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 Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Leonardo Grosso (Italy), member John Bramhall (England), member on the claim presented by the player, Player 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 Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Leonardo Grosso (Italy), member John Bramhall (England), member on the claim presented by the player, Player 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 11 July 2012, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as of 10 July 2012 until 9 July 2015. 2. Art. 10.1 of the contract established that “The contract is written in the language of country D, Spanish and English trilingual version. English version will rule over and be effective finally when there’s any conflict of different explanation of the version”. 3. According to art. 4.1 of the contract, the Respondent undertakes to pay the Claimant, inter alia, the following amounts : - USD 1,000,000 upon the Respondent receiving the international transfer certificate (ITC) for the Claimant’s registration; - USD 2,000,000 for each year of the contract, divided in twelve equal instalments of USD 166,667 per month, the first one payable on 10 August 2012. The relevant article established that “Total salary of this contract is USD 7,000,000”. 4. According to art. 7.4 of the contract, if “[the Respondent] fails to pay [the Claimant] the salary for over 60 days continuously [the Claimant] can terminate this contract upon noticing [the Respondent], giving 05 days period to cancel or challenge the claimed debt. In this case [the Respondent] must be pay penalty fee all the salaries of this contract, until the end.” 5. According to art. 7.6 of the contract, “both parties cannot terminate this contract during the first year of contract. If [the Claimant] terminates this contract after the first year of contract, [the Claimant] should pay [the Respondent] the transfer fee and the salary of first year, which should be 5.5 million dollars net totally. If [the Respondent] terminates this contract after the first year, [the Respondent] should pay to [the Claimant] as a penalty fee, the total of the salaries of the contract, until the end.” 6. On 13 February 2013, the Claimant and the Respondent signed a termination agreement (hereinafter: the termination agreement), by means of which the parties agreed that the Respondent would pay the Claimant USD 2,000,000 “as compensation for early termination, along with his earnings from July 2012 to February 2013.” 7. The termination agreement specifies that “Because the termination was requested by [the Respondent], in replacement of a fine set out in clause 7.6 (US$ 5,500,000.00) of the contract freely entered into by the parties on July 2012, the Athlete, and only exceptionally in case of receipt of payment on the specified date in this agreement, accepted receiving the value of US$ 2,000,000.00 as compensation fee for early termination, along with his earnings from July 2012 to February 2013. 8. Moreover, the termination agreement requires the Respondent to pay the Claimant by 10 March 2013 and further reads that “If the Respondent make no payments until March 10, the Respondent will be debtor declared of the full fines specified by the contract, the parties recognize the value of which is today’s date, of US$ 5,500,000.00 subject to the receipt of wage arrears, existing on today’s date”. 9. On 15 April 2013, the Claimant lodged a claim before FIFA against the Respondent for breach of the contract and the termination agreement and, after amending his claim on 6 August 2013, requested payment of the total amount of USD 5,833,334, plus interest of 5% p.a. as “from the date of default, namely from February, 2013”, comprised of: - USD 333,334 corresponding to monthly salaries for January and February 2013 (2 x USD 166,666.67); - USD 5,500,000 as compensation stipulated in the contract and ratified in the termination agreement for “failing to fulfill the provisions of Termination Agreement”; - Costs of the proceedings. 10. In addition, the Claimant requested the imposition of sporting sanctions on the Respondent. 11. In his arguments, the Claimant stated that the Respondent failed to pay him his monthly salaries for the months of January and February 2013 and that, in February 2013, the Respondent informed him that it wished to terminate the contract. 12. On 27 February 2013, the parties signed the termination agreement that required the Respondent to pay the Claimant USD 2,000,000 “as compensation for early termination, along with his earnings from July 2012 to February 2013” until 10 March 2013. 13. According to the Claimant, on 3 March 2013, he went to the Respondent to receive the amount due under the termination agreement and to sign the release documents, but was surprised by the fact that the Respondent only wanted to pay USD 1,300,000. In particular, the Claimant held that he signed the receipt for the payment of the monthly salaries for January and February 2013, but then noticed that the Respondent wanted to pay less than the amount agreed of USD 2,333,334. Consequently, he refused to receive any payment and returned to country E. In this regard, the Claimant submitted two receipts in the amount of USD 166,667 each, both dated 8 March 2013. 14. On 12 March 2013, the Claimant sent a document to the Respondent in which he demanded that the Respondent pay him USD 2,333,334, which corresponded to the compensation for early termination established in the termination agreement and the monthly salaries for January and February 2013, by 15 March 2013, or he would file a claim. 15. According to the Claimant, the Respondent failed to respond to his request. Additionally, the Claimant affirms having exchanged several emails with the Respondent’s official translator, who allegedly confirmed that the Respondent had remained in debt with the Claimant and requested his bank details so the Respondent could proceed with the payment. 16. The Respondent presented its reply, stating that it fully complied with its contractual obligations until December 2012. Regarding the termination agreement, the Respondent presented the same facts as the Claimant. In particular, the Respondent alleged that, after signing the termination agreement, on 8 March 2013, it was prepared to pay the Claimant the compensation fee of USD 2,000,000 and the two monthly salaries in cash, but the Claimant refused to accept the cash and left without any explanation. In this respect, the Respondent submitted copies of the receipts corresponding to the monthly salaries, also presented by the Claimant, as well as a copy of a receipt for “released compensation” in the amount of USD 2,000,000, dated 8 March 2013, signed by the Claimant. 17. The Respondent further stated still being ready to pay the amount agreed, but that it did not have the bank account of the Claimant, since it had always paid him in cash. 18. The Respondent asserted that it has not breached the termination agreement and does not know the reason why the Claimant refused to accept the cash after signing the receipts. 19. The Claimant, for his part, adhered to his claim and held that the Respondent is not telling the truth, since it tried to pay him the amount of USD 1,300,000 only. Moreover, the Claimant highlighted that he informed the Respondent many times of his lawyer’s bank account details, but the Respondent still failed to pay. 20. Therefore, the Claimant held that the Respondent clearly violated the termination agreement and that the Respondent must pay the amount of USD 5,500,000 as well as the outstanding salaries of January and February 2013. 21. In its duplica, the Respondent submitted its final comments by means of a legal representative stating that the Claimant is not entitled to receive any amount and that, in any case, the dispute is about the amount of compensation due to the Claimant in relation to the termination agreement. 22. In this respect, the Respondent held that, according to the contract, the Claimant was entitled to receive USD 2,000,000 for each year, divided in 12 monthly salaries, and that the amount of USD 1,000,000 paid upon the receipt of the ITC was a prepayment. In particular, the Respondent explained that the amount of USD 1,000,000 is actually an advance payment and that the total remuneration under the contract would be of USD 6,000,000 instead of USD 7,000,000. 23. In this respect, the Respondent held that the language of country D version of the contract is different from the English version and that art. 10.1 of the contract, in the language of country D, actually establishes that the language of country D version shall prevail. 24. According to the Respondent, the language of country D version of the contract establishes that the amount of USD 1,000,000 is prepaid by the Respondent and should be included in the total value of the contract, which is USD 6,000,000. 25. Therefore, considering, on the one hand, that the Claimant received until the date of the termination agreement the total amount of USD 2,000,000 (USD 1,000,000 paid upon receipt of the ITC and USD 1,000,000 paid as salaries until December 2012) and that, on the other hand, he only played for eight months (from July 2012 until February 2013), he would only be entitled to receive USD 1,333,333.30 (8 x USD 166,666.67). Consequently, according to the Respondent, the Claimant received “USD 667,000” more than he was entitled to during the execution of the contract. 26. In conclusion, the Respondent stated that the Claimant should only receive USD 1,333,000 in connection with the termination agreement, which was delivered to him upon signature of the receipts, on 8 March 2013, and that thus, he is not entitled to receive any further amount. II. Considerations of the Dispute Resolution Chamber 1. First, 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 15 April 2013. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the 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 B 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 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 15 April 2013, the 2012 edition of said regulations (hereinafter: the 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. First and foremost, the members of the DRC acknowledged that the parties had concluded an employment contract valid from 10 July 2012 until 9 July 2015 and, subsequently, terminated their employment relationship by mutual consent by entering into the termination agreement on 13 February 2013. 6. In accordance with the termination agreement, the Respondent would pay USD 2,000,000 to the Claimant “as compensation for early termination, along with his earnings from July 2012 to February 2013” until 10 March 2013. 7. The Chamber took note that the Claimant lodged a claim against the Respondent, requesting that the Respondent be ordered to pay the total amount of USD 5,833,334 plus interest for the alleged violation of the contract and the termination agreement. 8. In this respect, the DRC noted that, according to the Claimant, he went to the Respondent to receive the amount agreed in the termination agreement, i.e. USD 2,333,334, and even signed the relevant receipts, but was surprised that the Respondent in fact only wanted to deliver him the amount of USD 1,300,000. The Claimant further held having refused the payment and, subsequently, having returned to country E. 9. Therefore, the Claimant deems that the Respondent breached the termination agreement and must pay him the amount relating to his earnings until February 2013 as well as the amount of USD 5,500,000 foreseen in the contract and ratified in the termination agreement. 10. In continuation, the DRC took note that the Respondent, in its first position, confirmed the facts described by the Claimant, in particular, that he refused the payment and left. Moreover, the Respondent stated that it did not have the Claimant’s bank account details, reason why it could not make the payment afterwards. In this sense, the Respondent argued that it did not breach the termination agreement, since it was the Claimant who refused to accept the payment. 11. However, the DRC took note that the Respondent submitted its duplica, on this occasion by means of a legal representative, presenting different facts and arguments. In this respect, the members of the DRC took note that the Respondent alleged that the Claimant was not entitled to receive any amount at all as well as that the dispute between the parties centres around the amount of compensation due on the basis of the termination agreement. In particular, the Chamber took note that the Respondent held having delivered the amount of USD 1,333,000 to the Claimant upon signature of the receipts, on 8 March 2013, which would be the amount he was entitled to receive considering the amounts already paid to the Claimant until that date. 12. At this point, the members of the DRC deemed necessary to highlight that there is a significant contradiction between the first and the second position submitted by the Respondent to the Claimant’s claim. Indeed, the Respondent had, in its response to the claim, accepted the facts and the claim of the Claimant, whereas in its duplica, submitted via a legal representative, it disputed that it owes any monies to the Claimant in accordance with the termination agreement in the light of the fact that it already paid the amount of USD 1,333,000 to the Claimant. 13. In this context, the Chamber considered that, on the one hand, the Respondent’s second submission, in which it alleges having delivered the amount of USD 1,333,000 to the Claimant, appears to corroborate the Claimant’s description that the Respondent was not paying the full amount due, i.e. USD 2,333,334, but only USD 1,300,000, on the basis of which circumstance the Claimant explains having refused to receive the payment 14. On the other hand, the DRC considered that the Respondent had first confirmed that the Claimant had refused to take any payment, even though he signed the relevant receipts. 15. Considering all the above, the DRC concluded that the significant contradiction in the Respondent’s positions cannot harm the Claimant and can only be held against the Respondent itself. 16. In conclusion, the DRC decided that the amount established in the termination agreement, i.e. USD 2,333,334, is outstanding in its entirety. 17. Having established the above, the DRC turned its attention to the Claimant’s request for payment of the amount of USD 5,500,000 instead of USD 2,000,000 as compensation for the early termination of the employment contract. In this respect, the Chamber took note that, according to the Claimant, the Respondent must pay the amount of USD 5,500,000 as compensation in accordance with the termination agreement, since the Respondent allegedly failed to pay the amount established in the termination agreement within the established deadline, i.e. 10 March 2013. 18. On the other hand, the DRC took into account that the Respondent stated that it made efforts to pay an amount to the Claimant, which appears to be in line with the Claimant’s assertion that he refused to accept the payment offered by the Respondent, and that, for that reason, according to the Respondent, the termination agreement clause relating to the amount of USD 5,500,000 should not be applied. 19. In this context, members of the DRC turned their attention to the termination agreement and took note that the relevant document indicated that “Because the termination was requested by [the Respondent], in replacement of a fine set out in clause 7.6 (US$ 5,500,000.00) of the contract freely entered into by the parties on July 2012, the Athlete, and only exceptionally in case of receipt of payment on the specified date in this agreement, accepted receiving the value of US$ 2,000,000.00 as compensation fee for early termination, along with his earnings from July 2012 to February 2013. 20. In addition, the DRC considered that the termination agreement established a deadline until 10 March 2013 for the Respondent to pay as well as that “If the Respondent make no payments until March 10, the Respondent will be debtor declared of the full fines specified by the contract, the parties recognize the value of which is today’s date, of US$ 5,500,000.00 subject to the receipt of wage arrears, existing on today’s date”. 21. Considering the wording of the relevant clause in the termination agreement (cf. point II./20. above), which merely refers to “make no payments”, and the particularities of the present case, in particular, that the Respondent had indeed endeavoured to make a payment to the Claimant, who in turn refused to accept such payment, the members of the DRC concurred that the relevant clause should not be applied and decided that the Claimant’s claim relating to the amount of USD 5,500,000 as compensation is rejected. 22. In conclusion, on account of the above, the DRC decided that the Respondent has to pay to the Claimant the amount of USD 2,333,334, corresponding to USD 2,000,000 as compensation for the early termination and the salaries for the months of January and February 2013. 23. In addition, in accordance with the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 2,333,334 as from 11 March 2013 until the date of effective payment. 24. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 2,333,334 plus 5% interest p.a. as from 11 March 2013 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, 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