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 28 January 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Theo van Seggelen (Netherlands), member on the claim presented by the player, Player A, country B as Claimant / Counter-Respondent against the club, Club C, country D as Respondent / Counter-Claimant with the club, Club E, country D as Intervening Party 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 28 January 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Theo van Seggelen (Netherlands), member on the claim presented by the player, Player A, country B as Claimant / Counter-Respondent against the club, Club C, country D as Respondent / Counter-Claimant with the club, Club E, country D as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 29 January 2014, the player from country B, Player A (hereinafter: Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter: Respondent/Counter-Claimant), signed an employment contract (hereinafter: contract), valid as from 27 August 2014 until 31 May 2017. 2. According to article 3 of the contract, the Claimant/Counter-Respondent was entitled to receive a global remuneration of EUR 565,000 for each season as follows: Season 2014/2015 – EUR 565,000 payable as follows: a) EUR 100,000 due on 20 September 2014 as “advance payment”; b) EUR 465,000 as monthly payments: - EUR 45,000 on 1 September 2014; - EUR 45,000 on 30 September 2014; - EUR 45,000 on 30 October 2014; - EUR 45,000 on 30 November 2014; - EUR 45,000 on 30 December 2014; - EUR 45,000 on 30 January 2015; - EUR 45,000 on 28 February 2015; - EUR 45,000 on 30 March 2015; - EUR 45,000 on 30 April 2015; - EUR 60,000 on 30 May 2015. Season 2015/2016 – EUR 565,000, in similar instalments as season 2013/2014; Season 2016/2017 – EUR 565,000 in similar instalments as season 2013/2014. 3. According to article 3.2 of the contract, “If the [Respondent/Counter-Claimant] fails to pay and of the amounts referred in this Employment Contract for More than 90 days (i.e. salaries, benefits, bonuses and any other monetary obligations) This contract may be terminated by the [Claimant/Counter-Respondent] for just cause. In order to exercise the option, the [Claimant/Counter-Respondent] shall make a written official notification to the [Respondent/Counter-Claimant] and if the [Respondent/Counter-Claimant] does not pay the due amount within 30 days after receiving this Legal Notification, the [Claimant/Counter-Respondent] will be free to sign contracts with any other Clubs”. 4. On 10 May 2015, the Claimant/Counter-Respondent put the Respondent/CounterClaimant in default, requesting the payment of the total amount of EUR 246,000 concerning part of the advance payment and approximately 6 monthly payments from November 2014 until April 2015, establishing a deadline until “18 May 2015, 2PM CET”. 5. On 14 May 2015, the Respondent/Counter-Claimant replied to the Claimant/Counter-Respondent’s default notice, stating that the outstanding amount is actually EUR 233,549.87 and requesting an extension of the deadline until 25 May 2015 to pay this amount to the Claimant/Counter-Respondent. In particular, the Respondent/Counter-Claimant held it was arranging a loan in order to pay the outstanding remuneration. 6. On 15 May 2015, the Claimant/Counter-Respondent replied to the Respondent/Counter-Claimant, accepting the calculation of the outstanding amount presented by the Respondent/Counter-Claimant while denying an extension of the deadline for payment. 7. On 18 May 2015, the Claimant/Counter-Respondent terminated the contract in writing with immediate effect, invoking just cause. 8. On 25 May 2015, the Claimant/Counter-Respondent lodged a claim before FIFA against the Respondent/Counter-Claimant for breach of contract, requesting to be awarded payment of the amount of EUR 1,423,549.87, composed as follows: EUR 233,549.87 as outstanding remuneration plus 5% interest, composed of part of the monthly salary of November 2014 and the salaries as from December 2014 until April 2015. EUR 1,190,000 as compensation corresponding to the residual value of the contract; i.e. the monthly salary of EUR 60,000 due on 30 May 2015 and the remuneration for the seasons 2015/2016 and 2016/2017. The Claimant/Counter-Respondent further requested the imposition of sporting sanctions on the Respondent/Counter-Claimant. 9. According to the Claimant/Counter-Respondent, the Respondent/CounterClaimant failed to pay several monthly salaries for a long period of time, which is why he put the Respondent/Counter-Claimant in default. The Claimant/CounterRespondent added that the Respondent/Counter-Claimant replied to his default notice requesting an extension of the deadline to make the relevant payment until 25 May 2015, which he did not agree to. Therefore, considering that the Respondent/Counter-Claimant did not fulfil its obligations within the deadline granted, the Claimant/Counter-Respondent terminated the contract on 18 May 2015. 10. In this respect, the Claimant/Counter-Respondent highlighted that the Respondent/Counter-Claimant had failed to pay more than 5 monthly salaries and thus, he had just cause to terminate the contract. In particular, the Claimant/Counter-Respondent stressed that during the contractual period the Respondent/Counter-Claimant had only paid 3 monthly salaries in their entirety. 11. The Respondent/Counter-Claimant, for its part, stated that it was facing financial difficulties, reason why, during the season 2014/2015, it only paid the amount of EUR 260,822 to the Claimant/Counter-Respondent. The Respondent/CounterClaimant held that the Claimant/Counter-Respondent was aware of this situation and that both parties were in constant contact in this respect. 12. According to the Respondent/Counter-Claimant, on 16 May 2015, during a meeting with the Claimant/Counter-Respondent the latter had accepted to postpone the payment deadline initially set at 18 May 2015. In this respect, the Respondent/Counter-Claimant stated having informed the Claimant/CounterRespondent’s lawyer, via email, about the Claimant/Counter-Respondent’s decision to continue with the contract and acceptance of the payment schedule it had proposed. 13. The Respondent/Counter-Claimant further held that in spite of the player’s acceptance to postpone the payment deadline the Claimant/Counter-Respondent terminated the contract in writing on 18 May 2015. Furthermore, the Respondent/Counter-Claimant affirmed having held a meeting with the Claimant/Counter-Respondent on the same day and that the latter allegedly accepted to withdraw the termination, in the event that the Respondent/CounterClaimant would pay the outstanding amounts within 5 days. In particular, the Respondent/Counter-Claimant held having drafted a settlement agreement, which was allegedly sent via email to the Claimant/Counter-Respondent for signature. 14. According to the Respondent/Counter-Claimant, subsequently, and in spite of the alleged agreement between the parties, the next day the Claimant/CounterRespondent suddenly declared that he would only continue with the contract if the remuneration was increased for the next season, which demand was obviously refused by the Respondent/Counter-Claimant. Afterwards, the Claimant/CounterRespondent allegedly left country D. 15. In this context, the Respondent/Counter-Claimant held that the Claimant/CounterRespondent terminated the contract without just cause for the following reasons: - he did not comply with the 30 days’ deadline established in the contract, granting the club only 7 days for payment; - he terminated the contract even though he had actually accepted the postponement of the payment of the outstanding remuneration, in violation of the legal principle of venire contra factum proprium; - he tried to use the immediate termination to obtain a higher remuneration. 16. Therefore, the Respondent/Counter-Claimant lodged a counterclaim against the Claimant/Counter-Respondent for breach of contract, requesting compensation in the minimum amount of EUR 1,238,950.10 plus 5% interest as from 19 May 2015 as well as legal costs. The club further asked that sanctions be imposed on the Claimant/Counter-Respondent. 17. The compensation claimed by the Respondent/Counter-Claimant is composed of the remaining value of the contract (EUR 1,190,000) plus 6 monthly salaries (EUR 282,500) minus the remuneration outstanding at the date of termination (EUR 233,549.87). 18. The Claimant/Counter-Respondent submitted his position to the Respondent/Counter-Claimant’s counterclaim, rejecting it and insisting on his claim. 19. The Claimant/Counter-Respondent highlighted that the Respondent/CounterClaimant seriously violated its financial obligations, reason why he terminated the contract, after having duly asked the Respondent/Counter-Claimant to pay the outstanding remuneration within a certain time limit. 20. The Claimant/Counter-Respondent further stated that the copy of email correspondence which was attached to its counterclaim only demonstrates that the Respondent/Counter-Claimant tried to gain more time to make the payment. Moreover, the Claimant/Counter-Respondent denied having verbally agreed to postpone the deadline and pointed out that, if such was the case, the Respondent/Counter-Claimant would have made sure that he signed a settlement agreement. 21. Finally, the Claimant/Counter-Respondent stated that the deadline of 30 days for a default notice is not applicable, specifically in this case where more than 5 monthly payments were overdue. 22. The Claimant/Counter-Respondent signed an employment contract with the club from country D, Club E, on 10 July 2015, valid for the period between 1 August 2015 and 31 May 2017. 23. In this respect, the Claimant/Counter-Respondent was entitled inter alia to the following remuneration: Season 2015/2016: a) EUR 110,000 as a signing-on fee; b) EUR 450,000 divided in monthly salaries of EUR 45,000 each, starting on 30 August 2015 and ending on 30 May 2016; Season 2016/2017: a) EUR 100,000 as signing –on fee due on 30 August 2017; b) EUR 500,000 divided in monthly salaries of EUR 50,000 each, starting on 30 August 2016 and ending on 30 May 2017. 24. Although invited to do so, Club E did not submit any comments on the present matter. 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 25 May 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; 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 and par. 2 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, with the involvement of another 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 25 May 2015, the 2015 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. In this respect, the Chamber recalled that the Claimant/Counter-Respondent and the Respondent/Counter-Claimant had signed an employment contract valid as from 27 August 2014 until 31 May 2017, in accordance with which the Claimant/Counter-Respondent was entitled to receive a total remuneration of EUR 565,000 per season, consisting of a lump sum payment and 10 monthly instalments. 6. The members of the Chamber took into account that, after previously having put the Respondent/Counter-Claimant in default of payment, on 18 May 2015, the Claimant/Counter-Respondent notified the Respondent/Counter-Claimant of the termination of the contract invoking just cause on the basis of outstanding remuneration. The Respondent/Counter-Claimant, for its part, submits that the Claimant/Counter-Respondent terminated the contract on 18 May 2015 without just cause. On this basis, both parties asked inter alia that the counterparty be ordered to pay compensation for breach of contract. 7. The DRC highlighted that the central issue in the matter at stake is, thus, to determine as to whether the Claimant/Counter-Respondent had just cause to terminate the contract on 18 May 2015 as well as to decide on the consequences thereof. 8. In this respect, the Chamber first considered that, on 10 May 2015, the Claimant/Counter-Respondent put the Respondent/Counter-Claimant in default of payment of several monthly salaries and part of the lump sum payment due on 20 September 2014 in the total amount of EUR 246,000, establishing a deadline for payment until 18 May 2015 2 p.m. CET. 9. The DRC further took into account that the Respondent/Counter-Claimant replied to the default notice on 14 May 2015, acknowledging having an outstanding debt towards the Claimant/Counter-Respondent, but stating that the total amount owed was actually EUR 233,549.87. 10. Moreover, the members of the DRC took note that the Respondent/CounterClaimant also asked for an extension of the deadline for payment of the outstanding amount until 25 May 2015, which was denied by the Claimant/Counter-Respondent on 15 May 2015. 11. At this point, the members of the DRC were eager to emphasise that according to article 3.2 of the contract, if the Respondent/Counter-Claimant would fail to pay any amount for more than 90 days, the Claimant/Counter-Respondent may terminate the contract if the Respondent/Counter-Claimant does not pay the due amount within 30 days of receipt of the Claimant/Counter-Respondent’s default notice. 12. Notwithstanding the above, the DRC observed that, in reply to the Claimant/Counter-Respondent’s default notice, the Respondent/Counter-Claimant acknowledged owing him EUR 233,549.87 and merely requested an extension of the deadline of approximately 1 week. That is, in its reply to the default notice, the Respondent/Counter-Claimant, at that moment, did neither invoke or refer to a grace period of 90 days nor a 30-day time limit as mentioned in article 3.2 of the employment contract. 13. In addition, the DRC noted that the Respondent/Counter-Claimant alleged that the Claimant/Counter-Respondent had agreed to receive the outstanding amount in accordance with a payment schedule it had proposed. In this respect, the Chamber took into account that the Claimant/Counter-Respondent, for his part, denied having agreed to the postponement of the deadline for payment he had set in his default notice, i.e. 18 May 2015 2 p.m. CET. 14. Bearing in mind the aforementioned art. 12 par. 3 of the Procedural Rules and after study of the documentation submitted by the Respondent/Counter-Claimant in this regard, the DRC agreed that the Respondent/Counter-Claimant failed to corroborate with adequate documentary evidence its allegation that the Claimant/Counter-Respondent had agreed to extend the deadline for payment or to receive the outstanding amount on a date after 18 May 2015. 15. On account of the above, the Chamber concurred that the Respondent/CounterClaimant, without any valid reason, had not remitted the outstanding amount to the Claimant/Counter-Respondent within the deadline established in the Claimant/Counter-Respondent’s default notice. 16. Having said that, the DRC recalled that the Respondent/Counter-Claimant has acknowledged that it owes the amount of EUR 233,549.87 as outstanding remuneration to the Claimant/Counter-Respondent. In this context, the DRC stressed that it has further remained undisputed that said amount is related to part of the monthly salary of November 2014 and 5 monthly salaries for the period between December 2014 and April 2015. 17. Consequently, the members of the Chamber established that the Respondent/Counter-Claimant had repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant/CounterRespondent. 18. On account of all of the above and taking into consideration the Chamber’s pertinent longstanding jurisprudence the Chamber decided that the Claimant/Counter-Respondent had just cause to unilaterally terminate the employment contract on 18 May 2015 and that, as a result, the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contact with just cause by the Claimant/Counter-Respondent. 19. Consequently, the Chamber decided to reject the counterclaim of the Respondent/Counter-Claimant. 20. In continuation, the Chamber focused its attention on the consequences of the termination of the employment contract with just cause by the Claimant/CounterRespondent. 21. To start with, the members of the Chamber decided that in accordance with the general legal principle of pacta sunt servanda the Respondent/Counter-Claimant is liable to pay the amount of EUR 233,549.87 as outstanding remuneration to the Claimant/Counter-Respondent. 22. Furthermore, taking into account the petition of the Claimant/CounterRespondent and the constant practice of the Dispute Resolution Chamber, the DRC decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the amount of EUR 233,549.87, as from the date on which the claim was lodged until the date of effective payment. 23. In continuation, the DRC decided that the Respondent/Counter-Claimant is liable to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations. 24. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant/Counter-Respondent by the Respondent/Counter-Claimant in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the Claimant/Counter-Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years. 25. 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. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 26. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent 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 emphasised 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. 27. In order to estimate the amount of compensation in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant/Counter-Respondent under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. 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, if any, in the calculation of the amount of compensation. 28. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant/Counter-Respondent under the terms of the employment contract as from the date of termination of the contract until 31 May 2017, taking into account that the player?s remuneration until and including April 2015 is included in the amount of outstanding remuneration (cf. no. II./16. above). Consequently, the Chamber concluded that the amount of EUR 1,190,000 (i.e. remuneration as from May 2015 until May 2017) serves as the basis for the determination of the amount of compensation for breach of contract. 29. In continuation, the Chamber verified as to whether the Claimant/CounterRespondent had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 30. Indeed, the Claimant/Counter-Respondent found employment with the club from country D, Club E, as from 1 August 2015 until 31 May 2017. 31. Therefore, the members of the DRC concluded that the Claimant/CounterRespondent was not able to mitigate his damages during the period between the date of termination of the contract, i.e. 18 May 2015, until the commencement of his employment with Club E, i.e. 1 August 2015. In particular, the DRC took note that for the relevant period of time, the Claimant/Counter-Respondent was entitled to receive from the Respondent/Counter-Claimant the amount of EUR 60,000 corresponding to the monthly payment that fell due on 30 May 2015 in accordance with the relevant employment contract. 32. In continuation, the Chamber turned its attention to the employment contract signed between the Claimant/Counter-Respondent and Club E and acknowledged that the Claimant/Counter-Respondent was entitled to receive the amount of EUR 560,000 for the season 2015/2016 and EUR 600,000 for the season 2016/2017. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant/Counter-Respondent and Club E for the period between August 2015 and May 2017 amounted to EUR 1,160,000. 33. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. 34. In this context, the DRC took into account that for the same period of time, i.e. from August 2015 until May 2017, the Claimant/Counter-Respondent would have been entitled to receive EUR 1,130,000 from the Respondent/Counter-Claimant. 35. Consequently, on account of all of the above-mentioned considerations, the Dispute Resolution Chamber concluded that, even though the Respondent/Counter-Claimant is considered liable for the breach of the relevant employment contract, the Claimant/Counter-Respondent did not suffer any financial loss from the violation of the contractual obligations by the Respondent/Counter-Claimant during the period between August 2015 and May 2017. Therefore, the Chamber decided that there is no amount that should be awarded to the Claimant/Counter-Respondent as compensation for breach of contract for said period of time. 36. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent/Counter-Claimant must pay the amount of EUR 60,000 to the Claimant/Counter-Respondent as compensation for breach of contract in the present matter. 37. The DRC concluded its deliberations on the present matter by establishing that any further claim of the Claimant/Counter-Respondent is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player A, is partially accepted. 2. The counterclaim lodged by the Respondent/Counter-Claimant is rejected. 3. The Respondent/Counter-Claimant, Club C, is ordered to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 233,549.87 plus 5% interest p.a. on said amount as from 25 May 2015 until the date of effective payment. 4. In the event that the amount and interest due to the Claimant/CounterRespondent in accordance with the above-mentioned number 3. is not paid by the Respondent/Counter-Claimant within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. The Respondent/Counter-Claimant is ordered to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 60,000. 6. In the event that the amount due to the Claimant/Counter-Respondent in accordance with the above-mentioned number 5. is not paid by the Respondent/Counter-Claimant within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 7. Any further claim lodged by the Claimant/Counter-Respondent is rejected. 8. The Claimant/Counter-Respondent is directed to inform the Respondent/CounterClaimant, 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