F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 January 2014, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member Mario Gallavotti (Italy), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player S, from country B as Claimant / Counter-Respondent against the club, Club B, from country P as Respondent / Counter-Claimant with the club, Club C, from country B as Intervening Party regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 January 2014, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member Mario Gallavotti (Italy), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player S, from country B as Claimant / Counter-Respondent against the club, Club B, from country P as Respondent / Counter-Claimant with the club, Club C, from country B as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case Facts relating to the preliminary issue on the competence of the DRC: 1. On 31 July 2009, the Player S, from country B (hereinafter: player or Claimant/Counter-Respondent), and Club B, from country P (hereinafter: club or Respondent/Counter-Claimant), signed an employment contract, valid as from 1 August 2009 until 30 June 2014, which contains the following final clause: ”The cases and situations that are not in this contract are subject to CCT [Note: collective bargaining agreement] Regulation, signed by the country P Professional Football League and the National Syndicate of Professional Football Players, regardless players are syndicated or not”. 2. On 19 August 2010, the player lodged a claim against Club B in front of FIFA maintaining that the latter terminated the employment contract without just cause and asking inter alia to be awarded compensation for breach of contract. 3. The club contests FIFA’s competence to deal with the present matter and, in this regard, invokes: i. art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players; ii. articles 54 and 55 and annex II of the collective bargaining agreement (country C Football Association) between the country P professional football league and union of professional football players. 4. According to Club B, the collective bargaining agreement provides for a Joint Arbitration Committee (JAC), which purportedly meets the requirements laid down by FIFA. In this respect, the club refers to a decision passed by FIFA’s Dispute Resolution Chamber (DRC) on 23 March 2008, by means of which the DRC declared itself not competent. 5. The club presented the following documents in support of its position: a. Collective bargaining agreement between the country P Professional Football League and the National Syndicate of Professional Football Players, which entered into force on 8 September 1999 along with the annexes; b. Copy of the aforementioned DRC decision denying FIFA’s competence. 6. Therefore, the club holds that, besides the ordinary courts, the JAC is the only competent deciding authority in the matter at stake. 7. The player, for his part, insists that FIFA’s Dispute Resolution Chamber (DRC) is competent to deal with the present matter highlighting that the employment contract at the basis of the present matter lacks an arbitration clause. The player deems that in order to invoke the competence of the JAC such competence should have been explicitly included in the employment contract. In this respect, the player refers to art. 9 of annex II of the country B Football Association which reads as follows: “The competence of the Joint Arbitration Committee for the purpose of article 3 paragraph c) depends on the arbitration clause”. According to art. 3 par. c) of annex II “It falls to the Joint Arbitration Committee to: (…) c) settle disputes arising from contract of employments which, in accordance with the law, fall outside the scope of voluntary arbitration”. Facts relating to the substance of the matter: 8. In accordance with the employment contract signed between the parties on 31 July 2009, the player was entitled to receive from Club B 11 monthly salaries of EUR 16,670 each for the 2009-10 season (total of EUR 183,370) and 12 monthly salaries of EUR 16,670 each as from the 2010-11 until and including the 2013-14 season (total of EUR 200,040 per season). 9. In addition, the player was entitled to receive, “according to the club’s monetary availability”, match bonuses related to the player’s degree of participation in specified matches. 10. Art. 12 of the employment contract stipulates that the parties agree that in the event of any violation of the contract and prior to any action, the other party shall be notified in order to find a consensual solution within 30 days, failure of which neither party will be able to invoke the termination of the contract. 11. Art. 13 of the contract refers to the FIFA Regulations on the Status and Transfer of Players, in particular to articles 13, 16, and 17, which are considered essential “for the formation of will and the celebration of this contract”. 12. Art. 14 of the contract stipulates that in the event of the player unilaterally terminating the contract without just cause or of the club dismissing the player with just cause, the player shall pay compensation corresponding to the payments that would have been made during the original term of the contract as well as a penalty of EUR 20,000,000. 13. On 7 August 2009, the player, Club B, and Club V, from country P (hereinafter: Club V) signed a loan agreement in accordance with which the player was transferred on a loan basis to Club V as from 10 August 2009 until 30 June 2010. 14. On 31 August 2010, Club B notified the player of the termination of the employment contract invoking just cause due to “abandonment of work” without justification. Player’s claim: 15. On 19 August 2010, the player lodged a claim against the club in front of FIFA maintaining that the club had acted in breach of contract without just cause and therefore, he asked to be awarded: a. Compensation of EUR 800,160; b. An amount of money relating to match bonuses deemed fit by the DRC, plus interest; c. Damages; d. Procedural costs. 16. The player further asked that sporting sanctions be imposed on the club. 17. The player explained that, as of February 2010, the club demonstrated that it was no longer interested in making use of his services. In this respect, he submitted a notary record of the verification of 4 sms messages (as from February until June 2010) that were purportedly exchanged between his country B agent, an agent in country P and the club. 18. The player stated that, on 7 July 2010, he personally contacted Club B in order to inquire when he should present himself at the club, as he was allegedly previously informed by the club that he should wait in country B for further instructions, as Club B wanted to transfer him on loan to another club. 19. In support of his position, the player presented a copy of the following documentation: a. His e-mail message of 7 July 2010 to the club, in which the player further explicitly offered his services to the club; b. The club’s e-mail reply to the player of 9 July 2010, in which it denies having told the player to wait in country B and in which it points out that the player had been absent from the club without justification as of 28 June 2010, which it considered to be a just cause for the club to terminate the contract; c. Further correspondence exchanged between the player’s lawyer and country B in July 2010. 20. The player deemed that the club was to summon him if it would have considered that he was failing to abide by the contract. The club did not proceed accordingly and when it was contacted by the player in this respect, the club reacted with the intention to terminate the contract with just cause, which is why he refrained from travelling to country P. Club B’s reply to the claim and counterclaim: 21. In reply to the claim, Club B held that the player has provided a misrepresentation of the facts and it thus denied his allegations. 22. In particular, the club pointed out that the player was released by Club V on 10 May 2010 and informed that he should return to Club B on 1 July 2010 the latest. 23. In addition, the club held that the notarized sms message reports cannot be admitted as evidence, as they only show the phone numbers involved and cannot be linked to Club B. Club B denied that it sent these messages. In this respect, the club also highlighted that in his e-mail of 7 July 2010 the player did not at all refer to these alleged sms messages. 24. The club further denied that it informed the player to wait in country B and pointed out that the player has not presented any evidence in this respect. 25. According to the club, the player was well aware that the new season of Club B started by the end of June 2010 and that he should have presented himself at the latest after expiry of the loan agreement, i.e on 1 July 2010. 26. In addition, Club B stressed that in its correspondence of 9 July 2010 it did not terminate the contract, but merely warned/advised the player of possible consequences of his absence from work, including disciplinary sanctions such as dismissal for abandonment of work. The fact that the parties subsequently were negotiating a settlement agreement proves that the contract was not terminated on 9 July 2010. The club deemed that the player has contradicted himself during the exchange of correspondence between the parties. 27. The club held that after receipt of its reply to the player on 9 July 2010, the player should have presented himself at the club instead of staying in Club B. According to the club, the proof that the player knew that he was in violation of his duties can also be found in his lawyer’s correspondence of 20 July 2010, in which it is indicated that the player complied with the provision under art. 12 of the employment contract by having sent his message of 7 July 2010 to the club. 28. Departing from this position, the club held that it acted in accordance with art. 12 of the employment contract bearing in mind the 30 days’ time limit as of 7 July 2010. Since no amicable agreement was reached and the player was still absent from work without justification, the club had no other option but to terminate the contract on 31 August 2010 with just cause due to the player’s abandonment from work. 29. In this context, the club highlighted that according to the country P collective bargaining agreement, a player’s absence for at least 15 working days is considered abandonment of work, which, according to said agreement, equals a termination without just cause. 30. The club stressed that the legal concept of abandonment of work has also been recognized by FIFA as a reason for the termination of contract with just cause and it refers to several DRC decisions in this regard. 31. For these reasons, Club B rejected the claim of the player and lodged a counterclaim against the player for breach of contract without just cause due to abandonment of work asking to be awarded compensation for breach of contract plus 5% interest p.a. and that sporting sanctions be imposed on the player. The club further asked that the player’s new club be held jointly and severally liable for the payment of the compensation. 32. As regards the amount of compensation claimed, Club B refers to the collective bargaining agreement, which stipulates that the compensation shall be not less than the amount which would have been payable if the contract had normally expired and to art. 14 of the employment contract. 33. On this basis, Club B asked to be awarded compensation of EUR 800,160 plus EUR 20,000,000 or, alternatively, EUR 800,160 plus EUR 16,000,000 (EUR 20,000,000 minus EUR 4,000,000 amortization of one season). Player’s replica and reply to the counterclaim: 34. The player rejected the counterclaim and presented the following comments. 35. The player highlighted that the club’s intention to terminate the contract was evident from the fact that, in its reply to his notice of 7 July 2010, it did not even indicate a date on which the player was to return. He added that a 7 days’ absence could not be considered a just cause to terminate the contract. 36. He further insisted that the notary report on the verification of the sms messages does prove the link between Club B and the relevant intermediaries. 37. In addition, the player held that any violation of clause 12 of the employment contract would result in a breach of contract. In this sense, he highlighted that his notice of 7 July 2010 had the intention to settle a dispute based on his previous information that the club wanted to terminate the contract. On the basis of said article 12, the club was thus prohibited from opening a disciplinary process against the player and terminating the contract as of 9 July 2010. The player held that the club acted in violation of said art. 12 even when the parties tried to find an amicable settlement, since the club never desisted from the disciplinary process against him. 38. The player insisted that the club’s notification of 9 July 2010 does mention a unilateral termination of the employment contract, whereas his absence was justified. 39. He pointed out that he had no interest in abandoning his employment with Club B, which was to continue for another 4 years and that he did not even have alternative offers of employment at that time. 40. He rejected that the collective bargaining agreement or country P law should be applicable. 41. In support of his position, he presented further documents, among which a “public deed of statement” by his country B contact person. According to the player, this statement confirms his version of the facts that occurred prior to his notice to the club on 7 July 2010. Club’s duplica: 42. The club rejected the player’s allegations and insisted that it terminated the employment contract on 31 August 2010 due to the player’s absence for over 2 months and not on 9 July 2010 as alleged by the player. It reiterated that its e-mail reply of 9 July 2010 only indicated that the player’s absence was susceptible to constitute a just cause for termination and that the club had the intention to open disciplinary proceedings against him with the possible consequence that the contract would be terminated. 43. The club further held that it did act in accordance with art. 12 of the employment contract and, referring to the arguments invoked by the player, pointed out that the player did not resume duty at the club after the attempts to find an amicable settlement within the 30 days as of 7 July 2010 had failed. Player’s further footballing career: 44. On 1 March 2011, the player and Club C, from country B, signed an employment contract valid as from 1 March 2011 until 30 November 2011. Thereafter, he signed an employment contract with Club D, from country C, valid for 2012-13 season until May 2013. On 31 October 2013, the player indicated having remained unemployed since June 2013. Comments of Club C: 45. Club C deemed that it cannot be legally involved in the present matter between the player and Club B due to procedural reasons and the fact that it signed an employment contract with the player on 1 March 2011 only, i.e. after Club B lodged its counterclaim. 46. The club highlights that it did not and could not have induced the player to breach of contract due to the fact that the contract with the player was signed on 1 March 2011 only. 47. As regards art. 17 par. 2 of the aforementioned FIFA regulations, Club C points out that such article is unsustainable in the event that the new club undoubtedly is not involved in the breach of contract. It furthermore pointed out that its contract with the player had already expired since 1,5 years when it was informed of the present proceedings. This would lead to the unsustainable situation that an employer suddenly, without previous knowledge, becomes liable for the debt of its ex-employee, a considerable time after this employee has left the employer. It emphasizes that no court would ever support such a situation. 48. C further highlighted that during the registration procedure via the Transfer Matching System (TMS) there were no indications with regard to pending procedures between the player and Club B. What is more, the system indicated that the player was free to conclude an employment contract with another club. 49. Due to the particular circumstances of this case, Club C deemed that it cannot be declared liable, neither jointly nor severally, for any payment of compensation. 50. Therefore, Club C inter alia asked that the DRC, if it considers itself competent to deal with the present matter, declare that Club C is not involved in this matter. Alternatively, it asked that Club C shall be declared not having induced the player to breach the employment contract with Club B and not being liable with the player for any payment of compensation. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 19 August 2010. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 2012) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country B player and a country P club. 3. However, the Chamber acknowledged that the Respondent/Counter-Claimant contested the competence of FIFA’s deciding bodies on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players as well as articles 54 and 55 and annex II of the collective bargaining agreement between the country P professional football league and union of professional football players. In particular, the Respondent/Counter-Claimant alleged that the country P Joint Arbitration Committee (JAC), which was established within the framework of the collective bargaining agreement, meets the requirements laid down by FIFA. 4. In this regard, the Chamber noted that the Claimant/Counter-Respondent rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. In particular, the Claimant/Counter-Respondent argued that the relevant employment contract does not include a jurisdiction clause and he referred to art. 9 of annex II of the collective bargaining agreement. 5. Having said that, the members of the Chamber proceeded with an analysis of the relevant documents on file, i.e. the employment contract as well as the collective bargaining agreement concluded between the country P professional football league and union of professional football players, which entered into force on 8 September 1999 along with its annexes (hereinafter referred to as country B Football Association). 6. First, the Chamber noted that according to the final clause of the employment contract ”The cases and situations that are not in this contract are subject to CCT Regulation, signed by the country P Professional Football League and the National Syndicate of Professional Football Players, regardless players are syndicated or not”. For the avoidance of doubt, it was clarified that the term “CCT Regulation” refers to the country B Football Association. 7. The members of the Chamber deemed that by inserting said final clause in the employment contract, the parties agreed that the employment contract is complemented by the country b Football Association and thus the latter constitutes an integral part of the contractual relation between the parties. 8. In continuation, the Chamber considered it of utmost importance to highlight that the employment contract which is at the basis of the dispute at stake does not contain any (specific) arbitration clause or any reference to a national arbitration body in case of a dispute between the parties. 9. The Chamber then turned their attention to art. 9 of annex II of the country B Football Association, which reads as follows: “The competence of the Joint Arbitration Committee for the purpose of article 3 paragraph c) depends on the arbitration clause”. 10. According to art. 3 par. c) of annex II of the country B Football Association “It falls to the Joint Arbitration Committee to: (…) c) settle disputes arising from contract of employments which, in accordance with the law, fall outside the scope of voluntary arbitration”. 11. In addition, the Chamber acknowledged that according to art. 54 of the country B Football Association, “In case of a dispute arising from this contract of employment, it shall be submitted to the Joint Arbitration Committee, formed under the provisions of the following article, for examination, which shall decide in accordance with the regulations established in annex II, attaching to and forming part of this country B Football Association …”. 12. After careful examination of the aforementioned clauses, the Chamber highlighted in particular that according to art. 9 of annex II of the country B Football Association, the competence of the Joint Arbitration Committee “depends on the arbitration clause”. In other words, the competence of the Joint Arbitration Committee requires for the parties to include a specific arbitration clause in favour of the Joint Arbitration Committee in their specific employment contract. 13. As stated above, in the case at hand, as opposed to the facts of the matter which was at the basis of the DRC decision dated 28 March 2008 invoked by the Respondent/Counter-Claimant in its defence, the relevant specific employment contract concluded between the Claimant/Counter-Respondent and the Respondent/Counter-Claimant does not include at all any arbitration clause or any reference to a national arbitration body in case of a dispute between the parties. 14. For this reason, without addressing the question as to whether said Joint Arbitration Committee meets the minimum procedural standards for national independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations for the Status and Transfer of Players and in FIFA Circular no. 1010 and taking into account the very specific and particular wording of the country P country B Football Association, the Chamber established that the objection of the Respondent/Counter-Claimant towards the competence of FIFA to deal with the present matter has to be rejected due to the lack of an applicable arbitration clause. Consequently, the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 15. 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 (2012), and considering that the present claim was lodged on 19 August 2010, the 2009 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 16. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 17. The Chamber, first and foremost, acknowledged that the parties were contractually bound by an employment contract, which was signed on 31 July 2009 and valid as from 1 August 2009 until 30 June 2014. It was further noted that shortly after having entered into said employment contract, i.e. on 10 August 2009, the Claimant/Counter-Respondent was transferred by the Respondent/Counter-Claimant on a loan basis to Club V, from country P, until 30 June 2010. 18. The Claimant/Counter-Respondent, on the one hand, maintained that the Respondent/Counter-Claimant had terminated the employment contract without just cause on 9 July 2010 and, thus, shall be held liable to pay, inter alia, compensation for breach of contract. 19. The Chamber noted that the Respondent/Counter-Claimant, on the other hand, rejected the claim put forward by the Claimant/Counter-Respondent and lodged a counterclaim against the latter. According to the Respondent/Counter-Claimant, the Claimant/Counter-Respondent is to be held liable for breach of contract without just cause due to abandonment of work. The Respondent/Counter-Claimant further maintained that, therefore, it had just cause to terminate the employment contract on 31 August 2010 and that the player is to be held liable to pay compensation for breach of contract and his new club shall be held jointly and severally liable for the payment of such compensation. 20. In continuation, the Chamber took into account that the Claimant/Counter-Respondent fully rejected the Respondent/Counter-Claimant’s counterclaim. 21. The members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to which party has proceeded with the early termination of the employment contract, and as to whether such termination was with or without just cause. The Chamber also underlined that, subsequently, if it were found that the contract was terminated without just cause, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation. 22. Therefore, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind 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. 23. The members of the Chamber noted that the Claimant/Counter-Respondent was transferred to Club V, on a loan basis as from 10 August 2009 until 30 June 2010. The Claimant/Counter-Respondent was, thus, immediately transferred to another club after having entered into an employment contract with the Respondent/Counter-Claimant. 24. It has remained undisputed that the Claimant/Counter-Respondent duly rendered his services to Club V until 10 May 2010 and that he, subsequently, returned to country B. In this context, the Chamber observed that the Respondent/Counter-Claimant did not appear to have objected to the player’s return to country B around that time, but merely indicated that the player was aware that he should have returned to the Respondent/Counter-Claimant by 1 July 2010 at the latest. 25. The members of the Chamber noted that the Claimant/Counter-Respondent acted under the assumption that the Respondent/Counter-Claimant was no longer interested in his services on the basis of sms messages allegedly exchanged between his country B agent, an agent in country P and the Respondent/Counter-Claimant between February and June 2010. 26. The Chamber further took into account that the Claimant/Counter-Respondent contacted the Respondent/Counter-Claimant, on 7 July 2010, to inquire about the date on which he was to resume duty at the Respondent/Counter-Claimant, while pointing out that he was instructed to stay in country B as the Respondent/Counter-Claimant allegedly wanted to transfer him on loan to another club. The Chamber observed that in said correspondence the Claimant/Counter-Respondent further explicitly offered his services to the Respondent/Counter-Claimant. 27. The members of the Chamber noted that, on 9 July 2010, in reply to the Claimant/Counter-Respondent’s correspondence of 7 July 2010, the Respondent/Counter-Claimant, instead of summoning the player to resume duty on a specific date, informed the player that it considered him to be absent without just cause, which the Respondent/Counter-Claimant considered to be a just cause for it to terminate the contract. In this context, the Chamber observed that at no earlier point in time had the Respondent/Counter-Claimant put the Claimant/Counter-Respondent in default of his obligations or communicated any sort of warning. 28. In continuation, the Chamber noted that the parties disagree on the legal effects of the Respondent/Counter-Claimant’s correspondence of 9 July 2010. Indeed, whereas the Claimant/Counter-Respondent considers the club’s reply of 9 July 2010 to be a termination of the employment contract by the Respondent/Counter-Claimant, the latter, for its part, insists that said correspondence does not constitute a notice of termination, but rather a warning or advice to the player relating to the possible consequences of his absence from work. 29. To that end, the Chamber acknowledged that the translation of the Respondent/Counter-Claimant’s correspondence of 9 July 2010, which translation was presented by the Respondent/Counter-Claimant, includes the mention that the player’s conduct puts into question the maintenance of the employment contract, constituting a just case for its termination and that the Claimant/Counter-Respondent is “herein notified of the express intention of the application of the … disciplinary sanction, in other words, to proceed with the termination of the identified sporting labour contract.” 30. In the light of such explicit notice, the members of the Chamber endorsed the Claimant/Counter-Respondent’s viewpoint that, in fact, by means of its correspondence of 9 July 2010 the Respondent/Counter-Claimant proceeded with the termination of the pertinent employment contract on the basis of the circumstance that the Claimant/Counter-Respondent had not taken up his post at the Respondent/Counter-Claimant on 1 July 2010. 31. Having established that the Respondent/Counter-Claimant terminated the employment contract on 9 July 2010, the Chamber analysed as to whether the club had just cause to proceed with said contract termination. 32. In this respect, the Chamber recalled that at the time of the termination of the employment contract by the Respondent/Counter-Claimant, i.e. 9 July 2010, as well as the fact that according to the Respondent/Counter-Claimant the player had to resume duty by 1 July 2010 at the latest, whereas the player offered his services on 7 July 2010, the Claimant/Counter-Respondent had been absent during a period of time of 6 days without any previous warning. 33. The Chamber wished to emphasise that a 6 days’ absence of a player cannot be considered a just cause to terminate a contract, particularly without any previous warning. In this regard, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 34. In addition, the members of the Chamber strongly believed that the Respondent/Counter-Claimant, in fact, was not genuinely interested in the player’s services. Indeed, prior to proceeding with the termination of the contract on 9 July 2010 after the Claimant/Counter-Respondent had offered his services to the club on 7 July 2010, no previous warning had been addressed to the player by the Respondent/Counter-Claimant. In addition, the Chamber recalled that in reaction to the player’s correspondence of 7 July 2010, the Respondent/Counter-Claimant had not even asked or summoned the player to return, but instead, as stated above, terminated the employment contract. Furthermore, the members of the Chamber wished to emphasise that the Claimant/Counter-Respondent had been immediately transferred to another club by the Respondent/Counter-Claimant after the parties involved in the present matter signed an employment contract on 31 July 2009. 35. On account of all of the above, the members of the Chamber rejected the Respondent/Counter-Claimant’s counterclaim and decided that the Respondent/Counter-Claimant terminated the employment contract on 9 July 2010 without just cause. 36. Having established the above, the Chamber turned its attention to the question of the consequences of the unilateral termination of the contract by the Respondent/Counter-Claimant without just cause on 9 July 2010. 37. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant/Counter-Respondent is entitled to receive compensation from the Respondent/Counter-Claimant for the termination of the contract without just cause. 38. 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. 39. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. The members of the Chamber recalled that the contract contains a clause stipulating the following: “In the case the Player decides to unilaterally terminate this contract (and without just cause) the present sporting labour contract or if Club B dismisses the Player with just cause, the Player shall pay an indemnification corresponding to the amount of the payments that would be made during the original term of the contract, and also a penal clause in the amount of E 20.000.000,00 (twenty million euros), IVA not included, besides any sanctions of international and national sports authorities.” The said clause thus sets an amount of compensation as well as a penalty payable by the player in the event of a termination without just cause by the player or a termination with just cause by the club. The members of the Chamber agreed that this clause clearly is unilateral and to the benefit of the club only and thus, in accordance with the Chamber’s well-established jurisprudence, shall not be taken into consideration in the determination of the amount of compensation in the matter at hand. 40. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter. 41. In order to estimate the amount of compensation due to the Claimant/Counter-Respondent in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion 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 the new contract, if any, in the calculation of the amount of compensation. 42. In accordance with the contract signed by the Claimant/Counter-Respondent and the Respondent/Counter-Claimant, which was to run for four more seasons, i.e. until 30 June 2014, after the breach of contract occurred, the Claimant/Counter-Respondent was to receive remuneration amounting to EUR 800,160. Consequently, the Chamber concluded that the amount of EUR 800,160 serves as the basis for the final determination of the amount of compensation for breach of contract. 43. The Chamber then took due note of the employment situation of the Claimant/Counter-Respondent after the termination of the contract on the basis of the case at stake. 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 remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract. In this regard, the members of the Chamber noted that the Claimant/Counter-Respondent, on 1 March 2011, signed an employment contract with Club C, from country B, valid until 30 November 2011, in accordance with which he was to receive a monthly salary of currency of country B 5,000. Thereafter, the player signed an employment contract with Club D, from country C, valid for the 2012-13 season, in accordance with which the player was to receive the amount of EUR 15,000 as from August 2012 until May 2013. The Chamber further took into account that according to the Transfer Matching System (TMS) the Claimant/Counter-Respondent has registered with the Club A, from country B as of January 2014 on the basis of an employment contract valid until May 2015, where he is to receive a monthly salary of currency of country B 700. 44. Hence, the Chamber concluded that on the basis of the aforementioned new employment contracts the Claimant has received income amounting to approximately EUR 35,950 as from March 2011 until November 2011, between August 2012 and the end of May 2013, and as from January 2014 until the original date of expiry of the employment contract between the parties involved. 45. The Chamber further took into account that during a fifteen months’ period of time in total, after the Claimant/Counter-Respondent’s contract with Club C and Club D had come to an end, the Claimant/Counter-Respondent has been without income. Such period of time, based on his monthly income at the Respondent/Counter-Claimant, equals the total amount of approximately EUR 250,000. The Chamber, on the other hand, took into consideration that the Claimant/Counter-Respondent could not be expected to mitigate his damages to the extent of the salary that he was entitled to receive from the Respondent/Counter-Claimant (i.e. EUR 16,667 per month). 46. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant/Counter-Respondent’s claim and decided that the Respondent/Counter-Claimant must pay the amount of EUR 550,000 as compensation for breach of contract in the specific case at hand. 47. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant/Counter-Respondent is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player S, is admissible. 2. The claim of the Claimant/Counter-Respondent is partially accepted. 3. The Respondent/Counter-Claimant, Club B, has to pay to the Claimant/Counter-Respondent compensation for breach of contract in the amount EUR 550,000 within 30 days as from the date of notification of this decision. 4. Any further request filed by the Claimant/Counter-Respondent is rejected. 5. The counterclaim of the Respondent/Counter-Claimant is rejected. 6. In the event that the amount due to the Claimant/Counter-Respondent is not paid by the Respondent/Counter-Claimant within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 7. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** 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 directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl.: CAS directives