F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 25 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Jérôme Perlemuter (France), member

Stéphane Burchkalter (France), member

on the claim presented by the club,

Watford FC, England,

represented by Mr Juan de Dios Crespo Perez

as Claimant / Counter-respondent

against the player,

Mamadou M’Baye, Senegal

as First Respondent / Counter-claimant

and the club,

Cádiz Club de Fútbol, Spain

as Second Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. According to the information contained in the Transfer Matching System (TMS), on 27 July 2018, the Senegalese player, Mamadou M’Baye, (hereinafter: “First Respondent / Counter-claimant” or “player”) born on 28 June 1998, was registered with the English club, Watford FC (hereinafter: “Claimant / Counter-respondent” or “Watford”) under the Instruction type: “Engage out of contract free of payment”. The Counter club was the Spanish club, Cádiz Club de Fútbol (hereinafter: “Second Respondent” or “Cádiz”).

2. According to Watford, on 13 July 2018, the player, concluded an employment contract (hereinafter: the first contract) with Watford, valid as from the date of signature until 30 June 2021.

3. In accordance with Clauses 10.3 of the first contract, in case the contract is terminated by Watford, “the player may by notice in writing served on the club and the League at any time from the date of termination up to fourteen days after receipt by the player of written notification […] give notice of appeal against the decision of the club to the League and such appeal shall be determined in accordance with the procedures applicable pursuant the League rules”.

4. By means of Clause 11.2 of the first contract, in case the contract is terminated by the player, Watford “may, within fourteen days of receipt of any notice of termination of this contract by the player […] give written notice of appeal against such termination to the player and to the League which shall hear such appeal in accordance with procedures applicable pursuant to the League Rules”.

5. Clause 17 of the first contract stipulated the following: “Any dispute between the Club and the Player not provided for in clauses 9, 10, 11, 12 and Schedule 1 hereof shall be referred to arbitration in accordance with the League Rules, or (but only if mutually agreed by the Club and the Player) in accordance with the FA rules.”

6. Moreover, article 22 of the first contract stipulated the following: “Jurisdiction and Law: This contract shall be governed and construed in accordance with English law and the parties submit to the nonexclusive jurisdiction of the English Courts.’

7. Pursuant to Clause 8 of Schedule 2 of the first contract, the player was entitled to the following remuneration:

a) GBP 40,398 “per annum payable by monthly instalments in arrear from 12 July 2018 to 30 June 2019;

b) GBP 36,000 “per annum payable by monthly instalments in arrear from 1 July 2019 to 30 June 2021”;

c) Appearance bonus, as follows:

i) GBP 2,200 for “5 Premier League matches”;

ii) GBP 4,400 for “10 Premier League matches”;

iii) GBP 6,500 for “15 Premier League matches”;

iv) GBP 8,700 for “20 Premier League matches”;

v) GBP 13,000 for “25 Premier League matches”;

vi) GBP 17,400 for “30 Premier League matches”;

vii) GBP 26,000 for “35 Premier League matches”.

8. In accordance with Clause 8.3 of Schedule 2 of the first contract, “in the event the player achieves 5 appearances for Watford in Premier League matches only, he will be entitled to a basic wage increase to GBP 67,200 per annum”.

9. By means of Clauses 8.4 and 8.5 of Schedule 2 of the first contract, the player was entitled to accommodation, food expenses, as well as two annual plane tickets, in economy class to Senegal.

10. Pursuant to Clause 9 of Schedule 2 of the first contract, “in the event of an unlawful breach by the player of this Agreement the player and the club acknowledge and agree that the market value of the player at the time of such unlawful breach, as determined by the [FIFA DRC] shall be used […] when calculating the compensation due and payable by the player to the club for the player’s unlawful breach of Agreement. The player agrees and acknowledges that such market value represents the actual loss sustained by the club and the true and fair cost to the club of replacing the player as at the time of his unlawful breach of this agreement”.

11. On 23 January 2019, Watford and the Croatian club, NK Inter Zaprešić (hereinafter: Zaprešić), concluded a loan transfer agreement by means of which the player was loaned from Watford to Zaprešić as from 23 January 2019 until 30 June 2019.

12. Furthermore, also on 23 January 2019, Watford and the player allegedly signed a document by means of which they agreed that the employment contract between Watford and the player was to be temporarily suspended for the duration of the loan period.

13. According to the information contained in the TMS, the player was registered with Zaprešić on 4 February 2019 under the instruction of “Engage free of payment on loan”. Moreover, as per the information contained in the TMS, a loan agreement dated 23 January 2019 and signed by Watford, Zaprešić and the player was uploaded to the TMS.

14. On 4 July 2019, following Watford’s request, Zaprešić provided Watford two documents entitled “Proof signed by former club that there is no TPO of the player’s economic rights” and “Proof of last contract end date” regarding the player, respectively, both dated 20 June 2019.

15. According to Watford, it then tried to register the player via the TMS, but the status of said registration remained as “pending”.

16. According to the information in the TMS, on 5 July 2019, Watford “entered a transfer instruction to transfer [the player] back from Zaprešić following a loan”, and uploaded the following documents:

a) Employment contract;

b) Loan Agreement;

c) Proof of identity, nationality and birth date;

d) Proof that there is no TPO from the former club.

17. On 7 August 2019, Watford reminded the player via email that the employment contract with Watford was “merely suspended” and that his “registration is still held by Watford”.

18. According to the information contained in the TMS, on 13 August 2019 the player was registered with Cádiz under the instruction “Engage out of contract free of payment”, with Cádiz being the “Instructing club” and Zaprešić being the “Counter club”.

19. Moreover, on 13 August 2019, Watford sent an email to Cádiz holding that the player had a valid contract with Watford until 30 June 2021. In said email, Watford further maintained that upon completion of the loan of the player with Zaprešić, “the player’s registration reverts to Watford”.

20. Furthermore, on 13 August 2019, the player and Cádiz signed an employment contract (hereinafter: second contract) valid as from the date of signature until 30 June 2021.

21. In accordance with Clause 3.1 of the second contract, the player is entitled to 12 monthly instalments of EUR 2,083.33 “gross” each for the period of July 2019 until June 2021.

22. On 15 August 2019, the English FA sent an email to Watford in which it “can confirm that the player is currently registered under written contract with Watford”.

23. On 16 August 2019, Watford informed Cádiz in writing that “were the player to register with Cádiz without Watford’s explicit agreement, this would clearly constitute a breach of Article 17 [RSTP].” In said letter, Watford proposed to Cádiz the following:

a) “Cádiz take the player on loan for the 2019/2020 season;

b) There be no ‘loan fee’ payable to Watford for the loan but Cádiz shall be liable for the player’s full salary […] due under the contract for the entirety of the loan”.

24. On 20 August 2019, Watford sent an email to Cádiz holding that it had not received a reply to its offer of 16 August 2019.

25. On 13 September 2019, FIFA confirmed to Watford that the player had been registered with Cádiz on 13 August 2019. In said correspondence, FIFA included a correspondence from the player dated 9 September 2019, in which he expresses his wish to play for Cádiz for the 2019/2020 and 2020/2021 seasons. In said correspondence, the player further held that on 13 August 2019 he “subscribed freely and with consent an employment contract with Cádiz, valid until 30 June 2021 […] Consequently, I request that Watford’s petition is not taken into account”.

26. According to the information contained in the TMS, on 22 August 2019, Watford proceeded with the ITC request for the registration of the player with Watford, by uploading the document “Proof that there is no TPO from the player”. On that same day, the Croatian FA requested the registration cancellation of the player with Watford, holding that “since the ITC was issued on 13 August 2019 to the [Spanish FA] the loan agreement expired and the employment contract with [Zaprešić] expired too. We had no reason to […] request the cancellation of the request for the ITC of the Spanish FA”.

27. According to the information contained in the TMS, the registration period in England ended on 31 August 2019.

28. On 2 October 2019, amended on 21 October 2019, Watford lodged a claim in front of FIFA against the player and Cádiz requesting, inter alia, the following:

a) GBP 1,186,400 plus 5% interest p.a. as from 13 August 2019 from the player, as compensation for breach of contract (“unless bigger amount of compensation is established in the employment contract of the player and Cádiz”);

b) That Cádiz is considered jointly and severally liable for the payment of the compensation.

29. Watford further requested the imposition of sporting sanctions on the player and Cádiz, and that the player pay all the administrative costs.

30. In its claim, Watford stated that the player never replied to its correspondence dated 7 August 2019.

31. As per Watford, the fact that the player signed an employment contract with Cádiz is to be considered a breach of art. 18 par. 5 RSTP. As such, the player is liable to pay compensation to Watford in accordance with art. 17 RSTP.

32. Similarly, Watford held that it was never contacted by Cádiz as regards the question of whether it could register the player.

33. Moreover, Watford held that Cádiz never replied to its offer of 16 August 2019.

34. Given the above, Watford concluded that Cádiz did not exercise due diligence, that it breached art. 18 para. 3 RSTP and that it induced the player to terminate the contract with Watford without just cause.

35. With regard to the request for compensation, Watford referred to Clause 8 of Schedule 2 of the first contract, and calculated that the player would have earned GBP 186,400 “based on the annual salary if GBP 67,200 and annual bonuses of GBP 26,000 multiplied by two entire sporting seasons”.

36. In continuation, Watford referred to Clause 9 of Schedule 2 of the first contract as well as to the so-called “cláusula de rescisción” (buy-out clause) of the player under Spanish national law, and held that the “market value” loss of Watford amounted to an amount “not less than GBP 1,000,000”.

37. Given the above, Watford concluded that it was entitled to compensation in the amount of GBP 1,186,400.

38. Primarily, with regard to the competence of FIFA, the player argued that, in accordance with clauses 10 and 11 of the first contract, the parties agreed to submit any dispute to the English League.

39. In this light, the player referred to Provision T.28 of the Premier League Rules, which holds the following: “An appeal by a player under the provisions of clause 10.3 […] or by a club under the provisions of clause 11.2 […] shall be commenced by a notice in writing addressed to the other party to the contract and to the Board”.

40. In addition, the player made reference to Clause 22 of the first contract and argued that the matter should have been lodged before English courts.

41. Subsidiary, and by means of a counterclaim, the player requested that Watford pay him outstanding remuneration in the amount of GBP 25,318.39 corresponding to unpaid salaries for the period of 13 July 2018 until 23 January 2019, as well as unpaid salaries for the period 1 July 2019 until 9 August 2019.

42. The player further requested the imposition of sporting sanctions on Watford.

43. In this context, the player firstly held that his signature on the employment contract dated 13 July 2018, submitted by Watford, was forged.

44. Similarly, the player maintained that his signature on the loan agreement dated 23 January 2019 was forged.

45. In this regard, the player included an external “graphotechnical report”, dated 3 November 2019 which concluded, inter alia, that “the signatures reflected in the documents […] do not belong to [the player]”.

46. The player contended that he was unaware of the contractual terms, including its duration as well as his remuneration.

47. With regard to the documents signed by the player and Watford on 23 January 2019 by means of which the employment contract with Watford was suspended, the player stated that Watford deceived him into signing said document believing that it was necessary in order to play with Zaprešić.

48. The player alleged that he was never informed about a possible loan to Zaprešić, nor of his subsequent registration with Zaprešić.

49. According to the player, following his stay at Zaprešić, Watford never informed him that he had to return. In this context, the player referred to the alleged email sent to him by Watford on 7 August 2019, and stated that the email address Watford sent the email to, is not his.

50. In addition, as per the player, Watford never contacted the Croatian FA requesting the ITC for his return to Watford.

51. In continuation, the player underlined that during the 2018/2019 season he did not play a single game for Watford, nor did he receive any salary.

52. Therefore, the player is of the opinion that he had a just cause to terminate the contract with Watford “in the summer of 2019”.

53. With regard to Watford’s calculation for possible compensation for breach of contract, the player stated that his annual salary at Watford was not GBP 67,200, but rather GBP 36,000.

54. With reference to the additional compensation requested by Watford in the amount of GBP 1,000,000, the player submitted that Watford did not provide any evidence as regards how it reached this amount.

55. Furthermore, the player highlighted that Watford never paid any transfer fee when it registered him in July 2018.

56. In light of the above, the player concluded that Watford’s claim is to be rejected.

57. In addition, and with regards to his counterclaim, the player reiterated that he did not receive any salary from Watford for the period of 13 July 2018 until 23 January 2019, nor for the period of 1 July 2019 until 9 August 2019.

58. The player referred to Clause 8 of Schedule 2 of the first contract and held that, for the period of 13 July 2018 until 23 January 2019, he should have obtained GBP 21,471.81. Similarly, the player argued that, for the period of 1 July 2019 until 9 August 2019, he should have received GBP 3,846.58.

59. In light of the above, the player concluded that the total amount outstanding to him corresponded to GBP 25,318.39.

60. In reply to Watford’s claim, Cádiz firstly held that “in August 2019” the player affirmed that the contract “with his previous club” had expired and that he was a free agent.

61. As per Cádiz, it was then informed via email by Zaprešić that his contract had expired on 30 June 2019.

62. Subsequently, Cádiz explained that, following the ITC request of the player via the Spanish FA, it obtained a document from the Croatian FA entitled “Brisovnica”, dated 12 August 2019 which, as per Cádiz, means “clearance”.

63. Finally, Cádiz stated that the ITC was awarded by the Croatian FA on 12 August 2019, “indicating that the player was out of contract”.

64. Cádiz then pointed out the fact, in order to register the player, it had to request the ITC via the Croatian FA and not the English FA. According to Cádiz, the reason for this was because “Watford had not requested the return from loan of the player within the registration period established by the English FA, which closed on 8 August 2019”.

65. With respect to Watford’s position that Cádiz is to be held jointly liable, Cádiz maintained that art. 17 para. 2 RSTP was created in order to prevent unfair enrichment of new clubs.

66. In this regard, Cádiz firstly acknowledged that Watford had proposed a loan agreement with Cádiz regarding the loan of the player, and argued that Watford offered the player to Cádiz on loan without a ‘loan fee’. In other words, as per Cádiz, it could not have enriched itself with the registration of the player, given that he was offered to it by Watford for free.

67. Moreover, Cádiz underlined that the registration of the player with Cádiz was, in fact, economically beneficial for Watford. In this regard, Cádiz reiterated that the transfer window had closed in England on 8 August 2019, and held that, now that the player was registered with Cádiz, Watford did not have the obligation of paying the salary of a player it could not even register.

68. Regarding Watford’s request for the imposition of sporting sanctions, Cádiz claimed that it never induced the player, given that it was unaware that the player had an alleged valid employment contract with another club.

69. Given all of the above, Cádiz determined that Watford’s claim is to be rejected.

70. In its replica, and with regard to the competence of FIFA, Watford held that Clause 11 of the first contract is not applicable to the matter, insofar as the player did not submit a notice of termination. Similarly, as per Watford, Clause 10 of the first contract is not applicable, because it never terminated the contract.

71. Moreover, with regard to Clause 22 of the first contract, Watford highlighted the “non-exclusive jurisdiction” of the English Courts. As per Watford, this provision does not provide for the exclusive competence of any court.

72. In any case, as per Watford, FIFA is competent under art. 22 (a) of the RSTP, given that it is a dispute “in relation to the maintenance of contractual stability where there has been an ITC request and a claim from an interested party in relation to said ITC request”.

73. Regarding the substance of the matter, Watford firstly referred to the player’s position with regard to the alleged forgery of the employment contract dated 13 July 2018 and the loan agreement dated 23 January 2019.

74. In this regard, Watford included a “Witness Statement”, by the player dated 22 October 2019 in front of a local court in Cádiz, in which he inter alia stated that he “had signed a contract with an English club, Watford”, and that “when he arrives at the airport in Croatia, at the airport he signs the contract”.

75. With regard to FIFA’s request to provide the originals of the employment contract dated 13 July 2018 and the loan agreement dated 23 January 2019, Watford held that the “original version of the contract is the one combined as a result of the exchange of e-mails with the agent of the player in July 2018”. As per Watford, it then “proceeded to sign from their part the employment contract and register the player based on such document”.

76. In continuation, Watford highlighted that it was interested in the player’s services as demonstrated by the fact that it initiated the proceedings concerning the return of the player via the TMS on 5 July 2019.

77. Moreover, Watford stated that it kept the registration of the player in the league, and that it only required the ITC.

78. Thus, as per Watford, Cádiz’ claim that it could not register the player after 8 August 2019 did not correspond to the truth.

79. With regard to the player’s counterclaim related to the alleged outstanding salary, Watford maintained that “there is no evidence that [it] unlawfully failed to pay the player at least two monthly salaries on their due dates”.

80. In this regard, Watford stated that it was never put in default of payment by the player. In fact, as per Watford, the player never sent any default letter of any kind to Watford.

81. Thus, given the lack of prior notification as well as the lack of evidence provided by the player regarding the alleged outstanding payments, Watford requested the player’s counterclaim to be rejected in full.

82. Finally, with regard to its request for compensation in an amount based on, inter alia, the market value of the player, Watford added that there are players playing on the same position and in the same category as the player, who have a market value of up to EUR 2,500,000.

83. Given all of the above, Watford repeated its request for relief in full.

84. In his final comments, the player firstly argued that Watford did not provide the original versions of the employment contract dated 13 July 2018 and the loan agreement dated 23 January 2019, notwithstanding FIFA’s request to do so.

85. In continuation, the player compared the signature page of the employment contract dated 13 July 2018 sent by Watford in its claim with the employment contract sent by Watford in its replica, and held that the “witness signature” in said documents are different, the latter being signed by a certain “Enrique Labrador”.

86. In this light, the player further held that his agent is not Mr Enrique Labrador, but rather Mr Pape M’Baye.

87. In addition, the player stated that his alleged signature on the first contract is different as compared to his signatures on the loan agreement dated 23 January 2019 and the document dated 23 January 2019 by means of which Watford and the player agreed that the employment contract between the latter was to be temporarily suspended. In this context, the player maintained that his signatures on the two latter documents are his, whereas the signature on the employment contract is forged.

88. In conclusion, as per the player, this confirms that he could not have been aware of a valid employment contract with Watford, nor of its contents.

89. With regard to the “Witness Statement”, by the player dated 22 October 2019, the player confirmed that he made said statements prior to becoming aware of the claim by Watford lodged against him. In any case, as per the player, said “Witness Statement” merely confirmed that he was unaware of the duration of the contract with Watford, nor of the other conditions.

90. With respect to Watford’s ITC request, which procedure allegedly started on 5 July 2019, the player reiterated that he was never informed by Watford that it wanted to register him. The player failed to understand why Watford’s ITC procedure failed, but maintained that he cannot be held responsible for this.

91. Finally, as regards his counterclaim, the player argued that the FIFA regulations do not provide for an obligation to send default notices in order to lodge a counterclaim.

92. Moreover, the player held that Watford did not provide any evidence that can demonstrate that it paid the outstanding amounts to him.

93. By means of its final comments, Cádiz highlighted that the only information it had at its disposal regarding the availability to register the player, was the document issued by Zaprešić confirming that the player was a free agent as per 30 June 2019.

94. Furthermore, Cádiz reiterated that the player too had confirmed that he was a free agent.

95. Thus, as per Cádiz, it acted in complete bona fide, and that it applied due diligence, when it registered the player.

96. In this regard, Cádiz added that it was only contacted by Watford after the player’s registration with Cádiz.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the DRC took note that art. 21 of the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) establishes that said edition is applicable as from 1 November 2019. Given that the decision in the present matter was passed by the Chamber on 25 February 2020, the November 2019 edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2019) the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an English club, a Senegalese player and a Spanish club.

3. The Chamber acknowledged that the player contested the competence of FIFA’s deciding bodies on the basis of Clauses 10 and 11 of the first contract, highlighting the competence of the English League. Moreover, the DRC noted that the player had referred to Clause 22 of the first contract, arguing that the matter should be lodged before English courts.

4. In this regard, the Chamber noted that Watford rejected such position and insisted that FIFA has jurisdiction to deal with the present matter, inter alia arguing that FIFA is competent to deal with the matter on the basis of art. 22 (a) of the Regulations.

5. In this context, the members of the DRC observed, in relation to the competence, that the aforementioned contract included the following clauses:

“17. Any dispute between the Club and the Player not provided for in clauses 9, 10, 11, 12 and Schedule 1 hereof shall be referred to arbitration in accordance with the League Rules, or (but only if mutually agreed by the Club and the Player) in accordance with the FA rules."

“21. Jurisdiction and Law

This contract shall be governed and construed in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English Courts.”

6. In relation to the above, the Chamber further noted that Clauses 9, 10, 11 and 12 of the aforementioned contract refer, respectively, to “Disciplinary Procedure”, “Termination by the Club”, “Termination by the Player” and “Grievance Procedure”, whereas the Schedule 1 of the contract refers to “Disciplinary Procedures and Penalties”.

7. After having duly examined the content of the aforementioned clauses, the members of the DRC observed that, while Clause 17 of the relevant contract seems to refer the matter to the national arbitration system established within The Football Association and/or the Premier League, Clause 21 of the same contract appears to be a jurisdiction clause in favour of the “non-exclusive jurisdiction of the English [ordinary] Courts”.

8. In this context, the Chamber noted, first of all, that the recourse to arbitration under the aforementioned Clause 17 does not appear to be applicable to matters concerning the termination of the contract, since it clearly stipulates that “arbitration in accordance with the League Rules or […] in accordance with the FA rules” is applicable for matters “not provided for in clauses 9, 10, 11, 12 and Schedule 1”. In this respect, the Chamber noted that Watford lodged its claim, asking compensation for the player’s breach of contract, i.e. a matter which falls within the scope of application of Clause 11.2, which deals with the termination by the player.

9. Besides, the Chamber noted that Clauses 17 and 22 of the contract seem to stand in mutually exclusive and contradictory relationship. In this respect, the members of the Chamber unanimously understood that, on the basis of the contract, Clause 17 appeared to be not applicable. However, Clause 22 appeared to refer to a non-exclusive jurisdiction of the English ordinary courts.

10. Consequently, considering the absence of a clear and unequivocal jurisdiction clause and in compliance with its own well-established jurisprudence, the members of the Chamber agreed that the DRC is competent to decide on the claim at hand.

11. In addition, the Chamber referred to art. 22. lit. a) of the Regulations, according to which FIFA is competent to hear disputes between clubs and players in relation to the maintenance of contractual stability, where there has been an International Transfer Certificate (ITC) request and a claim from an interested party in relation to said ITC request, in particular, inter alia, regarding compensation for breach of contract.

12. In view of the above, the members of the Chamber pointed out that the case at hand is related to the move of a player and his subsequent registration with a club belonging to a different association and connected to an ITC request. The foregoing fact was, in the Chamber’s view, the basis on which it could be established that the Dispute Resolution Chamber shall be competent to adjudicate on the matter at hand as to the substance.

13. In view of all the above, the Chamber established that the player’s objection to 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 (a) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

14. Finally, and for the sake of completeness, the DRC also highlighted that, pursuant to Clause 9 of Schedule 2 of the first contract, “in the event of an unlawful breach by the player of this Agreement the player and the club acknowledge and agree that the market value of the player at the time of such unlawful breach, as determined by the [FIFA DRC] shall be used”. Consequently, the Chamber understood that its competence to deal with the matter also derives from said provision.

15. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2019), and considering that the present claim was lodged on 2 October 2019, the 2019 edition of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

16. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts and arguments as well as the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. In this respect, 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 TMS.

17. In this context, the Chamber understood that the primary issue at stake in the present matter is concluding whether the player terminated the alleged employment relationship with Watford without just cause. In order to answer this question satisfactorily, the DRC agreed that it firstly needed to determine whether the player had a valid employment contract with Watford in the first place, until 30 June 2021.

18. In this respect, the Chamber firstly recalled that, according to Watford, the player and Watford had signed an employment contract on 13 July 2018, valid as from the date of signature until 30 June 2021. Similarly, the DRC noted that, according to the information contained in the TMS, the player was registered with Watford on 27 July 2018 under the instruction type of “Engage out of contract free of payment”.

19. Secondly, the DRC took note of the player’s primary position, who inter alia argued that he was never registered with Watford, that he never signed an employment contract with Watford, that his signatures on the employment contract dated 13 July 2018 provided by Watford, as well as on the document dated 23 January 2019 (cf. I.12) were forged.

20. With regard to the existence of an employment relationship between the player and Watford, the DRC referred to the following evidence: (1) the registration of the player with Watford on 27 July 2018, as indicated in the TMS; (2) the employment contract dated 13 July 2018 provided by Watford; and (3) the document provided by Watford, dated 23 January 2019, by means of which Watford and the player allegedly agreed to temporarily suspend the employment contract signed between Watford and the player for the duration of the loan of the player with Zaprešić.

21. Having said this, the members of the DRC turned their attention to the “graphotechnical report” provided by the player. In this regard, the Chamber unanimously agreed that although the value of such a document cannot be entirely disregarded it has, however, a limited importance, to the extent that it cannot constitute the decisive element in the midst of conflicting evidence, being a document commissioned by a party interested in the outcome of the proceedings. All things considered, therefore, the DRC determined that the player failed to provide convincing evidence that could demonstrate that he never concluded any employment relationship with Watford of any kind.

22. In light of the above, the DRC unanimously established that the player was registered with Watford on 27 July 2018, and that the parties had concluded an employment contract. As such, the Chamber further determined that the conditions as stipulated in the employment contract provided by Watford are valid and correct, including the duration of the employment contract, as well as the financial conditions stipulated therein.

23. In continuation, the Chamber proceeded to analyse whether the player was, in fact, loaned out from Watford to Zaprešić as from 23 January 2019 until 30 June 2019, and consequently, whether the player was contractually obligated to return to Watford following his alleged loan at Zaprešić.

24. In this regard, the Chamber took into account that, according to Watford, on 23 January 2019 it signed a loan agreement with Zaprešić, by means of which the player was loaned from Watford to Zaprešić as from 23 January 2019 until 30 June 2019. Moreover, the DRC took into consideration the document provided by Watford also dated 23 January 2019, by means of which Watford and the player allegedly agreed to temporarily suspend the employment contract signed between Watford and the player for the duration of the loan of the player with Zaprešić.

25. Furthermore, the DRC noted that as per the information contained in the TMS, the player was registered with Zaprešić on 4 February 2019 under the instruction type of “Engage free of payment on loan”. In this regard, the DRC further acknowledged that the loan agreement dated 23 January 2019 was uploaded to the TMS vis-à-vis the loan transfer of the player from Watford to Zaprešić.

26. In this regard, the DRC firstly acknowledged that it remained undisputed that the player registered with Zaprešić on 4 February 2019, and that he had an employment relationship with Zaprešić which lasted until 30 June 2019.

27. Subsequently, the Chamber once again referred to the information contained in the TMS, and reiterated that the registration of the player with Zaprešić was done under the instruction of “Engage free of payment on loan”. Moreover, the DRC recalled that a loan agreement dated 23 January 2019 was uploaded in the TMS vis-à-vis the loan transfer of the player from Watford to Zaprešić.

28. Having said this, the DRC noted that, as per Annexe 3 art. 4 para. 3 of the Regulations, “Clubs must provide […] Indication of whether the transfer is on a permanent basis or on loan”. In addition, the Chamber referred to Annexe 3 Section 8.2 art. 1 of the Regulations, and recalled that “the new club shall upload at least […] a copy of the transfer or loan agreement concluded between the new club and the former club”.

29. As per the Chamber, in light of Annexe 3 art. 4 para. 3 of the Regulations, a transfer instruction, such as “Engage free of payment on loan”, needs to be endorsed by both the old club and the new club. In other words, according to the DRC, both Watford and Zaprešić agreed together that the player was transferred to Zaprešić on loan from Watford.

30. Furthermore, to the knowledge of the DRC and on the basis of Annexe 3 Section 8.2 art. 1 of the Regulations, it was Zaprešić’s obligation to upload “a copy of the transfer or loan agreement” in the TMS. As per the Chamber, given that a clear loan agreement was uploaded, and given that at that time neither club disputed the validity of the loan agreement uploaded in the TMS nor the validity of the information contained in it, it is unequivocally demonstrated that Watford and Zaprešić had agreed on a temporary loan of the player from Watford to Zaprešić.

31. In continuation, the Chamber turned to the document, dated 23 January 2019, by means of which Watford and the player allegedly agreed to temporarily suspend the employment contract signed between Watford and the player for the duration of the loan of the player with Zaprešić.

32. In this context, the DRC understood that a suspension of the employment contract between a club and a player is a logical consequence when that same player is on loan at another club. Thus, the Chamber concluded that there was no reason to question the authenticity of said document.

33. In light of the above, the Chamber determined that (1) the player had a valid employment contract with Watford; (2) he was transferred on loan to Zaprešić and; (3) following his loan, the player was obligated to return to Watford.

34. Having stated the above, the DRC proceeded to determine whether the player unilaterally terminated his employment contract with Watford and, if so, whether he had a just cause to do so.

35. In this light, the Chamber recalled that on 13 August 2019 the following three occurrences took place: (1) the player was registered with Cádiz under the instruction “Engage out of contract free of payment”, with Cádiz being the “Instructing club” and Zaprešić being the “Counter club”; (2) the player signed an employment contract with Cádiz and; (3) Watford informed Cádiz that the player had an employment contract with Watford.

36. Furthermore, the DRC took Watford’s offer to Cádiz into account, dated 16 August 2019, in which it proposed that Cádiz were to loan the player from Watford for the 2019/2020 season.

37. The Chamber firstly took into account Watford’s position, which inter alia held that, following his loan at Zaprešić, the player was to re-register with Watford. However, according to Watford, given that the player registered with Cádiz instead, he breached art. 18 par. 5 of the Regulations. Similarly, the Chamber noted that, as per Watford, by registering the player, Cádiz had been in breach of art. 18 para. 3 of the Regulations. Taking into consideration the above, the DRC concluded that Watford de facto also argued that, by registering with Cádiz, the player had terminated his employment contract with Watford without just cause.

38. The Chamber then recalled that the player argued that he could never have been on loan from Watford at Zaprešić, but that he signed with the Croatian club as a free agent. Finally, the DRC noted that, as per the player, he was free to register with Cádiz in the summer of 2019 without having any other contractual obligation with regard to any other club.

39. In addition, the DRC recollected that the player lodged a counterclaim against Watford, alleging that Watford had failed to pay him outstanding remuneration corresponding to unpaid salaries for the period of July 2018 until January 2019, as well as unpaid salaries for the period of 1 July 2019 until 13 August 2019.

40. Third and finally, the Chamber analysed Cádiz’ position, which held that it had been informed by both the player and Zaprešić that the player was a free agent, and that it had complied with all the formal requisites to register the player. In this regard, the DRC pointed out that, according to Cádiz, the fact that the player was successfully registered via the TMS, demonstrated that Cádiz had exercised due diligence.

41. Nonetheless, due to the fact that, instead of returning to Watford, the player signed an employment contract with Cádiz on 13 August 2019, the Chamber came to the unanimous conclusion that the player de facto unilaterally terminated the employment with Watford on 13 August 2019. Consequently, the DRC turned to the question of whether the player had a just cause to terminate the contract with Watford.

42. In this regard, the DRC firstly placed particular emphasis on the information contained in the TMS, which demonstrated that Watford indeed attempted to reregister the player (cf. I.16 and I.26). Secondly, the Chamber highlighted that on 13 August 2019 Watford informed Cádiz via email that the player had a valid employment contract with Watford.

43. In light of the above, the Chamber concluded that by means of its clear attempts to reregister the player, and by warning Cádiz that the player still had a valid employment contract, Watford demonstrated that it was interested in continuing the employment relationship with the player.

44. In continuation, the Chamber analysed the player’s arguments who, inter alia, held that he had not received any remuneration from Watford since July 2018. By way of reminder, the DRC recalled that this alleged outstanding remuneration was requested by the player from Watford by way of his counterclaim.

45. In this regard, the Chamber was quick to point out that the player had not provided any evidence, such as default letters, that could demonstrate that Watford had failed to pay him any remuneration. What is more, as per the DRC, the player did not terminate the employment contract with Watford due to outstanding remuneration, but rather because he registered with Cádiz under the alleged assumption that he was a free agent.

46. On account of the above, the Chamber came to the firm conclusion that the arguments of the player could not be upheld. As such, the DRC decided to reject the player’s counterclaim in full. Furthermore, the Chamber decided that, by signing an employment contract with Cádiz, the player terminated the employment contract with Watford without just cause on 13 August 2019.

47. Subsequently, after having established that the player terminated the contract without just cause, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the player is liable to pay compensation to the Claimant for breach of contract. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Cádiz, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of Cádiz is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS).

48. Having stated the above, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party.

49. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

50. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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. In this regard, the Dispute Resolution Chamber stated beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

51. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the financial terms of the former contract and the new contract, the value of which constitutes an essential criterion in the calculation of the amount of compensation in accordance with art. 17 par. 1 of the Regulations. The members of the Chamber deemed it important to emphasise that the relevant compensation should be calculated based on the average fixed annual remuneration, i.e. excluding any conditional or performance related payment, agreed by the player with his former club and his new club, as well as considering the period of time remaining on the contract signed between the player and the former club.

52. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the fixed annual remuneration payable to the player under the terms of the employment contract signed with Watford, i.e. an annual remuneration of GBP 36,000.

53. In continuation, the DRC equally took note of the player’s annual remuneration under the terms of his employment contract with his new club, i.e. Cádiz, and determined that this remuneration corresponded to approximately GPB 19,167.

54. Taking into account the above, the Chamber concluded that the player’s average remuneration amounted to GPB 26,834.

55. On account of the above, and taking into account all the aforementioned objective elements in the matter at hand, the DRC decided that the total amount of GPB 26,834 was to be considered a reasonable and justified amount to be paid as compensation for breach of contract in the case at hand.

56. In addition, taking into account Watford’s request, the Chamber decided that the player must pay to Watford interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 2 October 2019, until the date of effective payment.

57. Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations, Cádiz shall be jointly and severally liable for the payment of the aforementioned amount of compensation.

58. In continuation, the Chamber focussed its attention on the further consequences of the breach of contract in question and, in this respect, it addressed the question of sporting sanctions against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on any player found to be in breach of contract during the protected period.

59. In this respect, the members of the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this regard, the DRC pointed out that the player, whose date of birth is 28 June 1998, was 20 years of age when he signed his employment contract with Watford on 13 July 2018, entailing that the unilateral termination of the contract occurred within the applicable protected period.

60. With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a suspension of four months on a player’s eligibility to participate in official matches is the minimum sporting sanction that can be imposed for breach of contract during the protected period. This sanction, according to the explicit wording of the relevant provision, can be extended in case of aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision does not provide for a possibility to the deciding body to reduce the sanction under the fixed minimum duration in case of mitigating circumstances.

61. With the above in mind, the members of the Chamber wished to recall the sequence of the events of the present matter. First, the DRC recalled that, by signing an employment contract with Cádiz on 13 August 2019, the player de facto unilaterally terminated the contract with Watford without just cause on 13 August 2019.

62. Having stated that, the DRC was eager to emphasise that the player still had a valid employment contract with Watford. Furthermore, by attempting to reregister the player, the Chamber understood that Watford was interested in continuing the employment relationship with the player.

63. Consequently, taking into account the circumstances surrounding the present matter, the DRC decided that, by virtue of art. 17 par. 3 of the Regulations, the player is to be sanctioned with a restriction of four months on his eligibility to participate in official matches.

64. Finally, the members of the Chamber turned their attention to the question of whether, in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e. Cádiz, must be considered to have induced the player to unilaterally terminate his contract with the Claimant without just cause during the protected period and, therefore, whether it shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.

65. In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional player who has terminated his previous contract without just cause has induced that professional to commit a breach. Consequently, the Chamber pointed out that the party that is presumed to have induced the player to commit a breach carries the burden of proof to demonstrate the contrary.

66. Having stated the above, the members of the Chamber took note of the response provided by Cádiz, which argued that it was informed by the player that he was a free agent, and that the only information it had at its disposal regarding the availability to register the player, was the document issued by Zaprešić.

67. Having said this, the DRC referred to the fact that the player was transferred on loan to Zaprešić, as was already clearly demonstrated above. Furthermore, the Chamber placed particular emphasis on the fact that Cádiz was warned by Watford by means of its emails dated 13 August 2019 and 16 August 2019 respectively, that the player still had a valid employment contract with Watford.

68. Consequently, and taking into account that Cádiz was warned by Watford, the Chamber was of the firm opinion that Cádiz did not exert due diligence regarding the player’s contractual availability when signing the employment contract with the player.

69. In light of the aforementioned, and given that Cádiz did not provide any convincing explanation as to its possible non-involvement in the player’s decision to unilaterally terminate his employment contract with Watford, the DRC had no option other than to conclude that Cádiz had not been able to reverse the presumption contained in art. 17 par. 4 of the Regulations and that, accordingly, the latter had induced the player to unilaterally terminate his employment contract with Watford.

70. In view of the above, the Chamber decided that, in accordance with art. 17 par. 4 of the Regulations, Cádiz shall be banned from registering any new players, either nationally or internationally, for the two entire and consecutive registration periods following the notification of the present decision. Cádiz shall be able to register new players, either nationally or internationally, only as of the next registration period following the complete serving of the relevant sporting sanction. In particular, Cádiz may not make use of the exception and the provisional measures stipulated in art. 6 par. 1 of the Regulations in order to register players at an earlier stage.

71. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by Watford and the player are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-respondent, Watford FC, is partially accepted.

2. The First Respondent / Counter-claimant, Mamadou M’Baye, has to pay to the Claimant / Counter-respondent within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of GBP 26,834, plus 5% p.a. as from 2 October 2019 until the date of effective payment.

3. The Second Respondent, Cádiz Club de Fútbol, is jointly and severally liable for the payment of the aforementioned compensation.

4. In the event that the amount due to the Claimant / Counter-respondent plus interest is not paid within the stated time limit, 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 First Respondent / Counter-claimant and the Second Respondent, 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 First Respondent / Counter-claimant, Mamadou M’Baye, is rejected.

8. A restriction of four months on his eligibility to play in official matches is imposed on the First Respondent / Counter-claimant, Mamadou M’Baye. This sanction applies with immediate effect as of the date of notification of the present decision. The sporting sanctions shall remain suspended in the period between the last official match of the season and the first official match of the next season, in both cases including national cups and international championships for clubs.

9. The Second Respondent, Cádiz Club de Fútbol, shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the appeal procedure:

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. 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.

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

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer