DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 8 marzo 2018 • Stagione sportiva: 2017/2018

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 8 March 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 March 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Muzammil bin Mohamed (Singapore), 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 F

as Intervening Party

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 23 July 2015, the Player of Country B, Player A (hereinafter: the Claimant / Counter-Respondent) concluded an employment contract with the Club of Country D, Club C (hereinafter: the Respondent / Counter-Claimant), valid as from the date of signature until 22 July 2018.

2. According to the contract, the Claimant / Counter-Respondent was entitled to the following remuneration:

- EUR 3,310,000 for the season 2015/2016, payable as follows:

- EUR 1,470,000, payable by 31 July 2015 (“Advanced payment”);

- EUR 153,333.33, as monthly salary and payable in 12 instalments (i.e. EUR 1,839,999.96 in total);

- EUR 3,060,000 for the season 2016/2017, payable as follows:

- EUR 1,220,000, payable by 31 July 2016 (“Advanced payment”);

- EUR 153,333.33, as monthly salary and payable in 12 instalments (i.e. EUR 1,839,999.96 in total);

- EUR 3,060,000 for the season 2017/2018, payable as follows:

- EUR 1,220,000, payable by 31 July 2017 (“Advanced payment”);

- EUR 153,333.33, as monthly salary and payable in 12 instalments (i.e. EUR 1,839,999.96 in total).

3. In addition, and following clause 4 of the contract, the Claimant / Counter-Respondent was entitled to “accommodation at the Beach upon availability with a maximum 10,000 Euros per month)”.

4. Furthermore, the contract stipulated the following clauses:

“5.2. The [Claimant / Counter-Respondent] shall also be entitled to the following bonuses:

(…) 5) (…)

5.1. 15 Goals: 175,000 Euros (…) and in case the [Claimant / Counter-Respondent] scored 20 goals then the [Claimant / Counter-Respondent] will be entitled to collect 75,000 Euros (…) then the total will be 250,000 Euro only” (…).

5.2. if the [Claimant / Counter-Respondent] assisted directly for scoring 15 goals then he will be entitled for 90.000 Euros (…) and in case the [Claimant / Counter-Respondent] assisted directly in scoring 20 goals then he will be entitled to collect 35,000 Euros (…) then total will be 125,000 Euro (…) These bonuses are paid at the end of each season and are not cumulative”

(…) 5.3. The [Claimant / Counter-Respondent] will be entitled to get 8 Business class air tickets per year/season, Capital G-Capital H-Capital G (…)

“5.7 [the Respondent / Counter-Claimant] shall pay the [Claimant / Counter-Respondent] after the signing of this agreement an additional payment to the amount of 1,140,000 Euros of which 570.000 euros will be paid within 30 days after the signing of this agreement and 570,000 euros will be paid in December 15, 2015. This amount will be sent directly by [the Respondent / Counter-Claimant] to Bank J (Country K) in order to pay the outstanding loan the [Claimant / Counter-Respondent] has with such Bank. The Bank will provide the respective invoice."

(…)

9.2. ”Leave is primarily to be taken during match free periods and must be used for relaxing purpose.

Specific leave dates must be agreed upon with [the Respondent / Counter-Claimant] in writing.”

(…)

“11.5 Notwithstanding anything to the contrary, the [Claimant / Counter-Respondent] hereby expressly and irrevocably agree that in the event that [the Respondent / Counter-Claimant] terminates this Contract with just cause (in accordance with FIFA Regulations governing the matter) and/or the [Claimant / Counter-Respondent] terminates this Contract without just cause (in accordance with FIFA Regulations governing this matter) the [Claimant / Counter-Respondent] shall promptly pay to [the Respondent / Counter-Claimant], as compensation for the breach, the amount of Euro 15,000,000 (fifteen million Euros) (“Breach Compensation’).”

5. On 17 March 2016, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant concluded an “Addendum” to the contract which, inter alia, stipulated the following:

“II. The [Claimant / Counter-Respondent] to date has always performed his duties with the [Respondent / Counter-Claimant] according to the employment contract.

III. The [Respondent / Counter-Claimant] currently has an outstanding plus an amount to be received until 30 June 2016 of € 1,501,668 towards to the [Claimant / Counter-Respondent] (. . .)

VI. The parties have agreed to settle the matters regarding the outstanding amounts plus the salaries up to the end of June 2016 to be paid to the [Claimant / Counter-Respondent], subject to the conditions of this addendum (...)

VII. This addendum is considered as a part and integrant to the employment contract signed between the parties on the 23 July 2015 (..)”.

6. More specifically, the Addendum established that the amount of EUR 1,501,668 should be paid as follows:

- EUR 375,417, at the date of the signature of the Addendum;

- EUR 375,417, on 30 April 2016;

- EUR 375,417, on 31 May 2016;

- EUR 375,417, on 30 June 2016.

7. Furthermore, and following the Addendum, the parties stipulated the following clauses:

“2. The Parties agree that €570,000 (…) is to be paid on behalf of the [Claimant / Counter-Respondent] directly to Bank J according to a separate agreement to be signed between the [Respondent / Counter-Claimant] and the Bank”

“4. For the payments from July 2016 (advanced payment and monthly salaries), the [Respondent / Counter-Claimant] hereby agrees that any delay in more than 60 days (two months), and, if the [Respondent / Counter-Claimant] does not cure its entire default (the payment of the two months salaries outstanding or the advance payment) in the following ten days, the [Claimant / Counter-Respondent] has the option to immediately terminate, without any warning notice, the employment contract and all the amounts due and all the remaining amounts of such employment contract must be immediately paid by the [Respondent / Counter-Claimant] to the [Claimant / Counter-Respondent].

For the purpose of this Clause, the [Respondent / Counter-Claimant] confirms that the official payment date is every 15’ date of the month, i.e. in case the [Claimant / Counter-Respondent] does not go on a permanent or temporary transfer to a third [Respondent / Counter-Claimant], the first payment from the season 2016/2017 will be on 31 July 2016 for the advanced payment, and 1 August 2016 for the monthly salary, meaning that the salary of July 2016 delay “60 days/2 months and the following ten days after the 60 days/2months” will be calculated from the 2 of August 2016 for the salary and 1 August 2016 for the advanced payment.”

8. On 30 January 2017, the Claimant / Counter-Respondent concluded an employment contract with the Club of Country F, Club E (hereinafter: the Intervening Party), valid as from 1 February 2017 until 30 June 2018.

9. In accordance with clause 8.1. of the aforementioned contract, the Claimant / Counter-Respondent was entitled to a monthly salary in the amount of “not less than 167 000.

10. Furthermore, and following the information available in the Transfer Matching System (TMS), the Claimant / Counter-Respondent and the Intervening Party concluded, on 30 January 2017, an “Addendum 1”, according to which the Claimant / Counter-Respondent was entitled to the following remuneration:

- USD 110,000, as monthly salary, payable in at the exchange rate of the Bank of Country F, from the starting date of the employment contract until 30 June 2017;

- USD 166,666, as monthly salary, payable in Currency of Country F at the exchange rate of the Bank of Country F, from 1 July 2017 until 30 June 2018.

11. In addition, and following art. 3 of the Addendum 1, the Claimant / Counter-Respondent was entitled to a monthly payment of USD 2,500 (payable in Currency of Country F) for housing.

12. On 7 December 2016, the Claimant / Counter-Respondent lodged a claim before FIFA against the Respondent / Counter-Claimant, and requested the payment of the total amount of EUR 7,343,432, detailed as follows:

- EUR 1,220,000, corresponding to the “advanced payment” for the season 2016/2017, plus 5% interest p.a. as from 31 July 2016;

- EUR 570,000, corresponding to the second part of the bank loan, plus 5% interest p.a. as from 15 December 2015;

- EUR 3,373,332, corresponding to salaries for the seasons 2016/2017 and 2017/2018 (i.e. from October 2016 until July 2017, as well as for the entire season 2017-2018), plus 5% interest p.a. as from 15 October 2016;

- EUR 210,100, corresponding to “benefits” (flight tickets & housing), plus 5% interest p.a. as from 15 October 2016. In particular, the Claimant / Counter-Respondent considered that the average cost for a business single flight ticket for the journey Capital H-Capital G is EUR 4,378 (i.e. EUR 4,378*2*8=EUR 70,050 per season, and EUR 140,100 for two seasons), and that the amount due for housing corresponds to EUR 70,000, for the season 2017/2018 only;

- EUR 750,000, corresponding to “performance bonuses”, plus 5% interest p.a. as from 15 October 2016, further detailed as follows:

- EUR 250,000, for scoring 20 goals during the seasons 2016/2017 and 2017/2018;

- EUR 125,000, for 20 assists during the seasons 2016/2017 and 2017/2018.

13. In addition, the Claimant / Counter-Respondent requested the payment of the legal and procedural costs.

14. As to the facts, the Claimant / Counter-Respondent explained that, initially, the Respondent / Counter-Claimant failed to pay him to the following amounts:

- The second part of the advanced salary of the contract (i.e. EUR 735,000) and due on 31 July 2015;

- The second instalment of the bank loan (i.e. EUR 570,000) and due by 15 December 2015 (cf. point I. 4 above);

- His monthly salary (i.e. EUR 153,333.33), due on 10 February 2016.

15. In view of the above, the Claimant / Counter-Respondent explained that, on 27 February 2016, he sent a default notice to the Respondent / Counter-Claimant in relation to the aforementioned amounts and that, on 8 March 2016, he insisted in his request with a subsequent default notice for the total amount of EUR 1,448,333.

16. In this regard, the Claimant / Counter-Respondent explained that, on 10 March 2016, the Respondent / Counter-Claimant proposed to undertake a repayment plan.

17. In this respect, the Claimant / Counter-Respondent acknowledged that he agreed with the Respondent / Counter-Claimant to negotiate a repayment plan, which led to the conclusion of the Addendum to the contract (cf. point I.5 above).

18. Notwithstanding the above, the Claimant / Counter-Respondent stated that “eventually, the [Respondent / Counter-Claimant] ignored its debt towards [him]”.

19. Consequently, the Claimant / Counter-Respondent stated that, on 1 May, 2 May and 3 May 2016, he sent several default notices for the payment of EUR 375,417, due on 30 April 2016, and pursuant to the Addendum.

20. At a later stage, the Claimant / Counter-Respondent explained that, on 19 September 2016 and “due to the persistent non-fulfilment by the [Respondent / Counter-Claimant]”, he sent a new default notice to the latter for “the remaining part of the Bank Loan for EUR 570,000 and the advance payment of season 2016/2017 for EUR 1,200,000”. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant ignored his request.

21. In view of the above, the Claimant / Counter-Respondent explained that, on 1 October 2016, he sent a final default notice to the Respondent / Counter-Claimant and granted 10 days to the Respondent / Counter-Claimant to settle the outstanding amount of EUR “1,200,000”, which was due on 31 July 2016. In this regard, the Claimant / Counter-Respondent stated that the Respondent / Counter-Claimant ignored his request.

22. As a consequence, the Claimant / Counter-Respondent explained that, on 15 October 2016, he sent a termination letter via his lawyer to the Respondent / Counter-Claimant in accordance with clause 4 of the addendum (cf. point I. 7 above). The Claimant / Counter-Respondent further considered that, in accordance with said clause, no further reduction must be applied to the payable compensation.

23. More specifically, the termination letter included the following statement:

“4. The [Respondent / Counter-Claimant] has as overdue payments the amount of EUR 1,200,000 as salaries advanced payment and EUR 570,000 as agreed by the [Respondent / Counter-Claimant] to pay the [Claimant / Counter-Respondent]’s bank on his behalf. These amounts corresponds to more than 60% of his payments during a season.”

24. On 3 February 2017, the Respondent / Counter-Claimant replied to the claim and simultaneously lodged a counterclaim against the Claimant / Counter-Respondent and the Intervening Party (cf. point I. 8 above). More specifically, the Respondent / Counter-Claimant requested the payment of compensation, plus 5% interest p.a. as from the date of the termination, as follows:

- EUR 15,000,000, following clause 11 of the contract (cf. point I. 4 above);

- EUR 5,660,000, corresponding to the residual value of the contract and “the salaries of July, August, and September 2016 which the [Respondent / Counter-Claimant duly paid]”;

- “Any other amount that the DRC deems opportune to consider in order to quantify the compensation.”

25. In addition, the Respondent / Counter-Claimant requested the imposition of sporting sanctions against the Claimant / Counter-Respondent and the Intervening Party.

26. As to the facts, the Respondent / Counter-Claimant explained that, at the date of the signature of the contract with the Claimant / Counter-Respondent, who was previously under contract with the Club of Country K, Club L, he had to repay a personal loan from the Bank of Country K, Bank J, for the amount of EUR 1,140,000. Consequently, the Respondent / Counter-Claimant explained that, when concluding the contract with the Claimant / Counter-Respondent, the latter proposed as one of the conditions that the Respondent / Counter-Claimant had to pay said amount directly to the bank. According to the Respondent / Counter-Claimant, this condition is the rationale existing behind clause 5.7 of the contract (cf. point I. 4 above). Nevertheless, the Respondent / Counter-Claimant considered that the payment of the bank loan, following the conclusion of the Addendum, does not correspond to the employment relationship but is rather “a matter between [the Respondent / Counter-Claimant] and the Bank” that was to be settled in a different agreement.

Consequently, the Respondent / Counter-Claimant argued that the Claimant / Counter-Respondent had no right to claim the related amount in his notice dated 19 September 2016 (cf. point I. 20 above).

27. In addition, the Respondent / Counter-Claimant considered that, since the signature of the contract, the Claimant / Counter-Respondent had an unprofessional behavior on and off the pitch. More specifically, the Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent “was reiterated seeing drinking in a public place and doing actions which did not contribute to keep him fit” and that “many facts of his private life were made public creating a serious embarassment in Country D”. In this regard, the Respondent / Counter-Claimant considered that it expected the Claimant / Counter-Respondent to act as a “role model” in order to preserve its image.

28. Subsequently, the Respondent / Counter-Claimant explained that, on 9 December 2015 the Claimant / Counter-Respondent left Country D with the purpose to recover from an injury for a short term (60 days in total), but that he returned only on 2 May 2016, i.e. after more than 5 months since he left. In this respect, the Respondent / Counter-Claimant explained that it put the Claimant / Counter-Respondent on notice three times requesting him to ”immediately return to Capital H”, on 10 April 2016, on 20 April 2016 and on 21 April 2016. In this respect, the Respondent / Counter-Claimant explained that it received several replies from the Claimant / Counter-Respondent, but that it never justified or accepted his arguments.

29. Moreover, the Respondent / Counter-Claimant acknowledged that it went through a period of financial difficulties, which led to the conclusion of the debt acknowledgement agreement.

30. Nevertheless, the Respondent / Counter-Claimant stated that it paid to the Claimant / Counter-Respondent all the amounts due for the first sporting season of the contract (2015/2016), i.e. EUR 3,310,000 and that, consequently, any event prior to the Addendum to the contract is irrelevant to the case.

31. Furthermore, the Respondent / Counter-Claimant explained that the Claimant / Counter-Respondent left the country without permission on 30 September 2016 and returned on 9 October 2016 and, consequently missed an official match on 5 October 2016. In view of the above, the Respondent / Counter-Claimant stated that “upon due investigation on the Claimant / Counter-Respondent’s reiterated breaches of Contract”, it decided to temporarily suspend the payment of the “advanced amount” for the season 2016/2017, while continuing to pay the regular monthly salary. However, the Respondent / Counter-Claimant acknowledged that, on 9 October 2016, the Claimant / Counter-Respondent returned and participated in its activities and, in consideration of his “good approach”, it “reinserted in its financial system the payment of the advanced amount due for the sporting season 2016/2017.“

32. In addition, the Respondent / Counter-Claimant stated that, on 15 November 2016, it sent a default notice to the Claimant / Counter-Respondent asking him to report within 48 hours and that failure to do so would imply taking disciplinary measures. The Respondent / Counter-Claimant further disclosed that it sent a new default notice on 4 December 2016 and on 9 December 2016 before sending a termination letter on 18 December 2016. The Respondent / Counter-Claimant considered in this regard that the contract was valid until this last date, and that the termination letter sent by the Claimant / Counter-Respondent must be deemed as invalid.

33. In his replica and reply to the counterclaim, the Claimant / Counter-Respondent considered that the facts as explained by the Respondent / Counter-Claimant are “artificial and contradictory”.

34. In this regard, the Claimant / Counter-Respondent was of the opinion that the Respondent / Counter-Claimant did not provide any substantial proof of the allegations made in relation to his alleged unprofessional behavior, and that said argument was only brought for the first time before FIFA.

35. In addition, the Claimant / Counter-Respondent rejected the Respondent / Counter-Claimant’s assertions related to a supposed unauthorized leave from 9 December 2015 to 2 May 2016, and explained that it was constantly updated in relation to his injury.

36. In relation to the notices sent by the Respondent / Counter-Claimant requesting his return (cf. point I. 28 above), the Claimant / Counter-Respondent acknowledged that he indeed received them, but explained that he always replied to said notices.

37. Furthermore, the Claimant / Counter-Respondent considered that the letters sent by the Respondent / Counter-Claimant after his termination of the contract on 15 October 2016 are irrelevant to the case.

38. In reference to the bank loan, the Claimant / Counter-Respondent considered that, in legal terms, he “remained the only debtor of the Bank Loan towards the Bank and that, in turn, [he] was the only creditor of the [Respondent / Counter-Claimant] for the same amount.”

39. In reply to the counterclaim lodged by the Claimant / Counter-Respondent, the Intervening Party explained that, “in the middle of January 2017”, it was approached by a representative of the Claimant / Counter-Respondent, who introduced him as a free agent. However, the Intervening Party stated that it was not informed that the Claimant / Counter-Respondent terminated the contract unilaterally. Consequently, the Intervening Party requested to reject the counterclaim lodged against it and to not be cited as “joint defendant”.

40. As final comments, the Respondent / Counter-Claimant confirmed its previous position. In particular, the Respondent / Counter-Claimant considered that the termination notice sent by the Claimant / Counter-Respondent was invalid and that the lawyer who sent it on his behalf was not empowered to do so.

41. In addition, the Respondent / Counter-Claimant underlined that the Claimant / Counter-Respondent did not contest that he was absent, despite never having received an authorization from it. In this respect, the Respondent / Counter-Claimant explained that, following art. 9.2. of the contract, all leaves must be authorized in writing. More specifically, the Respondent / Counter-Claimant highlighted that it can be established that the Claimant / Counter-Respondent was absent between 9 December 2015 until 2 May 2016, and from 30 September 2016 until 9 October 2016, and that said absences were not contested by him.

42. Moreover, the Respondent / Counter-Claimant stated that, following the termination of the contract on 18 December 2016, it had to hire a replacement for the Claimant / Counter-Respondent. In this respect, the Respondent / Counter-Claimant explained that, on 3 January 2017, it transferred the Player of Country M, Player N from the Club of Country O, Club P, for the amount of USD 1,500,000 “net of any solidarity contribution”, and that said player’s salary with the Respondent / Counter-Claimant amounts to USD 8,100,000. Therefore, the Respondent / Counter-Claimant understood that the total costs for the replacement of the Claimant / Counter-Respondent amounts to USD 9,675,000.

43. In addition, the Respondent / Counter-Claimant considered that the Claimant / Counter-Respondent could not justify to terminate the contract on the grounds of the “Advance payment” and the bank loan, since they do not constitute a salary. In the opinion of the Respondent / Counter-Claimant, only “salary”, defined as such, should be taken into account when assessing a possible just cause in the termination of a contract. The Respondent / Counter-Claimant requested to take the aforementioned amount, should it be entitled to receive any compensation.

44. In addition, the Respondent / Counter-Claimant insisted that the matter related to the bank loan lies out of the competence of FIFA. The Respondent / Counter-Claimant considered that the Claimant / Counter-Respondent could have opted to receive the related amount as an increase in his salary, but that he preferred to exclude said aspect from his employment relationship with the Respondent / Counter-Claimant. The Respondent / Counter-Claimant further acknowledged that “it agreed to pay [the loan] on the [Claimant / Counter-Respondent’s] behalf”, but that said repayment was subject to an additional agreement with the bank that was never signed.

45. Nevertheless, the Respondent / Counter-Claimant further considered that “in the unlike case that the DRC shall uphold the claim, the DRC should consider that the amount of the compensation requested is erroneous and out of proportion.”

46. In respect of the reply provided by the Intervening Party, the Respondent / Counter-Claimant underlined that its liability is strict, regardless of whether it induced or not the Claimant / Counter-Respondent to terminate the contract. Likewise, the Respondent / Counter-Claimant considered that the Intervening Party was “negligent” for asserting that the Claimant / Counter-Respondent was a free agent since, as a professional club, it had a duty to undertake a background check and due diligence. The Respondent / Counter-Claimant quoted jurisprudence of the DRC and the Court of Arbitration for Sport (CAS) in this regard.

47. Moreover, the Respondent / Counter-Claimant considered that the Intervening Party failed to disclose the entire economic terms of its contract with the Claimant / Counter-Respondent.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 7 December 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 2015, 2017 and 2018 editions of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 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 2018), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute between a Player of Country B, a Club of Country D and a Club of Country F.

3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 2 March 2018 by means of which the parties were informed of the composition of the Chamber, the member Stefano Sartori and the member Pavel Pivovarov refrained from participating in the deliberations in the case at hand, due to the fact that the member Pavel Pivovarov has the same nationality as the Intervening Party and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Stefano Sartori refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. The competence of the Chamber having been established, 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 (editions 2016 and 2018), and considering that the present matter was submitted to FIFA on 7 December 2016, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

5. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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.

6. In continuation, the Chamber duly noted that, on 23 July 2015, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant concluded an employment contract, valid as from the date of signature until 22 July 2018, as well as an “Addendum” to said contract on 17 March 2016.

7. Subsequently, the Chamber noted that the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Respondent, maintaining that he terminated the employment contract on 15 October 2016 with just cause, after having put the Respondent / Counter-Claimant in default.

8. In particular, the Chamber noted that the Claimant / Counter-Respondent explained that the Respondent / Counter-Claimant failed to pay him the amount of “EUR 1,200,000”, due on 31 July 2016. In this respect, the Claimant / Counter-Respondent specified that, according to the addendum to the contract, in case the Respondent / Counter-Claimant fails to pay within the following 10 days from the 60th day an amount is outstanding, he can terminate the contract with just cause and claim the entire remaining amount of the contract.

9. Conversely, the Chamber observed that the Respondent / Counter-Claimant denied that the Claimant / Counter-Respondent had any just cause to terminate the contract in an anticipated manner and that, in view of the above, it lodged a counterclaim against him. In this respect, the Chamber noted that, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent had an unprofessional behaviour and was absent in several occasions (cf. point I.27 and I.28 above).

10. In view of the dissent between the parties, the members of the Chamber went on to examine the relevant arguments in order to establish whether the Claimant / Counter-Respondent had just cause to terminate the contract on 15 October 2016.

11. In this respect, the Chamber noted that, on 17 March 2016, the parties concluded an “Addendum” to the contract which, inter alia, stipulated the following:

“II. The [Claimant / Counter-Respondent] to date has always performed his duties with the [Respondent / Counter-Claimant] according to the employment contract.”

12. In view of the clear contents of the aforementioned clause, the Chamber understood that the Respondent / Counter-Claimant had no valid reasons to raise any argument as to the Claimant / Counter-Respondent’s alleged unprofessional behaviour or absences, since it explicitly acknowledged that he always performed his duties as contractually agreed.

13. Subsequently, the Chamber turned its attention to the arguments brought up by the Claimant / Counter-Respondent. In particular, the members of the Chamber observed that the Claimant / Counter-Respondent terminated the contract on the grounds of clause 4 of the addendum to the contract (cf. point I. 7 above), which was drafted as follows:

14. In this respect, the members of the Chamber noted that the contents of the aforementioned clause are clear and that, as a result, it appears that, for the specific matter at stake, the existence of any delay in more than 60 days in the payments fallen due as from “July 2016 (advanced payment and monthly salaries)” would be sufficient for the Claimant / Counter-Respondent to terminate the contract with just cause.

15. For the sake of completeness, the members of the DRC wished to examine the validity of the aforementioned clause. In this respect, the DRC observed that said clause was mutually agreed between the parties within the context of the conclusion of the Addendum in which a certain debt from the Respondent / Counter-Claimant towards the Claimant / Counter-Respondent was recognized and, as a result, strict deadlines for the payment of certain amounts appear to be justifiable. Moreover, the DRC noted that the rationale behind this type of clauses derives from the acknowledgement by a club of the commission of several contractual breaches in the past. In view of the above, the existence of stricter deadlines or requirements, as it is the case in the analysed clause, appear to be fully acceptable.

16. After assessing the scope and the validity of the clause 4 of the addendum to the contract, the members of the Chamber turned their attention to analysing whether the developments of the facts in the matter at stake could justify the execution by the Claimant / Counter-Respondent of the aforementioned clause.

17. In this respect, the members of the Chamber observed that the Respondent / Counter-Claimant in fact acknowledged that it suspended the payment of the “advanced payment” due on 31 July 2016 in a unilateral manner, as a form of disciplinary sanction, while continuing to pay the Claimant / Counter-Respondent’s regular monthly salary.

18. In this context, the Chamber wished to recall its longstanding jurisprudence and underlined that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent / Counter-Claimant’s argument in this connection.

19. Therefore, the Chamber understood that the Respondent / Counter-Claimant had no valid reason to delay the payment of the “advanced payment” due on 31 July 2016 for more than 60 days and, as a result, clause 4 of the addendum to the contract was fully applicable on 15 October 2016, i.e. the date of termination of the contract.

20. In light of the aforementioned, the DRC came to the unanimous conclusion that the Claimant / Counter-Respondent had terminated the contract with just cause on 15 October 2016.

21. Subsequently, the Chamber focused its attention on the consequences of the breach of contract in question and, in this respect, it decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract on the basis of the relevant employment contract.

22. In continuation, 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 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.

23. 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. In this regard, the members of the Chamber noted that the contract provided a form of compensation as follows:

24. However, and after carefully analysing the contents of said clause, the Chamber observed that the aforementioned clause was not applicable to the matter at stake, since it is does not cover a scenario as the one existing in the matter at stake, as the Claimant / Counter-Respondent terminated the contract with just cause.

25. As a consequence, the members of 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 Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

26. Bearing in mind the foregoing as well as the claim of the Claimant / Counter-Respondent, the Chamber proceeded with the calculation of the monies payable to the Claimant / Counter-Respondent under the terms of the employment contract as from 15 October 2016 (i.e. the date of termination of the contract until 22 July 2018. (i.e. the original date of expiration of the contract). In this regard, the members of the Chamber observed, that under the contract, the Claimant / Counter-Respondent would have earned the amount of EUR 4,663,333 (i.e. salaries from October 2016 until July 2017, i.e. 10*153,333.33= EUR 1,533,333, as well as for the entire season 2017-2018, the amount of EUR 3,060,000 plus EUR 70,000 for housing) as from the date of termination of the contract until the original expiration date of the contract. The members of the Chamber therefore established that the aforementioned amount shall serve as the basis for the calculation of the payable compensation.

27. In this respect, the Chamber wished to note, however, that it could not include, as requested by the Claimant / Counter-Claimant, the payment of certain bonuses and fringe benefits in the basis for the calculation of the payable compensation. In particular, the Chamber noted that said payments are conditional to their effective performance, since they rely on whether the Claimant / Counter-Respondent played a certain number of matches and/or rented a certain type of house (“maximum of EUR 10,000 for rental”, cf. point I. 3 above).

28. In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Claimant / Counter-Respondent’s general obligation to mitigate his damages.

29. In this respect, the DRC noted, subsequently, that, on 30 January 2017, the Claimant / Counter-Respondent concluded an employment contract with the Club of Country F, Club E (hereinafter: the Intervening Party), valid as from 1 February 2017 until 30 June 2018 and that, according to said contract and its addendum, the Claimant / Counter-Respondent would have earned an approximate amount of EUR 2,420,060, detailed as follows:

Salary:

- 167,000*17=2,839,000, approx. EUR 44,000.

Addendum:

- USD 110,000*5 (February to June)= USD 550,000, approx. EUR 512,500

- USD 166,666*12 (July 2017- June 2018)= USD 1,999,992, approx. EUR 1,863,560

Total: 44,000+512,500+1,863,560= EUR 2,420,060

30. As a result of the difference between the two aforementioned amounts, the DRC concluded that the amount of payable compensation would correspond to EUR 2,243,273 (i.e. EUR 4,663,333 - EUR 2,420,060).

31. Therefore, the Chamber decided to partially accept the Claimant / Counter-Respondent’s request and held that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent the amount of EUR 2,243,273 as compensation for breach of contract without just cause, which is considered by the Chamber to be a reasonable and justified amount as compensation.

32. In addition, taking into account the Claimant / Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the compensation as of from the date of the claim.

33. Moreover, the Chamber observed that, the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant any possible outstanding salaries in addition to his compensation for breach of contract on the basis of the relevant employment contract.

34. Consequently, the members of the Chamber pointed out that, according to the claim of the Claimant / Counter-Respondent and, as noted in the previous considerations, he did not receive the advance payment for the season 2016/2017, in the amount of EUR 1,220,000.

35. Within this context, the DRC recalled that the Claimant / Counter-Respondent was entitled to an advance payment for the season 2016/2017 in the amount of EUR 1,220,000, and that the Respondent / Counter-Claimant did not deny that said amount due to the Claimant / Counter-Respondent remained unpaid.

36. In view of all the above, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent / Counter-Claimant as to the outstanding salaries, and is to be held liable to pay the Claimant / Counter-Respondent the amount of EUR 1,220,000, as stated above.

37. In this regard, and taking into account the Claimant / Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the outstanding amount as from the relevant due date.

38. Subsequently, the Chamber turned its attention to the other requests formulated by the Claimant / Counter-Respondent.

39. In particular, the Chamber noted that the Claimant / Counter-Respondent requested the payment of EUR 570,000 by the Respondent / Counter-Claimant, corresponding to the second part of a bank loan apparently concluded with the Bank of Country K, Bank J (hereinafter: the bank). More specifically, the DRC noted that said request was apparently grounded on the basis of art. 5.7 of the contract (cf. point I. 4) above, which was drafted as follows:

“5.7 [the Respondent / Counter-Claimant] shall pay the [Claimant / Counter-Respondent after the signing of this agreement an additional payment to the amount of 1,140,000 Euros of which 570.000 euros will be paid within 30 days after the signing of this agreement and 570,000 euros will be paid in December 15, 2015. This amount will be sent directly by [the Respondent / Counter-Claimant] to Bank J (Country K) in order to pay the outstanding loan the [Claimant / Counter-Respondent] has with such Bank. The Bank will provide the respective invoice."

40. In addition, the Chamber further noted that the Addendum to the contract stipulated the following:

41. In this respect, the Chamber observed the contents of the aforementioned clauses and reached the conclusion by majority of its members, that the repayment of the relevant loan appears to be a matter between the Bank of Country K and the Respondent / Counter-Claimant and thus, the Claimant / Counter-Respondent does not have standing to claim said amount and therefore his request in this regard must be rejected.

42. Moreover, the DRC decided to reject the Claimant / Counter-Respondent’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

43. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the parties.

III. Decision of the Dispute Resolution Chamber

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

2. 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 EUR 1,220,000, plus 5% interest p.a. as from 1 August 2016 until the date of effective payment.

3. 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 EUR 2,243,273, plus 5% interest p.a. as from 7 December 2016 until the date of effective payment.

4. In the event that the amounts plus interest due to the Claimant / Counter-Respondent 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.

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

6. 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.

7. 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

www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Enclosed: CAS directives