F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 30 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 November 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (Netherlands), member

Stefano Sartori (Italy), member

Pavel Pivovarov (Russia), member

Jérôme Perlemuter (France), member

on the claim presented by the club,

Club A, Country B

as Claimant / Counter-Respondent

against the player,

Player C, Country D

as Respondent / Counter-Claimant

and the club,

Club E, Country F

as Intervening Party

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 25 January 2011, the Club of Country B, Club A (hereinafter: Club A or Claimant / Counter-Respondent) and the Player of Country D, Player C (hereinafter: the player or Respondent / Counter-Claimant) signed an employment contract valid as from 29 January 2011 until 30 June 2011. After having renewed their contractual relation on 1 July 2011 and on 29 May 2012, on 22 November 2013, Club A and the player concluded a new employment contract, valid as from 1 July 2014 until 30 June 2017 (hereinafter: the contract).

2. According to article 4 of the new contract, the player was entitled to receive the total amount of USD 4,500,000 for the entire period of the contract, payable as follows:

In the period between 1 July 2014 and 30 June 2015:

 an instalment of USD 150,000, due ‘at the signing of this contract’;

 an instalment of USD 550,000, due on 1 September 2014;

 a monthly salary of USD 58,333, due ‘by the end of each calendar month’;

In the period between 1 July 2015 and 30 June 2016:

 an instalment of USD 750,000, due on 1 September 2015;

 a monthly salary of USD 62,500, due ‘by the end of each calendar month’;

In the period between 1 July 2016 and 30 June 2017:

 an instalment of USD 800,000, due on 1 September 2016;

 a monthly salary of USD 66,666, due ‘by the end of each calendar month’.

3. Article 5.1 and 5.2 of the contract stipulate the following: ‘5.1 If the second party [player] wants to cancel the contract in the second year of the contract, must pay a penalty to the First party of Five million US Dollars is not. 5.2 If the second party [player] wants to cancel the contract in the third year of the contract, must pay a penalty to the First party of Two million US Dollars is not’.

4. Article 6 of the contract holds the following: ‘The first party may not delay payment of the second party’s salaries or terminate the contract due to player’s injury during play or training’.

5. Article 9 of the contract stipulates as follows: ‘Item 9: Settlement of Disputes: 1. The two parties shall seek solving their disputes on the enforcement of the contract by amicable ways. 2. The committee is concerned with considering the disputes arising between a club and a professional player on the terms and executing it’.

6. On 7 August 2016, Club A lodged a claim before FIFA against the player, claiming compensation for breach of contract in the total amount of USD 2,453,588 to be paid by the player, broken down as follows:

 USD 1,599,992 as the residual value of the contract in the period between 7 July 2016 and 30 June 2017, corresponding to 12 monthly salaries of USD 66,666 each and the instalment of USD 800,000 due on 1 September 2016;

 USD 750,000 as total value of the loss of the player’s services, according to Club A calculated with due consideration to the player’s important role in the team, the value of the player on www.transfermarket.com, the duration left on the contract and the amount of USD 700,000, the player’s lawyer allegedly offered to Club A in order to buy-out of the contract;

 USD 399,996 as ‘specificity of sport’, corresponding to 6 monthly salaries of USD 66,666 each;

 Minus the amount of USD 296,400, the player is still entitled to as due remuneration.

Furthermore, Club A requested to be awarded 5% interest p.a. on the amount due, as from ‘the date of breach of the employment contract (either 7 or 29 July 2016)’. In addition, Club A requested:

 that sporting sanctions will be imposed on the player;

 that the player is obliged to pay the legal fees of Club A;

 that the Club of Country F, Club E (hereinafter: Club E or Intervening Party) as the player’s new club and the Club of Country B, Club G (hereinafter: Club G) as the second new club of the player, should be considered jointly and severally liable for the payment of the compensation awarded.

7. In its claim, first of all, Club A explains that it paid the instalments due at the beginning of each season via cheques in several instalments during the season, without receiving any complaints from the player. Moreover, Club A explained that it paid all amounts due in the 2014/2015 season, and that for amounts due to the player in relation to the 2015/2016 season, an amount of USD 296,500 remained outstanding. According to Club A, it was agreed that the player would receive said amount ‘upon his return to the Club from his annual vacation in Country D’, however the player ‘refused to receive the cheque for this amount […]’.

8. Moreover, Club A explains that the player was on holidays as from 13 May 2016 and that he returned to Club A on 29 June 2016. What is more, Club A holds that the player participated in a training session on 30 June 2016 and that he underwent medical examination, but that on 3 July 2016, he requested a meeting with Club A, in order to request an extension of his current contract with another 3 years. According to Club A, it explained to the player that it decided to postpone said request, as it could not yet take a decision regarding a possible extension of the contract.

9. In addition, Club A explains that during the meeting on 3 July 2016, the player refused to sign the check for the amount of 1,111,875 and – according to Club A – requested ‘to keep it at the club until he would come back from another short vacation granted to the team between 5 and 7 July 2016 and this due to holiday of Holiday H […]’. Subsequently, Club A explains that it granted the player a visa to spend the holidays between 5 and 7 July 2016 in Country J, and that from said visa it can be seen that on 5 July 2016, the player travelled from Country B to Country J.

10. What is more, according to Club A, on 5 July 2016, it informed the Football Association of Country B (Football Association K) ‘about the situation that occurred between the club and the player and his refusal to receive the cheque […]’. Moreover, Club A explained that the player did not return to the club on 7 July 2016.

11. According to Club A also on 7 July 2016, instead of returning to the club, the player sent a termination letter to Club A’s president, by means of which the player unilaterally terminated the contract with immediate effect. The player explained that – although he put Club A in default on several occasions - an amount of “USD 296,400” allegedly had remained outstanding.

12. Furthermore, Club A argued that ‘shortly afterwards’, it was contacted by the player’s agent, with the request to discuss the renewal of the player’s contract. As it had just received the player’s termination letter, Club A holds that it was confused by such behaviour, and that on 10 July 2016, it sent a default letter to the Football Association K, informing them that the player did not attend the training camp of Club A in Country L.

13. Moreover, Club A explains that on 12 July 2016, the player apologized via WhatsApp for his behaviour to Club A’s president. As a result, on the same day, a meeting was held between Club A and the player’s agent, to discuss ‘the matter of the player’.

14. Club A further points out that during the meeting, the agent of the player requested for the renewal of the player’s contract, but that it replied that the player first needed to return to Club A, in order to make a final decision about a contract renewal. In addition, Club A holds that in the days after 12 July 2016, the player’s agent not only offered that the player would waive his right to receive the amount of USD 296,500, but also, at a later stage, the payment of an amount USD 700,000 in order ‘that the club would let the player leave as a free agent’.

15. As a result of all the foregoing, Club A argues that ‘the termination sent on 7 July 2016 was not considered by anyone as a true termination of the contract but as an instrument of pressure […]’, and that it expected the player to return to its club in order to resume his duties. After having waited for two weeks, according to Club A, it sent two default letters to the player, requesting him to come back to the club by 29 July 2016 at the latest.

16. What is more, Club A held that the player did not return to its club, and that on 26 July 2016, it received a letter from the player’s lawyer, insisting on the player’s termination of the contract on 7 July 2016.

17. Finally, as he player had not returned to the club on 29 July 2016, on 2 August 2016, Club A informed him that it considered the contract terminated without just cause by the player.

18. In this respect, Club A points out that it cannot be held responsible for the non-payment of an amount, if the player refused to receive the cheque covering this amount, because for Club A there was no other way to make the payment to the player. Further, Club A explains that the player did not give a prior warning about a possible termination of the contract, as well as that there was no substantial amount outstanding. Also, the player could not reasonably expect that Club A would not pay the amount due, as it even offered the player to pay the amount of USD 296,500 by cheque and finally, the player never complained about the way Club A made the payments, i.e. in several instalments throughout the season.

19. In his reply dated 13 December 2016, the player first of all contested FIFA’s competence to deal with the matter at hand, indicating that on an unspecified date, Club A already lodged a claim against him in front of the Professionalism and Players’ Status Committee of the Football Federation of Country B (hereinafter: the Football Association K PSC), which is according to the player the deciding body mentioned in article 9 par. 2 of the contract.

20. The player further explains that the Football Association K PSC, on “09/02/1438” (this date corresponds to 9 November 2016) rendered a decision in which the Football Association K PSC, ‘in essence, imposed a life-ban on the player, in casu, preventing the latter, perpetually, to sign a new employment contract with any football club affiliated to the Football Association K again’.

21. As a result of the foregoing, and based on the legal concepts of forum shopping, ne bis in idem and res judicata, the player states that FIFA has no jurisdiction to consider the claim of Club A and argues that the case, based on article 25 par. 4 of the FIFA Regulations, should be referred to the FIFA Disciplinary Committee.

22. As to the substance, only if FIFA would declare itself competent, the player argues that he terminated the contract with just cause.

23. Moreover, the player refers to article 6 of the contract and argues that in the 2015/2016 season, Club A was on several occasions late with payments, e.g. with the payment of the amount of USD 750,000, due as from 1 September 2015.

24. In this respect, the player explains that on 1 November 2016, he only received the amount of USD 187,500 and that the residual part of the amount of USD 750,000 remained outstanding. As a result, on 1 April 2016, the player put Club A in default for the outstanding amount of USD “562,400”. After having received a payment of USD 266,000 from Club A on 23 May 2016, the player holds to have put Club A again in default on 16 June 2016, for the payment of the amount of “296,400”. In said default letter, the player holds to have provided Club A with a deadline of ‘more than 15 days […] remedy of such breach’, and that in the event of non-payment, he would terminate the contract with just cause due to the outstanding payments.

25. In addition, when he returned to Club A on 29 June 2016, his default letter dated 16 June 2016 was ‘completely ignored […]’ and that such behavior ‘brought an unsustainable and irremediable lack of confidence to the referenced employment relationship as whole, in particular, as from the player side’. Moreover, the player argues that Club A never provided him with any cheque whatsoever, regarding the outstanding amount. As a result, the player holds to have terminated the contract on 7 July 2016, by sending his termination letter by email to the addresses XXX, XXX and XXX.

26. Furthermore, the player argues that in the period after 7 July 2016, he tried to amicably settle the matter at hand with Club A, however to no avail. Since ‘[…] only after the referenced negotiations had failed, the Club addressed a senseless correspondence to the player requesting his return in order to attend the training sessions regarding the pre-season time’, on 26 July 2016, the player again pointed out to Club A that the contract was already terminated by him on 7 July 2016.

27. As a result, the player holds that he terminated the contract with just cause, as Club A was in breach of its financial obligations, as well as that said ‘violation persist for a long time’. In this respect, the player points out that the amount of USD 296,500 (which corresponds to more than 4 monthly salaries) remained outstanding for at least one entire season. In addition, the player points out that – in line with article 8 of the Football Association K Regulations - Club A should have paid the player’s salaries ‘by means of a deposit into bank accounts […]’.

28. Moreover, the player argues that Club A was in the possession of his email address, as well as the address of his residence in Country B, and that Club A, ‘bizarrely only submits the alleged correspondence exclusively to the Football Association K’.

29. In conclusion, the player asks for the rejection of Club A’s claim and lodged a counterclaim, claiming the amount of USD 1,879,832 to be paid by Club A, specified as follows:

 USD 296,500 as outstanding remuneration, plus 5% interest p.a. as from 1 September 2015;

 USD 1,600,000 as residual value of the contract in the 2016/2017 season;

 USD 133,332 as ‘specificity of sport’, consisting of two monthly salaries in the period which the player remained unemployed;

 Minus the amount of USD 150,000 as total value of the new contract the player holds to have signed on 1 September 2016 with Club E, valid between 1 September 2016 and 28 February 2017.

Moreover, the player requested for sporting sanctions to be imposed on Club A and legal fees to be paid by Club A.

30. In its replica and reply to the counterclaim, Club A first of all contests the player’s objection to FIFA’s competence and explained that it did not lodge a claim in front of the Football Association K against the player, but that it ‘informed the Football Association K authorities that the player once has been under that contract and prematurely terminated it, intended to contract another club in Country B, as the club was always reporting all the acts and breaches of the player to the Football Association K’. Club A also explained that the procedure before the Football Association K PSC was ‘with a posterior date of the claim to the FIFA’, as it sent its request to intervene on “23/01/1438” (this date corresponds to 25 October 2016) to the Football Association K.

31. Subsequently, Club A explained that the decision of the Football Association K PSC was ‘a decision forbidding the player to be registered for any Club of Country B without the acquiring approval of his original club, Club A and not a life ban […]’ and that said decision was taken in order ‘to keep the whole rights of Clubs of Country B and not limited to protecting Club A’. According to Club A, the decision was also taken in view of ‘the return of the player to play at the Competition of Country B […]’, which ‘asserted his circumvention to Football Regulations of Country B’.

32. In addition, Club A explained that in the proceedings before the Football Association K, it never asked for compensation for breach of the employment contract to be paid by the player. Instead, Club A holds to have informed the Football Association K PSC about the current proceedings before FIFA and that it only requested the Football Association K ‘to take measures in order to protect the interests of Clubs of Country B’.

33. What is more, Club A explains that the player ‘in fact’ recognized the competence of the Football Association K bodies ‘to treat with the dispute’, as he appealed the mentioned decision of the Football Association K PSC dated 10 November 2016. Club A explains that in said appeal, the player however argued that the Football Association K PSC is not competent to hear the dispute between the parties, and thus arguing both in front of FIFA and in front of the Football Association K PSC, that these bodies are not competent.

34. As a result of the foregoing, Club A argues that FIFA should be competent to deal with the matter at hand, and, in case FIFA would consider that there was indeed ‘the res iudicata, it should be limited by an assumption that a player was the party liable for the breach of the contractual obligations […]’. Club A concluded that ‘the FIFA DRC would be only competent to render a decision establishing the amount of the compensation that should be paid in favour of the club’.

35. As to the substance, Club A pointed out that after the termination of the contract in July 2016, the player signed new contracts with the following clubs:

- on 1 September 2016 with Club E, for the period between 1 September 2016 and 1 January 2017, entitling the player to the total amount of USD 150,000 and;

- on 1 January 2017 with Club G, for the period between 4 January 2017 and 3 July 2019, entitling the player to the total amount of USD 3,944,990.

36. In addition, according to Club A, the player’s transfer to Club E has to be considered as a ‘bridge transfer’, as the transfer to Club G is a ‘clear sign for the actual inducing […]’, as well as that the player signed a contract with Club E, a second division club from Country F, just ‘as a bridge transfer to get back to the actual inducing club, Club G’. Club A further explained that the player did not participate in any game of Club E.

37. Additionally, Club A argued that the default letters the player alleges to have sent to its club and the termination letter do not ‘contain the proof that the player sent the mentioned notifications to the club rather than to the Football Federation of Country B’ and that, since Club A did not reply, it could not established that it received such communications.

38. Club A again concludes that the player had no just cause to terminate the contract on 7 July 2016, since it fulfilled all its financial obligations towards the player, since the player refused to receive the cheque and because there was ‘a lack of prior warning’ and ‘no loss of confidence for the player that the club would comply with its contractual obligations’.

39. With regard to the outstanding amount of EUR 296,500, Club A argues that the player did not consider this amount as a substantial amount, since during the negotiations the player even offered to waive his right to receive said amount and also offered to pay an amount USD 700,000, in order to buy himself out of his contract.

40. Finally, Club A reiterates its previous arguments and argued that the player acted in bad faith, because he ‘wanted to use the outstanding amount as an excuse to prematurely terminate the contract and leave the club’. Moreover, it referred to a witness statement of its president, which confirms the fact that the player refused to receive the cheque dated 3 July 2016 and further states that it ‘could not realize the payment in another way […] due to the official worldwide holiday “Holiday H”’.

41. In his duplica, the player again explains that FIFA is not competent to deal with the matter at hand, and refers explicitly to article 9 par. 2 of the contract. The player argues that ‘the legal bodies of Football Association K detains jurisdiction to order a party that eventually breach an employment contract to pay compensation and impose sporting sanctions’ and that during the proceedings before the Football Association K ‘the payment of compensation and the imposition of sporting sanctions were going to be considered obviously’. Also, the player points out that in view of the legal principle of forum shopping, Club A does not have the right to lodge a second claim against the player in front of FIFA, only because the Football Association K PSC did only impose sporting sanctions on him, and did not order the payment of any compensation to Club A.

42. As to the substance, the player argues that the e-mail address he used for the notification of the default letters, was the e-mail address ‘officially indicated by the club in the TMS’. Furthermore, he even received a reply from Club A, i.e. Employee M with the email address XXX. As a result, the player holds that it can established that Club A received the default letters, however that it did not pay him the requested outstanding amount.

43. Moreover, the player argues that he considers the amount of USD 296,500 as substantial, since it corresponds to approximately 4 monthly salaries and further points out that there was a ‘persistent failure’ from Club A to timely pay his receivables. In addition, the player rejects Club A’s arguments regarding the possible waiving of the amount of USD 296,500, since he only made this proposal during negotiations about a new contract, ‘without any prejudice’. Finally, the player reiterates his arguments, holds he acted in good faith and that the termination letter was the ultima ratio for him, as Club A simply ignored his default letters.

44. In its position regarding the claim of Club A against the player, Club E argued that from the file, it can be established that Club A ignored the second default letter of the player, and that as a result, the player had a just cause to terminate the contract on 7 July 2016.

45. In addition, Club E explained that after the termination of the contract between the player and Club A, first of all the player signed a contract with the Club of Country D Club N (hereinafter: Club N). However, according to Club E, the registration of the player in the TMS could not be concluded, ‘due to unknown reasons’.

46. After the transfer of the player to Club N could not be concluded, the player decided to travel to Country F, as the transfer window in said country was still open and because he wanted to play at least at a professional level. Only under these conditions, on 1 September 2016, the player and Club E signed an employment agreement. When Club E tried to register the player, Club A rejected the issuance of the player’s ITC, however by a decision of the Single Judge of the Players’ Status Committee dated 19 October 2016, the player could be provisionally registered with Club E.

47. Moreover, Club E points out the claim of Club A contains inconsistencies and cannot be upheld. In this respect, Club E argues that Club A’s claim is inadmissible and that the matter at hand cannot be dealt with by FIFA, due to the legal principles of res iudicata and forum shopping.

48. Furthermore, Club E states that the player terminated the contract with just cause due to a substantial outstanding amount and that as such, FIFA cannot ‘grant any compensation at all’ to Club A.

49. What is more, according to Club E, it cannot be considered as the player’s new club and be held jointly and severally liable for the payment of any amounts, as Club N was the player’s first new club. In this respect, Club E argues that the player’s first new club in the sense of article 17 of the FIFA Regulations ‘must be interpreted as the club that the player joins immediately after’ and further points out that it only registered the player more than two months ‘after date of registration sought by Club N’.

50. Subsequently, Club E explains that it never induced the player to breach his contract, as ‘the player autonomously and freely decided to leave Club A long before he even approached’ Club E. The only reasons the player and Club E concluded a contract were, according to Club E, the strong will of the player to return to professional football and the fact that Country F was one of the few countries in which the transfer window was still open.

51. Regarding the alleged bridge transfer, Club E rejects Club A’s arguments in this respect and further states that the player participated in several official matches of Club E.

52. In conclusion, Club E requests to reject all the claims of Club A, and points out that Club N should ‘be joined in the present procedure’.

53. Finally, after the termination of the contract with Club A, the player signed the following contracts:

 on 1 September 2016 with Club E, for the period between 1 September 2016 and 1 January 2017, entitling the player to the total amount of USD 150,000 and;

 on 1 January 2017 with Club G, for the period between 4 January 2017 and 3 July 2019, entitling the player to the total amount of USD 3,944,990. For the period between 4 January 2017 and 30 June 2017, the player was entitled to receive a total amount of USD 1,064,998.

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 claim of Club A was submitted to FIFA on 7 August 2016 and that the counterclaim of the player was submitted on 13 December 2016. 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2017) the Dispute Resolution Chamber is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Club of Country B and a Player of Country D, with the involvement of a Club of Country F.

3. However, the Chamber noted that the player is of the opinion that the Dispute Resolution Chamber has no competence to deal with the claim at stake, by virtue of article 9.2 of the contract as well as the application of the legal principles of forum shopping and res iudicata.

4. In this respect, the player further clarified that Club A’s claim is aimed at obtaining a decision from the Dispute Resolution Chamber ruling that the player terminated the contractual relationship with Club A without just cause, whereas the employment relationship between Club A and the player has been already considered terminated at the player’s fault by means of the decision passed by the Professionalism and Player’s Status Committee of the Football Federation of Country B (hereinafter: the Football Association K PSC) on 9 November 2016, which deciding body according to the player is mentioned in article 9.2 of the contract. In the player’s view, art. 9.2 excluded the competence of the Dispute Resolution Chamber to adjudicate on the present matter and in any case, a matter allegedly involving the same parties and object had already been decided by the Football Association K PSC.

5. In view of the player’s objection to the admissibility of Club A’s claim, the Chamber carefully analysed the information on file, and noted that indeed, it could be established that Club A, on 25 October 2016, sent a letter to the Football Association K PSC, requesting to prevent the player from signing with another club in Country B, because it did not agree with the termination of the player and that it wanted its rights to be protected. Moreover, it remained uncontested that on 9 November 2016, the Football Association K PSC declared that the player could not sign an employment contract with another Club of Country B, because of the fact that he failed to join Club A during the validity period of his contract.

6. What is more, following such decision of the Football Association K PSC, the player deemed that the legal principles of res iudicata and forum shopping apply and Club A could no longer lodge a claim against him for breach of contract in front of the DRC. In turn, the Chamber observed that Club A insisted that FIFA has jurisdiction to deal with the present matter, as the request before the Football Association K PSC was only made to protect the interests of Clubs of Country B and did not deal with a possible breach of contract by the player.

7. In view of all the foregoing, and first taking into account the player’s remarks regarding the res iudicata and forum shopping-principles, the Chamber went on to examine the contents of the alleged decision of the Football Association K PSC dated 9 November 2016.

8. In this respect, the Chamber deemed it appropriate to briefly recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case, in the event that another deciding body has already dealt with the same matter by passing a final and binding decision. What is more, the DRC also deemed it important to underline that in the spirit of the applicable regulations, a player or a club, who actively decides to bring forward a dispute before other courts outside the dispute resolution process proposed within the legal framework of the football system, must demonstrate consistency in relation to the choice of jurisdiction made. The DRC’s contention is that a party who chooses a certain course of legal remedy may not then decide to change the legal forum of the dispute, the so called forum shopping, as this would jeopardise the credibility of the sporting dispute resolution system

9. With the aforementioned circumstances in mind, the Chamber pointed out that the principle of res iudicata can only be applicable if cumulatively and necessarily the parties to the disputes and the object of the matter in dispute are identical.

10. From the information and documentation on file, the Chamber could verify that even though the identity of the parties appears to be given, on the one hand, that Club A merely requested the Football Association K PSC to protect its immaterial rights and did not submit any further financial or disciplinary requests. In particular, the DRC noted that the Football Association K PSC only decided that the player did not join Club A during the validity of the contract and therefore, he could not join other Clubs of Country B. As such, the Football Association K PSC did not decide on the termination of the contract between the parties and/or on the question of who was held responsible for the early termination of the employment contract.

11. In view of the aforementioned, the Dispute Resolution Chamber held that the abovementioned legal actions were based on the same employment contract, but aimed at establishing different consequences, and that as such, the condition of identity of the object of the matter in dispute was not met, as the two claims are not similar. Thus, the Chamber established that the matter at hand could not be considered as a res iudicata, and that Club A did not demonstrate inconsistency in relation to the choice of jurisdiction made. Thus, the DRC rejected the player’s objection to the admissibility of Club A’s claim related to res iudicata and forum shopping.

12. Subsequently, the Chamber drew its attention to the player’s second objection to the admissibility of Club A’s claim, arguing that the parties had agreed upon the jurisdiction of the Football Association K PSC in their contract. In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players 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, which came into force on 1 January 2008.

13. While addressing its competence to hear the present matter, the Dispute Resolution Chamber considered that it should analyse whether the employment contract at the basis of the present dispute actually contained a clear and specific jurisdiction clause. In view of the foregoing, the Chamber first referred to art. 9.2 of the employment contract, on the basis of which the player contested FIFA’s jurisdiction. Said article stipulates that if the parties are not able to find an amicable agreement, the dispute should be submitted to ‘the committee’. The members of the Chamber outlined that the content of art. 9.2 is rather vague, as it does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations, but only to ‘the committee’.

14. In view of the foregoing, the Chamber held that the alleged jurisdiction of the Football Association K PSC does not derive from a clear reference in the employment contract and therefore, this argument regarding the admissibility of Club A’s claim could also not be upheld.

15. As a result of all the foregoing, all the player’s objections towards the competence of FIFA to deal with the present matter had to be rejected, and the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

16. In continuation, 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 2016), and considering that the present claim was lodged on 7 August 2016 and the counterclaim on 13 December 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

17. 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.

18. In continuation, the members of the Chamber took into account that, on 22 November 2013, Club A and the player concluded an employment contract, valid between 1 July 2014 and 30 June 2017. Furthermore, the Chamber noted that on 7 July 2016, the player notified Club A of the termination of the contract on the basis of outstanding remuneration, which the player considered to be a termination with just cause.

19. Club A, for its part, submitted that the player had no just cause to terminate the contract on 7 July 2016 and that the termination letter dated 7 July 2016, cannot be considered as a ‘true termination’, as according to Club A, the player did not want to terminate his contract. Club A further explains that on 2 August 2016, it terminated the contract with the player, as he did not return to its club anymore, which it considers to be a just cause.

20. With the aforementioned considerations in mind, in particular, the opposite position of the parties, the Chamber deemed that the underlying issue in this dispute, was to determine on which date and by which party the employment contract had been unilaterally terminated, and whether said termination was made with or without just cause. Subsequently, the Chamber needed to determine the consequences of said early termination of the contractual relationship, as well as to establish which party is to be held responsible for said consequences.

21. In this respect, the Chamber wished to emphasize that Club A acknowledges that an amount of USD 296,500 related to the 2015/2016 season remained outstanding, but claimed to have agreed with the player that said amount would be paid when the player would have returned from his holidays in Country D. Further, Club A points out that upon returning from holidays, the player refused to receive the check in the amount of 1,111,875 (corresponding to approximately USD 296,300) and instead wanted to negotiate on a new contract. What is more, Club A stated that it informed the player that it could not yet take a decision regarding a possible extension of the contract and that it granted the player a short vacation. After not having returned from said vacation and having sent the termination letter on 7 July 2016, the player, according to Club A, apologised for his behaviour. For this reason, Club A deems that the player did not want to terminate the contract on 7 July 2016. Finally, Club A holds that after the player did not return to Club A until 2 August 2016, on said date, it terminated the contract with just cause, based on the player’s unjustified absence.

22. Furthermore, the Chamber took note that the player explained that on two different occasions, i.e. on 1 April 2016 and 16 June 2016, he put Club A in default and requested for the payment of his outstanding remuneration, however to no avail. What is more, according to the player, on 7 July 2016, the total amount of USD 296,500 was yet to be paid by Club A, as it failed to pay him said part of the total sign-on fee of USD 750,000, due no later than 1 September 2015. As a result, on 7 July 2016, the player holds to have had no other choice than to unilaterally terminate the contract.

23. When analysing the respective arguments, the Chamber first of all turned its attention to the events allegedly occurred in July 2016. In doing so, the Chamber noted that the letter of the player dated 7 July 2016, is very clear, as it explicitly mentions that the player unilaterally terminates his contract with Club A, due to outstanding remuneration. In relation to the later correspondence between the parties in the period after 7 July 2016, the members of the Chamber only noted that these letters aimed at possibly finding an amicable solution for the matter at hand, and the possible conclusion of a new contract. When said attempts to amicably solve the matter at hand failed, the player explicitly insisted on his termination made on 7 July 2016.

24. In view of the foregoing, the Chamber deemed that Club A’s arguments that it terminated the contract with the player with just cause on 2 August 2016, cannot be upheld, as it was the player who had unilaterally terminated his contract with Club A on 7 July 2016 and later, on 26 July 2016, insisted on said termination.

25. Turning its attention to the question as to whether the termination of the player on 7 July 2016 was made with or without just cause, the Chamber recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

26. Subsequently, the Chamber focused on the arguments of Club A that it offered the player a check with a value of the outstanding remuneration, but that the player refused to receive said check. In this respect, the Chamber established that there is no evidence on file that the player indeed refused to receive the check offered to him and the player equally disputes this allegation of Club A. The player, on the other hand, submitted documentary evidence that he put Club A on two different occasions in default, requesting for the payment of the outstanding remuneration, and that Club A even acknowledged receipt of one of these default letters, namely via its email dated 24 April 2016, confirming that it would come back to the player with a reply.

27. In view of the above, the DRC concluded that, taking into account the documentation presented by the parties to the dispute, the amount of USD 296,500 (as outstanding part of the sing-on fee of USD 750,000 due on 1 September 2015), equivalent to almost five monthly salaries, remained outstanding on 7 July 2016. Consequently, the Chamber concurred that Club A had seriously neglected its financial contractual obligations towards the player.

28. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber came to the unanimous conclusion that on 7 July 2016, the player had a just cause to unilaterally terminate the contract and that Club A is to be held liable for the early termination of the contract with just cause by the player.

29. Having established that Club A is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided to reject Club A’s claim and established that the player is entitled to receive from Club A an amount of money as compensation for breach of contract, in addition to any outstanding payments on the basis of the relevant employment contract.

30. Along those lines, the Chamber firstly referred to the player’s request regarding the outstanding remuneration at the time of the unilateral termination of the contract. In this respect, the members of the Chamber concurred that Club A must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”.

31. Consequently, the Chamber decided that Club A is liable to pay to the player the remuneration that was outstanding at the time of the termination, i.e. the amount of USD 296,500, which is the remaining part of the sign-on fee in the amount of USD 750,000, which was outstanding as from 2 September 2015.

32. Moreover, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that Club A must pay to the player interest of 5% p.a. on the amount of outstanding remuneration, i.e. USD 296,500 as of 2 September 2015 until the date of effective payment.

33. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

34. 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 noted that the clauses in articles 5.1 and 5.2 of the contract stipulate the financial conditions under which the player would be allowed to terminate the contract with the club during the second and third year, respectively.

35. The members of the Chamber agreed that these clauses are not clearly phrased and cannot be considered as compensation clauses, but rather as buy-out clauses, therefore, said clauses cannot be taken into consideration in the determination of the amount of compensation.

36. As a consequence of the above, the members of the Chamber determined that the amount of compensation payable by Club A to the player had to be assessed in application of the 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.

37. Bearing in mind the foregoing, as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 30 June 2017. Consequently the Chamber concluded that, in line with the player’s request, the amount of USD 1,600,000 (i.e. the payments due to the player in the period between July 2016 and June 2017) serves as the basis for the determination of the amount of compensation for breach of contract.

38. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been able 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.

39. In this context, the Chamber noted that on 1 September 2016, the player found employment with the Club of Country F, Club E. In accordance with the pertinent employment contract which has been made available by the player, valid until 1 January 2017, the player was entitled to receive a total amount of USD 150,000. Moreover, the Chamber noted that on 1 January 2017, the player signed another contract, with the Club of Country B, Club G, valid until 3 July 2019, and according to which the player was entitled to receive the total amount of USD 1,064,998 in the period between 1 January 2017 and 30 June 2017. Consequently, the Chamber established that the value of the new employment contracts the player signed in the relevant period until 30 June 2017, amounted to USD 1,214,998.

40. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that Club A must pay the amount of USD 385,002 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

41. Moreover, taking into account the player’s request as well as its longstanding jurisprudence, the Chamber decided that Club A must pay to the player interest of 5% p.a. on the amount of compensation as of the date on which the counter-claim was lodged, i.e. 13 December 2016, until the date of effective payment.

42. Furthermore, the members of the Chamber decided to reject any further counter-claims lodged by the player.

43. The Chamber concluded its deliberations in the present matter by rejecting the claim lodged by Club A, as it has been established that the player had just cause to terminate the employment contract, and by partially accepting the counterclaim of the player.

III. Decision of the Dispute Resolution Chamber

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

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

3. The counter-claim of the Respondent / Counter-Claimant, Player C, is partially accepted.

4. The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant, within 30 days as from the date of notification of the present decision, outstanding remuneration in the amounts of USD 296,500, plus 5% interest p.a. as from 2 September 2015 until the date of effective payment.

5. The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 385,002, plus 5% interest p.a. as from 13 December 2016 until the date of effective payment.

6. In the event that the amounts due to the Respondent / Counter-Claimant in accordance with the above-mentioned numbers 4. and 5. are not paid by the Claimant / Counter-Respondent within the stated time limits, 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 Respondent / Counter-Claimant is rejected.

8. The Respondent / Counter-Claimant is directed to inform the Claimant / Counter-Respondent immediately and directly of the account number to which the remittances under points 4. and 5. 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. 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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives