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 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejando Marón (Argentina), member Johan van Gaalen (South Africa), member Rinaldo Martorelli (Brazil), member on the claim presented by the club, Club A, country B, as Claimant / Counter-Respondent against the player, Player C, country D, as Respondent I and the club, Club E, country D, as Respondent II / Counter-Claimant 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 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejando Marón (Argentina), member Johan van Gaalen (South Africa), member Rinaldo Martorelli (Brazil), member on the claim presented by the club, Club A, country B, as Claimant / Counter-Respondent against the player, Player C, country D, as Respondent I and the club, Club E, country D, as Respondent II / Counter-Claimant regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 August 2012, the club from country B, Club A (hereinafter: Club A), the club from country D, Club E (hereinafter: Club E) and the player from country D, Player C (hereinafter: the player) concluded a contract (hereinafter: the contract), according to which, inter alia, the player would be temporarily transferred from Club E to Club A, as from 1 August 2012 until 31 May 2013, i.e. for 10 months. 2. According to art. 2 of the contract, Club A undertakes to pay the player, inter alia, the following amounts: - USD 100,000 as advance payment payable “upon the execution of the contract”; - USD 100,000 payable on 18 November 2012; - USD 5,000 payable at the end of each month. 3. Furthermore art. 2.ii of the contract stipulates that “The player undertake to refund the received advanced payment in the event of unilateral termination without justice cause”. 4. According to art. 4 of the contract, Club A has to pay a transfer fee of USD 400,000 to Club E for the loan of the player. 5. Art. 6 of the contract further establishes that the parties” […] agreed to transfer the player to the first party [Club A] for the season 2013/2014 upon expiry date of the loan contract in accordance with the following terms: 1. the first party’s offer to transfer the player must be submitted […] prior to 31/12/2012; 2. The first party shall pay the third party USD 400,000; 3. The first party shall pay the player an advance amount plus to monthly salary exceed up to maximum percentage of (40%) of the advance amount and monthly salary mentioned in the loan contract […] “. 6. In addition, art. 6.3 of the contract stipulates that “The transfer agreement [cf. point I.5 above] shall be executed by the parties within 15 days of 13/12/2012”. 7. On 12 September 2014, Club A lodged a claim against the player and Club E in front of FIFA for breach of contract without just cause and inducement to breach, respectively, requesting from the player and Club E the payment of the total amount of USD 1,803,694, plus 5% interest p.a. as from 4 December 2012, broken down as follows: i. USD 170,000 as reimbursement of advance payments received by the player (cf. points I.3. and I.2. above); ii. USD 150,000 as the remaining value of the contract; iii. USD 240,000 as non-amortized loan fee; iv. USD 68,413 as costs incurred when signing the player, i.e. USD 53,197 as accommodation expenses and USD 15,216 for airline tickets and one receipt referring to Mr F amounting 10,100; v. USD 625,281 corresponding to the “expenses for the replacement of the Player”; vi. USD 400,000 as compensation for the loss of the value of the player (cf. point I. 15. below); vii. USD 150,000 as compensation due to the specificity of sport, representing six monthly salaries. 8. Equally, Club A requested the imposition of sporting sanctions on the player (“must be banned from playing official matches for a period from four to six months”) and Club E (“ban […] from registering any new players for two registration periods”), and that all costs of the proceedings be borne by the player. 9. In its claim, Club A holds that the player performed all his duties properly until 22 August 2012, but after that he started to commit several disciplinary violations during the pre-season training camp such as arriving late to the team’s trainings or leaving the hotel without the club’s permission (cf. point I.10. below). Moreover, on 4 October 2012, Club A claims that the player left while pretending to have been called by his national team for a match of the African Nations Cup. From this date until 21 October 2012, Club A allegedly tried to contact the player by phone without success. Therefore, Club A sent two written notices to the player urging him to return to Club A, on 21 and 31 October 2012. 10. In this context, Club A claims having held a meeting with the player on 31 October 2012, upon his return, during which he allegedly admitted not having been called by his national team, but left Club A because his wife was going to give birth to his child in country D and acknowledged receipt of the notification letters. 11. In view of the above-mentioned facts, Club A’s board decided to impose on him a sanction in the amount of USD 30,000. In addition, Club A underlines that the player appealed this sanction but did not provide sufficient evidence to justify his absence. Therefore, Club A deducted USD 30,000 from the instalment of 18 November 2012. 12. On 1 December 2012, the player allegedly left Club A once again while only sending a text message to the team manager saying that “he could not attend the team’s training due to special circumstances” and never came back. Club A underlines that the player left Club A only two days after receiving the whole amount of his advance payments, minus the fine of USD 30,000, and all his salaries until December 2012 (cf. point I.7.i above) and allegedly re-joined Club E. 13. On 4 December 2012, Club A sent a default notice to the player notifying him that leaving the club without authorization constituted a breach of contract without just cause and urged him to return within 72 hours, or it would initiate proceedings before FIFA. 14. Furthermore, Club A claims that due to the player’s departure, it was obligated to find a replacement for him. Thus, on 13 January 2013, Club A signed a new employment contract with the Player G, who was by then out of a contract, for a total amount of EUR 1,400,000 as remuneration. Club A considers the total cost of his replacement to be USD 625,281 (cf. point I.7.v. above), corresponding to EUR 466,668 as remuneration until 30 June 2013 plus EUR 16,667 as accommodation allowance until 30 June 2013. 15. Finally, Club A explains that USD 400,000 should be considered as the loss of the value of the player (cf. point I.7.vi. above), as the club was willing to pay such an amount for a temporary transfer of 10 months only, showing how valuable it considered the player. 16. In spite of having been invited to do so and of having explicitly accepted to be contacted via Club E, the player did not reply to Club A’s claim. 17. Furthermore, in spite of having been granted an extension of deadline to reply to the claim, Club E only sent a reply after the closure of the investigation. The deadline after the extension was 24 November 2014, the investigation was closed on 19 December 2014 and the reply of the club, dated 5 January 2015, was received on 8 January 2015. 18. In its position on Club A’s claim, Club E rejected the club’s request for it to be jointly and severally liable for any payment in this proceeding. Club E holds that the player was on loan during one year only and after this period, he returned to Club E to fulfil its contractual obligations and spent his remaining year with it according to the contract. Therefore, Club E did not induce the player to come back as it did not benefit from the player’s services during the year of loan with Club A. Based on the foregoing, Club E points out that it had no interest on a comeback of the player but, on the contrary, it would have been more interesting for it to receive the additional USD 400,000 promised in case the parties agreed for a definitive transfer (cf. point I.5. above). 19. Club E further states that it had not been aware of any difficulties between Club A and the player until the notification of the claim of Club A in front of FIFA in November 2014. Additionally, Club E underlines that when they requested the return of the player’s ITC at the end of the loan period, Club A did not oppose to it. 20. On account of the above, Club E holds that, independent of whether there is a breach of contract or not between Club A and the player, the claims against Club E must be rejected. 21. Finally, Club E lodged a counter-claim against Club A, requesting the payment of USD 400,000 as compensation for damaging its image. 22. In its comments on Club E’s counterclaim, Club A first of all underlines that Club E’s counterclaim must be rejected and not taken into consideration by the DRC as it has been received after the granted time limit. Furthermore, Club A holds that Club E’s counterclaim is groundless and that they did not provide any evidence proving that they did not induce the player to breach his employment contract. In any case, Club A deems that Club E has been included in the present procedure, in accordance with FIFA regulations, due to the undisputed fact that it is the new club of the player, and therefore no compensation must be paid. 23. Despite having been invited to do so, the player did not provide FIFA with his contractual situation. According to TMS, the player was employed with the following clubs: i. Club E (country D): valid from 6 August 2012 until 30 June 2015, for a monthly salary of 10,000, as well as an annual performance bonus amounting 220,000 for the season 2012/2013, 240,000 for the season 2013/2014 and 300,000 for the season 2014/2015. ii. Club H (country I): valid from 1 January 2015 until 31 May 2015, for a total amount of USD 100,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 12 September 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2014 and 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 club from country B a player from country D and a club from country D. 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2014 and 2015), and considering that the present claim was lodged on 12 September 2014, the 2014 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 the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the members of the Chamber acknowledged that the player and Club A were bound by a contract, which was signed on 1 August 2012 and valid as from the date of signature until 31 May 2013 (cf point I.1. above). 6. The members of the Chamber noted that Club A maintains that the employment contract was terminated by the player without just cause as a result of the unjustified absence of the latter from the club as from 1 December 2012 and that Club E has to be held jointly and severally liable for the payment of an amount of compensation for breach of contract. 7. Furthermore, the DRC noted that the player failed to respond to the claim of Club A in spite of having been given the opportunity to do so. 8. In addition, the members of the Chamber highlighted that even after having been granted an extension of the time limit to answer to Club A’s claim (cf. point. I. 17. above), Club E failed to reply to the claim before the closure of the investigationphase. As a consequence, its answer cannot be taken into consideration and a decision shall be taken based on the argumentation and documentation presented by Club A exclusively. 9. In continuation, the Chamber paid due consideration to the fact that Club A submits that the player, left the club a first time during 27 days in October 2012 (cf. point I.9. above), pretending to have been called by his national team but in fact due to personal family reasons. This was allegedly admitted by the player during a meeting with the club after his return. As a result, the player was fined by the club with one monthly salary (cf. point. I. 10. above). 10. Furthermore, the Chamber took note that on 1 December 2012 the player, without any prior notice, left the club once again and never came back despite having been warned by Club A to re-join the club on 4 December 2012. 11. In view of the above, Club A submits that the player breached the contract and is, thus, to be held liable for the payment of compensation for breach of contract and to reimburse the amounts allegedly paid to him in excess. In addition, Club A asks that Club E be jointly and severally liable for this payment. 12. Having established the aforementioned, and taking into account the consideration outlined in points II. 7. and II. 8. above, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents admitted to the file; in other words, upon the statements and documents presented by Club A. 13. Furthermore, the DRC deemed that the Respondents, by failing to respond to Club A’s claim, tacitly renounced their right to defence and, as a consequence, accepted the allegations of Club A. 14. In continuation, the Chamber took into account that it has remained undisputed that the player left the club on 1 December 2012. In addition, the Chamber recalled that the player was already absent from the club a first time in October 2012 without any authorisation (cf. point I.9. above). 15. Based on the aforementioned and, in particular, on the argumentation and documentation presented by Club A in support of its claim in accordance with art. 12. par. 3 of the Procedural Rules, the Chamber concurred that the player terminated the employment contract with Club A without just cause by leaving the club on 1 December 2012 and, therefore, he is liable to pay compensation for breach of contract to Club A, in accordance with art. 17 par. 1 of the Regulations. 16. First, having established the above, the members of the DRC noted that the player received an amount in excess corresponding to an advance payment, in view of the time he rendered his services to the club. Indeed, Club A paid to the player an advance payment of USD 100,000 for the entire duration of the contract however the player remained with Club A during 4 months only. Consequently, the members of the Chamber decided that the player is to be held liable to pay Club A the amount of USD 60,000 as reimbursement, plus 5% interest as of the date of the claim, i.e. 12 September 2014. 17. In continuation, the Chamber held that the issue of inducement with respect to Club E is not to be considered since the player was only on loan to Club A and, after leaving the latter, he returned back to his club of origin. 18. Nonetheless, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Club E, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the player’s new club is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the CAS. 19. Having stated the above, 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 player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within the protected period. 20. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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 assured themselves that no such compensation clause was included in the employment contract at the basis of the matter at stake. 21. As a consequence, the members of the Chamber determined that the amount of compensation payable in the case at stake 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 emphasized 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. 22. In order to estimate the amount of compensation due to Club A in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the player under the existing contract and/or the new contract, which value constitutes an essential criterion in the calculation of the amount of compensation in accordance with art. 17 par. 1 of the Regulations. 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 in the calculation of the amount of compensation. 23. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of both the employment contract signed with Club A, and the one signed with Club E. 24. In this regard, the Chamber noted that, as per the employment contract signed with Club A, the player was entitled to a salary of USD 90,000 until the original end of the contract i.e., until 31 May 2013. 25. In continuation, the DRC equally took note of the Respondent player’s monthly remuneration with his new club, i.e. Club E, which corresponded to 170,000 or approximately USD 17,125, until the original end of the contract with Club A. 26. Taking into account the aforementioned elements the Chamber concluded that the average remuneration of USD 53,562 for the time remaining of the relevant contract should be taken into account in the calculation of the amount of compensation for breach of contract payable to Club A. 27. In continuation, the members of the Chamber observed that Club A submitted a copy of the loan agreement which it signed with Club E, in order to acquire the player’s services for the period from 1 August 2012 until 21 May 2013, according to which a transfer compensation of USD 400,000 was payable by Club A for the loan of the player. Taking into account the time remaining on the contract, the DRC established that the non-amortized transfer compensation, amounting to USD 240,000, shall also be included in the calculation of the amount of compensation for breach of contract due to the Claimant, in accordance with art. 17 par. 1 of the Regulations. 28. Taking into account all the aforementioned objective elements as well as the specificities in the matter at hand, the Dispute Resolution Chamber decided that the total amount of USD 293,562 was to be considered reasonable and justified as compensation for breach of contract in the case at hand. 29. As a consequence, the Chamber decided that the player has to pay the amount of USD 293,562 as compensation for breach of contract to Club A, plus interest of 5% p.a. as of the date of the claim, i.e. 12 September 2014, until the date of effective payment, taking into account the Club A’s petition and the Chamber’s constant jurisprudence in this regard. 30. Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations, Club E shall be jointly and severally liable for the payment of the aforementioned amount of compensation. 31. In this respect, the Chamber was eager to recall that the joint liability of a player’s new club is independent from the question as to whether this new club has committed an inducement to contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club E is jointly and severally liable for the payment of the relevant compensation. 32. Finally, the DRC decided that Club A’s claim pertaining to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s longstanding respective jurisprudence. 33. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Club A, is partially accepted. 2. The counterclaim of the Respondent II / Counter-Claimant, Club E, is inadmissible. 3. The Respondent I, Player C, is ordered to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision, the amount of USD 60,000 plus 5% interest p.a. as from 12 September 2014, until the date of effective payment. 4. The Respondent I has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 293,562 plus 5% interest p.a. on said amount as from 12 September 2014 until the date of effective payment. 5. The Respondent II / Counter-Claimant, shall be held severally liable for the payment of the amount mentioned in point 4 above. 6. Any further claims lodged by the Claimant / Counter-Respondent are rejected. 7. In the event that the amounts due to the Claimant / Counter-Respondent plus interest in accordance with the above-mentioned points 3 and 4 are not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 8. The Claimant / Counter-Respondent is directed to inform the Respondent I and the Respondent II / 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. ***** 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 Acting Secretary General Encl.: CAS directives