F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 29 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (The Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay), member

Wouter Lambrecht (Belgium), member

Joel Talavera (Paraguay), member

on the matter between the player,

Player A, Country B

as Claimant / Counter-Respondent

and the club,

Club C, Country D

as Respondent / Counter-Claimant

and the club,

Club E, Country B

as Intervening Party

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 17 August 2014, the Player of Country B, Player A (hereinafter: the Claimant / Counter-Respondent) born on 5 October 1990, and the Club of Country D, Club C (hereinafter: the Respondent / Counter-Claimant) concluded an employment contract (hereinafter: contract) valid for the season 2014/2015. In particular, clause 3 of the contract establishes that the Claimant / Counter-Respondent “represent the first team in the football locally and outside competitions from 17-8-2014 till 31-7-2015”.

2. In this regard, it should be noted that the Claimant / Counter-Respondent was transferred from the Club of Country B, Club F to the Respondent / Counter-Claimant on 21 August 2014. The transfer agreement included a transfer fee of USD 65,000.

3. According to clause 2 of the employment contract, the Claimant / Counter-Respondent was entitled to a total remuneration of USD 325,000 net composed as follows:

- USD 100,000 “to the [Claimant / Counter-Respondent] (included transfer fee and agent fee)”;

- USD 50,000 on 1 October 2014;

- USD 75,000 on 1 January 2015;

- USD 50,000 on 1 April 2015;

- USD 50,000, divided in ten monthly salaries of USD 5,000 each.

4. Clause 8 of the contract stipulates that “in case of the [Claimant / Counter-Respondent’s] abandonment of the team pays a penalty clause represented the amounts received by him added to it 25% of total value of partnership”.

5. Clause 10 establishes that the Claimant / Counter-Respondent “is required laws and regulations in Country D”.

6. Clause 11 holds that if the Claimant / Counter-Respondent does “not arrive daily training will cut from his monthly salary USD 500 for each day”.

7. Clause 13 establishes that “In case of non-compliance of [the Claimant / Counter-Respondent] finishing the partnership before it time with [the Respondent / Counter-Claimant] will bear the penalty clause 25% from total value”.

8. Clause 16 of the contract establishes that “In case of conflict Football Association of Country D is the judgement to settle the dispute”.

9. Clause 20 stipulates that the Claimant / Counter-Respondent “has agreed to pay 50% of his signing fee (USD 50,000) in the case of any misconduct or crime which cause of absent of the [Claimant / Counter-Respondent] or banning him of playing for more than two months, also [the Respondent / Counter-Claimant] has right to terminate his contract immediately”.

10. According to the information contained in the Transfer Matching System (TMS), the Claimant / Counter-Respondent signed an employment contract with the Club of Country B, Club E (hereinafter: Intervening Party) on 20 July 2015, valid from the date of signature until 4 June 2016. According to the employment contract between the Claimant / Counter-Respondent and the Intervening Party, the Claimant / Counter-Respondent was to receive a monthly salary of 1,000.

11. On 12 June 2015, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant in default via email, requesting the payment of USD 275,000 within 48 hours.

12. On 17 June 2015, the Claimant / Counter-Respondent terminated the contract in writing via email invoking just cause. According to the Claimant / Counter-Respondent, “the termination is motivated by the nonpayment of the values due to the [Claimant / Counter-Respondent] within the deadline set by the notification sent to the [Respondent / Counter-Claimant] in June 12 2015”.

13. On 19 June 2015, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant before FIFA, requesting the following:

a. The amount of USD 275,000;

b. The ratification of the termination of the contract with just cause, allowing the Claimant / Counter-Respondent to immediately negotiate with any other football club;

c. Disciplinary sanctions imposed upon the Respondent / Counter-Claimant, as established in Article 12 of FIFA’s Disciplinary Code.

14. Regarding the amount of USD 275,000, the Claimant / Counter-Respondent held that “this value may be changed in case this Chamber arbitrate a higher value as compensation for the breach of the contract”. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant failed to pay him the amounts as stipulated in the contract. In particular, the Claimant / Counter-Respondent held that the Respondent / Counter-Claimant failed to pay him the signing on fee of USD 100,000 and the instalments due on 1 October 2014, 1 January 2015 and 1 April 2015. In this context, the Claimant / Counter-Respondent held that, after putting the Respondent / Counter-Claimant in default of payment of the total amount of USD 275,000, he terminated the contract with just cause.

15. With regard to the contract termination, the Claimant / Counter-Respondent also mentioned that a compensation should be paid by the Respondent / Counter-Claimant in accordance with article 17 FIFA RSTP, arbitrated by the DRC, “which should not be less than USD 275,000, which is the value due to the [Claimant / Counter-Respondent] until the present date”.

16. In its response of 21 July 2015, the Respondent / Counter-Claimant indicated that the parties had “agreed to choose the Football Association of Country D to be as a referee to resolute the dispute” in accordance with clause 10 of the contract, and thus, the Claimant / Counter-Respondent violated the contract by resorting to FIFA.

17. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent quit the team and no longer attended training sessions as from 3 June 2015 without any reason and without informing the Respondent / Counter-Claimant. Moreover, the Respondent / Counter-Claimant affirmed having contacted the Claimant / Counter-Respondent via phone, requesting him to come back, offering to pay him the flight ticket and the amounts due. However, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent refused to return to the Respondent / Counter-Claimant.

18. The Respondent / Counter-Claimant further provided a document dated 10 May 2015, allegedly signed by the Claimant / Counter-Respondent’s agent, Agent G, and in which he confirmed having received his commission fee in the amount of USD 25,000 “through TMT company in London regarding [the Claimant / Counter-Respondent] as part of our professional contract”.

19. In this light, the Respondent / Counter-Claimant added that quitting the training and departing abroad is considered a breach of contract and that “it is necessitated to cease what has been agreed on in the contracts according to articles 8, 11 and 20” of the contract.

20. In addition, the Respondent / Counter-Claimant held that it paid the Claimant / Counter-Respondent the following amounts:

- USD 100,000 on 20 October 2014 together with the agent’s commission;

- USD 50,000 on 23 October 2014 as “second payment of the contract of the [Claimant / Counter-Respondent] for the season 2014-2015”;

- USD 40,000 on 5 May 2015 as salaries from 1 October 2014 until 30 April 2015.

21. In this context, the Respondent / Counter-Claimant stated that “the [Claimant / Counter-Respondent’s] remaining dues amounted USD 110,000 and the [Respondent / Counter-Claimant] administration has no objection to deliver this amount of money”.

22. In his replica, dated 20 April 2016, the Claimant / Counter-Respondent did not contest having received USD 40,000 of monthly salaries from the Respondent / Counter-Claimant.

23. However, the Claimant / Counter-Respondent did hold that he only left the Respondent / Counter-Claimant because it failed to comply with its other contractual obligations, amounting to USD 275,000. In particular, the Claimant / Counter-Respondent highlighted that some payments were outstanding for more than 8 months and consequently he had no choice but to terminate the contract.

24. The Claimant / Counter-Respondent denied having left the Respondent / Counter-Claimant without informing it, referring to the default notice and termination letter sent to it.

25. Moreover, the Claimant / Counter-Respondent held that the documents presented by the Respondent / Counter-Claimant are only translations and thus do not prove payments made to the Claimant / Counter-Respondent. The Claimant / Counter-Respondent further held that, in any case, the amounts in the voucher do not correspond to the payments in the contract (cf. point I.3) and do not indicate the beneficiary of the payment.

26. Furthermore, the Claimant / Counter-Respondent amended his claim of 19 June 2015 and argued that an additional interest of 1% per month needs to be applied to the claimed amount of USD 275,000, “from the date of the termination of the contract (17 June 2015) until the date of the effective payment, as a way of compensation for the breach of contract”.

27. On 15 August 2016, the Respondent / Counter-Claimant submitted its duplica and a counterclaim against the Claimant / Counter-Respondent and the Intervening Party.

28. As a preliminary matter in the duplica, the Respondent / Counter-Claimant highlights that it did not have a legal representative when it submitted its response and therefore the correct and authoritative position of the Respondent / Counter-Claimant in respect to the claim is the position stated in the duplica / counterclaim.

29. The duplica further includes a new challenge of FIFA’s jurisdiction in this matter, referring again to clause 16 of the employment contract.

30. As regards the substance of the case, the Respondent / Counter-Claimant highlights that there are two disputed facts between it and the Claimant / Counter-Respondent, namely i) the payments of the remainder of the remuneration of the contract; and ii) whether the Claimant / Counter-Respondent terminated the contract without just cause.

31. Regarding the payments of the remainder of the remuneration of the contract, the Respondent / Counter-Claimant states that the parties signed two versions of the contract in English and Arabic and both bear the Claimant / Counter-Respondent’s fingerprint in addition to his signature.

32. The Respondent / Counter-Claimant provided new documents, including the “Transfer Contract” signed by the Claimant / Counter-Respondent, the Respondent / Counter-Claimant and the Claimant / Counter-Respondent’s former club, Club F dated 21 August 2014 (cf. point I.2). Referring to this Transfer Contract and the employment contract signed between the Claimant / Counter-Respondent and the Respondent / Counter-Claimant on 17 August 2014, the Respondent / Counter-Claimant now maintains that, contrary to what the Claimant / Counter-Respondent stated in his claim of 19 June 2015, the breakdown of the USD 325,000 is as follows:

a. USD 235,000 is payable to the Claimant / Counter-Respondent;

b. USD 65,000 is payable to Club F;

c. USD 25,000 is payable to the Claimant / Counter-Respondent’s agent Agent G.

33. According to the Respondent / Counter-Claimant, this means that the Claimant / Counter-Respondent erred in his claim when he stated that he was entitled to USD 325,000 in remuneration for the duration of the contract, the correct remuneration being USD 235,000. In light of clause 2 of the employment contract (cf. point I.3), the Respondent / Counter-Claimant noted that the Claimant / Counter-Respondent was only entitled to receive USD 10,000 related to the payment of USD 100,000, which included the mentioned transfer fee and the agent fee.

34. In continuation, the Respondent / Counter-Claimant explains that on 26 August 2014 it paid Club F the agreed amount of USD 65,000.

35. Furthermore, the Respondent / Counter-Claimant delivered new evidence showing that it paid the Claimant / Counter-Respondent a total of USD 190,000, i.e. equal to the amounts mentioned in point 20 above.

36. With regard to the payments in cash, the Respondent / Counter-Claimant points out that the Claimant / Counter-Respondent did not provide the details of his bank account by alleging that he had none and insisted during the negotiation of the contract that he be paid in cash. This is the reason why the employment contract did not contain details of the Claimant / Counter-Respondent’s bank account, and also why the Respondent / Counter-Claimant demanded that, in addition to the signature, the Claimant / Counter-Respondent imprint his thumbprint next to his signature on the contracts and the payment receipts.

37. In the event that the Claimant / Counter-Respondent were to question the authenticity of his signature and thumbprint, the Respondent / Counter-Claimant submitted to the State Crime Lab of Country D the Arabic and English copies of the contract and the two above-mentioned payment vouchers. The Respondent / Counter-Claimant further notes that the report issued by the Crime Lab states the following: i) “The two thumbprints imprinted on the (…) employment contract (…) and the two thumbprints imprinted on the two payment vouchers (…) are identical and belong to the same person”; and ii) “The signatures of [Claimant / Counter-Respondent] in (…) the employment contract (…) perfectly matched his signatures (…) in the two payment vouchers.”

38. In addition and with regard to Income Tax of Country D, the Respondent / Counter-Claimant argues that Law of Country D stipulates that the income of the Claimant / Counter-Respondent is taxable at 15%. Because the Claimant / Counter-Respondent’s income for the duration of the contract is USD 235,000, the Respondent / Counter-Claimant would be obliged to deduct USD 35,250 from the Claimant / Counter-Respondent’s remuneration (15% of 235,000) and pay it to the tax authorities when the Respondent / Counter-Claimant files its tax return. Moreover, Law of Country D also mandates the Respondent / Counter-Claimant to withhold 10% of the amounts due to the Claimant / Counter-Respondent. Such amount will only be released to the Claimant / Counter-Respondent after he submits to the Respondent / Counter-Claimant a certificate of clearance from income tax. In other words, the Respondent / Counter-Claimant would have to withhold USD 23,500 (10% of 235,000).

39. In conclusion, the Respondent / Counter-Claimant claims that it has paid USD 338,750 with regard to the Claimant / Counter-Respondent’s salary, his former club and his agent, i.e. more than what the Respondent / Counter-Claimant actually owed (cf. point I.32). The Respondent / Counter-Claimant further provided the following breakdown of the payments and deductions of the remuneration of the contract:

a. USD 65,000 paid to Club F;

b. USD 25,000 paid to the Claimant / Counter-Respondent’s agent, Agent G;

c. USD 40,000 as monthly salaries paid to the Claimant / Counter-Respondent between October 2014 and April 2015;

d. USD 100,000 paid directly to the Claimant / Counter-Respondent on 20 October 2014;

e. USD 50,000 paid directly to the Claimant / Counter-Respondent on 23 October 2014;

f. USD 35,250 income tax deduction;

g. USD 23,500 income tax withholding.

40. Regarding the question of whether the Claimant / Counter-Respondent terminated the contract without just cause, the Respondent / Counter-Claimant highlighted that the Claimant / Counter-Respondent left the Respondent / Counter-Claimant without prior notification on 3 June 2015. At that point, the player had never mentioned anything concerning overdue payables or payment requests. The Respondent / Counter-Claimant notes that the payment request did not reach it until 12 June 2015, in which he demanded the payment of USD 275,000 within 48 hours (cf. point I.11).

41. On 14 June 2015, the Respondent / Counter-Claimant sent the Claimant / Counter-Respondent a short email informing him that his desertion of the team was unlawful.

42. According to the Respondent / Counter-Claimant, on 15 June 2015, the Claimant / Counter-Respondent sent another email to Respondent / Counter-Claimant and proposed:

a. The immediate termination of the contract, as well as “the release of the [Claimant / Counter-Respondent] as its athlete (issue of the ITC). Doing this, the [Respondent / Counter-Claimant] will be released of the payment of the monthly salary of June and July 2015”;

b. The payment of USD 275,000 within 15 days “in an account to be informed”.

43. Moreover, the Respondent / Counter-Claimant confirms that the Claimant / Counter-Respondent unilaterally terminated his contract via email on 17 June 2015.

44. The Respondent / Counter-Claimant further states that in the period between 10 and 20 June 2015, it held several telephone conversations with the Claimant / Counter-Respondent requesting his immediate return to Country D in order to complete the full term of the contract. The Respondent / Counter-Claimant holds that on 22 June 2015 it emailed the Claimant / Counter-Respondent via his agent, requesting him to return to Country D to complete the term of the contract.

45. According to the Respondent / Counter-Claimant, and given that it claims to have paid all the moneys due to the Claimant / Counter-Respondent, the Claimant / Counter-Respondent unilaterally breached the contract without just cause.

46. The Respondent / Counter-Claimant continues by arguing that, even if the Claimant / Counter-Respondent did not receive the two payments of USD 100,000 and USD 50,000 respectively, the Claimant / Counter-Respondent did not submit any document or evidence establishing that he had raised this issue with the Respondent / Counter-Claimant prior to his email of 12 June 2015 or had provided the Respondent / Counter-Claimant with the opportunity to remedy the situation.

47. The Respondent / Counter-Claimant reiterates that the Claimant / Counter-Respondent left unexpectedly on 3 June 2015, signed a Power of Attorney on 10 June 2015 in Country B, and sent the Respondent / Counter-Claimant an email for the very first time on 12 June 2015 regarding outstanding remuneration, giving the Respondent / Counter-Claimant only 48 hours to remedy the situation without providing a bank account to which the payment had to be remitted. Furthermore, while the subsequent email by the Claimant / Counter-Respondent to the Respondent / Counter-Claimant of 15 June 2015 (cf. point I.11) proposed a solution, the Claimant / Counter-Respondent decided to unilaterally terminate the contract on 17 June 2015. According to the Respondent / Counter-Claimant, this contract termination is clearly without just cause.

48. Contrary to what is written in the duplica, in the counterclaim the Respondent / Counter-Claimant holds that the DRC has jurisdiction to hear the counterclaim since it is also directed against the Intervening Party.

49. Given that, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent terminated the contract without just cause, the Respondent / Counter-Claimant refers to clause 8 of the contract. This clause stipulates that “in case of [the Claimant / Counter-Respondent’s] abandonment of the team pays a penalty clause represented the amounts received by him added to it 25% of total value of partnership”.

50. As a result, the Respondent / Counter-Claimant requests the following:

a. To declare that the DRC lacks jurisdiction to entertain the Claimant / Counter-Respondent’s claim of 19 June 2015;

b. Alternatively, to reject the Claimant / Counter-Respondent’s claim in its entirety;

c. To establish that the Claimant / Counter-Respondent unlawfully and unilaterally terminated the employment contract without just cause;

d. The payment of USD 346,000 plus 5% interest as from 3 June 2015 until the effective date of payment from the Claimant / Counter-Respondent and the Intervening Party as the second Counter-Respondent broken down as follows:

i. USD 65,000 paid to the Claimant / Counter-Respondent’s former club, Club F;

ii. USD 25,000 paid to the Claimant / Counter-Respondent’s agent;

iii. USD 40,000 corresponding to eight months of salary;

iv. USD 100,000 corresponding to the payment done on 20 October 2014;

v. USD 50,000 corresponding to the payment done on 23 October 2014;

vi. “USD 106,600 representing 25% of the total remuneration of the contract”.

e. To hold the Intervening Party jointly and severally liable for the payment of the above requested compensation.

51. On 3 October 2016 the Intervening Party submitted its response to the Respondent / Counter-Claimant’s counterclaim of 15 August 2016.

52. The Intervening Party firstly holds that the Claimant / Counter-Respondent had terminated his contract with just cause with the Respondent / Counter-Claimant, and that he therefore was without an employment contract, when he was presented at the Intervening Party.

53. Secondly, after the Intervening Party and the Claimant / Counter-Respondent signed an employment contract which was supposed to last from 20 July 2015 until 4 June 2016, and for which the ITC was subsequently requested by the Intervening Party, the Respondent / Counter-Claimant never informed FIFA that there was a labour dispute between the Respondent / Counter-Claimant and the Claimant / Counter-Respondent, nor did it question the transfer at that time. Only more than a year after the ITC was issued is the Respondent / Counter-Claimant holding the Intervening Party liable.

54. Thirdly, the Claimant / Counter-Respondent’s registration was prohibited by the (regional) Football Federation of State H, because the Intervening Party was not disputing professional competitions that year. As a result, the Intervening Party and the Claimant / Counter-Respondent rescinded the employment contract.

55. The Intervening Party consequently concludes that the counterclaim against it should be rejected, since it followed all the necessary measures to ensure that the Claimant / Counter-Respondent was free to negotiate with another Respondent / Counter-Claimant and, more importantly, since the Claimant / Counter-Respondent was never registered with the Intervening Party.

56. In his response of 4 October 2016 to the Respondent / Counter-Claimant’s counterclaim, the Claimant / Counter-Respondent holds that the Respondent / Counter-Claimant’s response on the one hand, and its duplica / counterclaim are contradictory. In particular, where the Respondent / Counter-Claimant in the response alleges that it paid the Claimant / Counter-Respondent USD 100,000 on 20 October 2014 together with the agent’s commission (cf. point I.20), in the duplica the Respondent / Counter-Claimant alleges to have paid the transfer fee to Club F, and that it paid the agent directly and separately from the payment of 20 October 2014 (cf. points I.32-35 above). The Claimant / Counter-Respondent, however, argues that he never received the USD 100,000 and that the Respondent / Counter-Claimant “only paid [Club F] and his agent and tries to impose those payments as also made to the [Claimant / Counter-Respondent], by making him sign a Payment Voucher”.

57. The Claimant / Counter-Respondent further questions the breakdown of payments presented in the Respondent / Counter-Claimant’s duplica (cf. points I.39). According to the breakdown, within two months of signing the employment contract the Respondent / Counter-Claimant had paid “[the Claimant / Counter-Respondent] USD 215,000 out of a USD 325,000 contract”, which is “clear proof that the [Respondent / Counter-Claimant] is trying to confuse the chamber”.

58. As regards the payment vouchers presented by the Respondent / Counter-Claimant in the duplica and which included the Claimant / Counter-Respondent’s signature and fingerprints (cf. points I.36-37), the Claimant / Counter-Respondent argues that these documents cannot be considered as proof of payment because they were presented to the Claimant / Counter-Respondent in Arabic. “In other words, it was impossible [for the Claimant / Counter-Respondent] to imagine the content of those documents and, as an employee of the [Respondent / Counter-Claimant], he had no other option than sign them”.

59. Furthermore, the Claimant / Counter-Respondent denotes to the Respondent / Counter-Claimant’s statement in the duplica that income tax needs to be deducted from the Claimant / Counter-Respondent’s salary (cf. point I.38), and refers to clause 2 of the employment contract, which states that the total of the contract is USD 325,000 net (cf. point I.3).

60. The Claimant / Counter-Respondent reiterates that USD 275,000 out of USD 325,000 remains outstanding, that he had not been paid in accordance with the contract for a period of at least eight (8) months and that, as a consequence, he had a just cause to terminate the contract. In this respect, the Claimant / Counter-Respondent refers to the Respondent / Counter-Claimant’s response of 21 July 2015, in which it recognized that it failed to comply with its contractual obligations regarding the Claimant / Counter-Respondent (cf. point I.21).

61. Lastly, the Claimant / Counter-Respondent refers to the Respondent / Counter-Claimant’s email of 14 June 2015 (cf. point I.41) and points out that he did not understand the Respondent / Counter-Claimant’s message. For that reason, on 15 June 2015, the Claimant / Counter-Respondent requested clarification from the Respondent / Counter-Claimant and “presented an agreement proposal to the case”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber, DRC or deciding body) 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 12 June 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. article 21 of the 2015, 2017 and 2018 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 (editions 2015, 2016 and 2018) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension.

3. Within this context, the Chamber understood that, in principle, it would be competent to decide on the present litigation which involves a Player of Country B, a Club of Country D and a Club of Country B regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent / Counter-Claimant contested the competence of FIFA’s deciding bodies on the grounds that as per the Respondent / Counter-Claimant, the parties had “agreed to choose the Football Association of Country D to be as a referee to resolute the dispute”, in accordance with clauses 10 and 16 of the contract.

5. In this respect, the Chamber recalled that Clause 10 of the employment contract holds that “(t)he second party is required laws and regulations in Country D”, while Clause 16 of the employment contract stipulates that “(i)n case of conflict Football Association of Country D is the judgement to settle the dispute”.

6. Having examined the relevant provisions, the Chamber came to the unanimous conclusion that neither Clause 10 nor Clause 16 of the employment contract constitute a clear jurisdiction clause in favour of a specific court in Country D. The DRC interpreted Clause 10 as merely referring to the applicable law and not to any court. In a similar vein, the Chamber established that Clause 16 is drafted in a generic manner, and that the Football Association of Country D as such cannot be considered an independent dispute resolution chamber. Consequently, the Chamber understood that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction.

7. Thus, the Chamber established that the Respondent / Counter-Claimant’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance and that the claim of the Claimant / Counter-Respondent is admissible.

8. Next, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2015, 2016 and 2018), and considering that the present claim was lodged on 10 June 2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

9. 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.

10. The Chamber first acknowledged that the Claimant / Counter-Respondent and the Respondent / Counter-Claimant signed an employment contract on 17 August 2014 valid until 31 July 2015. Moreover, the Chamber recalled that on 17 June 2015 the Claimant / Counter-Respondent terminated his contract with the Respondent / Counter-Claimant.

11. In continuation, the Chamber established that the primary issue at stake is determining whether the Claimant / Counter-Respondent had a just cause to terminate the contract with the Respondent / Counter-Claimant on 17 June 2015. In this respect, the Chamber deemed it essential to make a brief recollection of the parties’ arguments regarding the contract termination, and in particular, determine whether there was any outstanding remuneration due to the Claimant / Counter-Respondent on the day he terminated the contract.

12. In this context, the deciding authority firstly highlighted that in accordance with Clause 2 of the contract (cf. point I.3), the Claimant / Counter-Respondent was entitled to a total remuneration of USD 325,000, which included “USD 100,000 to the [Claimant / Counter-Respondent] (included transfer fee and agent fee)”.

13. However, the DRC recalled that, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent was personally only entitled to USD 235,000 (cf. points I.32 and I.39). The remainder of the total remuneration of USD 325,000 was to be paid to the Claimant / Counter-Respondent’s former club, Club F as a transfer fee (USD 65,000), and to the Claimant / Counter-Respondent’s agent (USD 25,000), as per the Respondent / Counter-Claimant.

14. The Chamber does not follow the Respondent / Counter-Claimant’s argumentation. The contract, and in particular clause 2 thereof, does not specifically stipulate that part of the remuneration was to be paid by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent’s former club and his agent. Instead, the deciding body determined unanimously that all the amounts mentioned in clause 2 of the contract, including the “USD 100,000 to the [Claimant / Counter-Respondent] (included transfer fee and agent fee)”, were to be paid directly by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent. In other words, the Claimant / Counter-Respondent was entitled to a total amount of USD 325,000 for the duration of the contract.

15. The Chamber further called to mind that the Respondent / Counter-Claimant argued that the income of the Claimant / Counter-Respondent is taxable at 15%, and that it also had to withhold a further 10% of the amounts due to the Claimant / Counter-Respondent pursuant to Law of Country D (cf. point I.38). As a result, according to the Respondent / Counter-Claimant, the alleged amounts of USD 35,250 and USD 23,500 it withheld from the Claimant / Counter-Respondent’s salary cannot be considered outstanding.

16. On this point, the DRC unanimously disagreed with the Respondent / Counter-Claimant. Clause 2 of the contract specifically holds that the Claimant / Counter-Respondent was to obtain his salary in net amounts. Consequently, the Chamber decided that any amount the Respondent / Counter-Claimant withheld for tax reasons cannot be deducted from any alleged amount still outstanding to the Claimant / Counter-Respondent.

17. Having determined that the Claimant / Counter-Respondent was entitled to a total remuneration of USD 325,000 net for the duration of the contract, the Chamber then proceeded to determine the amounts that were actually paid to him by the Respondent / Counter-Claimant. In this light, the DRC firstly acknowledged that the Claimant / Counter-Respondent admitted having received USD 40,000 on 5 May 2015 as salaries from 1 October 2014 until 30 April 2015 (cf. points I.20 and I.22).

18. Secondly, the deciding body took note of the two payment vouchers of USD 100,000 dated 20 October 2014 and USD 50,000 dated 23 October 2014 respectively (cf. point I.35). Importantly, the Chamber noted that the Claimant / Counter-Respondent admitted that he “had no other option [but to] sign them” (cf. point I.58). In this regard, the Claimant / Counter-Respondent argued that these vouchers should not be interpreted as proof of payment, because they were presented to him in Arabic (cf. point I.58), a language which he did not understand. However, the Chamber referred to its well-established jurisprudence, and reaffirmed that a party signing a document of legal importance does so at its own responsibility. Consequently, the Chamber concluded that the Claimant / Counter-Respondent’s arguments that the payment vouchers should not be taken into account for being in Arabic cannot be upheld.

19. In accordance with the established in points II.17 and II.18, the Chamber concluded therefore that the Respondent / Counter-Claimant paid the Claimant / Counter-Respondent a total amount USD 190,000. Thus, it is also established that on the day the Claimant / Counter-Respondent terminated the contract, i.e. 17 June 2015, USD 125,000 out of the contractually established amount of USD 325,000 was outstanding. In this light, the Chamber considered that, e.g., the USD 75,000 that was to be paid on 1 January 2015 in accordance with clause 2 of the contract (cf. point I.3) was outstanding in its entirety on the day of contract termination.

20. Moreover, the DRC noted that according to the Respondent / Counter-Claimant, after the Claimant / Counter-Respondent left on 3 June 2015 (cf. point I.40), the Respondent / Counter-Claimant requested him via phone calls to return, offering him the flight tickets and the amounts due (cf. point I.44).

21. However, at this point the DRC pointed out that not only did the Respondent / Counter-Claimant not pay the outstanding amounts, it did not buy the flight tickets for the Claimant / Counter-Respondent’s return to Country D either, as it had offered.

As a consequence, the Claimant / Counter-Respondent placed the Respondent / Counter-Claimant in default on 12 June 2015, providing it 48 hours to pay the alleged outstanding amount of USD 275,000. Furthermore, on 15 June 2015 the Claimant / Counter-Respondent’s lawyer contacted the Respondent / Counter-Claimant again, proposing an amicable settlement that consisted of a termination of the contract and the payment of the requested amount in 15 days. Finally, the Chamber referred to the termination letter of 17 June 2015, and reiterated that, according to the Claimant / Counter-Respondent, the termination was “motivated by the nonpayment of the values due to the [Claimant / Counter-Respondent] within the deadline set by the notification sent to the [Respondent / Counter-Claimant] on 12 June 2015” (cf. point I.17).

22. In summary, the Chamber concluded that the Respondent / Counter-Claimant was in delay of a substantial amount of the contractual value (approx. 38%) for a considerable amount of time (e.g. the salary due on 1 January 2015 had not been paid), and that it was provided the chance to remedy such default by the Claimant / Counter-Respondent. As a result, the DRC unanimously determined that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract with just cause by the Claimant / Counter-Respondent and should therefore bear the consequences of its unjustified breach of the employment contract, including the possible payment of compensation to the Claimant / Counter-Respondent, in addition to any possibly outstanding amounts at the time of termination.

23. Having established the above, and before entering the matter of the calculation of the compensation for breach of contract payable by the Respondent / Counter-Claimant, the DRC first proceeded to establish the amount of outstanding remuneration, if any, still due to the Claimant / Counter-Respondent on the date of the decision.

24. In this light, the deciding body reiterated that the Claimant / Counter-Respondent was entitled to the amount of USD 325,000 for the entire duration of the contract, and that he had received USD 40,000, USD 100,000 and USD 50,000 respectively (cf. points II.17-18). In other words, the Claimant / Counter-Respondent had not yet received USD 135,000 from the Respondent / Counter-Claimant. However, given that the monthly salaries of USD 5,000 each (cf. point I.3) for June and July 2015 were not yet due on the day of the contract termination, the Chamber decided that this amount of USD 10,000 would be taken into account for the calculation of the compensation for the unjustified breach of the employment contract by the Respondent / Counter-Claimant. As a result, the deciding body concluded that a total amount of USD 125,000 remained outstanding.

25. In addition, taking into consideration the Claimant / Counter-Respondent’s claim (cf. point I.26) and bearing in mind that the Claimant / Counter-Respondent had not presented a full breakdown of the global outstanding amount of USD 125,000, which would have enabled the Chamber to determine the due dates of the specific financial obligations included in the amount of USD 125,000, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 125,000 as of the date of receipt of the claim, 19 June 2015.

26. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent in the case at stake. In doing so, the members of the Chamber first 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 / Counter-Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

27. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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.

28. In this regard, the Chamber noted that clause 13 of the contract stipulated that “(i)n case of non-compliance of [the Claimant / Counter-Respondent] finishing the partnership before it time with [the Respondent / Counter-Claimant] will bear the penalty clause 25% from total value” (cf. point I.7). Bearing in mind that, in the present case, the contract had been terminated by the Claimant / Counter-Respondent with just cause, the Chamber concluded that the aforementioned clause 13 of the contract would not apply to the present case and no other clause was included in the contract related to the payment of compensation by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent in case of a termination with just cause by the latter.

29. As a consequence, the Chamber determined that the amount of compensation payable by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC 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 DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

30. In order to estimate the amount of compensation due to the Claimant / Counter-Respondent in the present case, the Chamber first turned its attention to the remuneration and other benefits due to him under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

31. In view of the foregoing, the DRC concluded that the residual value of the contract amounted to two monthly salaries, namely June 2015 and July 2015. Subsequently, the Chamber pointed out that in accordance with clause 2 of the contract, the Claimant / Counter-Respondent was to obtain USD 50,000, divided in ten monthly salaries of USD 5,000 each (cf. point I.3). After multiplying the figure of USD 5,000 by two months, the Chamber concluded that the total residual value of the contract before mitigation is USD 10,000.

32. 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 termination of contract with just cause in connection with the player’s general obligation to mitigate his damages.

33. The Chamber recalled that, on 20 July 2015 (cf. point I.10), the Claimant / Counter-Respondent concluded an employment contract with the Intervening Party, for the period from 20 July 2015 to 4 June 2016. The Chamber then established that between 20 July 2015 and 31 July 2015 (i.e. the expiry date of the employment contract with the Respondent / Counter-Claimant), the Claimant / Counter-Respondent would have received a total amount of USD 111 (USD 313 / 31 x 11). Consequently, after mitigation, the total amount of compensation due to the Claimant / Counter-Respondent is USD 9,889.

34. In addition, taking into account the Claimant / Counter-Respondent’s request, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 19 June 2015, until the date of effective payment.

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

III. Decision of the Dispute Resolution Chamber

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

2. The claim of the Claimant / Counter-Respondent is partially accepted.

3. The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 125,000, plus 5% interest p.a. on the said amount as from 19 June 2015 until the date of effective payment.

4. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 9,889 plus 5% interest p.a. on the said amount as from 19 June 2015 until the date of effective payment.

5. In the event that the amounts due plus interest to the Claimant / Counter-Respondent in accordance with the above-mentioned points 3. and 4. are not paid by the Respondent / Counter-Claimant within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

7. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

8. The counterclaim of the Respondent / Counter-Claimant is rejected.

*****

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 (CAS)

Avenue de Beaumont 2

CH-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:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives