of “collective match bonuses” corresponds to approx. EUR 1,469 per match, taking into account the 79 matches played by the player, which is “coherent”.

41. Additionally, the Claimant/Counter-Respondent I argued that most of these “collective match bonuses” payments were made in the currency of country D, which indicates that these payments were not in relation to the employment contracts, since these only include payments in Euro.

42. Moreover, the Claimant/Counter-Respondent I submitted a witness statement of Mr. H, who was a player of the Respondent/Counter-Claimant during the 2011/2012 season and who confirmed that he received “collective match bonuses” that were not mentioned in his employment contract. Mr. H stated further that he received said bonuses in the currency of country D, whereby the remuneration in his contract was always paid in Euro.

43. In addition, the Claimant/Counter-Respondent I held that two payments remitted in were related to the reimbursement of flight tickets and “box seats”.

44. In conclusion, the Claimant/Counter-Respondent I stated that the club only paid EUR 1,188,949 (EUR 1,305,076 minus EUR 116,127) of the player’s contractual entitlements and that, therefore, a difference of EUR 74,126 remains (EUR 1,263,075 less EUR 1,188,949), “which is very close to Player A’s [the Claimant/Counter-Respondent I] own calculation (74,999 €).”

45. Furthermore, the Claimant/Counter-Respondent I stated that he was not “induced/asked/convinced” by the Counter-Respondent II and he denied having arranged an agreement with the club from country F before his termination.

46. Additionally, the Claimant/Counter-Respondent I held that the Respondent/Counter-Claimant is not entitled to claim compensation and that the amount claimed is disproportionate. He pointed out that the “fixed transfer fee” mentioned in the contract is no “penalty fee”.

The reply of the Counter-Respondent II:

47. In its reply, the Counter-Respondent II requested that the claim of the Respondent/Counter-Claimant be rejected.

48. The Counter-Respondent II held that it was informed about the player’s situation on 18 January 2012 and that the employment contract included a preamble, which described that the Respondent/Counter-Claimant breached the player’s second contract by defaulting payments and that the Claimant/Counter-Respondent I, due to the incomplete payment on 16 January 2012 and the alleged remaining debt, was forced to terminate the second contract on 17 January 2012. The preamble further stated that the player was “currently not employed”.

49. Furthermore, the Counter-Respondent II argued that the Claimant/Counter-Respondent I had just cause to terminate his contract and that by inserting said preamble in the contract it fulfilled its due diligence.

The final comments of the Respondent/Counter-Claimant:

50. In its final comments, the Respondent/Counter-Claimant upheld its requests.

51. The Respondent/Counter-Claimant explained that the calculation made by the Claimant/Counter-Respondent I was wrong and that at the date of termination of the contract no outstanding remuneration existed, but only a debt of the player due to the club’s “overpayment”.

52. Furthermore, the Respondent/Counter-Claimant held that the Claimant/Counter-Respondent I acted in bad faith, since he terminated the contract right after receiving a payment in the amount of EUR 266,809.

53. Additionally, the Respondent/Counter-Claimant justified its request for compensation in the amount of EUR 2,000,000 with its financial loss after the relegation in the 2011/2012 season following the departure of the Claimant/Counter-Respondent I, who was a “key player” for the team.

54. Moreover, the Respondent/Counter-Claimant argued that since the Claimant/Counter-Respondent I terminated his contract on 17 January 2012 and signed a new employment contract on 19 January 2012, there must have been contact between the Claimant/Counter-Respondent I and the Counter-Respondent II before, since “it is very difficult to complete the procedures of the transfer of any player especially if the player is foreign”. The Respondent/Counter-Claimant held further that the Claimant/Counter-Respondent I and the Counter-Respondent II were “invoking and provoking” the termination of the contract.

The final comments of the Counter-Respondent II:

55. In its final comments, the Counter-Respondent II upheld its request to reject the Respondent/Counter-Claimant’s claim.

56. The Counter-Respondent II denied the allegation of the Respondent/Counter-Claimant that there was an agreement between the Counter-Respondent II and the player before the latter terminated the second contract. In this context, the Counter-Respondent II highlighted that the Respondent/Counter-Claimant did not submit any evidence supporting its allegation.

57. Moreover, the Counter-Respondent II concluded that the player had just cause to terminate his contract due to the outstanding remuneration.

58. Finally, the Counter-Respondent II held that there is no reason for sanctions against the player or the Counter-Respondent II and that the amount claimed by the Respondent/Counter-Claimant is completely disproportionate.

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 15 August 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 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, a club from country D and a club from country F.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 15 August 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 this respect, the DRC recalled that, on 1 July 2009, the parties had signed a first employment contract valid as from 1 July 2009 until 31 May 2010, with an extension option for the 2010/2011 season.

6. Furthermore, the Chamber acknowledged that, on 22 February 2011, the parties had signed a second employment contract valid as from 1 June 2011 until 31 May 2014.

7. In continuation, the members of the Chamber noted that the Claimant/Counter-Respondent I, on the one hand, lodged a claim against the Respondent/Counter-Claimant maintaining that he had terminated the employment contract with just cause on 17 January 2012, after previously having put the club in default several times, since the Respondent allegedly had failed to pay the Claimant’s remuneration. In this respect, the Claimant/Counter-Respondent I submits that a total amount of EUR 74,999.80 remained outstanding at the time he terminated the second employment contract. Consequently, the Claimant/Counter-Respondent I asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

8. The Chamber further noted that the Respondent/Counter-Claimant, for its part, rejects the player’s claim and submitted a counterclaim against the Claimant/Counter-Respondent I and the Counter-Respondent II, arguing that the player had no just cause to terminate the second contract. Consequently, the Respondent/Counter-Claimant requests to be awarded compensation for breach of the employment contract and to declare that the Respondent II is jointly liable for said compensation payment.

9. Subsequently, the DRC observed that said counterclaim was rejected by the Claimant/Counter-Respondent I, who upheld his claim against the Respondent/Counter-Claimant, and the Respondent II.

10. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the Claimant/Counter-Respondent I had just cause to terminate the employment contract on 17 January 2012 and to decide on the consequences thereof.

11. Subsequently, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind 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.

12. The members of the Chamber noted that the Claimant/Counter-Respondent I had sent multiple default notices to the Respondent/Counter-Claimant regarding outstanding salaries in summer 2011. Subsequently, on 12 January 2012, the player sent another default notice to the Respondent/Counter-Claimant requesting payment of EUR 346,808.90 as outstanding remuneration with a warning that he would terminate his employment contract if said debt would not be settled until 16 January 2012.

13. In this context, the DRC noticed that, on 16 January 2012, the Respondent/Counter-Claimant made a payment of EUR 266,809 to the Claimant/Counter-Respondent I, which led the player to terminate his contract on the following day since, in his opinion, the amount of EUR 74,999.80 remained outstanding.

14. In reply to the claim, the Respondent/Counter-Claimant rejected the player’s argumentation and held that it fulfilled all of its financial obligations towards the Claimant/Counter-Respondent I with the final payment on 16 January 2012 and concluded that the player did not have just cause to terminate the employment contract on 17 January 2012. In particular, the Respondent/Counter-Claimant held that it paid the total amount of EUR 1,305,075.92 to the Claimant/Counter-Respondent I during the contractual duration, whereas the player was only entitled to EUR 1,263,597.82. The Chamber duly took note of the documentation presented by the Respondent/Counter-Claimant in respect of the payments it stated having made to the Claimant/Counter-Respondent.

15. The Chamber took into account that the Claimant/Counter-Respondent I acknowledged receipt of EUR 1,305,075.92 as an overall payment, but argued that said figure includes additional remuneration in the amount of EUR 116,127, which allegedly was not in relation to contractual receivables, but rather to out-of-contract collective match bonuses. The player, therefore, concluded that only EUR 1,188,949 were paid to him in relation to the employment contract and that, consequently, the amount of EUR 74,126 still remained outstanding when he terminated the employment contract.

16. In this respect, the Chamber highlighted that the burden of proof with respect to the allegations of the Claimant/Counter-Respondent I as to the aforementioned amount of EUR 116,127 lies with the Claimant/Counter-Respondent I. Furthermore, the members of the Chamber considered that the Claimant/Counter-Respondent I has not presented credible evidence corroborating his allegation that the amount of EUR 116,127 was not paid to him in relation to the employment contract. Consequently, the Chamber decided that the argument of the Claimant/Counter-Respondent I that the amount of EUR 116,127 should be excluded from the total amount of EUR 1,305,075.92 received cannot be upheld.

17. On account of the above and the documentation on file, the Chamber established that on the date of termination of the employment contract by the Claimant/Counter-Respondent I, i.e. 17 January 2012, no remuneration was due to be paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent I.

18. Having established the above, the DRC recalled that in his default notice, the Claimant/Counter-Respondent 1 invoked “consistently late and missing payments” as the reason for the termination of the employment contract.

19. From the documentation on file, the members of the Chamber noted that the Respondent/Counter-Claimant had remitted various payments to the Claimant/Counter-Respondent I with delay. The Chamber further took into account that following the Claimant/Counter-Respondent I’s default notices of summer 2011 the Respondent/Counter-Claimant had made various payments to the player, albeit not within the due dates. However, with its payment of the amount of EUR 266,809 on 16 January 2012, i.e. within the time limit set by the Claimant/Counter-Respondent I, as established above, the Respondent/Counter-Claimant had fulfilled all of its financial obligations towards the Claimant/Counter-Respondent I.

20. On account of the above, considering that all outstanding amounts have been paid by the Respondent/Counter-Claimant prior to the termination of the contract by the Claimant/Counter-Respondent on 17 January 2012, the Chamber concluded that the player had no just cause to terminate the employment contract.

21. In light of the foregoing, the Chamber decided to accept the Respondent/Counter-Claimant’s counterclaim that the Claimant/Counter-Respondent I had terminated the contract without just cause and rejected the Claimant/Counter-Respondent I’s claim.

22. Having established that the Claimant/Counter-Respondent I is to be held liable for the early termination of the employment contract without just cause as of 17 January 2012, the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the Claimant/Counter-Respondent I is liable to pay compensation to the Respondent/Counter-Claimant. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the Claimant/Counter-Respondent I’s new club, i.e. the Counter-Respondent II, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the Claimant/Counter-Respondent I’s new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS.

23. Taking into account the above-mentioned considerations, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly reiterated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular the remuneration and other benefits due to the Claimant/Counter-Respondent I under the existing contract and/or the new contract(s), the time remaining on the existing contract up to a maximum of five years as well as 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 a protected period.

24. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

25. In this respect, and for the sake of completeness, the DRC was eager to point out that the “fixed transfer fee” established in the employment contract could not be taken into consideration in the calculation of the compensation, since such clause does not deal with compensation payable in the event of breach of contract by either of the contractual parties.

26. As a consequence, the members of the Chamber determined that the amount of compensation payable 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 considered 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

27. Consequently, in order to estimate the amount of compensation due to the Respondent/Counter-Claimant in the present case, the Chamber firstly turned its attention to the remuneration and other benefits due to the Claimant/Counter-Respondent under the existing contract and the new contract(s), which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the 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).

28. In this regard, the DRC took into account that the employment contract between the Claimant/Counter-Respondent I and the Respondent/Counter-Claimant was set to expire on 31 May 2014. Therefore, the total value of the Claimant/Counter-Respondent I’s employment contract with the Respondent/Counter-Claimant for the remaining contractual period, i.e. as of 17 January 2012 until 31 May 2014, amounted to EUR 1,612,500. The members of the Chamber further established that, according to the contract concluded with the Counter-Respondent II, the Claimant/Counter-Respondent I was entitled to receive the amount of EUR 1,017,080 for the same period of time. On the basis of the aforementioned financial contractual elements, the Chamber concluded that the average remuneration of the Claimant/Counter-Respondent I over the relevant period of time amounted to EUR 1,314,790.

29. In continuation, the DRC analysed as to whether there were any exceptional mitigating or aggravating circumstances to be taken into consideration in the determination of the amount of compensation in the case at hand.

30. In this respect, the Chamber acknowledged that the Respondent/Counter-Claimant was repeatedly late in the remittance of the Claimant/Counter-Respondent I’s remuneration. What is more, the payment of 16 January 2012 was made by the Respondent/Counter-Claimant on the very last day of the time limit given by the Claimant/Counter-Respondent I.

31. Consequently, taking into consideration the above-mentioned mitigating factors and the specificities of the case at hand, the Chamber decided that the Claimant/Counter-Respondent I must pay the amount of EUR 650,000 to the Respondent/Counter-Claimant as compensation for breach of contract. Furthermore, the Chamber decided that in accordance with art. 17 par. 2 of the Regulations, the Counter-Respondent II is jointly and severally liable for the payment of this amount of compensation.

32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Respondent/Counter-Claimant are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent I, Player A, is rejected.

2. The counterclaim of the Respondent / Counter-Claimant, Club C, is partially accepted.

3. The Claimant / Counter-Respondent I is ordered to pay to the Respondent / Counter-Claimant the amount of EUR 650,000 as compensation for breach of contract, within 30 days as from the date of notification of this decision.

4. The Counter-Respondent II, Club E, is jointly and severally liable for the payment of the aforementioned compensation.

5. In the event that the amount of EUR 650,000 due to the Respondent / Counter-Claimant 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 the FIFA Disciplinary Committee for consideration and a formal decision.

6. The Respondent / Counter-Claimant is directed to inform the Claimant / Counter-Respondent I and the Counter-Respondent II, 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.

7. Any further claim lodged by Respondent / Counter-Claimant is rejected.

*****

Note relating to the motivated decision (legal remedy):

According to article 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

For the Dispute Resolution Chamber:

Markus Kattner

Acting Secretary General

Encl: CAS directives