DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 2 marzo 2017 • Stagione sportiva: 2016/2017

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 2 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 2 March 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mario Gallavotti (Italy), member

Pavel Pivovarov (Russia), member

Jon Newman (USA), member

Roy Vermeer (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

regarding an employment-related dispute arisen between the parties

I. Facts of the case

Facts relating to the preliminary issue of the competence of FIFA’s Dispute Resolution Chamber

1. After the natural expiry of the first contract signed between the parties, which was valid as from 1 February 2015 until 30 June 2015, on 1 August 2015, the Player of Country B, Player A, (hereinafter: the Claimant / Counter-Respondent) and the Club of Country D, Club C, (hereinafter: the Respondent / Counter-Claimant), concluded an employment contract (hereinafter: the second contract) which in its art. 10 provided as follows:

“Item 10: Settlement of Disputes:

1) The two parties shall seek solving their disputes on the enforcement of the contract by amicable ways.

2) The NDRC of the Football Federation of Country D is concerned with considering and resolving the disputes that arise between the club and player on this professional contract, implementing and interpreting it”.

2. On 10 November 2015, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in front of FIFA.

3. As a direct reaction to the Claimant / Counter-Respondent’s claim, the Respondent / Counter-Claimant lodged a counterclaim on 1 August 2016, by means of which it firstly questioned the competence of FIFA to deal with the present matter. In particular, and based on art. 10 of the second contract, the Respondent / Counter-Claimant argued that the only competent body to decide upon a dispute involving the parties is the National Dispute Resolution Chamber of the Football Federation of Country D. In this respect, the Respondent / Counter-Claimant asserted that the NDRC of the Football Federation of Country D complies with the requirements established in art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations).

4. In his replica, the Claimant / Counter-Respondent reiterated that FIFA is competent to deal with his claim, as the Claimant / Counter-Respondent stressed that the NDRC of the Football Federation of Country D does not comply with the requirements established in art. 22 lit. b) of the Regulations in order to be recognized as an independent tribunal.

5. In its duplica, the Respondent / Counter-Claimant reiterated its exception regarding FIFA’s lack of jurisdiction and after having been requested by FIFA to provide documentation which could prove that the matter should be dealt with by the NDRC of the Football Federation of Country D, the Respondent /Counter-Claimant provided a copy of a certified translation of the Regulations of the NDRC of the Football Federation of Country D. In this respect, art. 6 of the said regulations stipulates inter alia as follows:

“6-2: The chamber shall be composed of a chairman, a vice-chairman and six members.

6-3: … The chairman and the vice-chairman shall be holders of legal qualifications in accordance with the terms and conditions stipulated herein. The chairman and the chairman shall be appointed by the board.

(…)

6-5: Pending establishment of the professional football player league to nominate their representatives in the chamber, the board appoints three members in the chamber to represent the professional football players”.

Facts relating to the substance of the matter:

6. After the natural expiry of the first contract signed between the parties, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant concluded the second employment contract, valid as from 1 August 2015 until 31 May 2016.

7. On the first page of the second contract, the contact details of the parties are stated, namely, the address, email address and fax number of the Respondent / Counter-Claimant, and the email address of the Claimant / Counter-Respondent.

8. According to the second contract, the Claimant / Counter-Respondent was entitled to receive from the club, inter alia, a monthly salary of USD 130,000 payable “at the end of each subsequent month”, as well as “One (1) round business ticket for the player and the same for his direct family member”.

9. Furthermore, the second contract established in its art. 7 the following:

“Termination with just cause:

…

7.3 In such case and unilateral termination of contract with just cause, the FIFA competent body shall decide the amount of compensation to be paid by the party that has breached the contract.

7.3 In the case the [Claimant / Counter-Respondent] has displayed an uncooperative attitude ever since his arrival at the [Respondent / Counter-Claimant]. He does not follow the directives given by the coach,…If, after the coach informs him that he has not been called up for the next championship fixture, the [Claimant / Counter-Respondent] leaves the club and does not appear for training on the following days. After two weeks of unjustified absence from training, the [Respondent / Counter-Claimant] decides to terminate the [Claimant / Counter-Respondent]’s contract.

The [Claimant / Counter-Respondent]’s uncooperative attitude towards the [Respondent / Counter-Claimant] and his team-mates would certainly justify sanctions being imposed on the [Claimant / Counter-Respondent] in accordance with the [Respondent / Counter-Claimant]’s internal regulations.

The sanctions should, however, (at least in the beginning) be a reprimand or a fine.

The [Respondent / Counter-Claimant] would only be justified in terminating the contract with the [Claimant / Counter-Respondent] with just cause if the [Claimant / Counter-Respondent]’s attitude continued, together with the [Claimant / Counter-Respondent] disappearing without a valid reason and without express permission of the [Respondent / Counter-Claimant].”.

10. Art. 9 of the second contract provided that the Respondent / Counter-Claimant “may take decisions and issue sanctions against [the Claimant / Counter-Respondent] in case of violating his obligations stipulated in the contract…, provided that he shall inform [the Claimant / Counter-Respondent] in writing, and the latter may object according to regulations and rules.”.

11. The second contract contained a clause in its art. 12, to deal with the consequences of an early termination of the contract without just cause which reads as follows:

“Compensation for an early termination of the contract without just cause

12.1 Each party has the right to terminate this contract prematurely. The breaching party shall pay the compensation cited hereunder in sections 12.3 and 12.4, to the injured party.

12.2 For the sake of clarification, this shall be made by giving at least one months’ prior notice of intention to terminate the contract, by one party to the other.

12.3 The party terminating the contract shall pay to the other Party a compensation of USD 130,000.

12.4 The compensation of an early termination of the contract amounting to USD 130,000 is validly agreed to by the contracting parties, based on the genuine mutual consent of the parties at the time of the execution of this contract. Accordingly, such compensation is irrevocable and is binding to both parties.”.

12. On 10 November 2015, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in front of FIFA for breach of contract in the total amount of USD 555,369. The Claimant / Counter-Respondent explained that the basis of this dispute is the second contract signed between him and the Respondent / Counter-Claimant.

13. In his claim, the Claimant / Counter-Respondent broke down his request as follows:

 Outstanding remuneration in the amount of USD 415,999, corresponding to salaries from 1 August 2015 until 6 November 2015, i.e. USD 130,000 each for the months of August 2015, September 2015 and October 2015, and USD 25,999 for 6 days of November 2015, plus 5% interest p.a. as from the relevant due dates;

 Compensation for the unilateral termination of the contract in the amount of USD 130,000 in accordance with arts. 12.3 and 12.4 of the second contract, plus 5% interest p.a. as from the date of the claim;

 Reimbursement of a flight ticket in the amount of USD 9,370, in accordance with the second contract.

14. According to the Claimant / Counter-Respondent, in “mid-September 2015”, the Respondent / Counter-Claimant informed him that it intended to exchange him with another foreign player, that it had already deregistered him and that he did not have to render services any longer. In this regard, the Claimant / Counter-Respondent held that, in consequence, he tried to make an appointment with the Respondent / Counter-Claimant a few times.

15. Subsequently, the Claimant / Counter-Respondent explained that, on 18 September 2015, he was informed that his father in law died and that his presence was urgently required by his family in City E.

16. In light of the above, the Claimant / Counter-Respondent declared that he informed his translator and instructed him to inform the Respondent / Counter-Claimant that he would have to travel to Country B, since the Respondent / Counter-Claimant was in possession of his passport. The Claimant / Counter-Respondent further held that as he received his passport by courier from the Respondent / Counter-Claimant, he concluded that the Respondent / Counter-Claimant was duly informed about his situation and approved his departure, and therefore, he left Country D on 19 September 2015.

17. Along these lines, on 22 September 2015, via his legal representative, the Claimant / Counter-Respondent sent a letter to the Respondent / Counter-Claimant, through the Football Federation of Country D via telefax, stating that he will be returning on 28 September 2015 in order to comply with his contractual obligations, but that since he was, allegedly, informed that the Respondent / Counter-Claimant might prematurely terminate his contract, he proposed “without prejudice” that the Respondent / Counter-Claimant pay him USD 1,009,370. In the letter, the Claimant / Counter-Respondent stated that if he did not hear from the Respondent / Counter-Claimant by 25 September 2015, he would return to Country D to retake his contractual duties with the Respondent / Counter-Claimant. The letter contains enclosed the power of attorney of the Claimant / Counter-Respondent’s lawyer dated 11 September 2015, as well as the unsigned proposal for the economic terms of the termination, along with a flight itinerary in which it is stated that the Claimant / Counter-Respondent’s return flight would arrive to City F on 30 September 2015.

18. On 29 September 2015, the Claimant / Counter-Respondent’s lawyer sent another letter to the Respondent / Counter-Claimant through the Football Federation of Country D via telefax, in which it is stated that due to the holidays in Country D as from 23 September 2015 until 2 October 2015, since no matches and trainings would take place and due to the mourning of the Claimant / Counter-Respondent’s relative, the Claimant / Counter-Respondent changed his return flight for “Saturday” (3 October 2015) in order to retake his duties with the Respondent / Counter-Claimant. The Claimant / Counter-Respondent’s legal representative requested the Respondent / Counter-Claimant to inform her if, however, the Respondent / Counter-Claimant would prefer to terminate the second contract with the Claimant / Counter-Respondent. In this letter, the Claimant / Counter-Respondent’s lawyer informed the Respondent / Counter-Claimant that if no answer is received, the Claimant / Counter-Respondent would return to fulfil his contractual obligations.

19. Afterwards, the Claimant / Counter-Respondent maintained that, on 30 September 2015, by means of a telephone conversation, the parties agreed that an amicable solution “shall be found”.

20. In this respect, the Claimant / Counter-Respondent held that as he did not receive further communication after the alleged telephone conversation, via his lawyer, he sent a letter to the Respondent / Counter-Claimant on 2 October 2015, again, through the Football Federation of Country D via telefax, in which he requested the Respondent / Counter-Claimant to present him the alleged proposal for amicable solution as soon as possible. In this letter, his lawyer informed the Respondent / Counter-Claimant that the Claimant / Counter-Respondent would stay in City E, since it “makes no sense that he travels tomorrow to City F, when we most probably can sign a termination agreement in the next 2 or 3 days”. The Claimant / Counter-Respondent’s representative further stated that “if we do not come to an amicable solution within an adequate period of time, [the Claimant / Counter-Respondent] will join your club immediately to retake his contractual duties”.

21. On 5 October 2015, the Claimant / Counter-Respondent’s lawyer, through the Football Federation of Country D via telefax, sent a letter to the Respondent / Counter-Claimant requesting to receive a proposal.

22. Subsequently, the Claimant / Counter-Respondent explained that, on 6 October 2015, instead of receiving the proposal he was expecting, he received an email from the Respondent / Counter-Claimant, which had enclosed a notice of termination of the second contract (hereinafter: the termination notice), as well as a document that informed him that half of the salary of September 2015 would not be paid due to his unauthorized absence. Both of the enclosed documents are dated 4 October 2015.

23. In this respect, the termination notice enclosed to the aforementioned email reads as follows:

“Termination of the employment contract for Unauthorized Leave

…

This is to inform you that the club has decided to terminate the employment under article 12 of the employment contract for just cause”.

24. The email dated 6 October 2015 also contains a letter from the Respondent / Counter-Claimant dated 4 October 2015, in which it is stated that the only letters that the Respondent / Counter-Claimant received from the Claimant / Counter-Respondent are the ones dated 29 September 2015 (cf. point I.18 above) and 2 October 2015 (cf. point I.20 above), but that since they do not contain a power of attorney, the Respondent / Counter-Claimant considered them with “no legal effect”. Moreover, by means of this letter, the Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent left without authorization and that in consequence, it reserved “his rights to stop payment as of the first day of absence (i.e. 18 September 2015)”, and the deduction of the Claimant / Counter-Respondent’s salary and the termination of the second contract on the basis of “just cause” in accordance with art. 12 of the second contract.

25. In reply to the Respondent / Counter-Claimant’s aforementioned email, the Claimant / Counter-Respondent, through his lawyer, sent a letter to the Respondent / Counter-Claimant dated 16 October 2015, via email directly to the Respondent / Counter-Claimant and via telefax through the Football Federation of Country D, in which the Claimant / Counter-Respondent’s legal representative informed the Respondent / Counter-Claimant that the Claimant / Counter-Respondent disagreed with the salary deduction. In this letter, the Claimant / Counter-Respondent argued that as the Respondent / Counter-Claimant provided him with his passport and he sent a letter on 22 September 2015, the Respondent / Counter-Claimant was duly notified of his absence. Moreover, as to the termination notice, his lawyer stated that “my client will have no alternative than to accept it since he had agreed to such termination option…”.

26. By means of la etter dated, 21 October 2015, the Respondent / Counter-Claimant replied to the abovementioned communication from the Claimant / Counter-Respondent’s legal representative dated 16 October 2015, by means of which the Respondent / Counter-Claimant rejected the argumentation put forth by the Claimant / Counter-Respondent and insisted that a valid power of attorney had not been served to it and reiterated the unauthorized absence of the Claimant / Counter-Respondent. Furthermore, the Respondent / Counter-Claimant reminded the Claimant / Counter-Respondent that he is free to sign with the club of his choice “taking into consideration that the termination should be effective as of 4 November 2015 pursuant to art. 12.2 [of the second contract]” and that in accordance with the principle of “no work- no pay”, it only has the obligation to pay the balance of “eighteen (18) worked days in September 2015 for [the second contract]”.

27. The Claimant / Counter-Respondent sustained that by means of a letter dated 26 October 2015 he replied to the Respondent / Counter-Claimant letter dated 21 October 2015, requesting the payment in the amount of USD 555,369, since, allegedly, he had not received any payment for the second contract up to date and declared that his absence was justified.

28. The Claimant / Counter-Respondent argued that in accordance with art 12.2 of the second contract, the contract must be considered terminated only until 6 November 2015, since he received the termination notice on 6 October 2015.

29. By means of correspondence dated 17 February 2016, the Respondent / Counter-Claimant requested FIFA to be provided, again, with a copy of the Claimant / Counter-Respondent’s statement of claim and to “allow the [Respondent / Counter-Claimant] to file its statement of defense to the claim filed by the [Claimant / Counter-Respondent] related to the second contract…”. In this regard, the Respondent / Counter-Claimant declared that the copy of the Claimant / Counter-Respondent’s statement of claim, forwarded by the Football Federation of Country D on 17 November 2015, related to the second contract was lost due to “unavoidable causes beyond the control and without fault or negligence of the [Respondent / Counter-Claimant]”.

30. After the FIFA administration provided a copy of the Claimant / Counter-Respondent’s statement of claim directly to it, the Respondent / Counter-Claimant, on 1 August 2016, lodged a counterclaim against the Claimant / Counter-Respondent. In its counterclaim, as to the substance, the Respondent / Counter-Claimant argued that it had just cause to terminate the second contract. In this regard, the Respondent / Counter-Claimant sustained that the Claimant / Counter-Respondent left on 19 September 2015 without its authorization and without the Respondent / Counter-Claimant being aware of the Claimant / Counter-Respondent’s absence, which according to it, constituted a breach of the second contract. In this regard, the Respondent / Counter-Claimant declared that it had no knowledge of the player’s alleged request of absence through his translator and that it did not give any type of consent in this regard. Moreover, the Respondent / Counter-Claimant declared that it “has no reason to hold [Claimant / Counter-Respondent] passport without any mission abroad for the nearest future or upcoming day as of the player evasion”. The Respondent / Counter-Claimant further maintained that the Claimant / Counter-Respondent could have sent an email to it, to the email address stated in the second contract, in order to request authorization to leave. The Respondent / Counter-Claimant argued that a leave of absence could only be granted for a health or an emergency reason when supported by appropriate documentation and that the death of the Claimant / Counter-Respondent’s father in law death is not a valid reason to leave without authorization.

31. Moreover, the Respondent / Counter-Claimant argued that the Claimant / Counter-Respondent has not provided a valid reason to explain why he did not return to the Respondent / Counter-Claimant on 29 September 2015, as originally planned.

32. Furthermore, the Respondent / Counter-Claimant sustained that the Claimant / Counter-Respondent was absent from trainings as from 31 August 2015 until the date of the termination notice, i.e. 4 October 2015. In this respect, the Respondent / Counter-Claimant held that the only holidays in Country D were from 21 September 2015 until 25 September 2015 and not until 2 October as sustained by the Claimant / Counter-Respondent. The Respondent / Counter-Claimant further held that the Claimant / Counter-Respondent was absent from the Respondent / Counter-Claimant’s match on 18 September 2015.

33. The Respondent / Counter-Claimant argued that the Claimant / Counter-Respondent’s “repetitive absenteeism” was a just cause for the unilateral termination of the second contract, which would then entitle the Respondent / Counter-Claimant to compensation.

34. In this regard, the Respondent / Counter-Claimant maintained that the parties, by means of art. 12 of the second contract, had agreed on the amount of compensation to be paid in case of “breach without just cause”. The Respondent / Counter-Claimant explained that “it is doubtless that the parties have expressly agreed that if the contract is unilaterally terminated before the expiry of its term, the breaching party would have to pay the injured party an amount of USD 130,000 as compensation for breach”.

35. Furthermore, the Respondent / Counter-Claimant sustained that due to the Claimant / Counter-Respondent’s absence, he should only be entitled to payment for the 30 days worked in August 2015 in the amount of USD 125,806.46.

36. Additionally, the Respondent / Counter-Claimant sustained that it paid a fine to Football Confederation of Continent G of USD 10,000 in connection with a decision from said confederation, in which the Claimant / Counter-Respondent was sanctioned with a fine of USD 10,000.

37. Accordingly, the Respondent / Counter-Claimant requested that the Claimant / Counter-Respondent should be ordered to pay the amount of USD 14,193.54 composed of:

 USD 130,000 as “compensation for breach”;

 USD 10,000 as reimbursement of the Football Confederation of Continent G fine paid by the Respondent / Counter-Claimant on behalf of the Claimant / Counter-Respondent;

 Minus 125,806.46 corresponding to the salary of the Claimant / Counter-Respondent for the days worked in August 2015.

38. In his replica, the Claimant / Counter-Respondent, rejected the Respondent / Counter-Claimant’s counterclaim and adhered to his previous statements and petitions set out in his initial claim.

39. In this regard, the Claimant / Counter-Respondent insisted that he had a valid reason to leave the Respondent / Counter-Claimant on 19 September 2015 and that he duly informed the Respondent / Counter-Claimant about it. The Claimant / Counter-Respondent maintained “that there are plenty of witnesses that can confirm that [he] informed [the Respondent / Counter-Claimant] duly via his interpreter”, and that he further reiterated this information via his letter dated 22 September 2015 as well as that he has provided a copy of the relevant positive fax reports corresponding to the letters he sent.

40. Moreover, the Claimant / Counter-Respondent held that the Respondent / Counter-Claimant has not presented any proof of having disagreed with his absence and did not ask him to retake his work prior to sending the termination notice.

41. The Claimant / Counter-Respondent further contested the Respondent / Counter-Claimant’s allegation regarding his absence from trainings. In this respect, the Claimant / Counter-Respondent held that he attended all trainings including the match of 18 September 2015 and sustained that the evidence presented by the Respondent / Counter-Claimant regarding his absences should be rejected since it is not translated and “not signed by him”.

42. Subsequently, the Claimant / Counter-Respondent argued that the Respondent / Counter-Claimant did not have just cause to terminate the contract since he was not absent “repeatedly”, and due to the fact that the Respondent / Counter-Claimant has not presented documentary evidence of having warned him that he should return, and that it would have been interested in his services after he left on 19 September 2015.

43. In respect to the fine imposed by the Football Confederation of Continent G, the Claimant / Counter-Respondent rejected that such amount should be deducted, as according to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant failed to provide any evidence as to whether its payment was related to the sanction imposed on the Claimant / Counter-Respondent, or to a sanction imposed on the Respondent / Counter-Claimant regarding the same match, and corresponding to the same amount.

44. Moreover, the Claimant / Counter-Respondent held that, in any case, he was never notified in writing about the sanction and he was never notified by the Respondent / Counter-Claimant that it would deduct this amount from his salary. Moreover, the Claimant / Counter-Respondent held that no disciplinary proceedings had been conducted respecting the principles of fair justice and, as a new contract was offered by the Respondent / Counter-Claimant, in good faith he concluded that the Respondent / Counter-Claimant would take over the payment of this fine.

45. Finally, the Claimant / Counter-Respondent held that the Respondent / Counter-Claimant had acknowledged that it terminated the contract unilaterally on 4 October 2015 and that it did not pay him any remuneration under the second contract.

46. In its duplica, the Respondent / Counter-Claimant reiterated its argumentation and request for relief. Moreover, the Respondent / Counter-Claimant confirmed 1 August 2016 as the date when it lodged its counterclaim against the Claimant / Counter-Respondent. Furthermore, the Respondent / Counter-Claimant insisted on the unauthorized absence of the Claimant / Counter-Respondent as from 31 August 2015 until 4 October 2015, and enclosed, in addition to the previous training attendance reports, internal documents signed by its General Secretary and Team Manager that confirmed that the Claimant / Counter-Respondent was absent during the mentioned period.

47. Moreover, the Respondent / Counter-Claimant held that in the context of this matter “family reasons will not be considered as valid reason to be absent” and that a “long lasting absence of a player” without authorization or just cause is a justifying reason for the suspension of the payment of salary.

48. The Respondent / Counter-Claimant further elaborated that “As a general rule, lengthy absence of a player from his club without authorization and without other just cause should be considered as unjustified breach of the employment contract…”.

49. In respect to the fine imposed by the Football Confederation of Continent G on the Claimant / Counter-Respondent, the Respondent / Counter-Claimant held that as the fine was imposed by the confederation it does not fall under the terms of art. 9 of the second contract and therefore, it did not have the obligation to inform the Claimant / Counter-Respondent in writing. Moreover, the Respondent / Counter-Claimant held that the Claimant / Counter-Respondent was aware of the decision, since he offered to pay it and that he was duly notified of the referenced decision, as according to the Football Confederation of Continent G Disciplinary Code, documents intended for a player are addressed to the affiliated Member Association and are published online. The Respondent / Counter-Claimant maintained that it paid the fine of the player in good faith.

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 10 November 2015. Consequently, the Chamber concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015 and 2017 editions of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations (edition 2016) the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D.

3. However, the Chamber acknowledged that the Respondent / Counter-Claimant contested the competence of FIFA’s deciding bodies alleging that the Claimant / Counter-Respondent should have addressed his claim to the NDRC of the Football Federation of Country D, in compliance with art. 10 of the second contract.

4. On the other hand, the Chamber noted that the Claimant / Counter-Respondent insisted on the competence of the DRC to adjudicate on the claim lodged by him against the Respondent / Counter-Claimant, as he sustained that the NDRC of the Football Federation of Country D does not comply with the requirements established in art. 22 lit. b) of the Regulations in order to be recognized as an independent tribunal.

5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit b) of the Regulations it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations (hereinafter: the NDRC Regulations), which came into force on 1 January 2008.

6. In this respect, the DRC turned its attention to the principle of equal representation of players and clubs and underlined that this principle is one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”.

7. On account of the above, the Chamber went on to examine the documentation submitted by the Respondent / Counter-Claimant in order to prove its allegation that the NDRC of the Football Federation of Country D meets the requirements to be recognized as an independent arbitration tribunal established at national level within the framework of the Football Federation of Country D. In this regard, the DRC, after a thorough examination of the certified translation of the Regulations of the NDRC of the Football Federation of Country D provided in the matter at hand, noted that it can be established from its art. 6.3 that the Chairman and deputy Chairman of the NDRC of the Football Federation of Country D are chosen by the Board of Directors of the Football Federation of Country D only, and not by a consensus by and between the player and club representatives as illustrated by art. 3 par. 1 of the NDRC Regulations. Moreover, the members of the Chamber noted that in accordance with art. 6.5 of Regulations of the NDRC of the Football Federation of Country D it appears that the Board of Directors of the Football Federation of Country D also appoints the player representatives. Therefore, the player representatives are not appointed from a pool of “between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro”, i.e. the appointment of player representatives is not in line with art. 3 par. 1 of the NDRC Regulations.

8. Therefore, the Chamber was unanimous in its conclusion that the NDRC of the Football Federation of Country D does not respect the principle of equal representation of players and clubs.

9. As a consequence of the above-mentioned elements, the Chamber agreed that it could not be concluded that the NDRC of the Football Federation of Country D is indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs.

10. Moreover, the Chamber was of the unanimous opinion that the Respondent / Counter-Claimant, by lodging a counterclaim against the Claimant / Counter-Respondent as direct reaction to the Claimant / Counter-Respondent’s claim, acknowledged the competence of FIFA’s DRC to deal with the matter at hand, since is not coherent that the Respondent / Counter-Claimant argued the alleged lack of competence of the DRC to hear the Claimant / Counter-Respondent’s claim, while at the same time it requested relief in the form of compensation from said deciding body for the same dispute. The Chamber duly noted that the Respondent / Counter-Claimant’s counterclaim was not lodged as an alternative or subsidiary request, but rather as its means of defense after receiving a copy of the Claimant / Counter-Respondent’s statement of claim.

11. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the substance.

12. Subsequently, 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 (editions 2015 and 2016), and considering that the present claim was lodged on 10 November 2015, the 2015 edition of the Regulations is applicable to the matter at hand as to the substance.

13. 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.

14. In this respect, the DRC acknowledged that after the natural expiry of the first contract signed between them, the parties signed the second contract valid as from 1 August 2015 until 31 May 2016. The DRC noted that according to the second contract, the Claimant / Counter-Respondent was entitled to receive, inter alia, a monthly remuneration of USD 130,000, payable at the end of each month, as well as one round business flight ticket for him and one for a “direct family member”.

15. Furthermore, the members of the Chamber paid due consideration to the fact that it remains uncontested that the Claimant / Counter-Respondent left the Respondent / Counter-Claimant on 19 September 2015.

16. Moreover, the DRC duly observed the exchange of correspondence between the parties as from the date of departure of the Claimant / Counter-Respondent up until when the claim of the Claimant / Counter-Respondent was lodged (cf. points I.17 to I.26 above) and recalled that the Respondent / Counter-Claimant acknowledged having received the letters of the Claimant / Counter-Respondent dated 29 September 2015 and 2 October 2015, in which it was stated that in case the parties did not find an amicable solution to terminate the second contract, the Claimant / Counter-Respondent’s intention was to return to Respondent / Counter-Claimant and resume his contractual duties.

17. In this context, the DRC took note that it remains uncontested that, by means of an email dated 6 October 2015 (cf. point I.22 above), the Respondent / Counter-Claimant provided the Claimant / Counter-Respondent with the termination notice (cf. point I.23 above) based on art. 12 of the contract.

18. With the above considerations, the Chamber highlighted that the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant before FIFA for outstanding remuneration and breach of contract, requesting the amount of USD 555,369. The DRC also highlighted that the Respondent / Counter-Claimant, on its part, after being directly informed about the claim of the Claimant / Counter-Respondent, lodged a counterclaim against the Claimant / Counter-Respondent, requesting the payment of USD 14,193.54.

19. In this context, the members of the Chamber pondered that the Claimant / Counter-Respondent, on the one hand, maintained that the Respondent / Counter-Claimant did not have just cause to unilaterally terminate the second contract after his departure, while the Respondent / Counter-Claimant, on the other hand, acknowledged that it terminated the second contract, however, sustaining that it had just cause to do so on the basis of the Claimant / Counter-Respondent’s departure without authorization and, allegedly, repeated absence from training as from 31 August 2015 until the date of the termination notice, i.e. 4 October 2015. In this regard, it was duly noted by the Chamber that the Claimant / Counter-Respondent contested his alleged absence as from the date claimed by the Respondent / Counter-Claimant and held that he was only absent as from 19 September 2015.

20. Having established the aforementioned, the Chamber concluded that the underlying issue in this dispute, was to determine whether the second contract had been unilaterally terminated with or without just cause by the Respondent / Counter-Claimant and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, it would be necessary to determine the financial consequences for the party that is to be held liable for the early termination of the pertinent employment contract.

21. In this respect, the DRC deemed it crucial to outline that it remained uncontested that the Respondent / Counter-Claimant terminated the contract with the email of 6 October 2015 by means of the termination notice enclosed to it.

22. Along this line, the Chamber analysed the Respondent / Counter-Claimant’s assertion that it terminated the employment contract with just cause, basing its counterclaim on the Claimant / Counter-Respondent’s alleged absence from training sessions as from 31 August 2015 and his subsequent uncontested departure on 19 September 2015 without its authorization.

23. In this respect, the DRC recalled the contents of art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof

24. With the abovementioned consideration in mind, the Chamber took due note of the documentation that had been presented by the Respondent / Counter-Claimant in relation to the alleged absence of the Claimant / Counter-Respondent as from 31 August 2015, namely, the training attendance reports of the Respondent / Counter-Claimant, which are not translated into one of the official FIFA languages (English, French, Spanish and German) and internal documents signed by its General Secretary and Team Manager that confirm that the Claimant / Counter-Respondent was absent during the period from 31 August 2015 until 4 October 2015.

25. At this point, the Chamber first recalled that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German). Bearing in mind the wording of the aforementioned provision, the Chamber concluded that without the translations of the training attendance reports, said documents could not be taken into account. In respect to the internal documentation presented by the Respondent / Counter-Claimant that allegedly confirms the absence of the Claimant / Counter-Respondent as from 31 August 2015, the DRC recalled that said documents are signed by the Respondent / Counter-Claimant’s own management in support of its allegation and remarked that such documents were produced by the Respondent / Counter-Claimant, as well as that the persons who signed said documents, as employees of the Respondent / Counter-Claimant, cannot be considered as impartial witnesses. The Chamber also took into account that the termination notice dated 4 October 2015 does not contain any reference to the Claimant / Counter-Respondent’s alleged absences from training sessions as from 31 August 2015 but solely indicated that the decision to terminate the second contract is based on art. 12 of the contract. Therefore, the Chamber concluded that the Respondent / Counter-Claimant had not provided conclusive and satisfactory evidence regarding the Claimant / Counter-Respondent’s alleged absence from training before 19 September 2015, i.e. the uncontested date of departure of the Claimant / Counter-Respondent.

26. At this moment, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

27. In view of the above, the Chamber observed that it remains uncontested that after the Claimant / Counter-Respondent’s departure and even after receiving correspondence from the Claimant / Counter-Respondent, the Respondent / Counter-Claimant neither confronted the Claimant / Counter-Respondent about his alleged absences nor requested him, at any point, to resume his duties. What is more, the Respondent / Counter-Claimant did not issue any prior warning to the Claimant / Counter-Respondent before sending its termination notice and immediately terminated the employment relationship instead. However, regardless of the question whether the Claimant / Counter-Respondent was authorized to leave on 19 September 2015, the Chamber was of the firm opinion that the Respondent / Counter-Claimant did, in any case, not have just cause to prematurely terminate the employment contract with the Claimant / Counter-Respondent, since such breach could not legitimately be considered as being severe enough to justify the termination of the contract, and that there would have been more lenient measures to be taken in order to sanction the Claimant / Counter-Respondent for his absence.

28. On account of the above, the Chamber concluded that the Respondent / Counter-Claimant did not have just cause to unilaterally terminate the second contract by means of the email sent on 6 October 2015 that had the termination notice enclosed to it and, therefore, decided that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contact without just cause.

29. At this stage, the DRC recalled that in accordance with the content of art. 12 of the second contract, particularly art. 12.2 of the second contract that stipulated that the termination notice shall be provided by one party to the other with one month’s notice, as the termination noticed was provided by the Respondent / Counter-Claimant to the Claimant / Counter-Respondent by email on 6 October 2015, and with this in mind, the DRC concluded in consequence that the second contract was effectively terminated on 6 November 2015.

30. Having established that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract without just cause, the Chamber focussed its attention on the consequences of such breach of contract. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant an amount of money as compensation for breach of contract in addition to any outstanding payments, if any, on the basis of the relevant employment contract.

31. The Chamber then reverted to the Claimant / Counter-Respondent’s financial claim, which includes outstanding remuneration in the amount of USD 415,999, corresponding to salaries from 1 August 2015 until 6 November 2015, i.e. USD 130,000 each for the months of August 2015, September 2015 and October 2015, and USD 25,999 for 6 days of November 2015. Moreover, it was duly noted that Claimant / Counter-Respondent requested the reimbursement of a flight ticket in the amount of USD 9,370.

32. Subsequently, the members of the Chamber recalled that although the Respondent / Counter-Claimant acknowledged owing 30 days of the August 2015 salary to the Claimant / Counter-Respondent, it argued that since the Claimant / Counter-Respondent was allegedly absent, it was entitled to withhold his salary as from 31 August 2015. Moreover, the DRC duly observed that the Respondent / Counter-Claimant sustained that a deduction of USD 10,000 shall apply in connection with a decision from the Football Confederation of Continent G, wherein the Claimant / Counter-Respondent was sanctioned with a fine of USD 10,000, which the Respondent sustained having paid on his behalf.

33. In this respect, the DRC recalled that there is no conclusive evidence on file in respect to the Claimant / Counter-Respondent’s absence as from 31 August 2015 and therefore, there is no valid reason to withhold the Claimant / Counter-Respondent’s salary payment as sustained by the Respondent / Counter-Claimant.

34. As the Claimant / Counter-Respondent, on his part, rejected that USD 10,000 should be deducted, the members of the DRC turned to the divergent opinion of the parties in respect to the alleged right of the Respondent to deduct USD 10,000 in regards to the disciplinary fine of USD 10,000 imposed on the Claimant / Counter-Respondent by the Football Confederation of Continent G, which the Respondent / Counter-Claimant sustained to have paid on the Claimant / Counter-Respondent’s behalf “in good faith”. In this framework, the Chamber deemed it necessary to examine the documentation provided by the Respondent / Counter-Claimant in support of its position.

35. With this in mind, the Chamber noted that the disciplinary decision of the Football Confederation of Continent G dated 19 May 2015, by means of which USD 10,000 was imposed as a fine on the Claimant / Counter-Respondent, does not impose an obligation on the Respondent / Counter-Claimant to pay this amount. Furthermore, the DRC noted that there is no evidence on file that the Football Confederation of Continent G had urged the Respondent / Counter-Claimant to pay the Claimant / Counter-Respondent’s respective fine in the first place. Following this line of reasoning, the DRC concluded that the Respondent / Counter-Claimant had paid the USD 10,000 fine imposed on the Claimant by the Football Confederation of Continent G at its own discretion. Subsequently, the Chamber analysed the contents of the second contract and confirmed that there is no contractual clause that foresees that in case a fine is imposed on the Claimant / Counter-Respondent by a competent body, the Claimant / Counter-Respondent would have to reimburse said amount in case the Respondent / Counter-Claimant covers it. As such, without an explicit urge from the confederation to pay the respective fine in the first place and in the absence of a contractual basis regarding the reimbursement of a paid fine, the DRC deemed that the Respondent / Counter-Claimant is not allowed to deduct the amount of USD 10,000 from the Claimant / Counter-Respondent’s outstanding remuneration.

36. With the abovementioned considerations in mind, and taking into account the effective date of termination of the second contract, i.e. 6 November 2015, the DRC deemed that the Claimant / Counter-Respondent is entitled to outstanding remuneration due at the time of termination, i.e. for the months of August 2015 until October 2015.

37. Subsequently, the DRC analysed the request of the Claimant corresponding to the reimbursement of a flight ticket in accordance with the second contract. In this respect, taking into account the documentation presented by the Claimant / Counter-Respondent in support of his petition, the DRC concluded that the Claimant / Counter-Respondent had not fully substantiated his claim with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no conclusive evidence of the purchase of the corresponding flight ticket, since the Claimant / Counter-Respondent merely provided a “Whatsapp messenger” conversation that states a reservation code and that the ticket cost is “usd9370” in order to substantiate its request of reimbursement of a flight ticket. Therefore, the DRC decided to reject this part of the Claimant / Counter-Respondent’s claim.

38. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the Respondent / Counter-Claimant must fulfil its obligations as per the second contract concluded with the Claimant / Counter-Respondent and, therefore, is to be held liable to pay the outstanding amount of USD 390,000 to the Claimant / Counter-Respondent.

39. In addition, taking into account the Claimant / Counter-Respondent’s request, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on each of the relevant payments as of the day following the day on which the relevant payments fell due, until the date of effective payment.

40. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.

41. In this context, the Chamber outlined that, in accordance with said provision, 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, and depending on whether the contractual breach falls within the protected period.

42. 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 context, the members of the Chamber recalled the content of art. 12.3 and art. 12.4 of the second contract, which stipulated that:

“

…

12.3 The party terminating the contract shall pay to the other Party a compensation of USD 130,000.

43. The members of the Chamber duly analysed the content of the abovementioned provisions, and considered that said articles of the second contract do grant the same rights to the parties, and in consequence, they appear to respect the principle of a proportionate repartition of the rights of the parties, in accordance with jurisprudence from the Court of Arbitration for Sport (CAS). Moreover, the Claimant / Counter-Respondent capped his request for relief in respect to compensation in accordance with both art. 12.3 and art. 12.4 of the second contract, thereby accepting the validity of said clause.

44. On account of the foregoing, the Chamber decided that art. 12.3 and art. 12.4 of the second contract can be taken into consideration in the determination of the amount of compensation payable by the Respondent / Counter-Claimant.

45. In view of all of the above, the Chamber decided that the Respondent / Counter-Claimant must pay the amount of USD 130,000 to the Claimant / Counter-Respondent as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation.

46. In addition, taking into account the Claimant / Counter-Respondent’s request, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the amount of compensation, i.e. USD 130,000, as of the date on which the claim was lodged, i.e. 10 November 2015, until the date of effective payment.

47. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the counter-claim lodged by the Respondent / Counter-Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Player A, is admissible.

2. The claim of the Claimant / Counter-Respondent is partially accepted.

3. The Respondent / Counter-Claimant, Club C, has 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 USD 390,000.

4. Within the same deadline, the Respondent / Counter-Claimant has to pay to the Claimant/Counter-Respondent interest as follows:

- 5% p.a. over the amount of USD 130,000 as from 1 September 2015 until the date of effective payment;

- 5% p.a. over the amount of USD 130,000 as from 1 October 2015 until the date of effective payment;

- 5% p.a. over the amount of USD 130,000 as from 1 November 2015 until the date of effective payment.

5. The Respondent / Counter-Claimant 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 130,000 plus 5% interest p.a. on said amount as from 10 November 2015 until the date of effective payment.

6. In the event that the amounts plus interest due to the Claimant / Counter-Respondent in accordance with the above-mentioned numbers 3., 4., and 5. are 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.

7. Any further claim lodged by the Claimant / Counter-Respondent is rejected.

8. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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.

9. The counterclaim of the Respondent / Counter-Claimant is rejected.

*****

Note relating to the motivated decision (legal remedy):

According to article 58 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:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives