F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) passed in Zurich, Switzerland, on 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Jon Newman (USA), member Essa M. Saleh Al-Housani (United Arab Emirates), member Theodoros Giannikos (Greece), member on the claim presented by the club, Club Z, from country E as Claimant/Counter-Respondent against the player, Player M, from country U and G as Respondent 1/Counter-Claimant and the club, Club A, from country C as Respondent 2 regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) passed in Zurich, Switzerland, on 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Jon Newman (USA), member Essa M. Saleh Al-Housani (United Arab Emirates), member Theodoros Giannikos (Greece), member on the claim presented by the club, Club Z, from country E as Claimant/Counter-Respondent against the player, Player M, from country U and G as Respondent 1/Counter-Claimant and the club, Club A, from country C as Respondent 2 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 2 July 2008, Player M (hereinafter: the player), born in August 1979, and Club Z, from country E, concluded an employment contract as well as a supplementary agreement both valid as from the date of signature until the end of season 2010/2011. 2. According to the contract, the player was entitled to receive the total amount of EUR 3,400,000, payable as follows: - for the season 2008/2009: EUR 1,000,000, of which 25% was to be paid as advance payment on 2 July 2008, 50% in two instalments of EUR 250,000 each, due on 5 July 2008 and 1 January 2009 respectively, and the remaining 25% at the end of the season according to the player’s participation; - for the season 2009/2010: EUR 1,000,000; - for the season 2010/2011: EUR 1,400,000. 3. According to art. 2.8 of the supplementary agreement “The player can get a home and a car of a reasonable choice to be paid for by the Club.” 4. Moreover, the “Financial list” of the contract stipulated the following: “Accommodation For Overseas Players 1- Married Player currency of country E 3000/monthly; 2- Single Player currency of country E 2500/monthly”. 5. According to clause 6 of the contract, the player “attends all the practices and friendly and official matches of the club whether national or confederation or international […] with his best effort”. In addition, the same clause provided that “the player should not participate in any other activity except the activities of the country E Football Association without a written agreement from the club”. 6. Moreover, clause 6 par. 8 of the contract stipulates that “any period of suspension imposed on the player under a decision from the association or the club which the player is responsible for its reasons after adequate investigation and after the suspension is approved by the association, the club has the right to deduct proportion from the players dues equal to the period of suspension to the season”. 7. In addition, the “Financial list” of the contract stipulated the following: “Absence from Training - Absence without permission for 1st time deducting currency of country E 3000, second time currency of country E 4000, third time currency of country E 5000, for the fourth time currency of country E 10000 and be raised to Club Board for adding any other penalty.” 8. On 28 March 2009, the player sent a letter to Club Z, in which he affirmed that the latter club breached the contract by not paying him six months of salary as well as his bonus, had not provided him with accommodation, nor with a car and had failed to protect him from fans attacking him. Moreover, according to the same letter, Club Z was given a deadline to comply with its obligations until 31 March 2009, after which the player would start legal proceedings. 9. On 1 April 2009, the player terminated the contract in writing with immediate effect, since “The employment relationship between me and Club Z is disrupted up to the point that a continuation is possible any longer”. 10. On 3 May 2009, Club Z replied to the player in writing that it rejected all allegations mentioned by the player and that it considered the termination by the player a serious breach within the protected period and informed the player that it would start legal actions in front of FIFA. Club Z’s claim: 11. On 29 May 2009, Club Z filed a claim with FIFA against the player for the unilateral termination of the employment contract by the latter without just cause during the protected period and after amending its claim, requested the amount of EUR 3,408,892.40 as compensation, made up of: - Value of contract: EUR 2,650,000 as from 1 April 2009 until 30 June 20011, plus USD 46,800 for accommodation as from July 2008 until February 2009; - Fees and expenses: transfer fee of EUR 500,000 was paid by the club to Club N. This amount should be amortized over the term of the contract (3 years) and multiplied by 2.25 years, amounting to EUR 375,000; - Any other objective criteria: car rental costs of EUR 51,260.20 if any; - Sportive and image damages suffered by the club, since the player, being the most reputable player in the club, breached the contract without just cause before the decisive phase of the country E Football League started and left the club without any opportunity to transfer a substitute player due to the transfer window, also causing big media attention. Therefore an amount of EUR 300,000 could be considered as justified. 12. Moreover, Club Z requests that sporting sanctions should apply and that the player shall be banned for six months, alternatively four months, from playing in official matches. 13. Finally, Club Z requests procedural costs to be paid by the player. 14. In its arguments, Club Z alleged that the deadline given by the player to it in its letter dated 28 March 2009 of three days for the club to comply with its obligations was very short and that the player used this as an excuse to terminate the contract, allegedly with just cause, since he had violated the contract himself prior to that date. 15. Club Z further emphasised that the player had the highest salary in the club’s history and that the player’s well-being was of importance to the club. Therefore, it always fulfilled its financial obligations and in this respect provided the following documentary evidence: a. cheque dated 14 July 2008 for the amount of EUR 366,000 net, being the amount of EUR 500,000 gross made up of the advance payment (EUR 250,000) and first instalment (EUR 250,000) minus taxes (EUR 100,000) and minus the registration fee (EUR 34,000); b. cheque dated 14 December 2008 in the amount of EUR 12,000 net and a cheque dated 19 January 2009 in the amount of EUR 20,000 net; c. cheque dated 15 December 2008 for accommodation in the amount of USD 15,000 for the period of 10 December 2008 until 9 February 2009. According to Club Z, it paid USD 48,750 for the player’s accommodation as of July 2008, whereas the player was only entitled to receive currency of country E 27,000 equivalent to USD 4,802 according to the “Financial list” of the contract for the period of July 2008 until March 2009. As to the car expenses, there is no stipulation according to the contract or the financial agreement; d. cheque dated 12 January 2009 for the second salary instalment due on 1 January 2009 in the net amount of EUR 75,132; e. fine of currency of country E 50,000 for unjustified absence from trainings on 12, 13, 14 and 15 October 2008 and currency of country E 25,000 for participation in the friendly match of the country G national team without the club’s consent on 15 October 2008, which was deducted from the player’s salary in accordance with the club’s regulations; f. fine of currency of country E 20,000 by the country E Football Association for bad behaviour on 14 November 2008 in a match between club Z and the Club P. Also, the player was suspended for three matches by the country E Football Association due to his bad behaviour on 18 November 2008; g. fine of EUR 72,202 based on clause 6 lit. 8 of the contract as an additional punishment for the country E Football Association suspension; h. fine of EUR 40,000, because the player failed to demonstrate seriousness, commitment and directions of Club Z’s staff during the official league match against Club O, equal to 4% of each player’s annual salary, i.e. 4% of EUR 1,000,000; i. absence sheets listing the player’s absences from 24 trainings as from 1 January 2009 until 31 March 2009; therefore the player’s salary was deducted by EUR 120,000 corresponding to EUR 5,000 per day. 16. Moreover, Club Z stressed that all coaches thought that the player had a bad physical condition and that it received a letter by the player’s agent on 1 February 2009, in which the latter had mentioned that the player failed to pay him his agent’s fee. Reply of the player and counter-claim: 17. In his reply to Club Z’s claim, the player stated that he terminated the contract with just cause due to several breaches committed by the latter club. The player affirmed that by the end of March 2009 he had only received salary in the amount of EUR 366,000 instead of EUR 750,000 and that he had been evicted from his accommodation, because the club had failed to pay his rent. Moreover, the player had to buy his own car since Club Z allegedly failed to provide him with one and was also in fear of his personal security as a result of continuous threats against him. 18. Furthermore, the player alleges that he tried several times to find an amicable settlement with Club Z, but that the latter told him that it had no money to meet its commitments. 19. Therefore, the player deemed that he terminated the contract as a last resort after several months of effort and Club Z’s persistent failure to honour its obligations regarding salary and housing payments, and that he did not join another club until several months later, and for a much reduced salary. 20. As to Club Z’s allegations regarding the payment of his salary, the player stated the following: a. as to the advance payment and first salary instalment in the amount of EUR 366,000, the player states that the registration fee of EUR 34,000 which was deducted from his salary was not agreed in the contract and Club Z paid the two instalments 12 days too late, i.e. on 14 July 2008 instead of 2 July 2008; b. as to the alleged cheque payments dated 14 December 2008 (EUR 12,000) and 19 January 2009 (EUR 20,000), the player states that the club did not explain what these payments were and they are not in accordance with the contract. Even if these payments were made, which they were not, Club Z knew that it was not up to date with its contractual instalments by then; c. as to the accommodation and car expenses the club alleges that it was not contractually obliged to pay, the player states that art. 2.8 of the supplementary agreement clearly states that he is entitled to a car and accommodation; d. as to the second salary instalment, the player states that according to the contract he was to be paid EUR 250,000, but Club Z asserted that the player would receive only EUR 75,132 since it deducted several amounts - of which the player was never notified. Moreover, the cheque dated 12 January 2009 in the amount of EUR 75,132 could not be cashed; e. as to the deductions of his salary due to his absence from trainings in the amount of currency of country E 25,000 and currency of country E 50,000, the player states that, with the approval of the club, he attended the FIFA World Cup qualifying match between country G and country L on 11 October 2008 and states that he was entitled to 24 hours of travel time after the qualifier, making any fine regarding the training session of 12 October 2008 groundless in line with the FIFA Regulations. The player remained in country G until 16 October 2008, in anticipation that he would have been asked to play, which however, did not occur. In any case, he understood that Club Z had approved his absence until that time. Therefore, the player argues that if deemed punishable under the club’s regulations, he would under the contract’s title “Absence from Training” at most receive a fine of currency of country E 12,000; f. as to the deduction of currency of country E 20,000 in application of an country E Football Association sanction for bad gesture during a match on 14 November 2008, the player denies these allegations and stresses that he was never notified of the nature of this sanction and was unable to appeal; g. As to the fine of EUR 72,202 as an additional punishment for the country E Football Association suspension, the player points out that at the time of the country E Football Association sanction, Club Z actually protested against the fine and suspension of the player by the country E Football Association. Therefore, it was contradictory that Club Z added its own, significantly harsher sanction on top of the country E Football Association’s fine; h. as to the fine of EUR 40,000 for alleged poor performance in the match against Club O, the player states that this fine is purely subjective and excessive amounting to 4% of his annual salary. Furthermore, there is no justification for Club Z having sanctioned its entire team over a misplaced perception of lack of effort; i. as to the absences from trainings in 2009, the player denies these allegations and provides a copy of his passport according to which he did not leave country E as from January until 31 March 2009, except as from 23 March 2009 until 31 March 2009 when he visited his mother in country U, which was approved by Club Z. In this respect, the player enclosed a website article dated 6 April 2009, which states that “country E club Z are still waiting the arrival of striker Player M after the club had allowed the striker to return to country U to visit his mother”. 21. The player concluded that because of the aforementioned omissions by Club Z, it became clear by March 2009 that the latter club had no intentions to fulfil its obligations and thus he had just cause to terminate his contract. 22. Regarding Club Z’s financial claim of EUR 300,000 regarding image damages caused by the player, the player argued that the latter club has not provided any evidence nor has it shown any evidence of actual negotiations or even plans to transfer or sell him. 23. Consequently, the player lodged a counterclaim against Club Z for breach of contract and claimed outstanding remuneration and compensation in the total amount of EUR 3,467,460 as follows: - EUR 534,000 plus 5% interest on each instalment made up of the registration fee of EUR 34,000 and the second instalment of EUR 250,000 of season 2008/2009 and EUR 250,000 for the final instalment of season 2008/2009; - EUR 2,400,000 plus 5% interest for season 2009/2010 and 2010/2011; - USD 49,000 for accommodation; - EUR 500,000 supplementary compensation according to the Swiss Code of Obligations being six monthly salaries. 24. Finally, the player requested sporting sanctions on Club Z consisting in a ban from registering any new players for the next two registration periods. Replica of Club Z: 25. In its replica, Club Z maintained its previous position and rejected the player’s arguments and counterclaim providing the following arguments: a. as to the registration fee of EUR 34,000 which was deducted, Club Z states that it informed the player that such fee would be payable by the latter and the fact that the player did not contest the deduction when he received the cheque on 14 July 2008, but only a year later, shows that it fulfilled its obligations for the first and second instalments; c. as to the accommodation expenses, Club Z states that the player confirms with his signature in a receipt dated 10 August 2008 that he received USD 24,000 net as well as USD 15,000 net by cheque dated 15 December 2008 for accommodation as from 10 December 2008 until 9 February 2009. As to the alleged receipt provided in the player’s position in the amount of USD 49,000 for the period of 1 October 2008 until 31 March 2009, Club Z asserts that neither the amount nor the purpose is legible in the receipt and that the player never requested it to reimburse this amount until now. Even if the player would have asked it to have this amount reimbursed, the player was already indebted towards club on 1 April 2009; d. as to the cheque dated 12 January 2009 in the amount of EUR 75,132, Club Z asserts that even if it wouldn’t have been covered, it would be the player that owed monies to Club Z on 1 April 2009; e. as to the player’s unjustified absence in October 2008, Club Z states that the country E Football Association demanded the country G Football Federation to ensure the player’s return immediately after 11 October 2008, however, the player only returned on 16 October 2008. Since Club Z had an important match on 17 October 2008, which it lost, the player committed a significant violation; f. as to the player’s bad behaviour in the match of 14 November 2008, Club Z states that the country E Football Association’s sanction caused severe harm to Club Z since the player was suspended for three matches - therefore its additional sanction is justified; g. the fine of EUR 72,202 imposed on the player is based on clause 6 par. 8 of the contract. During the season 2008/2009 there were 30 matches and the suspension of three matches by the country E Football Association corresponds to 1/10 of the number of total matches and thus the amount of the sanction is proportional; h. as to the fine of EUR 40,000 resulting from the club’s board decision regarding the match against Club O, the club reiterated that the player failed to demonstrate seriousness and commitment, and the player was aware of it; i. as to the player’s absence from trainings in 2009, Club Z maintains its position and objects that it authorised the player to visit his mother in country U. Moreover, Club Z states that the player failed to provide any proof, since the fact that he was in country E has no connection between the player’s absence from trainings. As to the fines, the club emphasises that the player’s assertions that he was not informed are untrue, since he did not contest them at Club Z or the country E Football Association. Moreover, the sanctions are based on the club’s regulations which were also signed by the player. 26. Moreover, Club Z enclosed an overview of the following outstanding amounts: Item Amount Amount (net) Deductions Payment Outstanding (gross) after tax (club to amount player) Salary: first and EUR 500,000 EUR 400,000 EUR 34,000 EUR 366,000 second (registration fee) instalment 2008/2009 Salary: third EUR 250,000 EUR 200,000 EUR 112,202 (EUR - EUR 44,868 to be instalment 72,202 (lit. g) + Cheque not paid by player to 2008/2009 EUR 40,000 (lit. covered EUR club h); plus EUR 75,132 (lit. d) 12,666 sanctions; plus EUR 120,000 Accommodation USD 24,000 until 9 net or USD November 2009 28,800 gross Accommodation Not specified USD 15,000 Max. USD 34,000 to until 31 March (player claims net or USD be paid by club to 2009 USD 49,000) 18,000 gross player Unspecified item EUR 15,000 EUR 12,000 (lit. EUR 12,000 received I b) (cheque by player dated 4 December 2008) Unspecified item EUR 24,000 EUR 20,000 (lit. EUR 20,000 received II b) (cheque by player dated 19 January 2009) Car Not specified Total EUR 51,260.20 to be paid by player to club 27. In view of the above, Club Z held that until 1 April 2009 it paid the player the total amount of EUR 425,193.50 net and that the player owed it the amount of EUR 51,260.20, from which car rental costs may be deducted if any shall be granted by the DRC. 28. As to the player’s allegations about the lack of security, Club Z stated that the player failed to provide any proof that the club would have not taken care of his security. 29. Finally, Club Z indicated that the player signed a new employment contract with the Club A, from country C, where the player was tested positively in a doping control which was submitted by the country C Anti-Dopoing Commission in April 2010. Duplica of the player: 30. In his duplica, the player maintained his previous arguments and counterclaim. 31. In addition, the player stated that in its replica, Club Z did not deny that it had ailed to pay accommodation and a car to the player. Club Z’s only defence is that it was entitled to withhold payment to the player as a form of “setoff” for damages allegedly incurred after the second instalment was due. 32. Furthermore, the player elaborated on the following: a. as to the deduction of the registration fee, the contract does not have such clause and Club Z has failed to provide its club’s regulations as evidence; c. as to the accommodation, Club Z in its claim states that the contract does not stipulate any such clause, but that the player received such amounts in any case. In its replica, however, Club Z acknowledged the supplementary agreement and its clause that the player is entitled to “a home and a car”; d. as to the second salary instalment, Club Z does not deny in its replica that the cheque bounced for lack of sufficient funds and thus it remains uncontested that no payment was made for the second instalment due on 1 January 2009. Therefore, by 28 March 2009, Club Z was already three months late in paying the second instalment; e. as to the player’s absence in October 2008, the player emphasizes that Club Z did not provide any evidence to the contrary that the player had been given leave to remain in country G until 16 October 2008; h. as to the fine imposed on the player of EUR 40,000, Club Z failed to provide any evidence to support that this fine was proportionate and the website article cited by Club Z confirms that the player had no explanation for the late and failed cheque. 33. In addition, the player asserted that Club Z appeared to be justifying its breach of contract in January 2009 with “subsequent events” which allegedly occurred between 15 January and 1 April 2009. Moreover, the bad cheque for the amount of EUR 75,132, provided to the player on 12 January 2009, was produced three days prior to the commencement of these events for which Club Z claims that the player owes money, and in its replica Club Z acknowledges that such cheque was not covered. 34. Finally, the player stated that any alleged on-going anti-doping procedure between himself and Club A is irrelevant to the dispute and confidential. 35. Lastly, the player reasoned that in case the DRC decides that he terminated the contract without just cause, Club Z should only be entitled to compensation in the amount actually paid to the player, being EUR 366,000 minus USD 49,000 accommodation, this latter amount having been paid by the player. Final position of Club Z on the player’s counter-claim: 36. In its final position as to the player’s counterclaim, Club Z provided a correspondence dated 30 August 2012 from the country E Football Association, confirming that during the season 2008/2009 it was the obligation of a player to pay 1% of the total amount of his contract as a registration fee and that “This letter have been given upon Club Z request, to whom it may concern without any responsibility of the country E Football Association.”. 37. As to the cheque of EUR 75,132, Club Z pointed out that the player did not provide any proof as to whether he even tried to cash the respective cheque. 38. As to the player’s absence in trainings, Club Z stated that it cannot think of any means of proof which would be clearer than the report sheets it submitted by its coach. 39. Finally, Club Z indicated that in the alternative, it claims compensation in the amount of EUR 2,288,760.20 against the player and that Club A shall be jointly liable for the payment of such compensation. The requested amount is made up of: - Fees and expenses incurred by the former club: transfer fee of EUR 500,000 was paid by the club to Club N, which should be amortized over the term of the contract (3 years) and multiplied by 2.25 years amounting to EUR 375,000, plus EUR 62,500 for the first season which ended on June 2009; - EUR 1,500,000, since the new contract signed with Club A contains a clause stipulating that if the player is transferred to a third club, Club A shall receive this amount - therefore, this should be considered as the player’s market value; - Any other objective criteria: car rental costs of EUR 51,260.20 if any; - Sportive and image damages suffered by the club: same as previously (cf. I. 12. above). 40. Club Z additionally requested that the entire file of the player’s apparent positive doping test of 14 April 2010 shall be disclosed by FIFA. Final position of the player on Club Z’s amended claim: 41. As to the amended claim, the player argued that the statement provided by the country E Football Association regarding the registration fee should not be taken into account, since it was created at the request of Club Z and states that the country E Football Association does not take any responsibility for it. 42. Moreover, the player stressed that Club Z is demonstrating its bad faith by unnecessarily delaying the resolution of the present dispute and making incoherent pleadings. 43. Finally, the player stressed again that in case the DRC would decide in favour of Club Z, the latter is at most entitled to compensation actually paid to him in the amount of EUR 366,000 minus USD 49,000 paid by the player for accommodation. Player’s employment situation after the termination of the contract with Club Z: 44. On 5 August 2009, the player signed an employment contract as well as a supplementary agreement with the Club A, from country C, valid as from 4 August 2009 until 31 May 2011. According to the contract, the player is entitled to receive a total amount of EUR 155,000 gross payable as follows: EUR 70,000 payable in ten instalments of EUR 7,000 as from 31 August 2009 until 31 May 2010 and EUR 85,000 payable in ten instalments of EUR 8,500 as from 31 August 2010 until 31 May 2011. In addition, the player is entitled to receive according to the supplementary agreement the amount of EUR 360,000 of which EUR 145,000 as a sign-on fee, EUR 100,000 for the season 2009/2010 and EUR 115,000 for the season 2010/2011. 45. On 28 June 2010, the player and Club A allegedly terminated their employment contract by mutual agreement. Therefore, the player allegedly received a total amount of EUR 240,000 during his employment with Club A. 46. The player did not find new employment between July 2010 and 30 June 2011. 47. Despite having been invited by FIFA to do so, Club A did not provide its position as to Club Z’s claim. II. Considerations of the Dispute Resolution Chamber 1. 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 submitted to FIFA on 29 May 2009. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute of international dimension between an country E club, an country U/country G player and a country C club. 3. In continuation, 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 (editions 2008, 2009 and 2010) and considering that the present claim was lodged on 29 May 2009, the 2008 edition of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the above-mentioned facts and documentation contained in the file. 5. In this respect, the Chamber firstly noted that Club Z and the player concluded an employment contract and a supplementary agreement on 2 July 2008, valid until the end of season 2010/2011. In this regard, Club Z claimed that the player terminated the employment contract unilaterally and without just cause and that Club A shall be held jointly liable for the breach of contract by the player. In this regard, Club Z requests EUR 3,408.892.40 from the player or in the alternative EUR 2,288,760.20 from the player and Club A. Club Z based its claim on the fact that, allegedly, it had always fulfilled its financial obligations towards the player, and that the deadline given by the player in his letter dated 28 March 2009 of three days for Club Z to comply with its obligations before terminating the contract was very short, bearing in mind that the player was at the time in debt towards Club Z due to several fines and salary deductions imposed on him. Therefore, Club Z equally requested the imposition of sporting sanctions on the player (six months’ suspension, alternatively four months). 6. The Chamber noted that, on the other hand, the player rejected Club Z’s claim and stressed that he terminated the contract with just cause due to several breaches committed by Club Z. In this respect, the player explained that by the end of March 2009 he had only received EUR 366,000 instead of EUR 750,000 and had been evicted from his accommodation. In addition, the player argued that he had terminated the contract as a last resort after Club Z’s persistent failure to honour its obligations regarding salary and housing payments and did not join another club until several months later for a reduced salary. The player thus argued that Club Z breached the contract without just cause and lodged a counter-claim against Club Z in the amount of EUR 3,467,460 plus 5% interest on the instalments for outstanding remuneration and compensation. The player also requested sporting sanctions on Club Z consisting in a ban from registering any new players for the next two registration periods. 7. Finally, the Dispute Resolution Chamber noted that despite having been invited by FIFA to do so, Club A did not provide its position as to Club Z’s claim. 8. In view of the contents of the parties’ claim, respectively counter-claim, the Chamber firstly noted that it remains undisputed that on 1 April 2009 the player terminated the employment contract in writing after having put Club Z in default, on 28 March 2009, of the payment of six months’ salary as well as a bonus. In this regard and considering the parties’ divergent positions, the Chamber deemed that the underlying issue in this dispute was to determine whether the employment contract had been unilaterally terminated by the player with or without just cause. 9. In this respect, the members of the DRC turned their attention to the arguments of Club Z, which deemed that the player had terminated the employment contract without just cause, because the player was in violation of the contract at the time of his unilateral termination and owed Club Z outstanding monies. In other words, there was no debt towards the player, since his salary was to be set off with the fines that had been imposed on him, which made the player a debtor towards Club Z. 10. In view of the above, the Chamber deemed it appropriate to examine the documentation on file as well as the submissions of the parties, bearing in mind the contents of art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 11. In this context, the Chamber first of all recalled the stipulations of the employment contract signed by the parties on 2 July 2008 valid until the end of the season 2010/2011. According to the contract, the player was entitled to receive the total amount of EUR 3,400,000, payable as follows: - for the season 2008/2009: EUR 1,000,000, of which 25% was to be paid as advanced payment on 2 July 2008, 50% in two instalments of EUR 250,000 each, due on 5 July 2008 and 1 January 2009 respectively, and the remaining 25% at the end of the season according to the player’s participation; - for the season 2009/2010: EUR 1,000,000; - for the season 2010/2011: EUR 1,400,000. 12. In continuation, the Chamber started its analysis of the documentary evidence provided by the parties with the cheque dated 14 July 2008 in the amount of EUR 366,000 which was issued by Club Z to the player in relation to the contractually agreed advance of payment and first instalment in the total amount of EUR 500,000. In this respect, the DRC pointed out that, from the amount of EUR 500,000, the player only received EUR 366,000, this is, according to the parties’ explanations, EUR 100,000 were deducted as taxes while Club Z deducted the amount of EUR 34,000 as a registration fee. 13. In view of the above, the Chamber established that the player does not contest that the amounts due under the contract were gross, since he does not disagree that the amount of EUR 100,000, corresponding to 20% taxes, was deducted from the aforementioned amount of EUR 500,000. 14. Furthermore, the DRC pointed out that the net amounts due according to the contract up until the termination of the contract, i.e. until 1 April 2009, was of EUR 600,000, made up of EUR 200,000 net as advance of payment and EUR 200,000 net each due on 5 July 2008 and 1 January 2009, respectively. 15. Having established the above, the Chamber lent emphasis on Club Z’s justifications as to why it had not proceeded to the complete payment of the player’s remuneration up until 1 April 2009. The DRC noted that Club Z states having rightfully made some deductions from the player’s salary, due to several offences allegedly committed by the latter, and thus that the player was in fact indebted towards them. 16. In this context, the Chamber firstly turned its attention to the deduction of the registration fee of EUR 34,000 made by Club Z on the advance payment and first instalment. In this respect, the Chamber analysed the contents of the employment contract and supplementary agreement and pointed out that such fee was not contractually stipulated. However, the DRC noted that Club Z provided a correspondence from the country E Football Federation dated 30 August 2012, confirming that during the season 2008/2009 it was the obligation of a player to pay 1% of the total amount of his contract as a registration fee and that “This letter have been given upon Club Z request, to whom it may concern without any responsibility of the country E Football Association.” In this context, the DRC stated that the contents of such letter cannot be considered as evidence that the player had agreed to the relevant deduction, since the letter was only provided during the course of the present investigation and for the purpose thereof. 17. Consequently, the DRC decided that Club Z had no contractual basis to rightfully deduct said amount the amount of EUR 34,000 and that the said amount had to be considered as outstanding since 5 July 2008. 18. In continuation, the Chamber went on to analyse the fines imposed by Club Z on the player. The first two fines, which appear to be linked, pertain to the alleged unjustified absence from trainings as from 12 until 15 October 2008 and to the fact that it lost a match on 17 October 2008 (country E Football Association 50,000), as well as to the player’s participation in the friendly match between country G and country L (currency of country E 25,000). In this regard, the members of the Chamber noted that it was undisputed that the player was absent from trainings, with the authorization of Club Z, as from 12 until 16 October 2008, since he was participating in the friendly match of the country G national team. 19. In this regard, the DRC recalled that according to art. 1 par. 7 of Annexe 1 of the Regulations a player has to resume duty within 24 hours after the end of an international friendly match. Therefore, the DRC concluded that in absence of any documentary evidence to the contrary, it is to be concluded that the player was absent from trainings without Club Z’s authorization for three days as from 12 until 15 October 2008. 20. In this context, the DRC turned to the “Financial List” of the contract, according to which in case of a player’s absence from training he is fined country E Football Association 300 for the first offence. Therefore, applying the aforementioned contractual stipulation, Club Z was entitled to fine the player, for three days of absence from training, in the maximum of country E Football Association 900. As a result, the Chamber decided that the fine of country E Football Association 50,000 imposed by Club Z on the player was clearly disproportionate and unjustified. 21. Equally, the DRC saw no justification as to the imposition of the fine in the amount of country E Football Association 25,000 since the player participated in the friendly match of his national team against country L in compliance with the call up by the country G Football Association and that, as such, imposing a fine for the mere fact that the player participated in said match is clearly in violation of the FIFA Regulations. 22. Therefore, the DRC concluded that a fine of a maximum amount of country E Football Association 900, corresponding to EUR 1,200, could be imposed on the player as a fine regarding his absence from training between 12 and 15 October 2008. 23. In continuation of the analysis of the relevant evidence provided by the parties, the DRC observed that the country E Football Association fined the player in the amount of country E Football Association 20,000 on 14 November 2008 for bad behaviour during a match between Club Z and Club P and suspended the player for three matches on 18 November 2008. 24. In this respect, the members of the Chamber decided that the fine imposed directly by the country E Football Association on the player and not by Club Z may be considered as objective and proportionate to the offence. However, the Dispute Resolution Chamber noted that Club Z, in addition to the country E Football Association’s above-mentioned fine and suspension of three matches, imposed a fine on the player for the same offence in the amount of EUR 72,202 based on clause 6 par. 8 of the contract. 25. In this respect, the DRC recalled the contents of clause 6 par. 8 of the contract, which stipulates that “any period of suspension imposed on the player under a decision from the association or the club which the player is responsible for its reasons after adequate investigation and after the suspension is approved by the association, the club has the right to deduct proportion from the players dues equal to the period of suspension to the season”. 26. The members of the Chamber pointed out that the meaning of said clause was not entirely clear and that it leaves space for interpretation as to the right of the club to deduct a certain amount from the player’s salary and the amount of such deduction. This being said, the DRC deemed it appropriate to compare the sanction imposed by the country E Football Association in relation to the player’s alleged bad behavior during the mentioned match with the sanction imposed by Club Z for the same misbehavior. The Chamber noted that the country E Football Association fined the player in the amount of country E Football Association 20,000 (or EUR 2,700), together with a suspension of three matches, whereas Club Z imposed an additional fine of EUR 72,202 for the same misbehavior. The DRC was of the firm opinion that Club Z’s fine appears to be disproportionate if compared to the sanction imposed by the country E Football Association and that clause 6 par. 8 of the contract shall be understood as a right for Club Z to deduct a proportionate amount of the player’s salary. 27. In view of the above, the DRC had to establish which amount of Club Z’s fine on the player would be considered proportionate bearing in mind the country E Football Association’s fine and match suspension of three days. Taking into account the contractual stipulations, the Chamber concluded that the player’s monthly net salary amounted to EUR 83,333. Bearing in mind the player’s three day match suspension of the country E Football Association, the Chamber concluded that a deduction of the equivalent of three days of the player’s salary, amounting to a total EUR 8,333, could be considered proportionate and in accordance with clause 6 par. 8 of the contract. 28. As a result, the DRC concluded that Club Z’s additional fine of EUR 72,202 was disproportionate and excessive and not in accordance with the interpretation of clause 6 par. 8 of the contract. 29. The members of the Chamber went on with its observations of the documents on file and paid close attention to the undated decision of Club Z’s Board according to which all players’ annual salary was reduced by 4%, i.e. in the case of the player by EUR 40,000, since the players failed to demonstrate seriousness, commitment and respect towards the directives of the club’s staff during the official league match against Club O. 30. In this respect, the Chamber noted that the relevant fine was of highly subjective nature, while it is not at all evidenced that the player failed to demonstrate seriousness, commitment and respect towards Club Z’s directives. In addition, the Chamber highlighted that Club Z failed to provide a copy of the club’s regulations as documentary evidence in order to support its position. Therefore, the Chamber decided that Club Z could not provide sufficient evidence that the amount of EUR 40,000 should be deducted and that said deduction was made without just cause. 31. Finally and referring to the player’s absences from 24 trainings as from 1 January 2009 until 31 March 2009, the DRC turned to the fine imposed by Club Z in the amount of EUR 120,000 corresponding to EUR 5,000 per day. In this regard, the members of the Chamber noted that said fine was imposed on the player only after the player terminated the contract. Furthermore, the DRC stressed that the amount of EUR 5,000 per absence day is to be considered as disproportionate and not in line with the respective contractual stipulation. 32. For the sake of good order, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. 33. In view of the above, the Chamber concurred that the various fines imposed on the player by Club Z shall be mostly disregarded as being unjustified and/or disproportionate, with the exception of: • A fine in the maximum amount of currency of country E 900 regarding the player’s absence from trainings as from 12 until 15 October 2008, • The fine of currency of country E 20,000 imposed by the country E Football Association for bad behaviour during a match between Club Z and Club P dated 18 November 2008, • A fine in the maximum of EUR 8,333 regarding the player’ bad behavior during a match between Club Z and Club P, following the country E Football Association’s sanction. 34. The aforementioned having been established, the DRC continued its deliberations by analysing the cheques in the amount of EUR 12,000 dated 14 December 2008 and EUR 20,000 dated 19 January 2009. In this regard, the player insists that this payment is not related to the contractual financial obligations of Club Z towards him and it could not be established to what these payments refer to. The DRC established that although Club Z does not prove precisely to which financial obligations these payments corresponded to, the player does not contest having received such amounts, whereas it has not been unambiguously demonstrated that they were not related to Club Z’s financial obligations under the contract. Consequently, the Chamber must conclude that Club Z had paid the player EUR 32,000 as part of the remuneration due to the latter and had to acknowledge that the amount of EUR 32,000 have been duly paid and are not to be considered as outstanding remuneration towards the player. 35. In continuation, the DRC noted that Club Z provided a copy of a cheque in the amount of EUR 75,132 dated 12 January 2009, which was allegedly paid in accordance with the second salary installment due on 1 January 2009. After a thorough analysis of the parties’ positions in this respect, the Chamber noted that the player argued that said cheque could not be cashed and provided an insufficient funds notice as documentary evidence. Moreover, the Chamber noted that Club Z in its replica provided an overview chart with the outstanding amounts, in which it stated “Cheque not covered EUR 75,132”. Bearing in mind art. 12 par. 3 of the Procedural Rules, the Chamber was convinced that Club Z failed to pay the amount of EUR 75,132 to the player and that consequently such amount has to be considered as part of the outstanding amount due to the player. 36. Finally, turning its attention to the accommodation fees allegedly paid by Club Z, the DRC noted that in accordance with the contract’s “Financial list”, the player was entitled to receive a maximum amount of currency of country E 3,000 corresponding to USD 530 per month. In this context, the DRC took into account that Club Z provided two cheques dated 10 August 2008 and 15 December 2008 in the total amount of USD 39,000, signed by the player, the validity of which was not contested by the latter. Moreover, the Chamber noted that the player in his counterclaim requests the amount of USD 49,000 for accommodation as from October 2008 until end of March 2009, an amount which is considerably higher than the contractually stipulated amount. Furthermore, Club Z provided documentary evidence that it paid the player USD 39,000 for accommodation fees, and thus sufficiently demonstrated that it has fulfilled its contractual obligation regarding payment of the player’s accommodation fees. 37. In view of all of the above, the Dispute Resolution Chamber gathered an overview of the outstanding amounts at the moment when the player terminated the contract. In this respect, the Chamber recalled that EUR 600,000 gross were to be paid by Club Z until 1 January 2009 to the player. Of said amount it is undisputed that the player received EUR 366,000, and thus EUR 234,000 were to be considered as outstanding at the moment the player terminated the contract. From such amount, EUR 32,000 was to be established as paid by Club Z via two cheques and consequently EUR 202,000 was to be considered outstanding. Furthermore and as established above, the fine imposed on the player by the country E Football Association in the amount of currency of country E 20,000 (or EUR 2,700) was to be considered justified (cf. II. 22. above) and thus can be deducted from any outstanding amounts, equaling to EUR 199,300 being outstanding. Finally and after analyzing the several fines imposed by Club Z on the player, the DRC established that such fines were excessive and concluded that the total amount of EUR 9,533 only was to be considered proportionate and could be imposed on the player, and equaling to a total amount of EUR 189,767 being outstanding. 38. On account of the above circumstances, the Chamber established that Club Z had repeatedly sanctioned the player without justification while failing to remit a substantial part of his salary without a just cause during a considerable amount of time (as of July 2008) which conduct constitutes, in line with the long-lasting jurisprudence of the Chamber, a clear breach of contract. Accordingly, the Chamber concurred that the player had just cause to unilaterally terminate the employment contract on 1 April 2009 and thus, that Club Z is to be held liable for the early termination of the employment contract with just cause by the player. 39. Having established that Club Z is to be held liable for the early termination of the employment contract with just cause by the player, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Claimant/Counter-Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract. 40. First of all the Chamber reverted to the player’s financial claim and decided that the total amount of EUR 189,767 made up of outstanding salaries for the period between July 2008 until January 2009 (cf. point II. 37. above) was to be paid by Club Z to the player. 41. In addition, taking into consideration the player’s respective request, the Chamber decided to award the player interest at the rate of 5% p.a. as of the day following the day on which each of the salary payments included in the global amount of EUR 189,767 fell due in accordance with the pertinent employment contract. In this regard, the Chamber decided to award 5% interest p.a. over the amount of EUR 34,000 as of 6 July 2008 until 1 January 2009 and 5% interest p.a. over the amount of EUR 155,767 as of 2 January 2009 until the date of effective payment. 42. In continuation, 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 Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 43. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. The Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 44. As a consequence, the members of the Chamber determined that the amount of compensation payable by Club Z to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that the 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. 45. On this basis, and in order to evaluate the amount of compensation for breach of contract, the members of the Chamber took into account the remuneration due to the player in accordance with the contract as well as the time remaining on the same contract, as well as the professional situation of Club Z after the early termination occurred until the present moment. 46. In accordance with the employment contract signed by the parties, which was to run for more than two more seasons being the season 2009/2010 and 2010/2011 after the breach of contract occurred, the player was to receive remuneration amounting to EUR 2,650,000 net, made up of EUR 250,000 payable at the end of season 2008/2009 and the total amount of EUR 2,400,000 for the season 2009/2010 and 2010/2011. Consequently, the Chamber concluded that the amount of EUR 2,650,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 47. The Chamber then took due note of the employment situation of the player after the termination of the employment with Club Z, this is, that the player signed an employment contract with the Club A, from country C, on 5 August 2009 valid until 31 May 2011, according to which the player was entitled to a total remuneration of EUR 515,000; however, the parties mutually terminated the contract on 28 June 2010. In this regard, the Chamber was eager to emphasise that the circumstance that the player and Club A mutually decided to terminate their employment relationship prior to its contractually agreed expiry could not be reproached on Club Z and thus that the entire contractual value shall be taken into account in the assessment of the compensation for breach of contract due to the player. 48. Furthermore, the Chamber highlighted that as from July 2010, i.e. the time when the player’s contract with Club A was terminated by mutual consent, until the remaining period of time of the contract with Club Z, at least three registration periods had been open, during which time the player had the possibility to further mitigate his damages by signing an employment contract with a new club. 49. Consequently, bearing in mind art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such fact shall be taken into account in the calculation of the amount of compensation for breach of contract. 50. Finally, the Chamber also underlined that the player put Club Z in default of their payment obligations, granting the latter club a mere three days in order to comply with said obligations. Immediately after the expiry of such deadline, the player terminated the contract without attempting further to settle the matter in an amicable way. The Chamber found that, in light of this specific circumstance and despite having had a just cause to terminate the employment relationship, the player could have shown more willingness to find an amiable solution to the dispute with Club Z and thus concluded that this particular aspect should be taken into account as another mitigating factor in the assessment of the compensation for breach of contract payable by Club Z to the player. 51. Therefore, on account of all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that Club Z must pay the player the amount of EUR 1,400,000, which is to be considered reasonable and proportionate as compensation for breach of contract in the case at hand. 52. In light of all of the above, the Dispute Resolution Chamber concluded its deliberations by establishing that Club Z’s claim against the player is rejected, that the player’s counterclaim is partially accepted and that Club Z must pay the player outstanding remuneration in the amount of EUR 189,767 plus 5% interest p.a. over the amount of EUR 34,000 as of 6 July 2008 until 1 January 2009 and 5% interest p.a. over the amount of EUR 155,767 as of 2 January 2009 until the date of effective payment. 53. Furthermore, the Chamber decided that Club Z is liable to pay to the player the amount of EUR 1,400,000 as compensation for breach of contract plus interest of 5% p.a. over said amount as from the date of the decision, i.e. 28 June 2013 until the date of effective payment. Any further claims lodged by the player are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Club Z, is rejected. 2. The counterclaim of the Respondent 1/Counter-Claimant, Player M, is partially accepted. 3. The Claimant/Counter-Respondent, Club Z, has to pay to the Respondent 1/Counter- Claimant, Player A, within 30 days as from the date of notification of this decision, the amount of EUR 189,767, plus interest of 5% p.a. as follows: - 5% p.a. over the amount of EUR 34,000 as of 6 July 2008 until 1 January 2009; - 5% p.a. over the amount of EUR 155,767 as of 2 January 2009 until the date of effective payment. 4. The Claimant/Counter-Respondent, Club Z, has to pay to the Respondent 1/Counter- Claimant, Player M, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 1,400,000 plus interest of 5% p.a. over said amount as from the date of the decision until the date of effective payment. 5. In the event that the aforementioned amounts plus interest due to the Respondent 1/Counter-Claimant, Player M, are not paid by the Claimant/Counter-Respondent, Club Z, within the stated time limit, the present matter shall be submitted, upon request, to the FIFA’s Disciplinary Committee for consideration and a formal decision. 6. Any further claims lodged by the Respondent 1/Counter-Claimant, Player M, are rejected. 7. The Respondent 1/Counter-Claimant, Player M, is directed to inform the Claimant/Counter- Respondent, Club Z, 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. Note relating to the motivated decision (legal remedy): According to art. 67 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 within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives