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 31 August 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 31 August 2017,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Takuya Yamazaki (Japan), member

Wouter Lambrecht (Belgium), member

Todd Durbin (USA), member

on the claim presented by the player,

Player A, Country B

as Claimant/Counter-Respondent I

against the club,

Club C, Country D

as Respondent/Counter-Claimant

with the club,

Club E, Country F

as Counter-Respondent II

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

Preliminary issue regarding the competence of FIFA:

1. On 15 November 2016, the player of Country B, Player A (hereinafter; the Claimant/Counter-Respondent I or the player), lodged a claim in front of FIFA against the club of Country D, Club C (hereinafter; the Respondent/Counter-Claimant, Club C or the club) (hereinafter jointly referred to as the parties), for breach of contract.

2. In support of his claim, the player provided an employment contract named “agreement” (hereinafter: the agreement), dated 28 July 2015, valid as of the date of signature until 30 June 2017, bearing the letterhead and the stamp of Club C, the signatures of Club C’s president as well as the player.

3. Art. 9 of the agreement states that “Any disputes between the Club and the Player arisen in connection with the present Agreement shall be submitted to the exclusive jurisdiction of the competent judicial body of FIFA as first instance body and the Court Arbitration for Sports (CAS) in Lausanne, Switzerland, as appeal body (…)”.

4. According to art. 10 of the agreement, “The Player shall duly sign the Standard Football Federation of Country D player contract. However, in any case of any dispute between the two contracts and/or dispute between the English and the language of Country D versions of the contract, the present agreement drafted in English language shall prevail.”

5. Art. 12 of the agreement establishes that “The Parties agree that the present Agreement (…) is concluded in the form of e-mail attachments, is binding with emailed signatures and valid. The parties should sign the official contract issued by the Football Federation of Country D on the same terms of this agreement.”

6. In reaction to the player’s claim, Club C asked for said claim to be considered inadmissible stressing that the Dispute Resolution Chamber of the Football Federation of Country D (hereinafter: the NDRC of Country D) is competent to deal with the present matter. Equally, on 30 January 2017, Club C lodged a counterclaim against the player in front of FIFA for breach of contract.

7. In support of its main argumentation, Club C provided an employment contract named “Contract for Football Professional Player” (hereinafter; the contract), dated 28 July 2015 and valid as of the date of signature until 30 June 2017, bearing the letterhead of the Football Federation of Country D and the stamp of Club C, as well as the apparent signatures of Club C’s president and the player.

8. Art. 9 of the contract establishes that “1. The two parties shall seek solving their disputes on the enforcement of the contract by amicable ways. 2. The Dispute Resolution Chamber of the Football Federation of Country D is concerned with considering and resolving the disputes that arise between the club and player on this professional contract, implementing and interpreting it.”

9. Additionally, art. 12 par. 1 of the contract states that “The Player declares that this is the only contract and that he is not bound by any contract with other clubs“.

10. In its argumentation, Club C stated that based on art. 9 par. 2 of the contract the NDRC of Country D is competent to deal with this matter.

11. To support its argument, Club C submitted part of the Football Federation of Country D Statutes 2015 (hereinafter: the Football Federation of Country D Statutes), the 2015 NDRC’s procedural regulations (hereinafter: the NDRC regulations) and a decision of the FIFA Dispute Resolution Chamber dated 16 July 2009, wherein it was confirmed that for the period between October 2008 and January 2009 the NDRC of Country D met FIFA’s minimum requirements for independent arbitration tribunals.

12. In this context, art. 53 b) of the Football Federation of Country D Statutes stipulates that “The NDRC shall deal with all national disputes that may involve clubs, players, …”. The NDRC regulations inter alia set forth, in its article 6, that the president and vice president of the NDRC are appointed by the Football Federation of Country D board of directors. Furthermore, three members representing professional players are selected by the board of directors until a “professional players league” has been established.

13. In response to Club C’s argument, the player contested the authenticity of the contract and denied having ever signed it, raising that the parties were only bound by the agreement and that therefore, only FIFA was competent to hear the dispute, in accordance with art. 9 of the agreement.

14. Furthermore, the player claimed that, through their exchange of correspondence in February 2016, Club C tacitly accepted that the agreement was the only employment contract binding the parties, since the player always exclusively referred to the agreement and since the club, on its side, did not refer to the contract. The player enclosed copies of said correspondence.

15. In addition, the player held that it is clear that the agreement is the only employment contract that binds the parties, based on art. 10 and art. 12 of the agreement and the fact that the contract does not contain any similar clause.

16. Additionally, the player claimed that art. 9 of the agreement expressly confers exclusive competence on FIFA, whereas art. 9 of the contract does not confer exclusive competence on the Football Federation of Country D.

17. Finally, the player claimed that the NDRC of the Football Federation of Country D does not comply with the minimum requirements set up by FIFA Regulations on the Status and Transfer of Players.

As to the substance of the matter:

18. Both the agreement and the contract are dated 28 July 2015 and were valid as of the date of signature until 30 June 2017.

19. According to art. 4.1 of the agreement and art. 4.1 of the contract, the player was entitled to receive inter alia a total amount of EUR 7,920,000 as follows:

- EUR 1,960,000 as a lump sum payable on 15 August 2015, “after the player passing medical exam”;

- EUR 360,000 as a lump sum payable on 30 September 2015;

- EUR 1,600,000 as a lump sum payable on 28 February 2016;

- EUR 4,000,000 in 23 monthly equal instalments of EUR 173,913.04, payable at the

end of each month, as of 31 August 2015 until 30 June 2017.

20. Art. 4.1 of the agreement and art. 4.1 of the contract also establish that “in case of delay of any one of the aforesaid payment, the player will be entitled to an interest rate of 5 % per year.”

21. According to art. 4.4 of the agreement and 4.4 of the contract, “The Club will provide the Player free of charge with a luxury car fully insured as well as driver for his personal used and for his family. The club will bear the costs for the relevant extraordinary maintenance and the player will take care of the costs of ordinary maintenance and any traffic violations.”

22. Art. 4.8 of the agreement and art. 4.8 of the contract further state that the club shall pay to the player’s personal trainer the total net amount of EUR 100,000 for the two seasons, payable in 2 advanced instalments on 31 July 2015 and 31 July 2016, and that the player must “provide the club with the complete bank details for the relevant payment.”

23. For its part, art. 4.14 of the agreement establishes that if Club C fails to comply with its contractual obligations, the player must send the club a default notice, setting a time limit of 5 days to remedy the default.

24. According to art. 7 of the agreement and art. 10.1 of the contract, the player has the right to terminate the contract for any reason by the end of July 2016 by sending a written notice to Club C in this respect. In such a case, the player and/or the new club must pay the club the net amount of EUR 3,000,000, payable in 2 instalments as follows: 50% within 30 days from the date of the written notice and 50% within the following 12 months. In case of late payment, an interest rate of 10% will apply.

25. Art. 8 of the agreement and art. 10.2. of the contract establish that in case of unilateral termination of the contract by the club without just cause, the player is entitled to receive “all the net wage as stated under article 4.1 up to the end of the agreement as well as the bonuses as stated under article 4.2 maturated up to the date of the early termination by the club.”

26. On 14 February 2016, the player contacted Club C in writing, requesting the payment of the total amount of EUR 1,241,709.15, corresponding to the remaining portion of the lump sum due on 15 August 2015 (EUR 360,000), to the lump sum payable on 30 September 2015 (EUR 360,000) and to the salaries of November 2015, December 2015 and January 2016 (EUR 521,709.15), by no later than 24 February 2016, otherwise he would refer the case to FIFA on the basis of art. 12bis of the FIFA Regulations on the Status and Transfer of Players. He further reserved his right to terminate the contract. Furthermore, the player reminded Club C that it had failed to pay the first instalment of EUR 50,000 to the player’s personal trainer.

27. On 23 February 2016, Club C contested in writing the amount requested by the player, claiming that the “player is overpaid with an amount of EUR 30,000”, since the amount of EUR 390,000 corresponding to the car bought by Club C upon the player’s request should be deducted from his remuneration. In its letter, Club C further explained that following the player’s letter dated 14 February 2016, it paid him the amount of EUR 330,000 corresponding to the lump sum due on 30 September 2015, after deduction of the amount of EUR 30,000. In addition, Club C raised that it would pay the player his salaries of December 2015 and January 2016 “within this month”.

28. On 7 March 2016, the player confirmed to Club C in writing the payment of EUR 330,000. The player further held that he disagreed with the deduction made from his remuneration as to the car’s cost, claiming that the car is the property of Club C and that its costs should not be deducted from his remuneration. The player claimed that, therefore, the total amount of EUR 2,484,709.15 remained outstanding, as follows: EUR 360,000 corresponding to the remaining portion of the lump sum due on 15 August 2015, EUR 30,000 corresponding to the remaining portion of the lump sum due on 30 September 2015, EUR 1,600,000 due on 28 February 2016 and EUR 521,709.15 corresponding to the monthly salaries of December 2015, January 2016 and February 2016. Furthermore, in his letter, the player reminded the club that the amount of EUR 50,000 corresponding to the first instalment of the personal trainer’s remuneration was still outstanding. The player set a time limit expiring on 17 March 2016 to remedy the default, otherwise he would refer to FIFA on the basis of art. 12bis of the aforementioned Regulations, while reserving his right to terminate the contract.

29. On 15 March 2016, Club C replied by maintaining its former position, stating that it bought an expensive car upon the player’s request. Club C added that the player can become the owner of the car as soon as he asks for it. Club C further claimed that it paid the player the salary of December 2015 and that it would pay the salary of January 2016 “in the closest days”. In addition, Club C held that art. 12bis of the said Regulations cannot apply, since the club is not found to have delayed the payment of the lump sum due on 28 February 2016 and the salary of February 2016 for more than 30 days yet. Finally, Club C requested to be provided with the bank details of the player’s personal trainer in order to be able to transfer him the requested amount.

30. On 24 May 2016, the player sent another letter to Club C, requesting the payment of the total amount of EUR 2,163,913.04, corresponding to the remaining portion of the lump sums due on 15 August 2015 (EUR 360,000) and on 30 September 2015 (EUR 30,000), to the lump sum due on 28 February 2016 (EUR 1,600,000) and to the salary of April 2016 (EUR 173,913.04), which remained outstanding. The player set a time limit expiring on 5 June 2016 to remedy the default, otherwise he would refer to FIFA on the basis of the aforementioned art. 12bis and he reserved his right to terminate the contract. Finally, the player requested Club C to pay the outstanding remuneration of the personal trainer on the player’s bank account.

31. On 22 June 2016, the player terminated the contract with immediate effect due to Club C’s persistent failure to comply with its main obligations, claiming that he still had not received the amount of EUR 2,163,913.04 which was outstanding on 24 May 2016 and pointing out that in the meantime further payments had fallen due and remained unpaid.

32. On 23 January 2017, the player and the club of Country F, Club E, signed an employment contract valid as of 23 January 2017 until 30 June 2017, according to which the player is entitled to receive a total remuneration of EUR 274,000.

33. On 15 November 2016, subsequently modified on 6 March 2017, the player lodged a claim in front of FIFA against the club, requesting to be awarded the following amounts:

- outstanding salaries for a total amount of EUR 2,163,913.04, broken down as follows:

 EUR 360,000 corresponding to the remaining portion of the lump sum due on 15 August 2015, plus interest of 5% per annum as of 16 August 2015;

 EUR 30,000 corresponding to the remaining portion of the lump sum due on 30 September 2015, plus interest of 5% per annum as of 1 October 2015;

 EUR 1,600,000 corresponding to the lump sum due on 28 February 2016, plus interest of 5% per annum as of 1 March 2016;

 EUR 173,913.04, corresponding to the salary of May 2016, plus interest of 5% per annum as of 1 June 2016;

- compensation for a total amount of EUR 4,299,169 composed of the following amounts :

 EUR 2,112,212.52 corresponding to the difference between the salaries due on the basis of the contract between June 2016 and June 2017, i.e. EUR 2,260,869.52 and the remuneration that the player received from his new club, Club E, during said period, i.e. a total net amount of EUR 148,657. In this regard, the player presented a website extract allegedly showing the difference between a gross and a net income in Country F;

 EUR 100,000, corresponding to the payment made to his personal trainer;

 EUR 1,043,478.24 as an additional compensation corresponding to six monthly salaries, in compensation for the damage caused to the player, who was unable to find a new club before the end of January 2017;

 EUR 1,043,478.24 as a further compensation corresponding to six monthly salaries, based on art. 337c par. 3 of the Swiss Code of Obligations;

 the player further requested interest of 5% per annum on the aforementioned amounts, as of the date of the claim;

- the player equally asked that sanctions be imposed on the club;

- the player further requested to be awarded the reimbursement of the legal costs and the procedural costs of the procedure.

34. In his arguments, the player claimed that Club C breached its contractual obligations by failing to pay part of his remuneration. The player added that during the execution of the contract, Club C was often late with the payment of his remuneration, despite the several reminders sent to it. In addition, the player claimed that according to the contract, Club C had to provide him with a luxury car on top of his remuneration and that consequently, Club C did not have the right to deduct the car’s price from his salaries. The player further claimed that he had no other choice than paying on his own his personal trainer, since the club failed to pay him directly. In order to prove this allegation, the player submitted a testimony dated 20 October 2016 signed by the personal trainer, whereby he stated that the player paid him EUR 100,000 in place of the club.

35. In reaction to the player’s claim, the club lodged a counterclaim against the player for breach of contract, claiming payment of compensation in the total amount of EUR 3,000,000, plus interest of 5 % p.a. as of 22 June 2016, to be payable jointly with the club of Country F, Club E.

36. In its arguments, Club C claimed that the remuneration that the player had received when he terminated the contract, which, including the amount of EUR 390,000 corresponding to the car’s price, was “almost equal to EUR 3,800,000”, covered “the entire first football season in term of the payment”. The club further claimed that it is the responsibility of the player to request the property of the car, the price of which should be deducted from the outstanding remuneration requested by the player. In this respect, Club C enclosed a bank transfer order for EUR 330,000 dated 23 February 2016 and a credit invoice dated 7 February 2016, issued by a company called “Company G”, addressed to the club, bearing an illegible stamp, indicating “390000 Euro” and “Received / Club C”.

37. The club further claimed that consequently, the player did not have just cause to terminate the contract on 22 June 2016, and therefore, it should be awarded the amount of EUR 3,000,000 as compensation based on art. 10 of the contract.

38. Alternatively, should the player be found to have terminated the contract with just cause, the club claimed that the amounts requested by the player be reduced as follows:

 EUR 1,773,913.04 as outstanding salaries, i.e. the outstanding salaries requested by the player (EUR 2,163,913.04) less the price of the car (EUR 390,000);

 EUR 2,260,869.52, i.e. EUR 173,913.04 x 13, as compensation “with the future mitigation of said amount to the money that the Player earned in his new club”;

 the club further requested that the claim related to the remuneration of the personal trainer be dismissed.

 in addition, the club requested to be awarded the reimbursement of the legal costs and the procedural costs of the procedure.

39. In its argumentation, Club C held that should the player be found to have terminated the contract with just cause, he should be awarded only the difference between the salaries due on the basis of the contract between 23 June 2016 and 30 June 2017, i.e. 13 monthly salaries, and the salary that the player received from his new club, Club E.

40. Club C further claimed that the player’s request relating to the reimbursement of the payments made to the personal trainer should be dismissed, since the player did not present any power of attorney authorizing him to act on behalf of the personal trainer before FIFA and since the player did not submit any proof of payment of the requested amounts, claiming that the personal trainer’s testimony cannot be sufficient. In addition, Club C stated that in spite of having been asked several times to provide the personal trainer’s bank details, the player never submitted said document. Finally, Club C raised that in any case, said player’s request is groundless in view if the fact that the contract was prematurely terminated.

41. Alternatively, the club claimed that the amount requested by the player should be reduced to EUR 50,000.

42. In his replica, the player maintained his previous argumentation, adding that the credit invoice submitted by Club C is directed to the club and does not establish that the car would be supposed for the player’s property.

43. Despite having being invited to do so, Club C did not submit its final comments.

44. In its reply to Club C’s counterclaim, Club E held that it does not have any comments, since it does not consider itself a party in the present matter.

45. In reply to FIFA’s request following standard procedure in the event of allegations of forgery to provide the original of the contract, Club C stated that it does not possess the original since the management of the club had changed.

II. Considerations of the Dispute Resolution Chamber

1. First, 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 November 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber would be, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player of Country B and a club of Country D with the intervention of a club of Country F.

3. However, the DRC acknowledged that Club C contested the competence of FIFA’s deciding bodies on the basis of art. 9 par. 2 of the contract according to which, “The Dispute Resolution Chamber of the Football Federation of Country D is concerned with considering and resolving the disputes that arise between the club and player on this professional contract, implementing and interpreting it.”. As such, according to Club C, the NDRC of Country D is the only competent body to adjudicate the claim of the player.

4. The DRC equally noted that, conversely, the player rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. In particular, the DRC observed that the player challenged the authenticity of the contract arguing that his signature therein had been forged and that the only document binding on the parties was the agreement which foresees that FIFA’s decision-making bodies are competent.

5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit b) of the Regulations on the Status and Transfer of Players (edition 2016), it is, in principle, competent to deal with a matter such as the one at hand; the parties to the dispute may, however, explicitly opt in writing for any disputes arisen between them to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. The independent national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the contract at the basis of the present dispute actually contained a clear and exclusive arbitration clause in favour of the NDRC of Country D.

7. In this context, the members of the Chamber wished to stress that the player is explicitly basing his claim on the agreement, arguing in this regard that he never signed the contract and that his signature contained in the contract has been forged. In this regard, the Chamber wished to recall that as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

8. Irrespective of the above, the members of the Chamber were of the unanimous opinion that, even if the contract would be considered as having been concluded between the parties, the DRC is clearly competent to entertain the claim of the player as to the substance in view of the subsequent considerations.

9. First, the DRC recalled that Club C had not challenged the validity let alone the authenticity of the agreement, which contains an arbitration clause in favour of FIFA.

10. What is more, the Chamber referred to the principle of equal representation of players and clubs, which is one of the very fundamental elements to be fulfilled in order for a national dispute resolution chamber to be recognised as such, and highlighted that this requirement is not met in the present case. In particular, the members of the Chamber referred to the NDRC of Country D Regulations which explicitly provide, in its art. 6, that the “three members representing professional players” are selected by the Football Federation of Country D board of directors until a “professional players league” has been established. In this regard, Club C did not argue that said “professional players league” has been established. It follows therefore that the players’ representatives in proceedings before the NDRC of Country D are chosen by the Football Federation of Country D board of directors.

11. On account of all the aforementioned circumstances, the members of the Chamber unanimously concluded that, even if it would be determined that the contract is applicable on the parties, Club C failed to demonstrate, to the DRC’s satisfaction, that the NDRC of Country D is indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. As such, the DRC concluded that Club C’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 entertain the claim of the player as to the substance.

12. In continuation, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present matter was submitted to FIFA on 15 November 2016, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

13. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber continued acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the substance of the matter at hand.

14. Along those lines, and prior to entering into the substance of the matter, the Chamber referred once again to the argument of the player regarding the alleged forgery of the contract and, in this regard, considered important to emphasise once again that such questions are to be decided by the competent criminal authorities. Regardless of the above, considering the fact that the provisions which are relevant to resolve the substance of the present dispute are contained in both the contract and the agreement, the DRC emphasised that it is not necessary to further address this particular point.

15. For the sake of clarity, however, the DRC underlined that it will make reference in the following paragraphs to both the agreement and the contract. Notwithstanding this, the DRC pointed out that nothing in the following considerations should be interpreted as an assessment on the actual validity and/or existence of the reportedly forged contract.

16. Having stated the above, the DRC first acknowledged that both the contract and the agreement are valid as of 28 July 2015 until 30 June 2017 and provide that the player was entitled to receive from Club C the total amount of EUR 7,920,000 payable as follows: (1) EUR 1,960,000 on 15 August 2015, (2) EUR 360,000 on 30 September 2015, (3) EUR 1,600,000 on 28 February 2016 and (4) EUR 4,000,000 in 23 equal monthly instalments of EUR 173,913.04 by the end of each month as of August 2015 until June 2017.

17. In continuation, the members of the Chamber noted that after having put Club C in default of payment on 14 February, 7 March, and 24 May 2016, the player unilaterally terminated the employment-relationship between the parties on 22 June 2016 due to certain alleged outstanding remuneration.

18. Having said that, the Chamber proceeded to analyse the claim of the player who argues that, at the time of the termination, the total amount of EUR 2,163,913.04, corresponding to (part of) the lump sum due on 15 August 2015, (part of) the lump sum due on 30 September 2015, the lump sum due on 28 February 2016 as well as his salary of May 2016, was outstanding. Consequently, according to the player, he had just cause to terminate the contract.

19. The Chamber then noted that, conversely, Club C argued that the early termination of the employment-relationship by the player was without just cause and thus lodged a counterclaim against the latter. In particular, according to Club C, at the moment the player terminated said relationship, he had received an amount “almost equal to EUR 3,800,000”. What is more, the Chamber observed that Club C claimed that the cost of the car it bought for the player, i.e. EUR 390,000, should be deducted from the player’s receivables.

20. Consequently, the Chamber duly noted that as a result thereof Club C requested EUR 3,000,000 as compensation in accordance with art. 7 of the agreement and art. 10.1 of the contract respectively.

21. On account of the foregoing considerations, the Chamber considered that the underlying issue in the matter at hand, in view of the divergent position of the parties, is to determine if the player had just cause to terminate the employment-relationship on 22 June 2016 and, subsequently, which are the consequences of the conclusion thereof.

22. Prior to entering in depth into the analysis of the parties’ positions, the Chamber recalled the principle of the burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact carries the burden of proof.

23. With the aforementioned principle in mind, the Chamber underlined that, albeit Club C argued having paid the player “almost equal to EUR 3,800,000”, it did not present any evidence to corroborate this allegation, which should therefore be dismissed from the outset.

24. Regardless of the above, the Chamber was of the opinion that said alleged payment would actually correspond to what the player implicitly recognised having received taking into consideration the amounts he claims were outstanding at the moment he terminated the employment relationship. Indeed, if one considers the claim of the player relating to outstanding remuneration, it would appear that the club paid 1,600,000 for the lump sum due on 15 August 2015, EUR 330,000 for the lump sum due on 30 September 2015 as well as the player’s salaries as of August 2015 until April 2016 equal to EUR 1,565,217. If one takes into account that Club C alleges that EUR 390,000, corresponding to the cost of the car, should be added to the amounts actually paid, this would actually result in an amount “almost equal to EUR 3,800,000”.

25. In relation to the above, the DRC was of the unanimous conclusion that the argument presented by Club C related to the cost of the car clearly does not stand. In particular, it is undisputed that, according to both the contract and the agreement, the player was entitled to a “luxury car (…) free of charge”. Whether the relevant car was bought upon the player’s request does not change the fact that Club C was obliged to provide the player with a “luxury car” and that it actually did so. Therefore, in the Chamber’s view, by paying the amount of EUR 390,000 to get a car for the player, Club C was merely complying with its obligations as per both the agreement and the contract. Consequently, the cost of the car can by no means be deducted from the player’s receivables.

26. It follows from the foregoing that, at the time of the termination of the employment-relationship by the player, the total amount of EUR 2,163,913.04 was outstanding. The Chamber underlined that Club C, thus, had seriously neglected its contractual obligations towards the player in a continuous and constant manner. In other words, at the time of the termination, Club C had failed to remunerate the player for a substantial period of time regarding a quite significant amount of money. Equally important for the Chamber was the fact that the player provided Club C with several opportunities to remedy the default before terminating the employment-relationship.

27. In light of all the aforementioned considerations, the Chamber came to the unanimous conclusion that the player had just cause to terminate the contractual relationship binding him to Club C on 22 June 2016 and that, consequently, Club C is to be held liable for said early termination of the employment contract with just cause.

28. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract with just cause by the player.

29. In doing so, the members of the Chamber concurred that Club C must fulfill its obligations as per the contract and the agreement in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that Club C is liable to pay to the player the remuneration that was outstanding at the time of the termination i.e. EUR 2,163,913.04 comprised of EUR 360,000 as part of the lump sum due on 15 August 2015, EUR 30,000 corresponding to part of the lump sum due on 15 September 2015, EUR 1,600,000 corresponding to the lump sum due on 28 February 2016 and EUR 173,913.04 corresponding to his salary of May 2016.

30. In addition, taking into consideration the player’s claim and its constant practice, the DRC decided to award interest on all the outstanding amounts at the rate of 5% p.a. as of the day following the respective due dates.

31. Furthermore, and in relation to the amount claimed by the player as “personal trainer’s remuneration”, the DRC concluded that the player had not substantiated this claim with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no supporting documentation relating to this part of the player’s claim. In particular, the Chamber stressed that there is no provision neither in the contract nor in the agreement which would allow the player to claim this amount. What is more, in the Chamber’s view, the personal statement from the alleged player’s personal trainer in relation to a certain payment allegedly made by the player is inadequate to prove, to the Chamber’s satisfaction, that the player had actually incurred such a cost. Consequently, the DRC decided to reject this part of the player’s claim.

32. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from Club C compensation for breach of contract in addition to the outstanding remuneration on the basis of the relevant employment contract.

33. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

34. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. Upon careful examination of the contract and the agreement, the members of the Chamber took note that clauses 8 and 10.2 of the agreement and contract, respectively, provide that in case of unilateral termination of the contract by the club without just cause, the player is entitled to receive “all the net wage as stated under article 4.1 up to the end of the agreement as well as the bonuses as stated under article 4.2 maturated up to the date of the early termination by the club.”

35. The members of the Chamber concluded that they could not take such clauses into account in order to determine the compensation for breach of contract payable in the case at hand. In particular, the Chamber outlined that the relevant clause foresees a scenario which did not occur in the matter at hand, as it was not Club C but the player who terminated the contract. The DRC felt comforted with its conclusion considering the fact that the player did not request for the application of such a clause.

36. As a consequence, the members of the Chamber determined that the prejudice suffered by the player in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC 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, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years.

37. With the aforementioned in mind, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract, along with the professional situation of the player after the early termination of the contract occurred. In this respect, the Chamber pointed out that the remaining value of the contract which was breached as from its early termination by the player until its regular expiry amounts to EUR 2,260,869.52. comprised of the player’s salaries as of June 2016 until June 2017 (EUR 173,913.04 x 13). The Chamber concluded that this amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

38. In continuation, the Chamber recalled that, on 23 January 2017, the Claimant had entered into a new employment contract with the club of Country F, Club E valid until 30 June 2017 according to which he was entitled to the total amount of EUR 274,000. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, the above-mentioned amounts shall be taken into account in the calculation of the amount of compensation for breach of contract.

39. In this context, the Chamber dismissed the argument of the player that, after taxes, he was only entitled, under his contract with Club E, to the net amount of EUR 148,657. In particular, the members of the DRC considered that the website extract from a non-official source presented by the player was insuficent to prove in and of itself that the player only received said amount.

40. In view of all of the above, the Chamber decided that Club C must pay the amount of EUR 1,986,869.52 to the player as compensation for breach of contract as well as 5% interest p.a. over said amount as from the date of the claim, i.e. 15 November 2016, until the date of effective payment.

41. Subsequently, the DRC reverted to the request of the player to be awarded additional compensation. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the player had no contractual or regulatory basis and highlighted that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered.

42. Finally, the Chamber concluded its deliberations by establishing that any other request lodged by the parties in the claim and counterclaim respectively, including the legal costs (cf. art. 18 par. 4 of the Procedural Rules), is rejected.

III. Decision of the Dispute Resolution Chamber

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

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

3. The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.

4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent I, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 2,163,913.04 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 16 August 2015 on the amount of EUR 360,000;

b. 5% p.a. as of 1 October 2015 on the amount of EUR 30,000;

c. 5% p.a. as of 1 March 2016 on the amount of EUR 1,600,000;

d. 5% p.a. as of 1 June 2016 on the amount of EUR 173,913.04.

5. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent I, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 1,986,869.52 plus 5% interest p.a. as of 15 November 2016 until the date of effective payment.

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

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

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

*****

Note relating to the motivated decision (legal remedy):

According to article 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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directive