F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 24 April 2015, in the following composition: Geoff Thompson (England), Chairman Leonardo Grosso (Italy), member Theo van Seggelen (Netherlands), member Philippe Diallo (France), member Todd Durbin (USA), member on the matter between the club, Club A, country B as Claimant/Counter-Respondent and the player, Player C, country D as Respondent/Counter-Claimant and the club, Club E, country F as Intervening Party regarding an employment-related dispute arisen between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 24 April 2015, in the following composition: Geoff Thompson (England), Chairman Leonardo Grosso (Italy), member Theo van Seggelen (Netherlands), member Philippe Diallo (France), member Todd Durbin (USA), member on the matter between the club, Club A, country B as Claimant/Counter-Respondent and the player, Player C, country D as Respondent/Counter-Claimant and the club, Club E, country F as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 30 January 2008, the player from country D, Player A (hereinafter: the player), born on 14 May 1986, and the club from country B, Club A (hereinafter: Club A), concluded an employment contract (hereinafter: the contract). 2. According to clause 3 of the contract, “the duration of the contract is three years that cover 2007-2008, 2008-2009, 2009-2010 seasons and expires on 30.01.2011. There is 2 year option on the club side. The club is obliged to notice the player in written at the latest 01.12.2010”. 3. The contract established the following remuneration: Period from 30 January 2008 until 30 January 2009: - EUR 50,000 to be paid on 30 January 2008; - EUR 1,000 as monthly salary, payable from 28 February until 30 November 2008; - EUR 40,000 for 34 matches (EUR 1,176 per match). Period from 30 January 2009 until 30 January 2010: - EUR 60,000 to be paid on 30 January 2009; - EUR 1,500 as monthly salary, payable from 28 February until 30 November 2009; - EUR 50,000 for 34 matches (EUR 1,470 per match). Period from 30 January 2010 until 30 January 2011: - EUR 60,000 to be paid on 30 January 2010; - EUR 2,000 as monthly salary, payable from 28 February until 30 November 2010; - EUR 70,000 for 34 matches (EUR 2,058 per match). 4. On 1 February 2010, the player and the club from country F, Club E (hereinafter: Club E), concluded an employment contract valid until 30 June 2010, with an option to extend the contract until 30 June 2011. 5. On 23 March 2010, the Single Judge of the Players’ Status Committee authorized the Football Association of country F to provisionally register the player with Club E. 6. According to the employment contract signed with Club E, the player was entitled to receive: - EUR 6,000 gross, as monthly salary; - EUR 7,000 gross, as a monthly salary from 1 July 2010 until 30 June 2011, if the contract is extended; - Performance bonuses. 7. On 24 February 2010, Club A lodged a claim before FIFA against the player for breach of the contract on 6 July 2009, as well as against the Club E. Club A requested the payment of EUR 1,330,021 as minimum compensation plus 5% interest p.a. as from 6 July 2009 until the effective date of payment. 8. Regarding the amount claimed as compensation, Club A explained that such amount is composed of: - EUR 7,521.07 which corresponds to the balance between what the player was entitled to receive until the date of the breach (EUR 155,574) and the amount he actually received for that period (EUR 163,095.07); - EUR 87,500 regarding the residual value of the contract; - EUR 200,000 corresponding to the amount paid to replace the player; - EUR 35,000 (i.e. EUR 60,000 : 12 x 7), corresponding to the non-amortized part of the down payment of EUR 60,000 for the period between 30 January 2009 and 30 January 2010, paid on 30 January 2009. Additionally, Club A requested the amount of EUR 1,000,000 corresponding to “the estimated sporting and financial damages, as well as the loss of the impeccable reputation and the social and emotional damages caused to the [club] and its supporters, fixed ex aequo at bono” for the following reasons: - The player could not be used for the remaining period of the contract; - The player had high social and commercial value, being “the most favourite player of the supporters” and his departure caused tension with the fans; - Club A was deprived to receive further income regarding the image rights of the player; - Club A was deprived from the opportunity to transfer the player in the summer transfer window of 2009 (lucrum cessans); - The breach of the contract occurred in the protected period, which is an aggravating circumstance and leads to a “greater damage/bigger indemnity”; - The remuneration of the player due under the new contract, which reflects the real value of the services of the player at the time of the breach; - The amount of training compensation related to the transfer of the player to Club A to be paid to the player’s former club. Club A further requested the imposition of sporting sanctions on the player. 9. According to Club A, on 6 July 2009, the player abandoned the club without any authorization or notification. In this context, Club A held having notified the player on 4 August 2009 that he should return to the club within two days and fulfil his contractual obligations. Such notification contained the warning that failure to do so would be understood as breaching the contract during the protected period. Allegedly the player never answered such letter and, therefore, breached the contract as of the date he left Club A. 10. Club A submitted a copy of the letter dated 4 August 2009, in which it is stated that the player was required to report to the club in two days. Moreover, the letter holds the following note “as there was no one at the address of the addressee which was visited the notice has not been served on him”. 11. Moreover, Club A stated that the player had already behaved in the same way before, deserting the club on 4 February 2009, being fined for such violation and also failed to attend the final play-off championship game at the end of season 2008/2009 without a valid reason. 12. Additionally, Club A held having spent EUR 200,000 to hire another player, Player H to replace the player. 13. Club A also held that the player should have received the total remuneration of EUR 155,574 until the date he left, i.e. 6 July 2009, but alleged having paid him more than that, i.e. EUR 163,095.07. Therefore, Club A requested that the player reimburses the amount of EUR 7,521.07. Club A submitted several receipts not translated into one of the official FIFA languages as well as bank statements. 14. The player submitted his position, rejecting the claim of Club A. 15. According to the player, he fulfilled his contractual obligations during the seasons 2007/2008 and 2008/2009 and in the latter season Club A was promoted to the first division and started reviewing its squad. 16. In this scenario, the player was allegedly approached by Club A and advised to search for a new club for the season 2009/2010. In this regard, the player submitted a copy of Club A’s letter dated 26 June 2009 stating that “in case the player finds a club that will ready to pay his training compensation which are claimed by his prior clubs from Club A, he is free to transfer”. 17. The player held he was no longer invited to the training sessions with the first team and, although he tried to contact Club A’s officials, he did not receive any answer. In particular, he held having been invited to train with the reserve team under deplorable conditions which he did for a few weeks, enclosing a copy of the letter of Club A, dated 6 July 2009, indicating that “Club A Club team head coach I decide that the Player C will participate with the club reserve team training under control of the coach J according to the following training programme mentioned below”. In particular, it is specified in the letter that the training is from Monday to Saturday, from 10:00 until 11:30 and from 16:00 until 17:30. 18. On 7 August 2009, the player received a letter from Club A terminating the contract and stating that he had failed to fulfil his contractual obligations as well as to answer to the letter dated 4 August 2009. 19. In this respect, the player stated having never received the letter dated 4 August 2009. Moreover, the player alleged that the address in the letter was not his address at that time. 20. After the termination, the player could not find a new club to play until 1 February 2010, when he signed the contract with Club E and resumed his career. 21. The player pointed out that the termination of the contract by Club A was obviously not justified, since he never received the letter dated 4 August 2009 and, in any case, the deadline of 2 days is not acceptable to justify a termination of a contract. The player highlighted that he never abandoned Club A. 22. Moreover, the player explained that actually the termination was made by Club A on 7 August 2009, since the club needed his spot in the team to register other foreign players for the new season, considering the foreign player’s quota, which is 8 in country B. Therefore, Club A had already reached its quota on that date, registering 8 foreign players between 28 July and 5 August, all licences issued on 6 and 7 August 2009. 23. Therefore, it was Club A that terminated the contract without just cause by preventing the player to exercise his profession. 24. The player challenged all the amounts requested by Club A: (a) EUR 7,512.07 The player alleged that in fact he had to receive the aggregate amount of EUR 164,574 on the date of the termination of the contract, considering the matches he played, composed of: Period from 30 January 2008 until 30 January 2009: EUR 88,224 - EUR 50,000 to be paid on 30 January 2008; - EUR 10,000 as monthly salaries; - EUR 22.344 for 19 official matches he started in the first 11; - EUR 5,292 for 6 matches he entered as substitute; - EUR 588 for 1 match he was included in the first 18 but was not fielded. Period from 30 January 2009 until 7 August 2009: EUR 76,350 - EUR 60,000 to be paid on 30 January 2009; - EUR 9,000 as monthly salaries; - EUR 7,350 for 5 official matches he started as the first 11. In this context, the player alleged having received only EUR 113,975. Therefore, he would still be entitled to receive EUR 50,599. (b) EUR 200,000 This amount cannot be considered since the transfer allegedly happened before the termination of the contract and the relevant player plays in a different position; (c) EUR 35,000 The club is not entitled to receive the residual value of the contract, since it terminated the contract without just cause; (d) EUR 1,000,000 The club cannot ask for compensation for a termination made by itself without just case. 25. Furthermore, the player lodged a counterclaim on 9 August 2012, for the reasons above, claiming: a) Outstanding remuneration in the amount of EUR 50,599 + 5% interest as of the date of the breach of the contract; b) Compensation for breach of contract in the amount of EUR 116,220 + 5% interest as of the date of the breach of the contract composed of: EUR 181,000, corresponding to the residual value of the contract: - EUR 6,000 as salaries due from August 2009 until November 2009; - EUR 25,000 for 17 matches he would have played from August 2009 until 30 January 2010; - EUR 60,000 as payment due on 30 January 2010; - EUR 10,000 as salaries due from February 2010 until November 2010; - EUR 70,000 for 34 matches he would have played from 30 January 2010 until 30 January 2011. Minus EUR 64,780, corresponding to the value of the new contract signed with Club E (EUR 79,000 gross), after reducing the income tax applicable in the rate of 18%; c) EUR 9,000 as supplementary compensation for sporting damages; and d) Procedural costs. 26. Club E submitted its position, rejecting the claim of Club A. 27. Club E stated that the agent of the player offered the player as a “free agent” to be hired for the season 2009/2010, presenting a declaration from the Football Federation of country B, dated 7 August 2009, addressed to the player, stating that: “Club A informs that they unilaterally repealed your contract by the notification dated 07.08.2009 which a copy is enclosed. The repeal made by the club was registered by our Association and with the notification the contract between the parties and therefore the contractual relationship between you and your club is finished. Consequently, you must not play in any matches of your club. (…)” 28. Considering the above, Club E stated having concluded an employment contract with the player in good faith. In particular, it highlighted that the player declared in the employment contract being free of any contract. 29. Moreover, Club E stated that Club A has failed to prove that the player breached the contract and that it had just cause to terminate the relevant contract. Also, Club E challenged the amounts claimed by Club A as compensation due to the lack of grounds and evidence. 30. Club E stated that it had not induced the player to terminate the contract and may not, in any case, be considered jointly and severally liable. 31. Club E also stated that, in accordance with the decision of the Players’ Status Committee, the contract was terminated in July 2009 and Club A never asked for the return of the player. Only after being contacted by the Football Association of country F for the issuance of the International Transfer Certificate (ITC), Club A decided to oppose to the issuance of the ITC and lodge a claim before FIFA. 32. Club A replied to the counterclaim of the player preliminarily arguing that it is time-barred, since it was lodged more than two years after the events given rise to the dispute, i.e. since the player terminated the contract on 6 July 2009 by means of his implicit conduct, leaving the workplace without authorization and failing to render his services. 33. According to Club A, since it was dissatisfied with the player for deserting his work place during the final play-off championship game, played on 17 May 2009, it gave the player the chance to find a new club during the 2009 summer transfer period and submit him to train with the second team as of 6 July 2009, but never allowed him to abandon his workplace. In this respect, Club A held having handed the player an “Order” to play with the second team, providing him with a training schedule. 34. Club A further stated that the player has the burden of proof to demonstrate that indeed he was not allowed to train and was not considered part of the team for 2009/2010. Also, the player contradicts himself saying he was not allowed to train, but at the same time affirming he followed the training program with the reserve team. 35. Club A accepted not having paid the player’s salaries as of July 2009, but only because the player disappeared. Therefore, there were no outstanding salaries when the player left Club A. In this regard, the club submitted several statements of a notary dated between 8 July and 5 August 2009 attesting that the player was not present at the training sessions as well as that only the coach was present and no one appeared or participated in the training session. 36. Club A insisted having paid EUR 163,095.07 to the player, affirming that such information is also in accordance with emails exchanged between the player and Club A submitted by the player himself. 37. In addition, the letter of the Football Federation of country B dated 7 August 2009 informing the player about the termination by Club A just proves that the contract was considered terminated for administrative reasons. The contract was already terminated on 6 July 2009. 38. Finally, Club A amended its claim for compensation, claiming the aggregate amount of EUR 355,889, plus 5% as of 24 February 2010, as follows: - EUR 94,500 regarding the residual value of the contract; - EUR 200,000 corresponding to the amount paid to replace the player; - EUR 35,000 (i.e. EUR 60,000 : 12 x 7); - EUR 26,389 corresponding to the non-amortized portion of the training compensation paid by Club A to the player’s former club, Club K (i.e. EUR 50,000 : 36 x 19). 39. The player provided his final comments, stating the following: - Contrary to Club A’s argument, the player was not given a chance to find a new club, but ordered to do so; - The notary deeds presented indicate that the notary was taken to a different facility unless the player was the only player to be trained, since no other players were seen either; - Also the player only received the schedule for the first week of training; - In any case, Club A had to terminate the contract with the player since it had reached its foreign player’s quota. In this regard, the player submitted a copy of the Statutes of the 2009/2010 league of country B establishing the limit of 8 foreign players. 40. The player also amended his claim asking for the following: - EUR 2,478.93 as outstanding remuneration; - EUR 92,000 as the residual value of the contract; - EUR 9,000 as supplementary compensation for sporting damages; - Procedural costs; and - Sporting sanctions on Club A. 41. Club E provided its final comments insisting on its previous argumentation and asking for the claim of Club A to be dismissed. ****** 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 24 February 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 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 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country D, a club from country B and a club from country F. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the claim of Club A was lodged on 24 February 2010, the 2009 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. 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. 5. The DRC first and foremost considered that the parties had concluded the contract dated 30 January 2008, valid until 30 January 2011. Moreover, the DRC took note that the player concluded an employment contract with Club E on 1 February 2010, valid until 30 June 2010. 6. In continuation, the DRC took note that Club A lodged a claim for breach of contract against the player and his new club, Club E, alleging that the player had abandoned Club A on 6 July 2009 and therewith had terminated the contract without just cause. 7. On the other hand, the members of the DRC took note that the player rejected all the arguments of Club A, stating that in fact the club had terminated the contract in writing on 7 August 2009 without just cause. 8. Considering the diverging position of the parties, the members of the Chamber highlighted that the underlying issue in this dispute was to determine as to when the contract had been terminated by one of the parties, and, subsequently, to determine as to whether such termination was with or without just cause. The Chamber also underlined that, subsequently, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation. 9. In this context, the DRC recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 10. The DRC took note that although Club A held that the player abandoned the club on 6 July 2009, the player stated that he was authorized by Club A to be transferred to a new club as long as the new club would pay training compensation to Club A. 11. In this context, the DRC considered that Club A failed to demonstrate that the player abandoned the club on 6 July 2009, while the player provided evidence that, on 26 June 2009, Club A authorized him to be transferred to a new club in case the new club pays training compensation to Club A. 12. In addition, the Chamber highlighted that, according to the documentation submitted by the parties in particular, a confirmation issued by the Football Federation of country B, Club A terminated the contract in writing on 7 August 2009. 13. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. 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 ensure the employee’s fulfillment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 14. The Chamber first of all observed that Club A alleged having notified the player on 4 August 2009, i.e. approximately one month after having allegedly abandoned the team, asking him to return to the club and fulfil his contractual obligations before terminating the contract on 7 August 2009. 15. However, the Chamber took note that the player discharged his burden of proof demonstrating that he never received the default letter dated 4 August 2009. The DRC emphasised that the copy of the letter provided by Club A itself indicated that “as there was no one at the address of the addressee which was visited the notice has not been served on him”. 16. Furthermore, the members of the DRC acknowledged the player’s argument that Club A terminated the contract because, after being promoted to the first division of the National Championship, it used its quota of foreign players and could no longer register the player. In this respect, the DRC took note that Club A did not contest such argument thus, accepting the allegations of the player. 17. Moreover, the DRC emphasised that Club A had first notified the player that he could look for another club and one week later had demoted him to the reserve team. It then remained uncontested by Club A that it had fully used its foreign quota. 18. Considering all the circumstances, the DRC considered that the player could reasonably assume that Club A was no longer interested in the services of the player and that it therefore could not be established that the player had terminated the contract without just cause. 19. Therefore, the DRC decided that the claim of Club A is rejected. 20. In continuation, the DRC decided that the counterclaim lodged by the player, having been lodged on 9 August 2012 only and relating to the termination of the contract on 7 August 2009, must be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations, since more than two years have elapsed between the termination of the contract and the submission of the counterclaim. 21. The DRC therefore concluded that the player’s counterclaim is inadmissible. ******* III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Club A, is rejected. 2. The counterclaim of the Respondent/Counter-Claimant, Player C, is inadmissible. ***** Note relating to the motivated decision (legal remedy): According to article 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