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

• Data decisione: 14 giugno 2019 • Stagione sportiva: 2018/2019

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 14 June 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 June 2019,

in the following composition:

Geoff Thompson (England), Chairman

Tomislav Kasalo (Croatia), Member

Wouter Lambrecht (Belgium), Member

on the claim presented by the player,

Player A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 20 July 2018, the player of Country B, Player A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract).

2. According to the Claimant, he signed a different version of the contract (hereinafter: the alleged contract) than the version that the Respondent registered (hereinafter: the registered contract) at the Football Federation of Country D (Football Federation of Country D). However, the Claimant explained that he is not in possession of a signed copy of the alleged contract, and only has an unsigned version of said document.

3. More in particular, the Claimant explained that the last page of the registered contract was the same that he signed on 20 July 2018, but his initials on the other pages had been forged and the salary and duration of the contract had been changed. According to him, the Respondent used the last page containing his signature and stapled it to an amended version of the contract.

4. According to art. 5.1 the alleged contract, which was to run from 1 July 2018 until 30 June 2020, the Claimant would be entitled to 24 monthly salaries of currency of Country D (currency of Country D) 220,460 net payable until the end of each month, and a sign-on fee of currency of Country D 749,900 payable as follows:

a. currency of Country D 253,865 net, payable on the date of signing the contract;

b. currency of Country D 248,017.50 net, payable in February 2019;

c. currency of Country D 248,017.50 net, payable in May 2019.

Furthermore, the Claimant was entitled to three lump-sum payments as follows:

d. currency of Country D 390,035 net, payable in October 2019;

e. currency of Country D 250,250 net, payable in February 2020;

f. currency of Country D 250,250 net, payable in May 2020.

5. In addition, in accordance with art. 5.2 of the alleged contract, the Claimant would be entitled to a monthly amount of currency of Country D 4,000 for housing and currency of Country D 500 for electricity, as well as two round-trip flight tickets City E-City F per season.

6. In accordance with the registered contract, valid as from 1 August 2018 until 30 June 2020, the Claimant was entitled to a sign-on fee of currency of Country D 550,000, payable in instalments of currency of Country D 200,000 (2x) and currency of Country D 150,000 on the above-mentioned dates (a., b. and c.), an amount of currency of Country D 600,000, payable in 3 instalments of currency of Country D 200,000 on the above-mentioned dates (d., e. and f.), as well as a bonus of currency of Country D 150,000 in case he would play 20 matches for the Respondent. The other financial provisions are equal to those stipulated in the alleged contract.

7. According to art. 8 of both versions of the contract, “the present contract can be terminated prematurely:

- Upon mutual agreement between the parties;

- In case of force majeure;

- In case of gross misconduct by one of the parties or for a just cause in the sense of the Regulations on the Status and Transfer of Players of the Football Federation of Country D and FIFA;

(…)

- in the event of premature unilateral termination not caused by the gross misconduct of the other party or by a case of force majeure, and in this case only, damages the amount of which equals the amount of the remuneration corresponding to the period from the date of termination until the term fixed by this contract, will be due to the party that is not at the origin of the unilateral termination” (free translation from French).

8. Finally, art. 14 of both versions of the contract stipulates the following:

“In case of dispute and/or litigation arising from the execution and/or interpretation of the clauses of this contract, the parties are obliged to use all the means and procedures for an amicable settlement of the dispute.

In case of failure, the dispute is submitted by either party to the Dispute Resolution Chamber of the Football Federation of Country D. Decisions of the Dispute Resolution Chamber of the Football Federation of Country D may be appealed in accordance with the provisions of the Football Federation of Country D Statutes and Regulations.” (free translation from French).

9. On 14 September 2018, the representative of the Claimant sent a default notice to the Respondent, requesting payment of the first instalment of the sign-on fee as well as the salary and housing allowance for the months of July and August 2018, granting a deadline of 10 days.

10. Furthermore, on 18 September 2018, the representative of the Claimant sent a communication to the Respondent, requesting a copy of the alleged contract within the next 3 days.

11. The Claimant explained that, on 18 September 2018, he was not allowed to train with the team and was ordered to run circles around the pitch. Therefore, on 19 September 2018, his representative sent a further communication to the Respondent, requesting to reinstate the Claimant to the first team within 24 hours.

However, according to the Claimant, on 19 and 20 September 2018, he was not allowed to train with the team and was told that his contract had been terminated.

12. Consequently, on 20 September 2018, the Claimant’s representative sent another communication to the Respondent, asking to clarify the Claimant’s situation. On the same day, according to the Claimant, he was informed that he was no longer part of the team and was deregistered because the Respondent had signed 10 new players.

13. As a consequence, the Claimant’s representative sent another correspondence to the Respondent on 21 September 2018, requesting a confirmation that the Claimant was still employed by the Respondent and was allowed to train with the team, as well as a copy of the alleged contract, by no later than 24 September 2018. Equally, the representative sent a letter to the Football Federation of Country D requesting a copy of the alleged contract.

14. On 21 September 2018, the Respondent sent a letter to the Claimant, invoking his poor performance and offering to settle the matter. In reply thereto, the Claimant’s representative sent a correspondence on 24 September 2018, refuting the statements of the Respondent and requesting to be provided with a copy of the alleged contract within 48 hours, while reminding the Respondent that the salaries remained unpaid.

15. On the same date, the Claimant personally went to the office of the Football Federation of Country D to obtain a copy of the alleged contract. According to him, he received a copy of a different contract (i.e. the registered contract).

16. On 25 September 2018, according to the Claimant, the Respondent informed him that he was not part of the team and was deregistered. Consequently, on 26 September 2018, the Claimant’s representative sent a final communication to the Respondent, pointing out the alleged forgery and requesting within 7 days:

- a confirmation in writing that the Claimant was still part of the team and allowed to join training sessions;

- a confirmation that the Claimant was registered and authorized to play for the team;

- payment of outstanding salaries and housing allowance (total currency of Country D 703,785).

17. As no reply or payment followed and considering that the September salary fell due on 1 October 2018, the Claimant’s representative informed the Respondent in writing on 4 October 2018 of the unilateral termination of the contract, invoking just cause.

18. The Claimant lodged a claim for breach of contract without just cause and requested the payment of the following amounts (based on the alleged contract):

- Outstanding remuneration in the amounts of currency of Country D 915,245 (sign-on fee plus salaries of July, August, September 2018) and currency of Country D 13,500 (housing allowance July, August, September 2018) plus 5% interest p.a. as from the relevant due dates;

- Reimbursement of flight tickets in the amounts of EUR 305.59 and currency of Country D 2,358.20 plus 5% interest p.a. as from 20 July 2018 and 5 October 2018 respectively;

- Compensation for breach of contract in the amount of currency of Country D 6,091,535 plus 5% interest p.a. as from 4 October 2018;

- Additional compensation in accordance with the specificity of sport in the amount of currency of Country D 1,751,695 plus 5% interest p.a. as from 4 October 2018.

19. Alternatively, should the DRC come to the conclusion that it can only take into account the registered contract, the Claimant requested the payment of the following amounts:

- Outstanding remuneration in the amounts of currency of Country D 861,380 (sign-on fee plus salaries of July, August, September 2018) and currency of Country D 13,500 (housing allowance July, August, September 2018) plus 5% interest p.a. as from the relevant due dates;

- Reimbursement of flight tickets in the amounts of EUR 305.59 and currency of Country D 2,358.20 plus 5% interest p.a. as from 20 July 2018 and 5 October 2018 respectively;

- Compensation for breach of contract in the amount of currency of Country D 5,674,160 plus 5% interest p.a. as from 4 October 2018;

- Additional compensation in accordance with the specificity of sport in the amount of currency of Country D 1,610,260 plus 5% interest p.a. as from 4 October 2018.

20. The Claimant, in support of his argument that he had just cause to terminate the contract, referred to CAS jurisprudence and argued that the Respondent failed to comply with its main obligation, i.e. the payment of salaries, and that his fundamental rights to be registered and to have access to training were not respected by the Respondent.

21. Along with his claim, the Claimant provided two declarations of a public notary, according to which the Claimant was not allowed to join the team’s training on 25 and 28 September 2018.

22. In addition, by not providing him with a copy of the alleged contract and having tried to pressure him into signing certain documents in the language of Country D, the Claimant maintained that the Respondent was not interested in his services and abused him in the sense of art. 14 par. 2 RSTP.

23. In its response to the claim, the Respondent challenged FIFA’s competence to adjudicate the present matter.

24. In support of its allegation, the Respondent referred to art. 14 of the contract allegedly providing that the parties contractually agreed to submit all disputes to the “Chambre Nationale de Résolution des Litiges” (“National Dispute Resolution Chamber”, free translation from French).

25. Moreover, the Respondent provided various arguments and evidence in order to prove that “there is a Chamber inside the Football Federation of Country D, that it is an independent national arbitration tribunal, and which guarantees fair proceedings and respect to the principle of equal representation of players and clubs”.

26. The Respondent submitted the Statutes of the Football Federation of Country D and the Regulations of the NDRC of the Football Federation of Country D. Art. 5 of said Regulations stipulates the following (free translation from French):

“The NDRC is composed of the following members: a) a President, a Vice President, and a Substitute Vice President appointed by the Football Federation of Country D Executive Committee; b) a representative of the clubs of the LNFP, a representative of the clubs of the LNFA, a representative of the players, a representative of the coaches, a representative from Women’s Football, a representative from futsal, a representative of the doctors, an administrative representative of the Football Federation of Country D.”

27. As to the substance, according to the Respondent, the registered contract is the only validly concluded contract to be taken into account. As to the Claimant’s allegation of forgery, the Respondent argued that he has not provided any evidence in this regard and, in any event, the DRC is not competent to decide upon criminal matters such as forgery.

28. With respect to the Claimant’s requests to receive a copy of the contract, the Respondent sustained that it had not refused to give it to him, but that it had simply referred him to the Football Federation of Country D, to which the contract was sent for registration purposes.

29. In addition, the Respondent denied the Claimant’s allegations related to its abusive conduct, the Claimant being left to train alone and the aggravating circumstances described by him. The Respondent explained that its coach had decided to send the Claimant to train with its second team, which is an order that must be followed by the Claimant in accordance with the contract. In continuation, the Respondent argued that it proceeded with the de-registration of the Claimant so it would be able to register new players with lower salaries in order to revert its alleged delicate financial situation.

30. Furthermore, the Respondent explained that, after having tried several times to reach an amicable termination of the contract to no avail, on 17 September 2018 it notified the Claimant of the termination of the contract invoking poor performance and engaging to pay his salaries until 30 June 2019 in accordance with art. 8 par. 5 of the contract. However, according to the Respondent, the Claimant refused to receive its letter.

31. According to the Respondent, on the following day, i.e. 18 September 2018, it sent its termination letter to the Football Federation of Country D. Later, on 21 September 2018, the Respondent sent an email to the Claimant’s representative, reiterating the offer for an amicable termination of the contract. Eventually, in its reply to the claim, while acknowledging that no payment had been made to the Claimant, the Respondent “accepts that the Contract was terminated on 4th October 2018, as the [Claimant] alleged in his claim.”

32. Finally, as to the player’s request for relief, the club argued that he is only entitled to receive the relevant outstanding amounts for the months of August and September 2018, considering that the contract entered into force on 1 August 2018. With regard to the compensation for breach of contract, the club argued that it should be limited to the remaining salaries of the 2018/2019 season. In continuation, the club argued that the alleged egregious circumstances have not been proven, and therefore no additional compensation shall be granted to the player (neither following art. 17 RSTP nor in accordance with the specificity of sport). As to the interest claimed by the player, the club argued that no interest can be granted as there is no such provision in the contract. In case the DRC decides to grant interest, the club maintained that the rate of the Central Bank of Country D (2,25%) shall apply.

33. In his replica, the Claimant insisted on the competence of the FIFA DRC. In particular, the Claimant pointed out that he did not explicitly opt in writing that the NDRC in Country D would be the competent body to adjudicate on possible disputes. The contract signed by the parties is the standard players’ contract unilaterally imposed by the Football Federation of Country D, the content of which cannot be amended by the parties.

34. In addition, the Claimant sustained that the NDRC of Country D does not guarantee fair proceedings and its composition does not respect the principle of equal representation between players and clubs. More in particular, the members mentioned under art. 5a) of the Regulations of the NDRC are chosen by the Football Federation of Country D Executive Committee. Furthermore, out of 8 members mentioned under art. 5b) of the Regulations of the NDRC, there is only 1 player representative.

35. Finally, the Claimant added that the Football Federation of Country D Executive Committee is composed of club representatives only (art. 25 of the Football Federation of Country D Statutes), who are in turn appointed by the Football Federation of Country D General Assembly, which is predominantly consisting of club representatives (art. 18 Football Federation of Country D Statutes).

36. As to the substance, the Claimant repeated his arguments related to forgery and abusive conduct. Furthermore, the Claimant denied that any “negotiations” had taken place to find an amicable solution. He sustained that it was rather the Respondent trying to get rid of him and when he did not agree, the Respondent decided to terminate the contract on 17 September 2018. The Claimant acknowledged having refused to receive the Respondent’s termination letter, as it was drafted in a language he does not understand and he had instructed the Respondent to send all communications to his representative.

37. Furthermore, the Claimant argued that the Respondent’s alleged delicate financial situation may not serve as a reason for non-payment of his salaries. According to him, the Respondent hired 10 new players while he was still there, and continued to hire 3 new players during the winter transfer period, while still not paying him his financial dues. The Claimant maintained that this element is an extra aggravating circumstance. Finally, the Claimant submitted an audio recording of an alleged conversation between him and an employee of the Respondent on 17 September 2018, while reiterating his financial requests.

38. Finally, in an unsolicited correspondence dated 13 March 2019, the player informed FIFA that he had received a correspondence from the Football Federation of Country D on the same date, apparently including a claim in language of Country D from the club against the player lodged in front of the NDRC of Country D.

39. Despite having been requested to submit its final comments, the Respondent did not make any further statements.

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 9 October 2018. Consequently, the 2018 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 principle, 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 2019) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player of Country B and a club of Country D.

3. However, firstly, the Chamber was eager to emphasize that, contrary to the information contained in FIFA’s letter dated 11 June 2019 by means of which the parties were informed of the composition of the Chamber, the member, X, and the member, XX, had to cancel their attendance to the relevant meeting and thus did not participate in the deliberations in the case at hand. Consequently, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the 2019 edition of the Regulations on the Status and Transfer of Players.

4. In continuation, the Chamber acknowledged that the Respondent contested the competence of FIFA, arguing that the matter shall be submitted to the competence of the “Chambre de résolution des litiges de la Fédératoin de Fooball du Pays D” (hereinafter: the NDRC of Country D) on the basis of art. 14 of the contract, which was drafted as follows:

5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on his claim against the Respondent, and sustained that the NDRC of Country D is not an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs.

6. Taking into account all the above, the Chamber emphasised that, in accordance with art. 22 lit b) of the 2019 edition of the Regulations on the Status and Transfer of Players, it is, in principle, competent to deal with employment-related disputes of an international dimension; the parties may, however, explicitly opt in writing for any disputes arisen between them to be decided by an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs 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. With regard to the standards to be imposed on an independent arbitration tribunal existing at national level, 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.

7. In this respect, the DRC noted the Claimant’s allegations, according to which, first of all, he did not explicitly opt in writing that the NDRC in Country D would be the competent body to adjudicate on possible disputes. The contract signed by the parties is the standard players’ contract unilaterally imposed by the Football Federation of Country D, the content of which cannot be amended by the parties.

8. In continuation, the Chamber noted that the Claimant held that the NDRC of Country D does not guarantee fair proceedings and its composition does not respect the principle of equal representation between players and clubs. More in particular, the members mentioned under art. 5a) of the Regulations of the NDRC are chosen by the Football Federation of Country D Executive Committee. Furthermore, out of 8 members mentioned under art. 5b) of the Regulations of the NDRC, there is only 1 player representative.

9. In addition, the Claimant added that the Football Federation of Country D Executive Committee is composed of club representatives only (art. 25 of the Football Federation of Country D Statutes), who are in turn appointed by the Football Federation of Country D General Assembly, which is predominantly consisting of club representatives (art. 18 Football Federation of Country D Statutes).

10. Within this context, the Chamber noted the Respondent’s allegations as to how the parties have opted for the NDRC of Country D to be the competent body for any dispute in relation to the employment contract and that “there is a Chamber inside the Football Federation of Country D, that is an independent national arbitration tribunal, and which guarantees fair proceedings and respect to the principle of equal representation of players and clubs”.

11. With the aforementioned in mind, the members of the Chamber first emphasised that, in the present matter, indeed it would appear that the parties agreed, by means of clause 14 of the contract, that the disputes arisen between them in relation to the employment contract would be resolved by the NDRC of Country D.

12. Nevertheless, and in accordance with said art. 22 lit. b) of the Regulations, the DRC emphasised that it needed to analyse whether the entire dispute resolution system within the Football Federation of Country D, i.e. the NDRC of Country D, actually complies with the requirements as mentioned in point II./6. above. In so doing, the members of the Chamber recalled that, in accordance with art. 12 par. 3 of the Regulations, it is for the Respondent to prove that the NDRC of Country D is an independent tribunal guaranteeing fair proceedings and which respects the principle of equal representation of players and clubs.

13. The DRC further stressed that the principle of equal representation of players and clubs is one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In the same vein, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”.

14. Taking into account the above, the DRC entered into the examination of the “Réglement de la Chambre Nationale de Résolution des Litiges” (hereinafter: the NDRC of Country D Regulations), entered into force as from 1 August 2017, which was submitted by the Respondent during the course of the investigation of the matter at stake.

15. In particular, the Chamber observed that Article 3, 5 and 10 of the NDRC of Country D Regulations read as follows:

"Article 3: Jurisdiction of the NDRC of Country D

The NDRC of Country D is competent:

(a) For disputes between clubs, clubs and players relating to the maintenance of contractual stability

(…)

Article 5: Composition:

The NDRC of Country D is composed of the following members:

a) A President, a Vice-President, and a substitute Vice-President appointed by the Football Federation of Country D Executive Committee

- A representative of the clubs of the LNFP

- A representative of the clubs of the LNFA clubs

- A player representative

- A representative of the coaches' group

- A representative of the Women's Football group

- A representative of the futsal group

- A representative of the group of Doctors

- An administrative representative of the Football Federation of Country D

Representative members attend meetings of the NDRC of Country D when the dispute is of their concerns.

Article 10: Quorum

The NDRC of Country D can only meet validly in the presence of at least three members, including the president or vice-president” [free translation from French].

16. Furthermore, the DRC analysed the contents of the Statutes of the Football Federation of Country D provided by the Respondent. In particular, the Chamber referred to art. 69 of the Statutes of the Football Federation of Country D, which stipulates, inter alia, that “the members of the NDRC of Country D are designated by the Executive Committee of the Football Federation of Country D” [free translation from French].

17. In this respect, the DRC noted that, from Article 5 of the NDRC of Country D Regulations as provided by the Respondent, the principle of equal representation of players and clubs is not respected with regard to the appointment of the President, the Vice-President and the substitute Vice-President, since from the wording of the aforementioned NDRC of Country D Regulations, they appear to always be designated by the Executive Committee of the Football Federation of Country D, which appears to be composed of club representatives only. In addition, the DRC noted that among the other 8 members of the NDRC of Country D, there is only 1 player representative.

18. What is more, and with reference to art. 69 of the Statutes of the Football Federation of Country D, the Chamber also noted that it would even appear that all the members of the NDRC of Country D are designated by the Executive Committee of the Football Federation of Country D.

19. On account of all the aforementioned circumstances, the members of the Chamber unanimously concluded that the Respondent failed to demonstrate, to the DRC’s satisfaction, that the NDRC of Country D is indeed an independent arbitration tribunal respecting the principle of equal representation of players and clubs, which is a fundamental prerequisite that an NDRC must comply with. As such, the DRC concluded that the Respondent’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.

20. 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 June 2018 and 2019), and considering that the present matter was submitted to FIFA on 9 October 2018, the June 2018 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

21. 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

22. In this respect, the Chamber noted that it was undisputed between the parties that they concluded an employment contract on 20 July 2018. However, the Chamber took note of the dissent between the parties as to which version of the employment contract was valid and binding between them. Whereas the Claimant maintained that the alleged contract was the valid and binding version, the Respondent argued that the registered contract was the only validly concluded contract to be taken into account.

23. In this regard, the members of the Chamber took note of the argumentation of the Claimant that the Respondent used the last page of the contract signed by the parties on 23 July 2018 and stapled it to an amended version of the contract containing a different period of validity and different remuneration due to him. Furthermore, the Claimant argued that the initials on the first four pages of the registered contract were forged and stated that he was in possession of the hardcopy of the document.

24. Having analysed the parties’ positions, the members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was for the Claimant to prove that the alleged contract, on the basis of which he claims outstanding remuneration and compensation for breach of contract from the Respondent, indeed existed.

25. In this respect, the DRC deemed it important to highlight that, in order for an employment contract to be considered as valid and binding, it must bear the signature of both the employer and the employee. In this respect, the DRC observed that the Claimant was unable to provide the Chamber with a copy of the alleged contract duly signed by both parties.

26. In continuation, having duly taken note of the documentation presented by the parties, the members of the Chamber held that, in order for the Chamber to be able to assume that the alleged contract was indeed the contract that had been signed by the parties, it had to be established, beyond doubt, by documentary evidence, that this was the validly concluded version of the employment contract. In general, the members of the Chamber held that they could not assume that the alleged contract had been concluded by and between the parties simply based on circumstances which, in general, may be likely but are not certain to indicate the signing of said version of the contract.

27. In respect of the foregoing, the members of the Chamber had to conclude that the documents presented by the Claimant did not prove to the Chamber’s comfortable satisfaction that the Respondent and the Claimant had validly concluded the alleged contract.

28. As a consequence, the DRC decided that, since the Claimant had not been able to prove that the alleged contract had validly been concluded between himself and the Respondent, it could only take into account the registered contract, which was duly signed by the parties, registered at the Football Federation of Country D and available in the Transfer Matching System (TMS).

29. Having established the above, the Chamber took due note of the financial provisions of the registered contract, as outlined in point I.6. above. Equally, the DRC noted that, on 9 October 2018, the Claimant lodged a claim against the Respondent arguing that he had terminated the employment contract with just cause on 4 October 2018 based on the fact that the Respondent had not complied with its financial obligations, his access to training had been denied as well as that he was deregistered by the Respondent, despite several default notices sent to the Respondent prior to the termination of the contract.

30. The DRC observed that as a consequence the Claimant asked to be awarded the aforementioned outstanding dues along with the payment of compensation for breach of the employment contract.

31. The Chamber acknowledged that the Respondent, for its part, denied the Claimant’s allegations related to its conduct, the Claimant being left to train alone and the aggravating circumstances described by him. On the contrary, the Chamber took due note that the Respondent blatantly admitted that no payment had been made to the Claimant as well as that the Claimant was deregistered in order for the Respondent to be able to register new players with lower salaries.

32. Furthermore, the Chamber acknowledged that the Respondent, while first arguing that it had notified the Claimant of the termination of the contract on 17 September 2018, eventually accepted that the contract was terminated on 4 October 2018, as alleged by the Claimant in his claim.

33. In view of the above, the DRC deemed that it remained uncontested that the Claimant was deregistered by the Respondent on or around 20 September 2018 as well as that the Respondent had not paid any remuneration to the Claimant during the duration of their contractual relationship.

34. As to the Claimant’s allegation that he was denied access to training, the members of the Chamber took note of the Respondent’s reply that the Claimant was instructed to train with the second team, decision which must be respected by the Claimant in accordance with the contract, but that “he was never not excluded from practice”. Equally, the members of the Chamber took note of the documentation provided by the Claimant in support of his allegation.

35. In particular, based on the declarations of the public notary, the DRC could establish that the Claimant had indeed been denied access to training on at least two occasions, i.e. on 25 and 28 September 2018.

36. Consequently, the Chamber was of the opinion that such situation might have led the Claimant to legitimately believe that the Respondent was no longer interested in his services. In addition, the DRC stressed that by its actions, namely by deregistering the Claimant and denying him access to training, the Respondent, for all intents and purposes, effectively deceived the Claimant.

37. In view of the above, the members of the DRC considered important to point out, as it has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. In this context, the DRC emphasized that in principle, by deregistering a player, a club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, violating one of his fundamental rights as a football player. What is more, the Chamber insisted that the Respondent, by denying the Claimant access to training on at least two occasions, severely prejudiced the Claimant.

38. In addition to the above, taking into account that the Respondent acknowledged that it had not paid any amount to the Claimant without putting forward any valid reason to justify said behaviour, the DRC considered that the contractually agreed remuneration had to be considered outstanding up until the date of termination of the contract.

39. Consequently, the DRC vigorously highlighted that the Respondent had not remedied the default in payments, access to training and registration of the Claimant, in spite of having been given the opportunity by the Claimant to do so on various occasions. Furthermore, the Chamber duly noted that on the date of the termination of the contract, i.e. 4 October 2018, three monthly amounts as well as the first instalment of the sign-on fee remained outstanding, for a total amount of currency of Country D 874,880.

40. Considering all the above-mentioned circumstances, the Chamber concluded that the Claimant had just cause to unilaterally terminate the contract and that, as a result, the Respondent is to be held liable for the early termination of the employment contract.

41. Bearing in mind the previous considerations, the Chamber turned its attention to the consequences of the early termination of the contract with just cause by the Claimant.

42. First of all, the DRC concurred that the Respondent must fulfil its obligations as per the employment contract up and until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant outstanding remuneration in the amount of currency of Country D 874,880, consisting of three monthly salaries of currency of Country D 220,460 each as well as three months of rent and electricity of currency of Country D 4,500 each for the months of July, August and September 2018 as well as the first instalment of the sign-on fee of currency of Country D 200,000 that was payable on the date of signing the contract.

43. In this respect, although the employment contract started running on 1 August 2018 and was meant to expire on 30 June 2020 (i.e. 23 months), the members of the Chamber took into account that the Claimant was entitled to 24 monthly payments in accordance with clause 5.1 a) of the contract. Consequently, in view of the fact that the contract was signed already in July 2018, the members of the Chamber considered that one monthly payment should be allocated to the month of July 2018.

44. Moreover, with regard to the Claimant’s claim pertaining to flight tickets, the Chamber noted that the contract does not mention a specific amount to be paid to the Claimant in this regard, but does provide for two round-trip flight tickets City E-City F per season for the Claimant in clause 5.2. Considering that the Claimant provided evidence that the amounts of EUR 305.59 and currency of Country D 2,358.20 were indeed spent by him on flight tickets, the DRC decided that the Respondent must reimburse to the Claimant the aforementioned amounts.

45. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of the respective due dates of the aforementioned sums until the date of effective payment.

46. Furthermore, the DRC decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to the aforementioned outstanding remuneration.

47. In this context, the Chamber outlined that, in accordance with the 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 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.

48. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. Upon careful examination of the employment contract concluded between the Claimant and the Respondent, the members of the Chamber noted that, according to art. 8 of the contract, “the present contract can be terminated prematurely:

- Upon mutual agreement between the parties;

- In case of force majeure;

- In case of gross misconduct by one of the parties or for a just cause in the sense of the Regulations on the Status and Transfer of Players of the Football Federation of Country D and FIFA;

- (…)

- In the event of premature unilateral termination not caused by the gross misconduct of the other party or by a case of force majeure, and in this case only, damages the amount of which equals the amount of the remuneration corresponding to the period from the date of termination until the term fixed by this contract, will be due to the party that is not at the origin of the unilateral termination” (cf. point I.7 above.)

49. The Chamber duly analysed the contents of said clause and noted that it expressly lists four different options for the premature termination of the contract, namely: the mutual agreement between the parties, the case of force majeure, the gross misconduct by one of the parties and, lastly, the just cause provided in the Regulations.

50. In continuation, the Chamber acknowledged that the relevant clause did not include a precise and specific amount of compensation, however, it clearly provided for a determinable amount of compensation payable to the party that is not at the origin of the unilateral termination, except where such termination is caused either by the gross misconduct of the other party or by force majeure, which amount corresponds to the remaining value of the employment contract, which was not considered disproportionate by the Chamber.

51. Moreover, the DRC wished to recall that, in the present dispute, the Claimant had indeed prematurely terminated the contract with just cause and, as such, the aforementioned clause is in principle applicable for the purpose of the determination of the compensation for breach of contract payable by the Respondent to the Claimant.

52. On account of the above, the parties having contractually agreed on the compensation payable in the event of unilateral termination with just cause and such compensation not being deemed disproportionate, the Dispute Resolution Chamber concluded that the provision contained under article 8 (fifth bullet point) of the contract has to be considered as valid and fully effective, i.e. the amount of compensation provided for in said article shall be awarded to the Claimant. Furthermore, for these reasons, the Chamber concurred that any remuneration under the new employment contracts concluded by the Claimant cannot be taken into account in the case at hand.

53. In this regard, the Chamber established that the remaining value of the relevant employment contract amounts to currency of Country D 5,674,160 relating to the Claimant’s financial entitlements under said contract as from October 2018 until June 2020.

54. Taking into account all of the above, the Chamber decided that the Respondent has to pay to the Claimant the total amount of currency of Country D 5,674,160 as compensation for breach of contract.

55. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 9 October 2018, until the date of effective payment.

56. The DRC concluded its deliberations in the present matter establishing that any further claim lodged by the Claimant was rejected.

57. Furthermore, taking into account the consideration under number II./20. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

58. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

59. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

60. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the amounts of currency of Country D 877,238.20 and EUR 305.59 plus interest as follows:

- 5% p.a. on the amount of currency of Country D 200,000 as from 23 July 2018 until the date of effective payment;

- 5% p.a. on the amount of currency of Country D 224,960 as from 1 August 2018 until the date of effective payment;

- 5% p.a. on the amount of currency of Country D 224,960 as from 1 September 2018 until the date of effective payment;

- 5% p.a. on the amount of currency of Country D 224,960 as from 1 October 2018 until the date of effective payment;

- 5% p.a. on the amount of EUR 305.59 as from 18 July 2018 until the date of effective payment;

- 5% p.a. on the amount of currency of Country D 2,358.20 as from 5 October 2018 until the date of effective payment.

4. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of currency of Country D 5,674,160 plus 5% interest p.a. on said amount as from 9 October 2018 until the date of effective payment.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 3 and 4 above.

7. The Respondent shall provide evidence of payment of the due amounts in accordance with points 3 and 4 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amounts due plus interest in accordance with points 3 and 4 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

9. The ban mentioned in point 8 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. In the event that the aforementioned sums plus interest are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives