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 30 September 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 September 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Jon Newman (USA), member

Mario Gallavotti (Italy), member

Taku Nomiya (Japan), member

on the matter between the club,

Club A, Country B

as Claimant

and the player,

Player C, Country D,

as Respondent I

and the club,

Club E, Country B,

as Respondent II

and the club,

Club G, Country H

as Intervening party

regarding an employment-related dispute arisen between the parties

I. Facts

1. On 29 July 2011, the Player of Country D, Player C (hereinafter: the Respondent I or the player), born on 16 March 1990, and the Club of Country B, Club A (hereinafter: the Claimant or Club A), signed an employment contract (hereinafter: the contract) valid as of 1 August 2011 until 30 June 2014.

2. Pursuant to the contract, the player was entitled to receive a net monthly remuneration of 10,757 for the first season, 11,735 for the second season and 13,039 for the third season. The contract also foresaw that the relevant monthly remuneration was due the 30th of the following month.

3. The contract further stipulated that in case of termination of the contract, solely a decision from the arbitral body of the Football Union of Country B (Football Union F) can put an end to the contract.

4. As per art. X.2. of the contract, Club A agreed upon the possible transfer of the player’s sporting rights to another club, subject to the payment of the minimum amount of EUR 350,000.

5. Art. XIII.2 of the contract foresaw that for the questions undealt by the contract, the Football Union F Regulations and the Law of Country B are applicable.

6. Art. XIII.3. of the contract provided that any dispute between the parties as to the contract, its execution and its interpretation, shall be settled amicably by means of an agreement. In the event that such an agreement was not found by the parties, the dispute shall be solved in front of the arbitral body of the Football Union F.

7. On 18 January 2012, the player terminated the contract with Club A in writing. According to said termination notice, the termination was to be effective as from the date of receipt of the notification by Club A. Moreover, in the said termination notice, the player requested Club A his “basic salary for the months of December 2011 and January 2012 (till the receipt of the present notification), additional remuneration (bonuses) in the total amount of EURO 2500 (two thousand and five hundred euro)”.

8. On 10 February 2012, the player lodged a claim in front of the District Court of City J against Club A, requesting the payment of his outstanding salary for December 2011 in the amount of 10,757, and for January 2012 in the amount of 6,141, as well as unpaid “additional bonuses” amounting to 3,000, plus interest p.a. until the date of effective payment.

9. In reaction to the player’s claim, Club A lodged a counterclaim before the District Court of City J against the player, requesting the payment of the amount of 3,167.28 corresponding to 1,102.28 as “excess of official talks using the provided official SIM card from November 2011 to January 2012”, 1,215 as “expenses incurred in connection with the use of the rented property” and 850 as “fines imposed on the [player] by the Football Union of Country B”, plus legal interest. On 3 April 2012, the District Court of City J decided to deal with the relevant counterclaim as a new claim.

10. On 13 June 2012, the District Court of City J rendered a decision pertaining to the claim of the player and dismissed his requests.

11. On 28 November 2012, the District Court of City J rendered a decision as to the claim of Club A, and ruled that the player shall pay the amount of 1,350 as well as “expenses incurred in the case”.

12. On 30 March 2012, Club A lodged a claim before FIFA against the player and the Club of Country B, Club E (hereinafter: the Respondent II or Club E), requesting the following:

 EUR 350,000 as compensation for breach of contract, plus 5% interest p.a. to be paid by the player and, severally and jointly, by Club E;

 Sporting sanctions to be imposed on both the player and Club E.

13. Club A further requested the payment of damages and disciplinary sanctions to be imposed by FIFA on the player’s agent, Agent M, in accordance with art. 17 par. 5 of FIFA Regulations (cf. point I.31. below).

14. First of all, Club A alleged that FIFA had jurisdiction to rule the present matter. In this respect, Club A referred to art. 22 lit. a) of FIFA Regulations in order to explain that the relevant matter concerned a breach of contract together with an issue pertaining to the player’s International Transfer Certificate (International Transfer Certificate; cf. point I.30. below). Moreover, Club A alluded to art. 22 lit. b) of FIFA Regulations insofar as the relevant dispute related to an employment contract between a club and a player belonging to two different associations. According to Club A, the “Court Arbitration of the Football Union of Country B” was thus not competent to deal with the matter at stake.

15. As to the substance of the matter, Club A underlined that it received the player’s termination notice dated 18 January 2012 by DHL on 19 January 2012, which should be considered as the effective date of termination of the contract by the player. Club A also asserted that such termination notice did not evoke any sport-related reasons or any other explanations as to the unilateral termination by the Respondent I.

16. According to Club A, it complied with its financial obligations towards the Respondent I as per the contract and provided payment slips in order to substantiate its allegations.

17. In this respect, Club A emphasised that, on 30 September 2011, it paid the player “his first set of wages” amounting to 8,559.16. Afterwards, on 10 October 2011, the player was apparently granted an advance payment of 1,000, the balance of which was paid on 28 October 2011. As to his salary for October and November 2011, Club A sustained having paid him the respective amount of 10,757 on 30 November 2011 and 27 December 2011. As regards his salary for December, Club A alleged that it was paid to the player’s bank account on 27 January 2012.

18. With regard to the player’s salary for January 2012, Club A deemed that it did not owe the player any amounts for the relevant month insofar as, according to it, the player did not provide his services to Club A as from early January and then terminated the contract with it, without any valid reason, on 19 January 2012. In particular, Club A highlighted that, as from 5 January 2012, the player had to be back to Club A after his paid annual leave and resume training with Club A. However, on 6 January 2012, the player’s agent apparently informed Club A that, due to outstanding payments, the player would leave Club A.

19. In this respect, Club A submitted training reports dated 26 January 2012, stating that, on 6 and 9 January 2012, the player was absent from its training sessions. Club A also submitted a letter of notification dated 9 January 2012 from the alleged hotel of the player, informing of his non-registration in the hotel as from 8 January 2012.

20. In view of the aforementioned, Club A deemed that the amount of compensation for the player’s unilateral termination should be based on the buy-out clause contractually foreseen. Consequently, Club A maintained that the amount of EUR 350,000 is the minimum amount to be paid by Club E to Club A as compensation.

21. Club A further highlighted that the contract also provided, in its art. X.23, for a compensation clause to the benefit of Club A in the event of the player’s breach. Therefore, Club A stressed that the DRC should take this clause into account for the calculation of the compensation payable to Club A, which would consist of the player’s gross salary until the end of the contractual term, amounting to EUR 209,514, equivalent to 409,773.36.

22. Subsequently, denying the statements of the player’s agent in the press on 11 January 2012 – according to which the player had left Club A because it “was unable to pay his salary and did not perform its contractual obligations. (…) [The player] did not get his salary for the first month. After that he started receiving only part of the agreed amount of money. He received ¾ of his salary without any explanation” – Club A informed the Football Union F in writing, on 17 January 2012, that the player was still considered as part of Club A and had, so far, not undertaken any actions against Club A as to the termination of the contract; therefore, his absence at training was a violation of the “labour discipline”, based on which Club A would reserve its right to impose him a penalty.

23. In relation to Club E, Club A considered that Club E actively negotiated with the player as from 11 January 2012 and thus contributed to the termination of the contract insofar as the sole purpose of the termination was to gain the status of “free player” so that the player could sign a new employment contract with Club E.

24. In this regard, Club A provided a letter dated 17 January 2012 addressed by the Respondent II to the Claimant, by means of which Club E informed Club A that the player’s agent made an offer regarding an employment contract between the player and the Respondent II. In this context, Club E asked Club A whether the player was currently under contract with it and, in the affirmative, what would be the “transfer price” determined by Club A.

25. Thereafter, on 18 January 2012, Club A replied to Club E, informing the latter of the ongoing contract between Club A and the player, set to run until 30 June 2014. Club A also emphasised that the player had not taken any action with respect to the termination of the contract or had not started proceedings in front of the Football Union F, which Club A had been notified about. Club A also informed Club E that the minimum “transfer price” for the “competitor rights” of the player, in case the latter wished to sign a contract with Club E, amounted to EUR 350,000 as contractually foreseen. However, Club A maintained that in the event Club E intended to sign a contract with the player, Club A would consider that, given that Club E was aware of the aforementioned information, Club E acted deliberately to the detriment of Club A and would take further action.

26. Moreover, Club A alleged that, in spite of the aforementioned and in violation of FIFA Regulations, the player and Club E concluded an employment contract on 20 January 2012. In this respect, Club A provided a CD-ROM as well as press articles relating to a press conference held by Club E on 23 January 2012, in order to officially introduce the player as part of Club E, and further confirming the date of 20 January 2012 as the date of signature of the contract concluded between the player and Club E.

27. Subsequently, Club A referred to a letter dated 1 February 2012 from the Football Union F enclosing the “statement of opinion” released by the “Sports Technical Committee” (STC) of the Football Union F on 31 January 2012, according to which the termination of contract by the player was considered as without reasonable cause, thus giving Club A the right to claim compensation from the player based on art. 44 of the Football Union F Regulations, stating the following: “In the events where a contract or competition rights are terminated prematurely by professional football player without just cause, the professional football player is obliged to pay compensation to the football club. When the parties have not determined or do not reach agreement regarding the amount of the compensation, the dispute for determination of its amount shall be resolved by the Football Union F”.

28. The relevant body of the Football Union F also added in its “statement of opinion” that sporting sanctions would be imposed on his first new club, as per art. 45.2 of the Football Union F Regulations (cf. point I.36 below), given that the latter was presumed having caused the player’s breach of contract. Finally, the relevant body stated that at the time of the issuance of such statement, there was no submitted contract between the player and another Club of Country B in the registry of the Football Union F.

29. Thereafter, Club A sustained that following the relevant “statement of opinion”, Club E decided not to register the player to the Football Union F, as explained in a press article dated 6 March 2012 provided by Club A, thus resulting in Club E not delivering the contract allegedly signed with the player and by not listing him to “participate in representing the team”. The player apparently only took part in a “first control game at the training camp in City K” according to a press article dated 1 February 2012 provided by Club A.

30. Pursuant to a press article dated 1 March 2012 provided by Club A, in order to overcome this issue, Club E decided to register the player with its “satellite team”, Club L. Club A further held that Club E eventually decided to transfer the player to the amateur Club of Country H, Club G – which apparently then loaned him as a professional back to Club E –, and was thus awaiting the Confirmation of the Football Union F as to the request of the player’s International Transfer Certificate by Club E.

31. With regard to its claim against the player’s agent, Club A pointed to Agent M’s behaviour, which allegedly prompted the Respondent I to put an end to the contract. In this respect, Club A referred to an e-mail from Agent M sent to it on 5 October 2011, by means of which she also informed it that she knew a club that was “ready to buy the [player]”.

32. In his statement of defence, the player first of all disputed the jurisdiction of FIFA to deal with the matter at stake. In this regard, the player held that this matter was not an arbitrable dispute and referred, in this respect, to art. 360 par. 1 of the Labour Code of Country B – which provided that “Labour disputes shall be reviewed by the courts. They shall be reviewed pursuant to the rules of the Civil Procedure Code, unless otherwise provided by this Code” – in combination with art. 19 par.1 of the Code of Civil Procedure of Country B– according to which “The parties to a property dispute may agree that the said dispute be settled by an arbitration court, unless the said dispute has as its subject matter any (…) rights under an employment relationship”. The player further emphasised that said rules were peremptory norms, engaging the exclusive jurisdiction of state courts.

33. Furthermore, the player held that a concurrent procedure between Club A and the player regarding the same object and the same cause already took place in front of an ordinary civil court in Country B. In this respect, the player pointed to the claim that he lodged in front of the ordinary court in Country B on 10 February 2012 regarding unpaid salaries (cf. points I.8. to I.11. above). The player also emphasised that Club A never disputed the competence of the Ordinary Court of Country B in this matter and, even more, took part in the procedure at the national level by lodging a counterclaim against the player, thus acknowledging the exclusive jurisdiction of the Ordinary Courts of Country B. Finally, the player referred to the decision rendered by the Ordinary Court of Country B pertaining to the aforementioned respective claims in order to emphasise that the DRC could not render a decision on a matter that was res iudicata.

34. In addition, the player sustained that, on 25 January 2012, Club A filed a complaint against the him and Club E in front of the STC of the Football Union F, requesting the imposition of sporting sanctions on the player, i.e. ban until 30 June 2014 which is the ending date of the contract, and on Club E, i.e. ban of one registration period. From said claim resulted the “statement of opinion” of the STC of the Football Union F by means of which the STC considered the termination of the contract by the player without just cause. Consequently, and with respect to the relevant “decision rendered” by the STC, the player asserted having paid the amount of 36,630 to Club A, representing three monthly salaries in accordance with art. 326 of the Labour Code of Country B – according to which “(1) An employee may terminate a contract of employment by giving the employer a notice in writing. (2) (…) The notice period for termination of an employment contract of a fixed-term shall be 3 months, but not more than the remaining period of the contract.” – in conjunction with art. 220 par. 1 of the Labour Code of Country B – according to which “The party entitled to terminate the labour relationship with notice may terminate it before the expiration of the notice period, in which case it shall owe the other party compensation equal to the amount of the employee’s gross labour remuneration for the remainder of the notice period”. In this regard, the player provided a bank statement in order to evidence the payment of the aforementioned amount.

35. In view of the aforementioned, the player requested FIFA to reject the Claim of Club A insofar as FIFA is not competent to rule the present matter. Alternatively, the player requested FIFA to reject such claim due to res iudicata.

36. As to Club E, in its defence, it asserted that the claim of Club A was inadmissible since the relevant matter had already been decided by the competent deciding bodies of the Football Union F, to which Club A referred to, in the first instance, in order to seek relief. In particular, Club E pointed to the complaint of Club A in front of the STC of the Football Union F on 2 July 2012, apparently supplementing the petition lodged by Club A to the Football Union F as explained in point I.34. above, by means of which the latter claimed that the request of Club E to the Football Union F to register the player breached art. 45 par. 2 of the Football Union F Regulations – according to which “(2) unless the opposite is established, the football club, which concluded contract with professional football player, who had terminated his contract (competition rights) without just cause is the reason for the professional to commit violation of the contract. To such football club a sports sanction is to be imposed – ban for registering new football players for one transfer period. (3) The sports sanction under par. 2 is imposed by way of decision of the STC of Football Union F. The decision is subject to appeal before the Football Union F within (…) 7 days following the date of the announcement of the decision”.

37. In this context, on 3 August 2012, the STC of the Football Union F forwarded the claim to the Disciplinary Committee of the Football Union F, which, on the same date, apparently decided to impose a ban on Club E from registering new players for the period as from 3 August 2012 to 31 August 2012, which Club E asserted having completely served. In this regard, it provided an extract of a press article published on a website relating to said decision of the Football Union F.

38. In this respect, Club E underlined that instead of completing the procedure before the Football Union F, Club A referred the whole matter again to FIFA, regardless whether such request coincided or overlapped with the ones already granted by the Football Union F. Even more, Club E added that Club A started labour proceedings against the player in front of the District Court of City J and, therefore, could have requested compensation for unilateral termination of the contract, but Club A failed to do so.

39. Club E further highlighted that by referring to the Football Union F, requesting the latter to apply the applicable Football Union F Regulations, Club A confirmed the application of art. XIII.2 and XIII.3 of the contract.

40. Consequently, Club E considered that by choosing the relevant deciding body of the Football Union F to seek relief and after receiving such relief, Club A waived its right to address the matter to FIFA with similar requests.

41. In the event that FIFA deemed itself competent to determine the amount of compensation only, Club E held that FIFA should apply the Football Union F Regulations. In this event, Club E deemed that it should be entirely released from the proceedings because the Football Union F Regulations do not provide for joint liability of the new club with respect to the payment of the compensation. In addition, Club E emphasised that it had already served its sanction for the alleged involvement in the contractual breach and therefore cannot be sanctioned twice for the same conduct.

42. In the event that FIFA deemed itself competent to re-examine the matter de novo and review the merits of the case, Club E considered that the unilateral termination of the contract by the player was based on art. 326 par. 2 of the Labour Code of Country B according to which a fixed-term employment contract can be terminated unilaterally by the employee by granting a three-month notice to the employer.

43. As regards the amount of EUR 350,000 requested by the Claimant as per art. X.2 of the contract, Club E argued that Club A did not provide any conclusive evidence with respect to the existence of an offer made by another club for the player, alleging that Club A solely referred to speculations made in the press and by the player’s agent. Therefore, Club E deemed that such amount should not be awarded to Club A.

44. As to the compensation clause referred to in art. X.23 of the contract, Club E recalled that such contractual compensation clause did not comply with the fundamental principle of proportionality, especially in the view of its apparent purpose to disadvantage the player and therefore should be reduced by FIFA.

45. Finally, Club E requested FIFA that legal costs should be borne by Club A.

46. Upon FIFA’s request, on 11 March 2015, the Football Union F asserted that “The inspection performed at the Court of Arbitration to the [Football Union F] established that there is no legal proceeding initiated by [Club A] against [the player] and [Club E]. [Club E] confirmed that there is no legal proceeding initiated by [Club A against their club at the civil courts”.

47. In its replica, the Claimant mainly reiterated its position, emphasising on FIFA’s competence to deal with the matter at stake as per art. 22 par. a) and b) of the FIFA Regulations.

48. Regarding the Respondents’ allegations pertaining to res iudicata, Club A recalled that the proceedings had begun on the statement of claim of the player, not of Club A, for outstanding remuneration. Club A further emphasised that the case, which was lost by the player, was initiated in order to have a pending legal dispute before a competent court and to avoid settlement by the competent authorities of the Football Union F. In addition, Club A pointed to the lack of evidence of a ruling on the requests for the payment of compensation and imposition of sporting sanctions before another institution than FIFA.

49. Finally, Club A wished to stress out that the Football Union F’s statement of opinion rendered on the case was solely directed to the possible consequences on the case for any new club that would sign a contract with the player and, thus, shall not be regarded as a decision.

50. In his duplica, the player purely upheld his previous position, without adding any further comments.

51. Equally, Club E, in its last comments, primarily maintained its argumentation and, in particular, added that FIFA had no jurisdiction to settle the present dispute, namely because the parties agreed that the applicable law to the contract was the Law of Country B along with the Regulations of the Football Union F. Club E further argued that the parties agreed in the contract to establish an arbitration agreement for settlement of all future disputes, according to which the arbitration court of the Football Union F was the sole competent body to which the parties could lodge their claims.

52. Club E also emphasised upon the exclusive jurisdiction of State Courts of Country B. In this respect, it referred to art. 19 par. 1 of the Code of Civil Procedure of Country B in combination with art. 360 of the Labour Code of Country B in order to conclude that the claim of Club A was non-arbitrable and could not be resolved by arbitration by FIFA or any other arbitral body for that matter.

53. Upon FIFA’s request, the Club G (hereinafter: the Intervening party or Club G) provided its comments as to the present matter. In this respect, Club G entirely concurred with the Respondents by stating that FIFA did not have jurisdiction over the dispute in question and that, should FIFA declare itself competent, the issue of liability should be decided under Law of Country B as agreed upon by the parties.

54. As to the substance, Club G also met the Respondents’ allegations and especially insisted on the termination of the contract being the result of the exercise of a statutory right by the player, i.e. the right to put an end to the contract implying a correlated obligation to pay an indemnity of three monthly salaries, based on the choice of law. Therefore, Club G deemed that there was no breach of contract by the player.

55. Regarding the application of art. 17 par. 2 and 4 of the FIFA Regulations, Club G underlined that it had no standing to be sued in the case at hand insofar as the Claimant had no claim whatsoever against it. Club G also stressed that the FIFA Regulations were silent as to whether FIFA can automatically apply the relevant article in the absence of a specific claim from the player’s former club against the new club.

56. In this respect, Club G emphasised that it was not the first new club of the Respondent I in the sense of the definition n.4 and art. 7 par. 2 of the FIFA Regulations since the player was never registered for Club G with the Football Federation of Country H (Football Federation O). In this regard, Club G provided a statement of the Football Federation O dated 1 August 2016, declaring that “Although (International Transfer Certificate) of amateur player was received by Football Federation O from Football Union F on 09-03-2012, we hereby confirm that player was never included in [Club G]’s Player registration application for his registration in [Club G] and he did not take part in a single match for [Club G]”.

57. In particular, Club G explained that in early March 2012, the player’ agent “got in touch”, enlightening that the player had “unresolved contractual issues” in Country B as well as that he wished to “rest from professional football” and to play as an amateur in Country H until the end of the season. Hence, Club G apparently decided to acquire the player as amateur until the end of the season, underlying that no contract was signed by and between the player and Club G.

58. Club G also alleged that, on 5 March 2012, the Football Federation O requested by fax the player’s International Transfer Certificate from the Football Union F. On 9 March 2012, the Football Union F issued by fax the Respondent I’s International Transfer Certificate in favour of the Football Federation O. Club G further sustained that, on 13 March 2012, Club E asked Club G to release the International Transfer Certificate via TMS without delay, albeit there was no valid International Transfer Certificate request in TMS until July 2012, when the Football Federation O issued the International Transfer Certificate in favour of the Football Union F via TMS. In this regard, Club G submitted a letter from Club E dated 13 March 2012 addressed to the Intervening party, inter alia stating that “Following the injury of our new player (…) during our opening match for the second half of the season, we invited the [player] over for a try-out last week, which ended up successfully and the [player] was approved by our coaching staff. Hence, on Monday 12 March 2012, [Club E] and the [player] entered into an employment contract.

However, when [Club E] sought to register the [player] with Football Union F as a professional, we were informed by the Football Union F that his paper International Transfer Certificate has been already issued in favour of the Football Federation O on Friday 9 March 2012 following the request from [Club G], which apparently is seeking to register the [player] with Football Federation O as an amateur.

In light of the above, [Club E] hereby respectfully ask you (i) not to register the [player] for your respected club with Football Federation O, if not registered already, and (ii) to authorise the release of his e-International Transfer Certificate in TMS in favour of [Club E] without delay, as an International Transfer Certificate request will be made later today by [Club E] and Football Union F in this respect”.

59. In reply, on 14 March 2012, Club G informed Club E that the paper International Transfer Certificate was with the Football Federation O since it intended to register the player as an amateur; however, as the Football Federation O was technically registering amateurs only after 1 April 2012, i.e. after the beginning of the championship, Club G had not yet registered the player with the Football Federation O. In addition, Club G confirmed that it would grant the International Transfer Certificate request via TMS once received. However, according to Club G, the player never arrived in Country H to sign the mandatory registration form in person, without which he could not be registered with the Football Federation O. In this context, Club G decided to renounce the services of the player and, consequently, he was never registered with the Football Federation O.

60. In view of the aforementioned, Club G considered that it should not be held jointly and severally liable with the player for the possible payment of compensation for breach of contract to Club G.

61. Pursuant to the information contained in the TMS, the player concluded a contract with Club E on 12 March 2012, valid as from the date of signature until 31 May 2014. According to said contract, the player was to receive the following net fixed-remuneration:

 EUR 15,000 upon signature of the contract;

 EUR 7,400 as monthly salary for the season 2011-2012;

 EUR 9,400 as monthly salary for the season 2012-2013.

62. Upon enquiry by FIFA, the player asserted that, subsequently, in July 2013, he signed an employment contract with the Club of Country B, Club N, valid as from 1 July 2013 until 30 June 2016, according to which he was entitled to a monthly net salary of EUR 10,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the 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 30 March 2012. Consequently, the 2008 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016), the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between Clubs of Country B, a Player of Country D and a Club of Country H.

3. Thereafter, the Chamber deemed it, however, of utmost importance to consider the following chronological crucial facts which are at the basis of the specific litigation at hand.

4. From the documentation submitted by the parties, the Chamber noted that, on 18 January 2012, the player terminated the contract with Club A in writing.

5. Equally, as per the documentation provided by the parties, the Chamber observed that, on 25 January 2012, Club A lodged a complaint before the relevant arbitral body of the Football Union F in relation to the termination of the contract by the player.

6. Subsequently, the members of the Chamber took note that, on 1 February 2012, Club A was informed by the Football Union F of the “statement of opinion” issued on 31 January 2012 by the relevant arbitral body of the Football Union F, which stated that the termination of contract by the player was without just cause, thus confirming the right of Club A to request compensation based on art. 44 of the Football Union F Regulations and evoking the possible sporting consequences for the player’s first new club.

7. Thereafter, the Chamber observed that, on 2 July 2012, Club A supplemented its initial claim in front of the relevant arbitral body of the Football Union F accordingly, thus requesting the imposition of sporting sanctions on Club E for breaching art. 45.2 of the Football Union F Regulations, which resulted in Club E being banned by the Football Union F on 3 August 2012.

8. Notwithstanding the above, the DRC highlighted that, on 30 March 2012, Club A lodged an additional petition in front of FIFA, requesting from both, the player and Club E, payment of compensation for breach of contract and sporting sanctions for the alleged termination of the contract without just cause.

9. Having established the foregoing, the members of the Chamber first of all recalled the content of art. XIII.3. of the contract, according to which any dispute between the parties as to the contract, its execution and its interpretation, shall be settled amicably by means of an agreement. In the event that such an agreement was not found by the parties, the dispute shall be solved in front of the arbitral body of the Football Union F.

10. Taking into account the aforementioned contractual provision, the DRC considered that Club A appeared to have followed the stipulations of the aforementioned art. XIII.3 in order to seek redress for a dispute arising from the contract, by lodging its claim in front of the Football Union F on 25 January 2012.

11. Moreover, the members of the Chamber highlighted that, by way of a “statement of opinion” issued on 31 January 2012, the STC of the Football Union F established that the termination of the contract by the player was without just cause, however without ruling on a clear financial outcome towards the player. In this regard, the DRC emphasised that the STC of the Football Union F seemed to have provided, in its “statement of opinion”, the legal ground (i.e. art. 44 of the Football Union F Regulations) on which Club A could have further claimed compensation in front of the competent deciding body of the Football Union F, i.e. “the Football Union F”, based on the alleged breach of contract by the player (cf. point I.27 above).

12. The Chamber further stressed that, by supplementing its initial claim on 2 July 2012 in front of the relevant deciding body of the Football Union F, Club A followed part of the reasoning contained in the “statement of opinion” of the Football Union F and sought for sporting sanctions to be applied on Club E as per art. 45.2 of the Football Union F Regulations. In this respect, the DRC took due note that, based on the aforementioned, Club E had already been imposed a ban from registering new players by the Disciplinary Committee of the Football Union F on 3 August 2012 (cf. point I.36 above).

13. Bearing in mind the above, the Chamber wished to point out that FIFA Regulations do not foresee the possibility that the DRC solely decides on the consequences of a termination of an employment contract without having previously decided on whether a contractual breach occurred, whether such breach was with or without just cause, and which party is to be held liable. In other words, for jurisdictional purposes, there cannot be a distinction between the “triggering elements” and the “remedies” stages in relation to a particular claim.

14. In this context, the Chamber wished to point out that if a party chooses to pursue the defence of his/its rights at national level and in accordance with contractual provisions, he/it should proceed that way until the end.

15. Therefore, the DRC was of the opinion that Club A should have proceeded further with the relevant arbitral body of the Football Union F as to its request for compensation from the player, insofar as it was given the opportunity to do so by the “statement of opinion” of the Football Union F. The Chamber equally took into account the fact that Club A had already proceeded that way as to its request for sporting sanctions to be imposed on Club E by the Football Union F on 2 July 2012.

16. Finally, the Chamber deemed it important to underline that the practice consisting in having a case heard by another decision-making body with the aim to get the most favourable judgment, known as “forum shopping”, cannot be upheld by the Chamber.

17. Taking into account all the foregoing considerations, the Chamber concluded that it was not competent to deal with the claim lodged by the Claimant in front of FIFA. As a consequence, the claim of the Claimant is inadmissible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant is inadmissible.

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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

For the Dispute Resolution Chamber:

Marco Villiger

Deputy Secretary General

Encl. CAS directives