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 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player H, from country E as Claimant/Counter-Respondent 1 against the club, Club Z, from country E as Respondent/Counter-Claimant and the club, Club K, from country B as Counter-Respondent 2 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 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player H, from country E as Claimant/Counter-Respondent 1 against the club, Club Z, from country E as Respondent/Counter-Claimant and the club, Club K, from country B as Counter-Respondent 2 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 27 January 2010, Player H, from country E (hereinafter: the Claimant/Counter-Respondent 1 or the player), and Club Z, from country E (hereinafter: the Respondent/Counter-Claimant or Club Z), signed an employment contract (hereinafter: the contract) valid as from the date of signature until the end of the 2012/2013 season. 2. According to art. 2 and 4 of the contract, the Respondent/Counter-Claimant undertakes to provide the Claimant/Counter-Respondent 1 with: - 2009/2010 season: currency of country E 625,000 gross (currency of country E 500,000 net), payable in four equal instalments of currency of country E 156,250 gross (currency of country E 125,000 net) each, on 27 January, 1 February, 1 April and 1 June 2010; - 2010/2011 season: currency of country E 1,250,000 gross (currency of country E 1,000,000 net), payable in four equal instalments of currency of country E 312,500 gross (currency of country E 250,000 net) each, on 1 August 2010, 1 January, 1 April, 1 June 2011; - 2011/2012 season: currency of country E 1,375,000 gross (currency of country E 1,100,000 net), payable in four equal instalments of currency of country E 343,750 gross (currency of country E 275,000 net) each, on 1 August 2011, 1 January, 1 April, 1 June 2012; - 2012/2013 season: currency of country E 1,437,500 gross (currency of country E 1,150,000 net), payable in four equal instalments of currency of country E 359,375 gross (currency of country E 287,500 net) each, on 1 August 2012, 1 January, 1 April, 1 June 2013; - Currency of country E 3,750 per month as rent expenses. 3. The contract further establishes under the section “Preliminary” that “The two parties declare their capacity to contract and they have read the regulation of player affairs which is valid during the signing of this contract and this regulation supersedes any other consideration as part of this contract and complement for it”. 4. As per the translation of the contract provided by the Claimant/Counter-Respondent 1, art. 4 par. 9 stipulates that “the club has to pay the instalments on the settled dates as per the contract otherwise the player has the rights to terminate his contract and force the club his dues according to the decision Dispute Resolution Chamber and committee of players affaires”. 5. In Club Z’s translation of the contract, art. 4 par. 9 reads as follows: “[…] if the player does not receive his due instalment, the player has the right to request the cancellation of the contract and paying his dues by submitting the issue to the committee of player affairs to consider if the contract will be cancelled and force the club to pay the player his dues which the committee determines”. 6. By means of a correspondence dated 25 July 2011, the Claimant/Counter-Respondent 1 terminated the contract with the Respondent/Counter-Claimant, invoking outstanding debts towards him in the total amount of currency of country E 542,750, made up of currency of country E 486,500 regarding outstanding instalments for the season 2010/2011 (currency of country E 236,500 as part of the instalment due on 1 April 2011 + currency of country E 250,000 as the instalment due on 1 June 2011 in full) and currency of country E 56,250 regarding outstanding rent payments from May 2010 until July 2011 (15 months x currency of country E 3,750). 7. On 8 August 2011, the Claimant/Counter-Respondent 1 signed a new employment contract with Club K, from country B (hereinafter: the Counter-Respondent 2 or Club K), and on 12 August 2011 the country B Football Association requested from the country E Football Association the player’s International Transfer Certificate (ITC) on behalf of its affiliate. On 17 August 2011, however, the country E Football Association refused to issue the player’s ITC, invoking the fact that he was still contractually bound to Club Z. On 14 October 2011, the Single Judge of the Player Status Committee provisionally authorized the registration of the player with the Counter-Respondent 2. 8. On 16 September 2011, the Claimant/Counter-Respondent 1 lodged a claim for breach of contract against the Respondent/Counter-Claimant in front of FIFA, requesting, after amending his claim, the payment of the total amount of currency of country E 2,568,000 and EUR 20,000, made up of: - Currency of country E 228,000 net, corresponding to the total amount due by the time of the termination, i.e. currency of country E 542,750 (cf. point I.6. above) minus currency of country E 314,750 paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 1 on 25 August 2011, plus interest of 5% p.a. as from 25 July 2011; - Currency of country E 2,340,000 as compensation for breach of contract, corresponding to the amounts due to the Claimant/Counter-Respondent 1 for the seasons 2011/2012 and 2012/2013 (Currency of country E 1,100,000 + currency of country E 1,150,000), plus the relevant rent expenses (currency of country E 90,000), plus unspecified interest; - outstanding collective match bonuses plus interest of 5% p.a. as from 25 July 2011; - EUR 20,000 as attorney fees; - procedural costs; - sporting sanctions on the Respondent/Counter-Claimant. 9. The Claimant/Counter-Respondent 1 argues that, even though he had always complied with his contractual obligations, Club Z had, since the beginning of the contract, made several late payments. During the 2010/2011 season, Club Z only paid the Claimant/Counter-Respondent 1 the amount of currency of country E 513,500 out of currency of country E 1,000,000. In addition, Club Z allegedly paid rent expenses only from February to April 2010. 10. In view of the Respondent/Counter-Claimant’s delay in paying his remuneration, on 4 April 2011 the Claimant/Counter-Respondent 1 and six of his team mates addressed a written reminder to the country E Football Association requesting assistance in order to obtain from Club Z the payment of their late salaries. In this regard, the Claimant/Counter-Respondent 1 provided a copy of the letter dated 4 April 2011 and of the DHL waybill dated 7 April 2011, forwarding said letter to Club Z. However, the Claimant/Counter-Respondent allegedly never received an answer from Club Z. 11. In its response, the Respondent/Counter-Claimant rejected the player’s claim and stated that, on 22 January 2011, the season of the country E League was suspended due to the unstable political situation. As a result, many clubs, amongst which Club Z, experienced financial difficulties. The Respondent/Counter-Claimant further claims that the football season was resumed on 14 April 2011 and ended on 10 July 2011, but Club Z only played its last match of the season on 11 October 2011. 12. The Respondent/Counter-Claimant states to have been informed for the first time of the existence of alleged outstanding salaries for the 2010/2011 season towards the Claimant/Counter-Respondent 1 on 25 July 2011, as it received the termination letter (cf. point I.6. above), without having been previously given the chance to solve the issue amicably. 13. In addition, the Respondent/Counter-Claimant states that the amount of currency of country E 486,500 indicated by the Claimant/Counter-Respondent 1 as outstanding remuneration is incorrect. The Respondent/Counter-Claimant does not contest the existence of outstanding remuneration towards the player, but only in the amount of currency of country E 64,750, i.e. “Currency of country E 28,750”, corresponding to the third instalment due on 1 April 2011 and currency of country E 36,000 as flat allowance. In this respect, the Respondent/Counter-Claimant provided a copy of an undated document issued by its financial manager, according to which the accommodation allowance amounts to currency of country E 3,000 net per month, which allegedly the Claimant/Counter-Respondent 1 had refused to receive. 14. The Respondent/Counter-Claimant points out that according to the Regulations of the country E Football League, by which the Claimant/Counter-Respondent 1 abides, 25% of his remuneration may be withheld until the last match of the season has been played and the player would only be entitled to receive the aforementioned amount in case his participation in at least 80% of the matches played by the club is confirmed. Said regulations, a copy of which is on file, establish that “Holding 25% of contract value be paid at season end due to player’s participation. Participation of 80% of matches numbers is the percentage received by player of these outstanding (25%) and listing his name in match list considered participation”. 15. According to Club Z, since the Claimant/Counter-Respondent 1 only participated in 26 of the 35 matches disputed by the Respondent/Counter-Claimant, i.e. 76.3%, he is not entitled to receive the amount of currency of country E 250,000 (25% of currency of country E 1,000,000), which was withheld by Club Z. In addition, taking into account the fact that he refused to receive the accommodation allowance (cf. point I.13. above), the total amount due by Club Z to the Claimant/Counter-Respondent 1 corresponded to currency of country E 64,750. 16. Club Z further indicated that it sent a letter dated 7 August 2011 to the country E Football Association, requesting that the amount of currency of country E 314,750 (currency of country E 250,000 + currency of country E 64,750) be paid to the player. In this regard, the Respondent/Counter-Claimant provided a copy of a letter dated 7 August 2011, which mentions the amounts of currency of country E 278,750 as net income for the 2010/2011 season and currency of country E 36,000 as outstanding accommodation allowances for the 2010/2011 season, as well as a statement of The United Bank confirming the transfer of the amount of currency of country E 314,750 to the player on 25 August 2011. According to Club Z, this amount though was incorrectly paid to the Claimant/Counter-Respondent 1 since, at the time the payment was made, Club Z had not noticed that it should have withheld the amount of currency of country E 250,000, as the player participated in less than 80% of the club’s matches in the 2010/2011 season. 17. Furthermore, the Respondent/Counter-Claimant asserts that, due to his good performance during the 2010/2011 season, the Claimant/Counter-Respondent 1 was offered an extension of his contract for a much higher salary. 18. The Respondent/Counter-Claimant claims that on 8 August 2011 the Claimant/Counter-Respondent 1 secretly signed a new contract with the Counter-Respondent 2, in spite of being aware of Club Z’s intention to pay his outstanding remuneration and to extend his contract for a higher salary. As per Club Z, on 10 August 2011, the Claimant/Counter-Respondent 1 returned to the club, attended the first day of training for the following season and reaffirmed his will to continue his cooperation with Club Z; however, on 11 August 2011 he left again. By means of its correspondence dated 23 and 27 August 2011, 5 and 10 September 2011, Club Z warned the Claimant/Counter-Respondent about his absence from training and requested his return. The Claimant/Counter-Respondent 1, however, did not return to country E and subsequently, Club Z was informed of the request of the country B Football Association for the player’s ITC on behalf of Club K (cf. point I.7. above). 19. In addition, the Respondent/Counter-Claimant indicates that fines in the total amount of currency of country E 186,000 were allegedly imposed on the Claimant/Counter-Respondent 1, as follows: - Currency of country E 12,500, on 1 August 2010, in the amount of 1% of his remuneration for the 2010/2011 season, payable to the country E Football Association as reimbursement of registration fees; - Currency of country E 71,000 for late arrivals or absences from August to December 2010, broken down as follows: Currency of country E 25,000 in August and September, Currency of country E 2,500 in October, Currency of country E 40,000 in November and Currency of country E 3,500 in December; - Currency of country E 10,000 on 19 May 2011 for late arrival to an official match; - Currency of country E 100,000 on 24 May 2011, for refusing to travel with the team to country S and country K; - Currency of country E 5,000 and suspension for 1 match on 5 July 2011, subsequent to the fourth warning to the player. 20. Based on the fact that the Claimant/Counter-Respondent 1 did not give the Respondent/Counter-Claimant a proper warning before terminating the contract and that country K’s debts towards the player are the result of a force majeure situation, Club Z lodged a counterclaim against the player and Club K for breach of contract without just cause and inducement to breach, respectively, requesting the total amount of USD 11,243,835.61 plus currency of country E 265,875,000, as well as interest of 5% p.a. as from the date of breach, broken down as follows: - USD 300,000, corresponding to the transfer fee paid by Club Z to the player’s former club; - USD 10,943,835.61 corresponding to the value of the player’s services when the alleged breach occurred, calculated as follows: USD 100,000 is the amount for which the player was released to participate with the country Q national team in the “XY Cup of Nations 2010” in country Y, between 22 and 28 November 2010. Based on this amount, Club Z concluded that the value of the player’s services per day amounts to USD 14,246.57. Thus, for the period as from 25 July 2011, i.e. date of termination, until 30 June 2013, expiry date of the contract, the value of the player’s services amounts to USD 10,943,835.61; - Currency of country E 15,875,000 corresponding to Club Z’s costs for the player’s replacements, i.e. currency of country E 7,875,000 for the player Player M and currency of country E 8,000,000 for the player S; - Currency of country E 250,000 as reimbursement of the amount erroneously paid to the player, as he participated in less than 80% of Club Z - ’s matches during the 2010/2011 season; - “indemnity charges” in the amount of at least 6 monthly salaries of the player as per the new contract signed with Club K; - procedural costs. 21. In addition, Club Z requests that Club K be considered as jointly as severally liable for the payment of compensation for breach and that sporting sanctions be imposed on the player and on Club K. 22. Alternatively, Club Z requests that the player and Club K pay at least the amount of currency of country E 9,500,000 as compensation for breach of contract, corresponding to the amount Club Z was willing to pay the player for the extension of his contract for the 2011/2012, 2012/2013 and 2013/2014 seasons. 23. In his replica, the Claimant/Counter-Respondent 1 maintains his previous arguments and further states that he never had the intention of extending his contract with Club Z, and points out that the latter club based its allegations solely on an internet article. In this regard, the Claimant/Counter-Respondent 1 equally claims that he returned to Club Z on 9 and 10 August 2010, not to negotiate an extension of his contract or resume training, but to request the payment of his outstanding remuneration. 24. The Claimant/Counter-Respondent 1 insists on the fact that he terminated the employment contract with just cause, based on the fact that Club Z had always paid his remuneration with considerable delay and, in this respect, he mentioned the reminders sent to the Respondent/Counter-Claimant and to the country E Football Association on 4 April 2011 (cf. point I.10. above). Moreover, the Claimant/Counter-Respondent 1 points out that in accordance with art. 4 par. 9 of the contract (cf. point I.4. above) he was entitled to terminate the contract in case of a delay in payment. In addition, he denies having ever refused to receive his accommodation allowances, as Club Z stated. 25. The Claimant/Counter-Respondent 1 also rejects the application of the internal regulations of the Respondent/Counter-Claimant, in particular of the clause authorizing Club Z to withhold 25% of his remuneration (cf. point I.14. above), for he considers it to be potestative and, consequently, illegal. In this regard, he points out that the employment contract established specific paydates for his remuneration and that its specific wording should prevail over the general provisions of Club Z’s internal regulations. The Claimant/Counter-Respondent 1 further claims that the copy of those internal regulations provided by Club Z does not bear any date and, thus, is not applicable. 26. Furthermore, the Claimant/Counter-Respondent 1 points out that, by mentioning the aforementioned clause, the Respondent/Counter-Claimant does not contest its failure to pay his remuneration, but only attempts to reduce the amount due to him. 27. The Claimant/Counter-Respondent 1 further claims that the Cup of country E might have ended on 11 October 2011, but the Championship and the season had already finished on 10 July 2011, as confirmed by the country E Football Association (cf. point I.11. above). Thus, the Claimant/Counter-Respondent 1 claims that in the alternative that the DRC considers the internal regulations as applicable, it should consider that the 2010/2011 season finished on 10 July 2011 and that, by then, the player had participated in 82.8% of Club Z’s matches, i.e. 26 of the 30 matches of the country E First League and 3 of the 4 matches of the Champions League, thus being entitled to receive his entire contractual remuneration. 28. In addition, the Claimant/Counter-Respondent 1 claims never having been informed of the existence of any pending fines against him. As such fines are the result of a unilateral procedure, they cannot be applied. In addition the player individually denies all the accusations upon which the Respondent/Counter-Claimant bases the imposition of such fines: - Currency of country E 12,500, on 1 August 2010: according to his contract, he was not responsible for the payment of his registration fees; - Currency of country E 71,000 from August to December 2010: the Respondent/Counter-Claimant does not provide any proof of or detailed information on said fines; - Currency of country E 10,000 on 19 May 2011: no official match took place on such date; - Currency of country E 100,000 on 24 May 2011: he did not refuse to travel with Club Z, but was injured at that time; - Currency of country E 5,000 and suspension for 1 match on 5 July 2011: such a sanction is not stipulated in Club Z’s internal regulations and, thus, is not applicable. 29. The Claimant/Counter-Respondent 1 further rejects the existence of force majeure in the present case. He deems that the civil unrest in country E neither justifies the non-payment of his salary nor the fact that such salary was always paid with delay by the Respondent/Counter-Claimant, since the beginning of the contract and even before the start of the turmoil in Spring 2011. 30. In spite of having been invited to do so, Club K, from country B, failed to present its position on the counterclaim of Club Z. 31. In its duplica, Club Z maintains its previous argumentation and insists that the player’s claim be rejected. In particular, Club Z claims having duly fulfilled all of its financial obligations towards the Claimant/Counter-Respondent and, in this regard, it provides FIFA with a copy of an undated statement of The United Bank, according to which “To Club Z, at the request of your part we hereby certify that we added this sum to the player: Player H, account no. 1055364898, as the following”: - Currency of country E 83,300, on 15 August 2010; - Currency of country E 83,350, on 19 October 2010; - Currency of country E 83,350, on 14 November 2010; - Currency of country E 81,250, on 11 January 2011; - Currency of country E 10,250, on 14 April 2011; - Currency of country E 81,250, on 15 June 2011; - Currency of country E 100,000, on 14 July 2011; - Currency of country E 314,750, on 25 August 2011. 32. Based on the aforementioned, the Respondent/Counter-Claimant claims that, on 14 July 2011, after deducting the amount of Currency of country E 186,000 corresponding to the fines imposed on the Claimant/Counter-Respondent 1, the latter had received Currency of country E 731,250 out of the Currency of country E 750,000 due at the time. Club Z also insists on its right to withhold 25% of the player’s remuneration for the 2010/2011 season. 33. Furthermore, the Respondent/Counter-Claimant insists that it never received any warnings from the Claimant/Counter-Respondent 1 or from the country E Football Association regarding outstanding salaries. In addition, according to the country E Football Association, the letter dated 4 April 2011 sent by several team members and the player failed to comply with specific formal pre-requisites of admission and could not be processed. In addition, the Respondent/Counter-Claimant claims that, by the time the aforementioned letter was sent, the only amount due was the instalment of 1 January 2011, which was fully paid before the termination of the contract. 34. Based on the aforementioned, the Respondent/Counter-Claimant claims that the Claimant/Counter-Respondent 1 illegally terminated the contract on 25 July 2011. Club Z states that the player probably already intended to leave the club and sign a new contract with the Counter-Respondent 2. Nevertheless, after receiving the termination letter, Club Z claims to have acted in good faith, by proceeding to the payment of the amounts requested, via the country E Football Association (cf. point I.16. above), and by proposing the resumption of the renegotiation of his contract. The Claimant/Counter-Respondent 1 allegedly refused to receive the amount of Currency of country E 314,750 from the country E Football Association, as he deemed to be entitled to a higher sum. In view of his refusal and of the unsuccessful contract renegotiation, the Respondent/Counter-Claimant deposited the aforementioned amount in the player’s bank account on 25 August 2011 (cf. point I.31. above). 35. Club Z states that the Claimant/Counter-Respondent 1 was aware of the existence of the fines imposed on him, as they were directly communicated to him by the club’s manager. In this context, Club Z refers to its internal regulations, according to which violations such as absence from training can be sanctioned with financial penalties or any “penalty not stated in the regulations”. According to the Respondent/Counter-Claimant, the player’s misbehaviour can be demonstrated by the several press articles published in this regard. 36. Furthermore, the Respondent/Counter-Claimant claims that the correct translation of art. 4 par. 9 of the contract (cf. point I.5. above) by no means establishes that the Claimant/Counter-Respondent 1 is allowed to terminate the contract without previous warning, but that he has the right to submit a complaint to the country E Football Association, which then will decide upon the cancellation of the contract and the amounts due. 37. Finally, the Respondent/Counter-Claimant deems that the FIFA DRC shall not be competent to hear the player’s claim, since it lacks international dimension. Notwithstanding, Respondent/Counter-Claimant insists on its counterclaim. 38. In his final position, the Claimant/Counter-Respondent 1 insists on the fact that he terminated the contract with just cause. He points out that the fact that Club Z, by means of its letter dated 7 August 2011 addressed to the country E Football Association (cf. point I.16. above), requested the latter to transfer him the amount of currency of country E 314,750 related to late payments for the 2010/2011 season proves that, by the time the player terminated the contract, the Respondent/Counter-Claimant owed him a considerable part of his remuneration. 39. The Claimant/Counter-Respondent 1 does not contest the fact that, by 25 August 2011, Club Z had paid him the total amount of currency of country E 828,250, of which currency of country E 792,250 correspond to his remuneration for the 2010/2011 season (currency of country E 513,500 on 14 July 2011 and currency of country E 278,750 on 25 August 2011) and currency of country E 36,000 (out of currency of country E 56,250) as accommodation expenses. By making such payments on 25 August 2011, the Respondent/Counter-Claimant recognized that the 2010/2011 season finished on 10 July 2011 and that the Claimant/Counter-Respondent 1 had indeed participated in more than 80% of the matches for such season. 40. The Claimant/Counter-Respondent 1 further claims that, from the bank statement provided by Club Z (cf. point I.32. above), it is possible to see that the instalment due on 1 August 2010 was paid with a delay of approximately 5 months, that the instalment of 1 January 2011 was paid with a delay of approximately 6,5 months and that the instalments due on 1 April and 1 June 2011 had not been paid on 25 July 2011, i.e. date of termination. In addition, the Claimant/Counter-Respondent 1 maintains that, in spite of having received the amount of currency of country E 83,350 on 15 August 2010, his monthly salary for June 2010 (season 2009/2010) remained unpaid by Club Z. 41. The Claimant/Counter-Respondent 1 denies the Respondent/Counter-Claimant’s allegation, according to which it has not received his reminder of 4 April 2011 and refers, in this regard, to a DHL waybill dated 7 April 2011 presented as evidence (cf. point I.10. above). 42. In spite of having been once again invited to do so, the Counter-Respondent 2 did not submit its position as to Club Z’s counterclaim. 43. The Claimant/Counter-Respondent 1 concluded a contract with Club K valid as from 1 August 2011 until 30 June 2013, according to which he was entitled to receive: - EUR 4,500 gross as monthly salary, payable 12 times a year; - “double holiday pay”; - EUR 750 per month as housing allowance; - EUR 700 per month as car allowance; - EUR 48,000 as sign on bonus, payable in 4 equal instalments of EUR 12,000 on 15 September, on 15 February 2012, on 15 September 2012 and on 15 February 2013. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 16 September 2011. Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, and with regards to its competence, the DRC noted that the Respondent/Counter-Claimant deemed that the FIFA DRC is not competent to hear the player’s claim, since it involves an country E player and an country E club and would, therefore, lack international dimension. The Chamber also noted, however, that the Respondent/Counter-Claimant had lodged a counterclaim against the Claimant/Counter-Respondent 1 as well as against the Counter-Respondent 2. 3. In this regard, the Chamber first noted that, in the present case, the player’s ITC was issued from country E to country B, following a decision of the Single Judge of the Players’ Status Committee on 14 October 2011, as detailed in point I.7. above. 4. Subsequently, the members of the DRC also noted that a counterclaim was lodged by Club Z against the country E player and the Club K, from country B, on 21 of December 2011, concerning a dispute related to the maintenance of contractual stability, arisen in connection with the issuance of the aforementioned ITC from country E to country B. 5. Bearing in mind the foregoing, the DRC concluded that the entire dispute at hand, involving the country E player, Club Z and Club K gravitates around the ITC request from country B to country E, and therefore based on art. 22 a) of the Regulations, the Respondent/Counter-Claimant’s objection to the competence of FIFA’s DRC to deal with the player’s claim had to be rejected. Thus, the DRC is competent to deal with both the claim of the Claimant/Counter-Respondent 1 and the counterclaim of the Respondent/Counter-Claimant lodged in the present matter, as to their substance. 6. Subsequently, the members of the Chamber analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2010 and 2012) and considering that the claim in front of FIFA was lodged on 16 September 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 7. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, 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. 8. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 27 January 2010, the player and Club Z signed an employment contract, valid until the end of the 2012/2013 season, in accordance with which the player was to receive the remuneration detailed in point I.2. above. 9. In addition, the DRC took note of the fact that it is also undisputed by the parties that said contract was terminated by the Claimant/Counter-Respondent 1 on 25 July 2011, in writing. 10. The DRC further noted that, on the one hand, the Claimant/Counter-Respondent 1 claims that he had a just cause to terminate the pertinent employment contract, having received only part of the amounts he was entitled to for the season 2010/2011 as per the contract. Therefore, after having allegedly put the Respondent/Counter-Claimant in default, but having received no answer or payment, the Claimant/Counter-Respondent 1 terminated the contract. 11. Based on the aforementioned, the Claimant/Counter-Respondent 1, after amending his claim, requested from the Respondent/Counter-Claimant the payment of the total amount of currency of country E 2,568,000 as outstanding remuneration and compensation for breach of contract, plus interest, and EUR 20,000 as attorney fees. 12. Subsequently, the DRC noted that, on the other hand, the Respondent/Counter-Claimant rejects the allegations of the Claimant/Counter-Respondent 1 and deems not to owe him any outstanding amounts as per the contract concluded between the parties. 13. In this context, the Respondent/Counter-Claimant states that, according to its internal regulations, allegedly accepted by the Claimant/Counter-Respondent 1 as part of the contract, the club had the right to withhold 25% of the player’s remuneration until the end of the season and this percentage should only be paid out to him in case he participates in more than 80% of the club’s matches. Since the 2010/2011 season only ended in October 2011 for Club Z, the Claimant/Counter-Respondent 1 did not play in more than 80% of matches and, thus, should not be entitled to received 100% of his contractual remuneration. 14. The Respondent/Counter-Claimant further explains that several fines in the total amount of currency of country E 186,000 had allegedly been imposed on the Claimant/Counter-Respondent 1, regarding inter alia the reimbursement of registration fees, late arrivals, unjustified absences and a refusal to travel with the team. 15. Furthermore, the Respondent/Counter-Claimant claims to have never received any warnings from the Claimant/Counter-Respondent 1 prior to the termination of the contract on 25 July 2011. 16. Lastly, the Respondent/Counter-Claimant pointed out that the political unrest in country E configures a situation of force majeure, which would justify any failure in payments. 17. Moreover, the Respondent/Counter-Claimant claims that the Claimant/Counter-Respondent 1, without informing Club Z, concluded a new employment contract on 8 August 2011 with Club K, while knowing that the Respondent/Counter-Claimant had the intention of renewing his contract for an allegedly higher salary. In spite Club Z’s alleged requests for his return in August and September 2011 (cf. point I.18. above), the Claimant/Counter-Respondent 1 never resumed his activities with the Respondent/Counter-Claimant. 18. Based on the foregoing, the Respondent/Counter-Claimant lodged a counterclaim against the Claimant/Counter-Respondent 1 and the Counter-Respondent 2, for breach of contract without just cause and inducement, respectively, requesting the payment of the total amount of USD 11,243,835.61 and currency of country E 265,875,000, plus interest. 19. In continuation, the Chamber noted that, in response to Club Z’s counterclaim, the Claimant/Counter-Respondent 1 stated, firstly, that he never intended to renew his contract with the Respondent/Counter-Claimant. He further stated that he always had to cope with several and considerable delays in the payment of his remuneration. 20. Furthermore, the Claimant/Counter-Respondent 1 rejected the Respondent/Counter-Claimant’s argument, according to which it should be entitled to withhold the payment of 25% of his remuneration until the end of the season and to proceed with its payment only in case the conditions stipulated in Club Z’s internal regulations were configured. In this respect, the Claimant/Counter-Respondent 1 not only deems the clause to be inapplicable due to its arbitrary content, but equally claims to have participated in more than 80% of Club Z’s matches. 21. The Claimant/Counter-Respondent 1 further points out that the Respondent/Counter-Claimant does not explicitly contest the existence of outstanding remuneration in his favour, but focuses on finding reasons to make deductions to the amount allegedly due to him, among which the imposition of the fines detailed in point I.19. above on him. In this respect, he rejects every individual accusation of Club Z against him. Furthermore, he states never to have been informed of the existence of such fines, which should therefore be disregarded, as the result of a unilateral procedure. Based on the foregoing, the Claimant/Counter-Respondent 1 rejects the Respondent/Counter-Claimant’s counterclaim and insists on his claim. 22. Finally, the members of the DRC noted that, in spite of having been invited twice to do so, the Counter-Respondent 2 never submitted its comments regarding the present affair. 23. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant/Counter-Respondent 1, the counterclaim of the Respondent/Counter-Claimant and the allegations of both latter parties, was to determine whether the Claimant/Counter-Respondent 1 had a just cause to terminate the contract on 25 July 2011. 24. In this respect, the DRC first focused its attention on the Respondent/Counter-Claimant’s argument regarding its right to withhold 25% of the player’s remuneration until the end of the sporting season, as per its internal regulations. 25. In this context, the DRC deemed it important to recall the wording of the specific provision of Club Z’s internal regulations, which stipulate the following: “Holding 25% of contract value be paid at season end due to player’s participation. Participation of 80% of matches numbers is the percentage received by player of these outstanding (25%) and listing his name in match list considered participation”. 26. In this regard, the members of the DRC considered that the possibility granted to the Respondent/Counter-Claimant to withhold the payment of 25% of the player’s remuneration until the end of the season and to pay it only in case his participation in at least 80% of the club’s matches appeared to be of a highly arbitrary nature, entailing that, de facto, it is left to the complete and utter discretion of the Respondent/Counter-Claimant to determine the player’s participation in each match and, consequently, to indirectly reduce the amount of his contractually agreed remuneration. 27. In view of the foregoing, the Chamber was of the opinion that such provision in the club’s internal regulations, which is invoked by the Respondent/Counter-Claimant in order to justify the non-payment of part of the remuneration to the Claimant/Counter-Respondent 1 was clearly potestative and that, consequently, the respective argumentation of Club Z in this respect could not be upheld by the DRC. 28. In continuation, the Chamber focused its analysis on the Respondent/Counter-Claimant’s argument, according to which several fines in the total amount of currency of country E 186,000 were allegedly imposed on the Claimant/Counter-Respondent 1, corresponding to the reimbursement of registration fees, late arrivals, unjustified absences and a refusal to travel with the team, inter alia. 29. At this point and for the sake of good order, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. 30. In relation to the above-mentioned fines, the DRC noted that the Claimant/Counter-Respondent 1 claims never having been informed of the existence of any pending fines against him and that those penalties were, consequently, the result of a unilateral procedure. The Chamber further observed that the Respondent/Counter-Claimant was unable to provide any type of evidence regarding the player’s due participation in the proceedings leading to the imposition of said fines or of the disciplinary infringements allegedly committed by him, which he disputed individually. 31. In view of the foregoing, the Chamber deemed that, in the absence of substantial evidence with regard to the existence of the alleged fines, of the player’s participation in such proceedings or of any disciplinary infringement on his part, it could not be taken into account in order to justify the non-payment of part of the remuneration of the Claimant/Counter-Respondent 1. 32. In this context, and irrespective of the foregoing consideration, the Chamber was eager to emphasize 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. Consequently, the Chamber decided to reject the Respondent/Counter-Claimant’s argument in this regard. 33. In continuation and bearing in mind the content of art. 12 par. 3 of the Procedural Rules, the Chamber went on to analyse whether the Respondent/Counter-Claimant had provided any evidence of the effective payment of the remuneration requested by the Claimant/Counter-Respondent 1 as outstanding. In this respect, the DRC deemed that the Respondent/Counter-Claimant bore the burden of proof regarding the fulfilment of all its financial obligations towards the Claimant/Counter-Respondent 1, as per the contract. 34. In this regard, the Chamber noted that the Respondent/Counter-Claimant, one month after the termination of the contract by the Claimant/Counter-Respondent, paid him the amount of currency of country E 314,750, as indicated in the statement of The United Bank, confirming the transfer of the aforementioned amount to the player, provided by the Respondent/Counter-Claimant as evidence (cf. point I.16. above). The Chamber further noted that the Claimant/Counter-Respondent 1 has equally acknowledged the receipt of such amount and updated his claim accordingly. 35. With regard to the remaining outstanding amounts claimed by the Claimant/Counter-Respondent 1, the Chamber noted that the player, on the one hand, provided a copy of the letter dated 4 April 2011 sent to the country E Football Association requesting assistance in order to obtain the payment of the allegedly late salaries, as well as of the DHL waybill dated 7 April 2011, forwarding said letter to Club Z (cf. point I. 10. above). 36. The Chamber also observed that the Respondent/Counter-Claimant, on the other hand, was not able to provide the DRC with any type of substantial evidence regarding the alleged payment of the player’s entire remuneration as per the contract or to justify the failure in complying with its contractual obligations, as explained above. On the contrary, the receipts submitted by the Respondent/Counter-Claimant appear to confirm the calculations made by the Claimant/Counter-Respondent 1, concerning the amount of remuneration claimed as outstanding by him. 37. Based on the foregoing, the Chamber concluded that when the Claimant/Counter-Respondent 1 terminated the contract on 25 July 2011, the amount of currency of country E 542,750, corresponding to more than half of the player’s yearly remuneration, was outstanding. The amount of currency of country E 314,750 was paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 1 only one month after the termination of the contract, i.e. on 25 August 2011. Consequently, the members of the DRC concluded that the Claimant/Counter-Respondent 1 had a just cause to terminate the employment contract with the Respondent/Counter-Claimant on 25 July 2011 and that the Respondent/Counter-Claimant was to be held responsible for the breach of contract at hand. 38. Having established the aforementioned, the Chamber focused its attention on the consequences of the breach of contract without just cause on the part of the Respondent/Counter-Claimant. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant/Counter-Respondent 1 is entitled to receive from the Respondent/Counter-Claimant an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract. 39. Prior to establishing the amount of compensation for breach of contract due to the Claimant/Counter-Respondent 1 by the Respondent/Counter-Claimant, the DRC proceeded with the calculation of the outstanding monies payable to the Claimant/Counter-Respondent 1 under the terms of the employment contract until the date of termination, i.e. on 25 July 2011. 40. In this regard, the Chamber noted that for the season 2010/2011 the Claimant/Counter-Respondent should have received the total amount of currency of country E 1,000,000 as remuneration. In addition, the DRC noted that he should also have received the total amount of currency of country E 56,250 as rent expenses for the period of May 2010 to July 2011, i.e. 15 months. 41. Subsequently, the members of the Chamber noted that the Claimant/Counter-Respondent 1 acknowledged having received from the Respondent/Counter-Claimant the amount of currency of country E 513,500 during the course of the contract as well as currency of country E 314,750 on 25 August 2011, i.e. after the termination. In accordance with the letter dated 7 August 2011, provided by the Respondent/Counter-Claimant and mentioned in point I.16. above, these currency of country E 314,750 corresponded to currency of country E 278,750 as net income for the season 2010/2011 and currency of country E 36,000 as outstanding accommodation allowances for said season. Thus, the DRC concluded that the amount of currency of country E 207,750 as remuneration and currency of country E 20,250 as rent expenses had remained unpaid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 1. 42. As per the player’s claim for the payment of allegedly outstanding collective match bonuses, the DRC observed that the Claimant/Counter-Respondent 1 failed to specify his request and to provide proof of his entitlement to receive such amounts from the Respondent/Counter-Claimant. Thus, such request of the Claimant/Counter-Respondent 1 for outstanding collective match bonuses had to be rejected. 43. Taking into consideration the player’s claim as well as the reasons previously exposed, the DRC concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent/Counter-Claimant must fulfill its obligations as per the employment contract concluded with the Claimant/Counter-Respondent 1 and, consequently, is to be held liable to pay the total amount of currency of country E 228,000, in remuneration and rent expenses. The bonus payments, procedural costs and legal fees are to be rejected. 44. The Chamber further established that an interest rate of 5% p.a. would apply over the aforementioned amount, as from 25 July 2011, as per the claim of the Claimant/Counter-Respondent 1. 45. In continuation, the Chamber focused 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/Counter-Respondent 1 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. 46. 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. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 47. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until the end of the 2012/2013 season. The Chamber concluded that the amount of currency of country E 2,340,000 serves as the basis for the final determination of the amount of compensation for breach of contract. 48. In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent 1 had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 49. Indeed, the Claimant/Counter-Respondent 1 signed a new employment contract with the Counter-Respondent 2, Club K. In accordance with the pertinent employment contract, which has been made available by the Claimant/Counter-Respondent 1, valid as from 1 August 2011 until 30 June 2013, the Claimant/Counter-Respondent 1 was entitled to receive the amounts detailed in point I.43. above. 50. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant/Counter-Respondent 1 and the Counter-Respondent 2 for the period as from 25 August 2011 until and including May 2013, i.e. the end of the sporting season in country E, amounted to approximately currency of country E 1,720,000, after the conversion. 51. In this respect and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent/Counter-Claimant must pay the amount of currency of country E 620,000 to the Claimant/Counter-Respondent 1, plus 5% interest p.a. as of 16 September 2011, i.e. the date of the claim, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter, in addition to the amount of currency of country E 228,000 as outstanding payments. 52. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim filed by the Claimant is rejected and that the counterclaim of the Respondent/Counter-Claimant is also rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent 1, Player H, is admissible. 2. The claim of the Claimant/Counter-Respondent 1 is partially accepted. 3. The Respondent/Counter-Claimant, Club Z, is ordered to pay to the Claimant/Counter-Respondent 1 outstanding remuneration in the amount of currency of country E 228,000, plus 5% interest p.a. as of 25 July 2011 until the date of effective payment, within 30 days as from the date of notification of this decision. 4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1 compensation for breach of contract in the amount of currency of country E 620,000, plus 5% interest p.a. as of 16 September 2011 until the date of effective payment, within 30 days as from the date of notification of this decision. 5. If the aforementioned amounts plus interest are not paid within the above-mentioned time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 6. Any further claims lodged by the Claimant/Counter-Respondent 1 are rejected. 7. The Claimant/Counter-Respondent 1 is directed to inform the Respondent/Counter-Claimant immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. 8. The counterclaim of the Respondent/Counter-Claimant is rejected. ***** 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: Markus Kattner Deputy Secretary General Encl. CAS directives