F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 13 August 2020

Decision of the

Dispute Resolution Chamber

Passed on 13 August 2020,

regarding an employment-related dispute concerning the player A

COMPOSITION:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay/the Netherlands), member

Pavel Pivovarov (Russia), member

CLAIMANT:

Club B, Country B

Represented by

RESPONDENT 1:

Player A, Country B

Represented by

RESPONDENT 2:

Club C, Country C

Represented by

RESPONDENT 3:

Club D, Country B

I. FACTS OF THE CASE

1. On 26 July 2015, the Country B club, B (hereinafter: the Claimant or B) and the Country B player, A (hereinafter: the Respondent 1 or the player) concluded an employment contract valid for four seasons, i.e. as from the season 2015/2016 until the end of the season 2018/2019 (hereinafter: the first contract).

2. According to the information available in the Transfer Matching System (TMS), the season in Country B runs from November to June of the following year.

3. According to the first contract, the Claimant undertook to pay the player, inter alia, the following remuneration:

a. Season 2015/2016: Country B Currency: 3,000,000;

b. Season 2016/2017: Country B Currency 3,133,000;

c. Season 2017/2018: Country B Currency 3,133,700;

d. Season 2018/2019: Country B Currency 3,266,000.

4. According to the information provided by the Country B Football Association (hereinafter: Country B FA) at the request of FIFA, the first contract was “issued” on 26 July 2015 and registered with the Country B FA on 5 August 2015.

5. On 17 July 2016, the player, the Claimant and the Country E club, club E (hereinafter: E), signed a loan transfer agreement according to which the services of the player were temporary transferred from the Claimant to E for a period of one season (i.e. until 31 May 2017) against the payment of a transfer fee of USD 1,200,000.

6. According to the information available in TMS, the season in Country E runs from August to May the following year.

7. On 28 June 2017, the player, the Claimant, and E signed a second loan transfer agreement according to which the services of the player were temporary transferred from the Claimant to E for an additional period of one season (i.e. until 31 May 2018) against the payment of a transfer fee of USD 2,300,000.

8. Allegedly on 28 August 2017, however disputed between the parties, the Claimant and Respondent 1 concluded a new employment contract valid for five seasons, i.e. as from the season 2017/2018 until the end of the season 2021/2022 (hereinafter: the second contract).

9. The second contract reads: “On this Monday, 28 August 2017 (…)”. Additionally, according to the second contract, the Claimant undertook to pay the player inter alia the yearly remuneration of Country B Currency 3,200,000.

10. According to the information provided by Country B FA as requested by FIFA, the first contract “had been renewed with a new one on 28 July 2017 registered on 7 September 2017”.

11. On 20 June 2019 and 9 January 2019, the player sent B two notices, according to which, inter alia, he stated as follows:

a. He had agreed to a one season only contractual extension, i.e. until the end of the season 2019-2020, and a salary of Country B Currency 8,000,000;

b. Due to the alleged pressure exercised by B, the player admitted to have signed a blank contract allegedly dated 16 July 2016, trusting the Claimant would honor the alleged correct negotiated terms;

c. The Claimant registered such contract with the Country B FA more than 24 months after its alleged execution;

d. As such, the player rendered that the second contract/extension was null and void, therefore his contractual relationship with the club would last until 30 June 2019.

12. B did not reply to the aforementioned notices.

13. On 20 July 2019, the player and Club C (hereinafter: C or the Respondent 2) signed an employment agreement valid from the same date until 31 June 2021 (hereinafter: the C Agreement).

14. According to the C Agreement, the player was entiled to a remuneration of EUR 120,000 per season. Such amount equals approximately Country B Currency 2,237,070 as converted on the date of its execution.

15. Furthermore, clause 11 of the C Agreement read as follows:

“ELEVENTH (Unilateral Termination Right)

1. After obtaining the ITC, either C or the Player shall be allowed to unilaterally terminate this Sports' Employment Contract at any time, without the obligation to pay compensation to the other party.

2. Should the Player wish to exercise to his right to unilaterally terminate this contract, he must formally notify C of such intention with at least 5-days in advance, by means of email addressed to XXXX.

3. Should C wish to exercise to his right to unilaterally terminate this contract, he must formally notify Player of such intention with at least 5-days in advance, by means of email addressed to XXXX and XXXX

4. If the Player exercises his right to unilaterally terminate this contract as per paragraph 2. above, C undertakes not to omit, delay or in any way impede all the required actions necessary for the successful completion of his transfer to any future club, including the issuance of the Player's ITC or the issuance of the required TPO declaration”.

16. On 30 July 2019, the Claimant sent a letter to the player requesting him to “immediately come back to the club’s premises and fulfil your contractual obligations”.

17. On 1 August 2019, the Country C FA (hereinafter: Country C FA) requested the electronic International Transfer Certificate (ITC) through TMS for the player. The Country B FA objected to such request.

18. On 20 August 2019, the Single Judge of the Players’ Status Committee authorised the provisional registration of the player in Country C. Item II.7 of the decision by the Single Judge of the Players’ Status Committee reads as follows:

“Finally, the Single Judge emphasised that the present decision related to the authorisation to provisionally register the player for [C] is a provisional measure and, as such, without prejudice to any decision as to a potential contractual dispute between the [Claimant] and the player (as well as the new club). In particular, it would be up to the competent deciding body to express itself on the questions if the contract has been terminated by one of the contractual parties, whether with or without just cause, and who is to be deemed responsible for such possible breach. Equally, the competent body would have to determine the possible consequences thereof, i.e. financial compensation and/or sporting sanctions”.

19. According to the information provided by the Country C FA, the player played in five official matches for the Respondent 2, four as a substitute and one in the starting lineup.

20. On 27 November 2019, the player sent a notice to C, by means of which he terminated the C Agreement unilaterally on the grounds its clause 11.

21. On 28 November 2019, the Claimant sent a notice to the player and C and inter alia requested payment of EUR 9,000,000 as compensation for breach of contract.

22. On 5 December 2019, the player and C executed a termination agreement, according to which the player had unilaterally terminated the C Agreement pursuant to its clause 11. As such, the player and C settled their financial dues.

23. On 14 Decemeber 2019, the Claimant sent a second notice to the player and C, and reiterated the contents of its letter dated 28 November 2019. The Claimant further stated it would start proceedings before FIFA.

24. On 1 January 2020, the player and the Country B club, D (hereinafter: the Respondent 3 or D) executed an employment agreement (hereinafter: the D Agreement), valid from 1 January 2020 until 30 June 2024. According to the D Agreement, the player is entitled to the following remuneration:

a. From 1 January 20 to 30 June 20: Country B Currency 5,805,000;

b. Season 2020/2021: Country B Currency 11,610,000;

c. Season 2021/2022: Country B Currency 12,255,000;

d. Season 2022/2023: Country B Currency 12,900,000.

e. Season 2023/2024: Country B Currency 13,545,000.

II. PROCEEDINGS BEFORE FIFA

25. On 6 January 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of B

26. According to the Claimant, in July 2019 it read in a newspaper that the player had signed an employment contract in Country C with the Respondent 2. The Claimant holds that it never received a termination letter. To this extent, the Claimant argued that the Respondent 1 breached the second contract without just cause by signing a contract with the Respondent 2.

27. The Claimant further explained that the second contract was properly registered with the Country B FA, as such registration took place within 30 days of its execution. In this regard, the Claimant submitted two pieces of evidence, namely (a) a declaration issued by the Country B FA, and (b) an interview given by the Country B FA’s director of Players Affairs, Mr xxx. The Claimant also filed payment receipts in favour of the Country B FA regarding the alleged payment of fees in connection with the registration of the second contract.

28. Additionally, the Claimant filed an interview by the player to the media in Country B. The Claimant argued that in such interview the player admitted that he had “extended” his contract with B “for additional 4 years”.

29. The Claimant also submitted that there was no violation of art. 18 par. 2 of the FIFA Regulations on the Status and Transfer of Players, on the grounds that the second contract outlines new terms and conditions, and neither the first nor the second contract surpass the limit of 5 years.

30. In continuation, the Claimant held that C and D shall be considered jointly liable for the payment of compensation for breach of contract. In particular, the Claimant is of the position that a bridge transfer took place. In support of these allegations, the Claimant filed two interviews given by the player to media vehicles in 2018 and 2019. The Claimant maintained that in such interviews the player admitted to have been involved with D.

31. Accordingly, the Claimant requested payment of compensation for breach of contract taking into account the following criteria:

a. USD 1,000,000 corresponding to Country B Currency XXX, as total value of the second contract;

b. USD 1,710,000 corresponding to the “market value” based on “transfermarkt.com” as lost transfer fee, as well as given the offers it received for the services of the player;

c. USD 1,500,000 corresponding to replacement costs.

32. Lastly, the Claimant held that the specificity of sports needs to be taken into account, and stated the following: “These elements, in particular the bad faith attitude of the Respondents in this matter, must be assessed by FIFA DRC at its discretion in the calculation of the compensation that, in any case, having regard to the ordinary course of the events, must not be less than 9,000,000 EUR”.

33. The requests for relief of the Claimant, as amended, were the following:

“a) to declare that the Player has, de facto, unlawfully terminated on 20 June 2019 the employment relationship with the Claimant without just cause, by leaving B, not attending the remaining trainings and matches of the sporting season 2018/2019 and then signing an employment contract on 20 July 2019 with C (still during the length of the Country B football season 2018/2019) and finally on 13 December 2019 with D (during the length of the Second Employment Contract valid until 30 June 2022);

b) as a consequence of the above, order the Player A, C and D – by declaring its relevant standing to be sued –, jointly and severally, liable to pay B a compensation equals to the amount of 9,000,000 USD or in the different amount FIFA Dispute Resolution Chamber will consider proportionate and appropriate in the decision of the case at stake, in accordance with the provision of article 17 of the FIFA RSPT, taking into account the specific circumstances of the case, as well as the replacement costs suffered by the Claimant and the loss of profit;

c) to additionally order the A, C and D, jointly and severally, liable to pay an interest of 5% on the amount due to the Claimant, calculated from 20 June 2019 – date when the Player did not return to the Club after his holiday -, or from the different date FIFA Dispute Resolution Chamber deems appropriate, until the date of effective payment;

d) to apply sporting sanctions in accordance with the FIFA RSTP and Disciplinary Code, suggested as follows: (i) A with a ban on playing in official matches for six (6) months, pursuant to article 17, paragraph 3, of FIFA RSTP; (ii) C and D with a ban on registering any players both at national and international level for two (2) consecutive registration periods, pursuant to article 17, paragraph 4, of FIFA RSTP;

e) to reject all the motions and requests put forward by the Respondents;

f) to apply any other measure, oven of disciplinary nature, it considers necessary in the decision of the case at stake”.

b. Position of the player

34. The player, for his part, deemed that the second contract was in fact executed on 14 July 2016, and not on 28 August 2017.

35. In this respect, while admitting he had signed a blank document, allegedly due to the pressure exercised on him by Claimant in the context of his loan to E, the player argued that the Claimant later filled out the second contract with stipulations different than those he had primarily agreed to, namely: a one-year contractual extension and a salary raise, instead of an extension until 2022 and the same remuneration.

36. In this regard, the Respondent 1 deemed he was left at the mercy of B, in a situation more “that of a slave than a worker”. In support of his position, the Respondent 1 filed the following evidence:

a. B’s website articles of 14 July 2016, which the player argued was a confirmation that he had extended his contract for 1 season;

b. A witness statement by a Mr XX, whom in the capacity of the player’s friend was allegedly present when the contract extension was signed.

37. The Respondent 1 further deemed that the second contract was not properly registered with the Country B FA, in contravention of clause 9 (5) of the Country B FA Regulations, i.e. which states that a contract shall be registered within 30 days of its execution. In support of this allegation, the player filed the following evidence:

a. B’s website article of 18 November 2018 confirming that the second contract was registered on such date, as confirmed by a notary;

b. Extracts from the Country B FA’s registration system (DTMS), which showed that: (a) the second contract was registered as an “extension”, and (b) that it was registered on 17 November 2018.

38. The Respondent 1 further submitted he had inquired the Country B FA on his registration status, having received a certificate from the Country B FA on 24 July 2017, stating that only his first contract was the one in the records. As a consequence of the Claimant’s late registration of the second contract, the Respondent 1 held that such contract should be declared null and void.

39. Additionally, the player submitted that the two contracts he executed with the Claimant correspond to a period of 7 years, which contravenes art. 18 par. 2 of the FIFA Regulations on the Status and Transfer of Players, therefore arguing that the two last years of the contractual relationship should not be taken into account. The Respondent 1 reverts to the Country B FA DTMS to allegedly prove that the second contract was in fact a contractual extension.

40. The Respondent 1 requested that the claim be dismissed.

c. Position of C

41. The Respondent 2 rejected the Claimant’s claim and submitted that, on the balance of probabilities, the second contract cannot be taken into account. In this sense, C filed two different versions of both the first and the second contracts, drawing attention to the placement of stamps, fingerprints and signatures. The Respondent 2 further confirmed that the Player had signed a blank document, which it claimed was allegedly later filled out by the Claimant.

42. The Respondent 2 contended that the second contract was properly registered with the Country B FA. If so, it holds that the second contract was registered as an amendment and not a new contract, exceeding the maximum of 5 years allowed under the FIFA Regulations on the Status and Transfer of Players.

43. Given the above and the alleged misrepresentation in the second contract execution and registration, the Respondent 2 held that both should be considered null and void. To this extent, it explained that the player granted the Claimant a de facto unilateral option to extend the first contract, “on the basis that the covenant was finalized on 16 July 2016, was allegedly signed on 28 August 2017 and was only registered on 5 July 2018, according to the Claimant’s own volition and self-interest, without any regard whatsoever for the Player’s position and interest”.

44. The Respondent 2 also submitted it should not be held jointly liable as it did not induce the player to breach the contract.

45. The Respondent 2 finalized its submissions requesting the claim to be rejected, or in the alternative, that compensation to be substantially reduced.

d. Position of D

46. The Respondent 3 submitted it has no standing to be sued. In this sense, it argued that the Claimant did not make any specific requests for relief against it, therefore violating the requirement of certainty and the principle of non ultra petita, as well as its right to be heard.

47. As to the merits, the Respondent 3 objected to the Claimant’s assertion that the player’s transfer from C to the Respondent 3 constituted a bridge transfer. The Respondent 3 stated that (a) the player’s hiring by C had sporting merit, as he played for such club for half a season; (b) there is not a “triangular structure” on the transfer, as the player was engaged as a free agent after he had terminated the contract with C as per a buy-out clause.

48. Further, the Respondent 3 held that it had not had any previous contact with the player, as allegedly demonstrated by an interview given by the Mr. XXX Marketing and Football Contracts Director.

49. The Respondent 3 requested that the claim be dismissed.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

50. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was presented to FIFA on 6 January 2020 and submitted for decision on 13 August 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

51. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition August 2020), 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 a Country B player, a Country C club, and two Country B clubs.

52. However, the Chamber took note of the fact that the Respondent 3 deemed that it does not have standing to be sued.

53. In this respect, the Chamber firstly outlined that the issue of standing regards the merits of the case and, secondly, that it remained undisputed that the claim has an international dimension. Accordingly, and in compliance with its own well-established jurisprudence, the members of the Chamber agreed that the DRC is competent to entertain the claim, which consequently is to be deemed admissible.

54. 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 Player (edition August 2020), and considering that the present claim was lodged on 6 January 2020, the January 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

55. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

56. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

57. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

i. Standing to be sued of D

58. The Chamber observed – first and foremost – that, according to D, it lacked standing to be sued vis-à-vis the claim.

59. In respect of the above, the members of the DRC deemed it worth to preliminarily remark, on general level, that standing to be sued is attributed to a party in which one could validly place the legal consequences deriving from rights brought forward with a claim on the basis of a legally protectable and tangible interest at stake.

60. In the case at hand, the Chamber observed that it can be said that the legal consequences (i.e. compensation for breach of contract by the new club) deriving from the rights based on a legally protectable and tangible interest (i.e. contractual stability arising from an employment relationship) could be indeed placed on the Respondent 3, since the Claimant deemed D to have participated in the alleged breach of contract via a bridge transfer.

61. In this respect, the Chamber noted that whether that claim can be upheld or not pertains to the facts and substance of the case. Therefore, the Chamber concluded that the Respondent 3 has standing to be sued.

ii. Main legal discussion and considerations

62. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute the circumstances concerning the execution of the second contract.

63. On one hand, the Chamber recalled that C and the player, albeit admitting that the latter signed a blank document (due to alleged pressure exercised by the Claimant), argued that the Claimant later filled out the second contract with stipulations different from those the player had primarily agreed to. In continuation, the Chamber took note of the position of the Respondent 1 and the Respondent 2 in the sense that the second contract should be deemed null and void for the following arguments: (a) it was signed by the player as a blank document; (b) it was not properly registered by the Country B FA, and (c) its term violated art. 18 par. 2 of the Regulations.

64. On the other hand, the DRC observed that the Claimant argued that the second contract was validly and regularly executed.

65. In this context, the Chamber acknowledged that it first had to examine whether the second contract had been validly concluded between the Claimant and the Respondent.

66. The Chamber then turned to the evidence on file and observed that all copies of the second contract on file – filed by the Country B FA, the Claimant and the respondents – have the same content with stamps and signatures with different placements. This, in the Chamber’s view, demonstrates that at least three copies of the same document were made, as it is customary in football, i.e. one copy for each party, and one copy for the association concerned.

67. More in particular, the Chamber found that the evidence put forward by both the player and C was not sufficient to disprove the execution of the second contract on 28 August 2017. In other words, the Chamber concluded that the player did not discharge his onus probandi, in line with art. 12 par. 3 of the Procedural Rules, to demonstrate that he had signed a blank document.

68. Consequently, having both given due consideration and weighted the evidence on file, the DRC found no reason to believe that the second contract was not properly executed on 28 August 2017.

69. In continuation, the Chamber recalled that the parties also strongly dispute the circumstances and legal consequences of the registration of the second contract with the Country B FA. In this respect, however, the Chamber referred to the consistent and well-established jurisprudence of the Dispute Resolution Chamber, according to which the validity of an employment contract cannot be made subject to the fulfilment of administrative conditions, such as its registration with the relevant association.

70. Therefore, the Chamber concluded that the parties’ dispute regarding the registration of the second contract does not have an impact in the legal consequences deriving from the execution, and termination, of such agreement. Consequently, the Chamber decided that the issue of the registration of the player cannot be considered for the purposes of assessing the validity of the contract, and the consequences thereof.

71. Lastly, the Chamber proceeded to examine the contents of the second contract in light of the argumentation brought forward by the respondents that such agreement was in violation of art. 18 par. 2 of the Regulations. By doing so, the Chamber concluded, as per unequivocal wording of the second contract, that it could not be deemed as an extension, but was indeed a new contract. Consequently, the DRC established that no violation of art. 18 par. 2 of the Regulations took place. To this extent, the Chamber once again recalled that the fulfilment of administrative conditions does not impact the validity of a contract, and outlined that the registration of the second contract by the Country B FA – either as an extension or new contractual relationship – was irrelevant with respect to its validity.

72. On account of the above, the Chamber came to the conclusion that the arguments of the player and C cannot be upheld and that the second contract signed by and between the Claimant and the Respondent 1 was a valid employment contract, binding the parties thereto for five seasons, i.e. as from the season 2017/2018 until the end of the season 2021/2022.

73. Having so found, the Chamber followed its analysis and turned its attention to the question of the alleged breach of contract without just cause by the player.

74. In this respect, the Chamber was eager to highlight that based on the parties’ respective statements and the documentation available on file, it was undisputed that the player and C signed an employment contract on 20 July 2019.

75. Therefore, on account of all the above, the Chamber concurred that the player had acted in breach of the second contract with the Claimant, without just cause.

76. Given these circumstances, the Chamber recalled that, according to art. 18 par. 5 of the Regulations, if a player enters into an employment contract with different clubs for the same period of time, the provisions of Chapter IV of the Regulations regarding the maintenance of contractual stability between professionals and clubs shall apply.

77. The members of the Chamber then referred to item 7. of the “Definitions” section of the Regulations, which stipulates inter alia that the protected period comprises “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 given the facts of the present case, the breach of contract by the player had occurred within the applicable protected period.

iii. Consequences

78. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the Respondent 1 during the protected period.

79. In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations, according to which the player is liable to pay compensation to B. Furthermore, pursuant to the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. C, 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 the player’s new club 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 jurisprudence of the DRC, which has been repeatedly confirmed by the Court of Arbitration for Sport (CAS). Notwithstanding, the Chamber recalled that in accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless otherwise proven, any club that signs a contract with a professional player who has terminated his/her contract without just cause has induced the player to terminate such contract.

80. Moreover, the Chamber deemed important to address the issues raised by B, namely that a bridge transfer has taken place involving D, B, and the player.

81. In this regard, the Chamber firstly recalled, as a general remark, that the applicable edition of the Regulations in the matter at hand is that of January 2020 and not March 2020, as outlined in para. 54 above. Therefore, the DRC was of the firm position that the relevant regulatory provision which concerns the so-called bridge transfers does not apply to the case at hand.

82. Having stated the above, the DRC once again recalled the principle of burden of proof outlined in art. 12 par. 3 of the Procedural Rules, and accordingly decided that it was incumbent on B to demonstrate the alleged bridge transfer would have taken place.

83. In this respect, the Chamber, while noting the particularities of the case at hand, found that no sufficient evidence had been produced by the Claimant.

84. In conclusion, the Chamber affirmed its position that C is undoubtedly the player’s new club in the sense of art. 17 par. 2 of the Regulations.

85. In continuation, the members of the Chamber 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.

86. In application of the relevant provision, the Chamber held that it had firstly to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. Upon careful examination of said contract, the members of the Chamber assured themselves that this was not the case in the matter at stake.

87. Proceeding then to the calculation of the amount of compensation due by the player, the Chamber firstly turned its attention to the remuneration and other benefits due to the player under the existing contract and/or any new contract(s), a criterion which was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) in the calculation of the amount of compensation.

88. According to the documentation provided by the parties, it appears that in accordance with the second contract, which was to run until 30 June 2022, the player was on one hand to receive a total remuneration of Country B Currency 9,422,222.22. This amount includes the remainder of the player’s salaries of July 2019 (i.e. 10 days) and the remuneration from August 2019 until June 2022.

89. On the other hand, the value of the C Agreement, concluded between the player and C, appears to amount to Country B Currency 2,237,070, which corresponds to approximately EUR 120,000 as converted on 20 July 2019, i.e. the date the player and C signed their contract.

90. In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of the Regulations, after having duly taken into account the specificities of the present case, the compensation considering the player’s both existing contract and any new contract(s) amounts to Country B Currency 8,004,575, which is the average between the amounts the player is entitled to both under the contract and new employment agreement, a sum the Chamber found to be fair and proportionate. For the sake of completeness, the Chamber wished to clarify that in order to properly calculate the aforementioned average, in accordance with the jurisprudence of the DRC, it was necessary to consider the amounts due to the player under the C Agreement for the same period of time remaining in the second contract, i.e. from 20 July 2019 until 30 June 2022 or 35 months and 10 days. In other words, the DRC clarified that in order to properly calculate the average of the amounts due to the player under both the former and the new contract, it had to (fictionally) extend the period of the C Agreement to match the original term of the second contract.

91. The members of the Chamber then turned to the criterion relating to the fees and expenses paid or incurred by B in accordance with art. 17 par. 1 of the Regulations. The Chamber recalled that the Claimant argued that a transfer compensation of USD 1,500,000 had been paid by B to hire the player X as a replacement player, documentation of which has been presented by B and was confirmed by the information available to the Chamber in TMS.

92. The majority of the members of the Chamber deemed that the replacement costs could fit into the description of article 17 par. 1 referring to the fees and expenses paid or incurred by the former club (amortised over the term of the contract), and therefore could be considered as part of the compensation to be granted. As a result of the player’s breach of contract and in light of the evidence on file, the majority of the members of the Chamber found that B has thus incurred in these expenses to hire a replacement, something that would not have taken place in case the Respondent 1 had not breached the second contract. The majority of the members of the DRC highlighted, in connection with the foregoing considerations, that such replacement costs were incurred by the Claimant after the player had unilaterally terminated the second contract, and that the replacement player and the Respondent 1 both play as wingers/strikers.

93. Therefore, by a majority decision, the DRC found that the amount of Country B Currency 24,832,600, which is equivalent to approximately USD 1,500,000 as converted on 29 July 2019, i.e. the date when the relevant transfer agreement was signed, was to be taken in consideration as expenses incurred by B in accordance with art. 17 par. 1 of the Regulations in the calculation of the relevant compensation to be paid by to the Claimant.

94. Notwithstanding the above, the members of the Chamber unanimously agreed that the amount of USD 1,710,000, which was requested by the Claimant in its claim maintaining that it corresponded to the player’s market value as well as a lost transfer fee considering offers received, could not be accepted, since it was considered to be speculative.

95. On account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber, by way of a majority decision, decided that the player must pay the amount of Country B Currency 32,837,175 (i.e. Country B Currency 24,832,600 plus Country B Currency 8,004,575) to B as compensation for breach of contract without just cause. Furthermore, C is jointly and severally liable for the payment of the relevant compensation.

96. In addition, taking into account B’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the player and C must pay to B interest of 5% p.a. on the amount of compensation as of the date of claim, i.e. 6 January 2020, until the date of effective payment.

iv. Compliance with monetary decisions

97. Finally, taking into account the consideration under number 54. 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.

98. In this regard, the DRC pointed out that, against players, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from playing in official matches, up until the due amounts are paid and for the maximum duration of six months.

99. Additionally, the DRC highlighted 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.

100. Therefore, bearing in mind the above, the DRC decided that, in the event that the player does not pay the amounts due to B within 45 days as from the moment in which B, communicates the relevant bank details to the player, provided that the decision is final and binding, a ban from playing in official matches, for the maximum duration of six months shall become effective on the player in accordance with art. 24bis par. 2 and 4 of the Regulations.

101. Likewise, the DRC decided that, in the event that C does not pay the amounts due to B within 45 days as from the moment in which B, communicates the relevant bank details to C, provided that the decision is final and binding, 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 C in accordance with art. 24bis par. 2 and 4 of the Regulations.

102. The DRC recalled that the above-mentioned bans 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.

103. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

104. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

105. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, B, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent 1, A, has to pay to the Claimant the following amount:

- Country B Currency 32,837,175 as compensation for breach of contract without just cause plus 5% interest p.a. on said amount as from 6 January 2020 until the date of effective payment.

4. The Respondent 2, C, is jointly and severally liable for the payment of the aforementioned compensation.

5. Any further claims of the Claimant are rejected.

6. The Claimant is directed to immediately and directly inform the Respondent 1 and the Respondent 2 of the relevant bank account to which the Respondent 1 and the Respondent 2 must pay the due amount.

7. The Respondent 1 and the Respondent 2 shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amount due, plus interest as established above is not paid by the Respondent 1 within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

The Respondent 1 shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months . The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.

9. In the event that the amount due, plus interest as established above is not paid by the Respondent 2 within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

The Respondent 2 shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.

10. This decision is pronounced free of costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

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