F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 26 November 2015, in the following composition: Geoff Thompson (England), Chairman Mohamed Mecherara (Algeria), member Leonardo Grosso (Italy), member on the claim presented by the club, Club A, country B as Claimant against the club, Club C, country D, as Respondent regarding an employment-related dispute arisen between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 26 November 2015, in the following composition: Geoff Thompson (England), Chairman Mohamed Mecherara (Algeria), member Leonardo Grosso (Italy), member on the claim presented by the club, Club A, country B as Claimant against the club, Club C, country D, as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 30 December 2008, the player from country E, Player F (hereinafter: the player), and the club from country B, Club A (hereinafter: Club A), signed an employment contract (hereinafter: the contract), valid as from 1 January 2009 until 30 June 2012, i.e. 3,5 years. 2. According to art. 1.10 and 1.11 of the contract, Club A undertook to pay the player the following amounts: - USD 15,000 as travel expenses, upon signature of the contract; - USD 3,500 as monthly salary, in case the player participates in the Championship of country B, National Division; - performance bonuses. 3. On 4 June 2011, the player unilaterally terminated the contract with Club A in writing, based on the alleged existence of outstanding remuneration. 4. On 23 June 2011, the player and the club from country D, Club C (hereinafter: Club C), signed an employment contract valid as from 1 July 2011 until 30 June 2012. 5. On 26 August 2011, as per the request of the Football Association of country D, the Single Judge of the Players’ Status Committee (PSC) decided for the registration of the player with Club C, after noting that “Club A appears to have indicated that it would be ready to discuss the transfer of the player if it was approached by the club from country D. These circumstances led the Single Judge to conclude that the club from country B does not seem to be genuinely and truly interested in maintaining the services of the player concerned, but that Club A rather appears to be looking for financial compensation”. 6. On 21 November 2011, Club A lodged a claim in front of FIFA against the player and Club C, alleging that the player, induced by Club C, breached the contract without just cause. Therefore, Club A requested that the player and Club C should be held jointly liable for the payment of compensation in the total amount of USD 169,999.16, plus interests of 5% p.a. as of 23 June 2011, made up of: - USD 100,000, corresponding to the transfer fee Club G would have paid for the player or, alternatively, to the value of the player’s services; - USD 18,571.43 corresponding to the non-amortized part of the transfer fee paid by Club A to Club H for the player; - USD 45,500 corresponding to the residual value of the contract; - USD 927,73 corresponding to the reimbursement of the air ticket purchased by the club on behalf of the player; - USD 5,000 in legal fees; - procedural costs. 7. In addition, Club A requested that sporting sanctions be imposed on the player and on Club C: the player should be prohibited to participate in official matches for 6 months and Club C should be banned from registering new players, both nationally and internationally, for two registration periods. 8. Such claim remained unanswered by both the player and Club C. On 27 February 2013, the DRC held the player liable for the breach of the contract with Club A without just cause on 4 June 2011 (cf. point I.3. above) and, therefore, he should pay to Club A the amount of USD 57,987 as compensation plus 5% interest p.a. as from the date of the decision. In accordance with art. 17 par. 2 of the FIFA Regulations, Club C was held jointly and severally liable for the aforementioned payment. Furthermore, in accordance with art. 17 par. 3 and 4, respectively, the player and Club C were sanctioned for the breach of contract without just cause within the protected period. 9. On 29 April 2013, the player appealed in front of CAS the DRC decision of 27 February 2013 (cf. CAS 2013/A/3167 Player F v. Club A & Club C). However, a termination order was eventually issued in such appeal. 10. On 26 April 2013, Club C also lodged an appeal in front of CAS against the DRC decision of 27 February 2013 (cf. CAS 2013/A/3155 Club C v. Club A, Player F & Fédération Internationale de Football Association). In its appeal, Club C principally submitted that “its defence rights were violated in front of the DRC of FIFA because it was not duly informed of the claim made against it by the Respondent Club [Club A] and was not given the opportunity to defend itself”. 11. An arbitral award was issued on 31 December 2013, in which CAS accepted the aforementioned argument of Club C and, consequently, ruled that: “2. Holdings no. 3 and 7 of the decision of the FIFA Dispute Resolution Chamber of 27 February 2013 [which established, respectively, that Club C was jointly and severally liable for the payment of compensation for breach of contract to Club A, and that a registration ban was imposed on the club for two registration periods] are entirely set aside and the remaining holdings of that decision are set aside to the extent that they are directed against Club C. 3. The legal proceedings concerning the claim filed by Club A against Club C in relation to the contractual dispute involving the Player F are referred back to the FIFA Dispute Resolution Chamber as specified under section E of the reasons of this award”. 12. On 3 April 2015, Club A contacted FIFA requesting that, in accordance with the arbitral award of CAS, the case be referred again to the DRC. In its request, Club A refers entirely to its original claim lodged before FIFA on 21 November 2011. Additionally, Club A points out that “the joint and several liability applies automatically and is irrespective of whether or not the Respondent induced the Player to breach his contract”. Club A equally pointed out that Club C, in order to hire the player, recklessly relied upon a one-sided document named “demande de résiliation de contrat” (i.e. request for termination of the contract) to conclude that he was not contractually bound to any other club, without any further research. Thus, Club A primarily requests that Club C be held liable to pay it the total amount of USD 139,571.43, plus 5% interest p.a. as from 23 June 2011 (cf. point I.4. above), made up of: - USD 100,000 for lucrum cessans as the transfer fee Club A would have received from Club G for the player (cf. point I.6. above) or, alternatively, as the value of the player’s services; - USD 18,571.43 corresponding to the non-amortized part of the transfer fee paid by Club A to the player’s former club, Club H (hereinafter: Club H); - USD 21,000 as damages in the light of specificity of sport; - sporting sanctions on Club C. 13. Alternatively, Club A requests that Club C is held jointly and severally liable to pay the amount of USD 57,987, as decided by the DRC on 27 February 2013, plus 5% interest p.a. as from the date of the decision and that Club C be banned from registering any new players, both nationally and internationally, for two registration periods. 14. In its claim of 21 November 2011, to which Club A refers in full, the club stated that the player, in spite of having been provided a round-trip ticket country B-country D-country B, did not return from his holidays in country D on 5 June 2011, as it had been agreed between the parties. 15. By means of its correspondence dated 6 June 2011, addressed to the player’s agent, Club A reminded the player of his delay in returning from his holidays, inquired about the reasons of such delay and requested his immediate return. 16. Allegedly on the same date, Club A received a letter from the player, forwarded to the club by his agent and backdated 4 June 2011 (cf. point I.3. above), by means of which he requested the termination of the contract, based on the fact that Club A had allegedly failed to pay him outstanding salaries for December 2010 until March 2011 as well as bonuses in the amount of USD 10,000, and continuously practiced racial discrimination against him. 17. By means of its e-mail of 9 June 2011 to the player’s agent, Club A rejected the termination of the contract as well as the accusations. In addition, Club A stated that the payment of bonuses is subject to the performance of the player and provided copies of payment receipts, signed by the player. In addition, Club A stated never having received any notification from the player regarding the payment of outstanding salaries. 18. Furthermore, by means of its correspondence of 27 June, 13, 19 and 26 July 2011, sent to the player via his agent, Club A again requested his immediate return to the club. In particular, in its letter of 19 July 2011, the club informed the player of the existence of a letter from the club from country I, Club G, dated 6 July 2011, by means of which the latter “invites the player […] to have medical examination and, if positive, to sign a personal employment contract”. 19. In this regard, Club A states that on 1 July 2011 it was contacted by Club G, regarding an offer for the player in the total amount of USD 100,000, which was accepted by Club A by means of its letter of 19 July 2011. According to Club A, since the player never returned from his holidays and, in addition, signed a new employment contract with Club C in June 2011, on 17 August 2011 Club A informed Club G in writing of the impossibility of his transfer, considering that a request for the provisional registration of the player with Club C was already pending in front of FIFA. 20. In view of the aforementioned arguments, Club A deems that the player acted in bad faith as he, in possession of a Schengen visa and a two-way air ticket both provided to him by Club A, travelled to country D and signed a new employment contract with Club C in June 2011, while still being contractually bound to Club A. For having lost a valuable player, for not having been warned of the player’s intention to terminate the contract, for having lost the opportunity of transferring him to Club G, Club A deems that the player and Club C are jointly and severally liable for the payment of compensation to Club A. 21. In reply to Club A’s re-submitted claim, Club C claims that the player guaranteed that he was a free agent and that his previous contract had been terminated. Club C claims they have only become aware of the player’s pending registration with Club A as it contacted the Football Association of country D in order to request the player’s ITC. Only after the conclusion of the proceedings in front of the PSC (cf. point I.5. above), on 26 August 2011, the player was registered with Club C. 22. Club C insists that, in the context of the first proceedings in front of FIFA, it was not properly guaranteed the right of defence. At this point, the appeal of the player in front CAS having been terminated without an analysis as to the merits, Club C can no longer discuss the question of the breach of contract. Thus, Club C concludes that, neither in front of FIFA nor of CAS, it was guaranteed its right to a due process of law. Club C further argues that, in spite of the long time passed since the dispute arose, a final solution has not yet been reached. In particular, it indicated that FIFA could have re-opened the case ex officio after the CAS award (cf. point I.11. above). In view of the foregoing, Club C requests that the DRC decide that it should not be considered as jointly and severally liable to pay any amounts due to Club A by the player and that no sporting sanctions should be imposed on them. 23. Club C also requests FIFA to reject the translations provided by Club A of documents drafted in a language, which is not an official FIFA language. As per Club C, only official translations can guarantee that the correct message of such documents is in fact conveyed. 24. Furthermore, Club C rejects having ever induced the player to breach his contract with Club A. In this respect, Club C points out that it was the player who presented himself to the club for trials during an open session on 9 June 2011. In between the termination of the contract with Club A by the player, on 4 June 2011, and the date in which Club C and the player concluded a contract, i.e. 23 June 2011, three weeks had already elapsed. Club C claims to be an amateur club and not to be an autonomous legal entity, being only one of the “sessions of the Club C”. Player F was only the third player hired by the club from abroad. Due to its lack of experience, Club C deemed that, after the decision of the Single Judge of the PSC, the issue of the player’s registration had been completely solved. 25. Club C further claims that it has already served the registration ban imposed by means of the DRC decision of 27 February 2013, since their request for the stay of the execution of the sporting sanction was rejected by CAS and the final award was only issued on 31 December 2013. Thus, imposing once again sporting sanctions on the club would consist of an unjust double punishment. 26. In continuation, Club C deems that Club A’s primary request for a higher amount of compensation must be rejected, since such amount, consisting of compensation for breach of contract on the part of the player cannot be modified in the present proceedings, as the latter is not even a party in them. In any case, Club C points out that the amounts requested by Club A are unfounded and not accompanied by any supporting evidence. Furthermore, Club C requests that the DRC consider its involvement in the social environment of the city J, where it promotes football as a means of integration and socialization, and not as business. As such, Club C possesses very low financial resources. 27. In addition, Club C claims that the amount of USD 57,987 established by the DRC as the compensation for breach of contract due to Club A was wrongly calculated, as it took into account the gross values in the contract, and not the net amounts actually received by the player. Thus, the value of the player’s contract with Club C is not USD 39,600, as calculated by the DRC, but USD 25,768. As to the non-amortized transfer fee due by Club A to the player’s former club, Club H, it cannot be considered in the calculation of compensation if Club A does not provide evidence that such amount was in fact fully paid to Club H. 28. Finally, Club C deems that the interest of 5% p.a. over the amount due as compensation to Club A should not run as from 23 June 2011, as requested by Club A, or as from the date of the decision of 27 February 2013, since the latter was “annulled by CAS”. In view of all the foregoing, Club C requests that it should not be considered as jointly and severally liable for the player’s breach, that no sporting sanctions should be imposed on them and that all financial claims of Club A be rejected. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or DRC) referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension. 2. Furthermore, the Chamber referred to the previous decision of the DRC rendered on 27 February 2013 and concluded that the 2010 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), is applicable to the matter at hand as to the substance. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 19 November 2015 by means of which the parties were informed of the composition of the Chamber, the members Mr K and Mr L refrained from participating in the deliberations in the case at hand. The foregoing is due to the fact that the member Mr K has the same nationality as the Club C and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr L refrained from participating. Thus, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts, the documentation contained in the file as well as the decision rendered by the DRC on 27 February 2013. The Chamber however 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 Chamber acknowledged that Club A, referring in full to the arguments detailed in its claim of 21 November 2011, requested that the present dispute be resubmitted to the DRC, in accordance with the CAS award of 31 December 2013 (cf. point I.11. above). In particular, Club A referred to the allegedly reckless behaviour of Club C when engaging the player and to its automatic joint and several liability for the payment of compensation for breach of contract by the player. Based on the foregoing, Club A primarily requested the payment by Club C of the total amount of USD 139,571.43 (cf. point I.12. above) or, alternatively, that the DRC decision of 27 February 2013 be confirmed in relation to Club C’s joint and several liability with the player for the payment of compensation for breach of contract therein established and to the registration ban (cf. point I.13. above). 6. In continuation, the Chamber noted that in reply to Club A’s re-submitted claim, Club C states that it never induced the player to breach the employment contract with Club A and that the player presented himself to Club C as a free player, in an “open session”. Club C claims to have become aware of the player’s registration with Club A only when it contacted the Football Association of country D, in order to request his ITC. Due to its alleged lack of experience in transferring international players, Club C deemed the matter to be completely solved after the decision of the Single Judge of the PSC on 26 August 2011 (cf. point I.5. above). Referring in addition to their allegedly limited financial means as well as to their social engagement in the community of city J, Club C deems that it should not be held jointly and severally liable for the payment of compensation for breach of contract by the player, as it did not induce the player’s breach, and fully rejects the re-submitted claim of Club A. 7. In view of the aforementioned arguments of Club A and Club C, the DRC deemed it appropriate to first recall a few specific facts, regarding the legal proceedings carried out in front of the CAS, in particular in relation to the appeal lodged by the player on 29 April 2013 (cf. CAS 2013/A/3167 Player F v. Club A & Club C). In his appeal, the player aimed at reopening the discussion about the substance of the case, in particular, the question of the breach of contract. In this context, the player rejected the DRC’s conclusion that he was to be held liable for the breach of the employment contract with Club A, claiming that the latter was in fact the party in breach of its contractual obligations. 8. Notwithstanding the foregoing, the player’s appeal was eventually considered as withdrawn and the arbitration was terminated. As a consequence of the termination of the player’s appeal, the DRC decision of 27 February 2013 became final and binding to the extent that it referred to the dispute between the player and Club A. Thus, as from that moment, the substance of the matter – i.e. the breach of contract without just cause on the part of the player – as well as the relevant consequences for the player drawn therefrom by the DRC can no longer be discussed, in accordance with the legal principle of res judicata. 9. Such understanding is also reflected in the CAS award issued on 31 December 2013 in the appeal of Club C (cf. CAS 2013/A/3155 Club C v. Club A, Player F & Fédération Internationale de Football Association), which clearly establishes that “Holdings no. 3 and 7 of the decision of the FIFA Dispute Resolution Chamber of 27 February 2013 are entirely set aside and the remaining holdings of that decision are set aside to the extent that they are directed against Club C” (emphasis added). Also, “The legal proceedings concerning the claim filed by Club A against Club C […] are referred back to the FIFA Dispute Resolution Chamber” to that extent only. 10. Bearing in mind the foregoing, the appeal of Club C before CAS as well as the current decision of the DRC have a limited scope, concerning solely the re-establishment of the club’s “defence rights […] in front of the DRC of FIFA […]”, but by no means the re-opening of the discussions regarding the liability for the breach and the amount of compensation consequently due to Club A, established in the Chamber’s decision of 27 February 2013. 11. In view of the foregoing considerations, the Chamber could already conclude that the request of Club A for a higher amount of compensation for breach of contract to be paid by Club C must be rejected. Again referring in full to the reasoning of the Chamber on 27 February 2013 – and in particular to the reasons detailed in points II.6. to II.10. above – the members of the DRC held that all findings of the DRC decision of 27 February 2013 – with the exception of points 3. and 7., and the remaining holdings only to the extent that they are directed against Club C – have become final and binding after the player’s appeal at CAS was dismissed and, thus, can no longer be modified. In view of the foregoing, the Chamber confirmed that the sum of USD 57,987 plus 5% interest p.a. as from 27 February 2013 is the appropriate and justified amount of compensation for breach of contract without just cause to be awarded to Club A. 12. Having established the foregoing, the Chamber went on to analyse Club C’s argument, according to which it should not be held jointly and severally liable with the player to pay the aforementioned amount of compensation, as it did not induce him to breach the employment contract. 13. At this point, the Chamber deemed it appropriate to refer to art. 17 par. 2 of the Regulations, which stipulates that whenever a player has to pay compensation for breach of contract to his former club, his new club, i.e. the club for which he registers after the contractual breach, shall be jointly liable for its payment. In addition, the Chamber emphasised that such joint and several liability is independent of any actual involvement or inducement of the new club in/to the breach of contract by the player. This corresponds to the longstanding and well-established jurisprudence of the DRC, repeatedly confirmed by the CAS. 14. Referring to the present dispute and, in particular, to the argumentation of Club C, the DRC reiterated that art. 17 par. 2 of the Regulations stipulates that the club’s joint and several liability is automatic and cannot be set aside. Thus, the Chamber concluded that Club C’s arguments in this respect cannot be upheld and the club remains jointly and severally liable for the payment of the compensation for breach of contract due to Club A. 15. Hence, the Chamber decided that the claim of Club A is partially accepted and that Club C is jointly and severally liable for the payment of the amount of compensation for breach of contract that the player has been ordered to pay to Club A in accordance with the decision rendered by the Dispute Resolution Chamber on 27 February 2013. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club A, is partially accepted. 2. The Respondent, Club C, is jointly and severally liable for the payment of the amount of compensation for breach of contract that the player, Player F, has been ordered to pay to the Claimant in accordance with the decision rendered by the Dispute Resolution Chamber on 27 February 2013. 3. If the relevant amount is not paid within 30 days as from the notification of this decision, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent, immediately and directly, of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. CAS directives