F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 14 September 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 September 2018,

in the following composition:

Geoff Thompson (England), Chairman

Jérôme Perlemuter (France), member

Elvis Chetty (Seychelles), member

Stefano Sartori (Italy), member

Takuya Yamazaki (Japan), member

on the claim presented by the player,

Club A, from country A

as Claimant / Counter-Respondent I

against the club,

Club B, from country B

as Respondent / Counter-Claimant

and the club,

Club C, from country A

as Counter-Respondent II

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 30 July 2015, the Player A, from country A (hereinafter: the Claimant / Counter-Respondent I), and the Club B, from country B(hereinafter: the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract) valid from 1 July 2015 until 30 June 2020.

2. Under the terms of Clause 2 of the contract, the Claimant / Counter Respondent I was entitled to receive, inter alia, “by the 8th of the month subsequent to that to which it relates”, gross monthly remuneration of EUR 81,000, totalling EUR 972,000 (i.e. 12 x EUR 81,000) for each season from 2015-2016 to 2019-2020.

3. The contract provides in its clause 14 that “if the [Claimant / Counter Respondent I] unilaterally rescinds without fair grounds the present sports employment contract or [the Respondent / Counter-Claimant] promotes his dismissal invoking fair grounds, the former is required to pay compensation pertaining to the value of the remunerations which would be due if the contract had ended upon its termination and also payment, by way of a penalty clause, of the sum of € 30,000,000, exc. VAT, (where due), without prejudice to the application of sports’ sanctions by the relevant national and international entities”.

4. The contract equally provides in its clause 15 that “the [Claimant / Counter Respondent I] may enforce the unilateral rescission of the present contract, without the need to invoke fair grounds provided that he firstly observes the following conditions […] the rescission must be carried out during one of the registration periods foreseen in national sports’ regulations, with the exception of the first occurring in the first season, and the [Claimant / Counter Respondent I] must send written notification expressing this intention, giving 15 days’ notice prior to the date on which its effects are to begin […] immediate payment must be made to [the Respondent / Counter-Claimant] of the sum of € 30,000,000, plus VAT at the legal rate […]”.

5. The contract finally provides in its clause 18 that “this contract must be interpreted in accordance with FIFA regulations” and that “the contracting parties herein agree to select, as the case may be, the Player Status Committee, the Dispute Settlement Chamber and the Court of Arbitration for Sport in Lausanne, waiving any other jurisdictional body, however appropriate it may be, as the competent body to settle any queries, procedures or controversies arising out of the present contract”.

6. During the 2015-2016 sporting season, the Claimant / Counter Respondent I had two disciplinary issues “one as a consequence of a miss-behavior whilst at the service of the U-19 National team of country A and another as a consequence of having been caught speed driving”. According to the Claimant / Counter Respondent I, “both cases were solved with the imposition of simple fines”.

7. On 25 August 2016, the Respondent / Counter-Claimant notified the Claimant / Counter Respondent I with a “notice of fault” (hereinafter: notice of fault), which refers to an internal “disciplinary proceeding with the intention of dismissal” against the Claimant / Counter Respondent I, suspending him “from this date until notice to the contrary is served” and granting him 10 days to respond to the charges. The Respondent / Counter-Claimant appointed for such purpose two lawyers as “reporters” to lead the disciplinary proceeding.

8. According to the Respondent / Counter-Claimant’s statement in the disciplinary proceedings, the Respondent / Counter-Claimant accused the Claimant / Counter Respondent I of numerous disciplinary infringements. The Claimant / Counter Respondent I submitted his response to the charges, which was received and admitted to the case.

9. On 7 November 2016, the Claimant / Counter Respondent I filed an injunction before the Labour Common Courts of country B “in order to have [the Respondent / Counter-Claimant] forced to reintegrate him at its service”, which was rejected by said Court.

10. On 25 November 2016, the Respondent / Counter-Claimant notified the Claimant / Counter Respondent I of its amendment to its statement in the internal disciplinary proceeding, following an alleged involvement of the Claimant / Counter Respondent I in a brawl in a night club. On 7 December 2016, the Claimant / Counter Respondent I submitted his respective position - which was also received and admitted to the case - and rejected “the veracity of such news”.

11. On 8 February 2017, the Respondent / Counter-Claimant formally notified the Claimant / Counter Respondent I of the unilateral termination of the employment contract in writing based on the final recommendation of the ”instruction officer of the proceeding” appointed by the Respondent / Counter-Claimant and dated 2 February 2017.

12. On 26 July 2017, the Claimant / Counter Respondent I lodged a claim before FIFA, asserting that the Respondent / Counter-Claimant “has unlawfully breached the contract, by having unilaterally terminated it without just cause during the protected period”. What is more, the Claimant / Counter Respondent I asks to be awarded payment of EUR 3,564,000, amount composed as follows:

a. Outstanding remuneration of EUR 21,600 “concerning his eight days of work in February 2017”, plus 5% interest p.a. over said amount “as from the date when it became due”;

b. Compensation for breach of contract of EUR 3,299,400, “corresponding to all the remaining salaries to which he was contractually entitled to receive as from 9 February 2017 until the end of the Contract”;

c. “an extra financial compensation” in the amount of EUR 243,000, corresponding to three monthly salaries”;

13. Finally, the Claimant / Counter Respondent I asks FIFA to impose sporting sanctions on the Respondent / Counter-Claimant.

14. According to the Claimant / Counter Respondent I, he was instructed by the Respondent / Counter-Claimant at the beginning of the 2016-2017 season “to train apart from its second team […] allegedly with the single aim of losing weight and getting physically fitter”. According to the Claimant / Counter Respondent I, he returned from his summer holidays weighting 73.9 kg, whereas his alleged ideal weight would be 71.8 kg, “therefore with an extra 2.1 kg”.

15. The Claimant / Counter Respondent I asserts that the Respondent / Counter-Claimant charged him with “several alleged disciplinary infringements, namely but not limited to miss conducts at the training sessions and at its medical station, constant refusals to measure his weight and/or his skinfolds (fat mass), lack of commitment at the training sessions, unjustified absences and even damaging training equipment”.

16. According to the Claimant / Counter Respondent I, “[the Respondent / Counter-Claimant] was the sole party which contributed to its own unilateral contractual termination and that such conduct was mainly due to (1) the [Claimant / Counter Respondent I]’s non-participation in any matches with its first team i.e. the fact that he did not sportingly performed as expected and (2) the financial and consequently legal dispute before CAS between the company belonging to the [Claimant / Counter Respondent I]’s father and [the Respondent / Counter-Claimant] concerning the payment of € 500,000 due for his image rights”. The Claimant / Counter Respondent I claims in this regard, that his “outcast since the beginning of the 2016-2017 sporting season […] is a personal vendetta for the dispute involving the company and his family” and that it was a “pure retaliation for the conflict generated with the company”.

17. The Claimant / Counter Respondent I further affirms that despite having been isolated by the Respondent / Counter-Claimant, he kept on training “with the clear intention of joining any of the club’s football teams”.

18. Furthermore, in response to the disciplinary charges, the Claimant / Counter Respondent I claims that “most of the charges were based on false and non-sustained facts, others were clearly taken out of context, manipulated or exaggerated and frequently showing only one version of the facts”. Moreover, the Claimant / Counter Respondent I considers that “even some slight infringements that may have naturally occurred – particularly if taken into consideration the context of training alone three times a day without a football and so on – are by far [not] serious enough for [the Respondent / Counter-Claimant] to terminate the contract” and underlines the existence “of other less drastic disciplinary sanctions that could be imposed on the [Claimant / Counter Respondent I], such as fines”.

19. In addition, the Claimant / Counter Respondent I points out that he filed an injunction before the Labour Common Courts of country B in order to force the Respondent / Counter-Claimant to reintegrate him on the team but such request was rejected on 9 November 2016 by said Court.

20. Regarding his alleged participation in a brawl in a night club, the Claimant / Counter Respondent I affirms that he was not present in said night club and explains that he was resting at home. The Claimant / Counter Respondent I claims that his friends “who were on holidays in country B, had been assaulted in the street and arrived to his place asking for help, having consequently taken them to the hospital”.

21. Finally, the Claimant / Counter Respondent I insists that the Respondent / Counter-Claimant “based its contractual termination on alleged disciplinary infringements that are (1) irrelevant or of minor importance, (2) manipulated, taken out of context and sustained by non-impartial testimonies and finally (3) absolutely false facts published by some Media”.

22. In its reply to the claim, the Respondent / Counter-Claimant contested FIFA’s competence to hear the claim brought by the Claimant / Counter Respondent I. According to the club, “the termination of the employment relationship conducted by [the Respondent / Counter-Claimant] derives from the disciplinary proceeding instituted against [the Claimant / Counter Respondent I]”. In this regard, the Respondent / Counter-Claimant claims that ”the disciplinary proceeding has been substantiated on the provisions of the country B Employment Code (and not under the FIFA Regulations)”. What is more, the Respondent / Counter-Claimant claims that “the Employment Code constitutes the regulatory framework of mandatory observance” and states that “the own acts of the [Claimant / Counter Respondent I] categorically confirm the application to the Claim of the country B national labour legislation”. According to the Respondent / Counter-Claimant, the Claimant / Counter Respondent I “must resort to the national labor Courts of country B as provided in Article 387.2 of the Employment Code”.

23. In addition, the Respondent / Counter-Claimant affirms that the claim of the Claimant / Counter Respondent I is time-barred and that the latter “should have observed the procedural time-limits prescribed in Article 387.2 of the Employment Code” given the fact that he “expressly accepted that the Employment Code of country B was applicable to the disciplinary proceeding instituted by [the Respondent / Counter-Claimant]”.

24. Furthermore, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter Respondent I and the Claimant / Counter Respondent I’s new club, Club C, from country A (hereinafter: the Counter-Respondent II), on the basis of the Claimant / Counter Respondent I’s alleged “severe and continuous breaches of the contract” that led the Respondent / Counter-Claimant to “terminate with just cause” the contract on 8 February 2017.

25. In this regard, the Respondent / Counter-Claimant claims to be entitled to the following amounts as compensation for breach of contract, plus 5% interest p.a. “from the early termination of the contract, this is, on February 8th 2017”:

a. EUR 3,321,000 corresponding to “the remaining retribution from February 2017 until June 2020”;

b. EUR 30,000,000 corresponding to the penalty clause in accordance with Clause 14 of the contract, “plus the VAT applicable to the penalty”.

26. The Respondent / Counter-Claimant also claims, “should this Chamber consider that the compensation claimed (i.e. EUR 33,321,000 plus the applicable VAT) is excessive and therefore said amount should be reduced”, that “the compensation to be paid should not be lesser than the following sums”:

a. EUR 3,321,000, corresponding to “the remaining retribution from February 2017 until June 2020”;

b. EUR 1,500,000, corresponding to the transfer fee paid by the Respondent / Counter-Claimant to Club D, from country A for the Claimant / Counter Respondent I;

c. EUR 200,000, corresponding to the Commission fee paid to Sportmanagement company;

d. EUR 1,550,200, corresponding to “the Remuneration paid to [Claimant / Counter Respondent I]”;

e. EUR 1,500,000 as “Specificity of Sport […] [the Respondent / Counter-Claimant] has not been able to obtain a profit benefit derived from his subsequent transfer”;

f. “In the solely and exclusive event that the CAS condemns [the Respondent / Counter-Claimant] to pay Sporting X an amount which derives from the Image Rights Agreement, then said amount should be included in the expenses incurred by [the Respondent / Counter-Claimant] in the hiring of the [Claimant / Counter Respondent I]”.

27. Furthermore, the Respondent / Counter-Claimant also requests sporting sanctions to be imposed on the Claimant / Counter Respondent I in accordance with art. 17.3 of the FIFA RSTP.

28. Moreover, the Respondent / Counter-Claimant contests that the Claimant / Counter Respondent I’s dismissal “was a result of a vendetta of [the Respondent / Counter-Claimant] against the [Claimant / Counter Respondent I] in view of the claim brought by Sporting X against [the Respondent / Counter-Claimant] before the Court of Arbitration for Sport”.

29. According to the Respondent / Counter-Claimant, the Claimant / Counter Respondent I’s “reiterative gross misconduct” has led to the “irrevocable termination with just cause of the contractual relationship”. the Respondent / Counter-Claimant claims that the Claimant / Counter Respondent I “was expelled from the national team for his bad behavior” on November 2015 and that he “accepted the sanction imposed on him, i.e. a deduction from player’s salary on the amount of EUR 17,781)”. What is more, the Respondent / Counter-Claimant states that on 27 November 2015 the Claimant / Counter Respondent I “was caught in country Y driving at 230 km/h and without driving license”.

30. The Respondent / Counter-Claimant also states that on 30 June 2016, the Claimant / Counter Respondent I returned from his holidays and “showed excess of weight and fat mass”. The Respondent / Counter-Claimant further states that it designed a work plan for the Claimant / Counter Respondent I and that on 24 July 2016, “more than three weeks later of the medical tests, the [Claimant / Counter Respondent I] had a weight of 73.9 kg, 2.1 kg more than the fixed target (71.8 kg)”. According to the Respondent / Counter-Claimant, “the [Claimant / Counter Respondent I] not only has never been close to his target weight but also his weight even increased reaching a weight of 74.8 kg”. In addition, the Respondent / Counter-Claimant claims that “the deplorable physical condition of [the Claimant / Counter Respondent I] and his unprofessional behavior constitute a breach of his essential obligation”.

31. The Respondent / Counter-Claimant further states multiple alleged misconducts of the Claimant / Counter Respondent I during training that occurred on the following dates:

- On 30 July 2016, the Claimant / Counter Respondent I allegedly “without permission and disobeying the orders of Mr H [i.e. the Respondent / Counter-Claimant’s physical trainer] – interrupted the exercise to drink water and after that, he unjustifiably abandoned the training session during twenty-five minutes” and “refused without permission to be weighed”;

- On 1 August 2016, the Claimant / Counter Respondent I allegedly “did not perform specific exercises and he even boasted of that” and “refused to allow the medical department to measure his weight”;

- On 2 August 2016, according to the Respondent / Counter-Claimant, “the abovementioned conduct of the [Claimant / Counter Respondent I] became a routine” and he allegedly “adopted a defiant and provocative attitude towards Mr H” and “refused to allow the medical department to measure his weight”;

- On 3 August 2016, according to the Respondent / Counter-Claimant, the Claimant / Counter Respondent I “alleged a back pain but he did not attend the Medical Centre of for an examination to set the proper treatment” and allegedly insulted the Respondent / Counter-Claimant and refused to be weighted again;

- On 5 August 2016, the Claimant / Counter Respondent I allegedly “arrived at the training session twenty-five minutes late” and “was aggressive, angrily insulting Mr H” and refused to be weighted. On the same day, the Respondent / Counter-Claimant initiated “an inquiry investigation against the [Claimant / Counter Respondent I] following the several reports and notices of the professional football department, lab and Medical Department of the club”;

- On 6 August 2016, according to the Respondent / Counter-Claimant, “the [Claimant / Counter Respondent I] did not attend the training session of August 6th, 2016 due to his car caught fire”;

- On 9 August 2016, “without [the Respondent / Counter-Claimant]’s permission”, the Claimant / Counter Respondent I allegedly “did not attend the training session of August 9th 2016” because of a “problem related with the fire of his car”;

- On 10 and 11 August 2016, the Claimant / Counter Respondent I allegedly “trained with his regular very low intensity”, “adopted an unacceptable conduct towards Mr H” and refused to be weighted again;

- On 12, 15, and 16 August 2016 respectively, the Claimant / Counter Respondent I allegedly did not attend a training session;

- On 17 August 2016, the Claimant / Counter Respondent I allegedly “trained with his usual very low intensity”, “adopted an intimidatory and aggressive conduct before Mr H” and refused to be weighted.

32. According to the Respondent / Counter-Claimant, the Claimant / Counter Respondent I was also “part of a quarrel involving knives during a night out in a discotheque in country B, in the company of friends being that one of his friends was injured and needed hospital care”.

33. In this regard, the Respondent / Counter-Claimant underlines that “under these circumstances, it is unquestionable that the reiterative breaches of his fundamental obligations and duties prevented [it] to expect a continuation of the employment relationship between the parties as result of the serious breach of confidence”.

34. the Respondent / Counter-Claimant further claims that it “appointed an independent law firm as instruction officer of the disciplinary proceeding” against the Claimant / Counter Respondent I and that “the independent instruction officer at all times conducted the disciplinary proceeding with the purpose of clarifying the facts and always respecting all the procedural rights and guaranties of the [Claimant / Counter Respondent I]”.

35. Finally, the Respondent / Counter-Claimant affirms that on 3 February 2017, the instruction officer issued a final report allegedly substantiated “with clear and convincing evidence” and that “the flagrant and deplorable conduct of the [Claimant / Counter Respondent I] caused the irrevocable termination with just cause of the employment contract with effect from February 8th 2017”.

36. In his reply to the counter-claim lodged against him and with regard to the issue of FIFA’s competence, the Claimant / Counter Respondent I refers to art. 18 of the contract and states that such article, “being an arbitration clause – undoubtedly stipulates that the contracting parties agree to select […] the Dispute Resolution Chamber […] waiving any other jurisdictional body […] as the competent body to settle any queries, procedures or controversies arising out of the present contract”.

37. Furthermore, the Claimant / Counter Respondent I affirms that the injunction he filed in front of the Labour Common Courts of country B “does not waive the DRC’s jurisdiction over the present matter, since we are facing a completely different legal and factual context” and that FIFA has jurisdiction to hear the dispute at hand.

38. Moreover, the Claimant / Counter Respondent I reiterates his argumentation and claims that “the instruction officer in charge of the disciplinary proceedings is not by far an independent law firm” since the latter allegedly “provides legal consultancy and legally represents [the Respondent / Counter-Claimant] in many matters and disputes”.

39. In relation with his disciplinary infringements in November 2015, the Claimant / Counter Respondent I emphasizes that “none of such episodes [cf. point I.7 above] occurred whilst at the club’s service nor in country B” and concludes that “definitely none of them [is] relevant enough, by far, to have seriously contributed to the unilateral contractual termination or even to have affected the parties’ relationship, if it would not have been for the obvious conflict involving [the Respondent / Counter-Claimant] and the company belonging to the [Claimant / Counter Respondent I]’s father”.

40. Despite having been invited to do so, the Counter-Respondent II, did not reply to the Respondent / Counter-Claimant’s counter-claim.

41. In response to FIFA’s request, the Claimant / Counter Respondent I indicated that he had signed an employment contract with the Counter-Respondent II, valid from 1 July 2017 until 30 June 2019, providing for the payment of a gross monthly salary of EUR 9,000.

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 26 July 2017. Consequently, the Rules Governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2018) 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 country A Player, a country B club and a country A club.

3. However, the Chamber acknowledged that the Respondent / Counter-Claimant contested the competence of FIFA’s deciding bodies on the basis of art. 387.2 of the Employment Code of country B stating that “the termination of the employment relationship conducted by [the Respondent / Counter-Claimant] derives from the disciplinary proceeding instituted against [the player]” and that “the disciplinary proceeding has been substantiated on the provisions of the Employment Code of country B and not under the FIFA Regulations”. In this regard, the Respondent / Counter-Claimant claims that under laws and regulations of country B, employment-related disputes fall within the compulsory jurisdiction of the “national labour Courts of country B”.

4. Equally, the Chamber noted that the Claimant / Counter Respondent I rejected such position and insisted that FIFA has jurisdiction to deal with the present matter on the basis of art. 22 b) of the Regulations as well as clause 18 of the contract.

5. In this context, and as a preliminary remark, the DRC wished to recall its well established and longstanding jurisprudence which dictates that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasised that the main objectives of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. This should apply, in particular, also to the termination of a contract. In this respect, the DRC underlined that it is in the interest of football that the termination of contract is based on uniform criteria rather than on provisions of national law that may vary considerably from country to country. Therefore, the Chamber deems that it is not appropriate to apply the principles of a particular national law to the termination of a contract but rather the Regulations, general principles of law and, where existing, the Chamber’s well-established jurisprudence.

6. In view of the above, the Chamber referred to the contents of the employment contract concluded between the Claimant / Counter Respondent I and the Respondent / Counter-Claimant, and in particular to clause 18 of the contract according to which “the contracting parties herein agree to select, as the case may be, the Player Status Committee, the Dispute Settlement Chamber and the Court of Arbitration for Sport in Lausanne, waiving any other jurisdictional body, however appropriate it may be, as the competent body to settle any queries, procedures or controversies arising out of the present contract”.

7. In this regard, the Chamber noted that there is no jurisdiction clause in the contract in favor of the “national labour Courts of country B”. Equally, the Chamber highlighted that clause 18 of the contract explicitly mentions that FIFA is competent “to settle any queries, procedures or controversies arising out of the present contract”. Therefore, the Chamber deemed that the employment contract at the basis of the dispute contained a clear choice of jurisdiction in favor of the FIFA DRC and concluded that, in accordance with clause 18 of the contract, the parties had agreed upon FIFA’s dispute resolution system in case of potential disputes.

8. As a result, the Chamber established that the Respondent / Counter-Claimant’s objection towards the competence of FIFA has to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations and clause 18 of the contract, to adjudicate on the present matter. Consequently, the claim of the Claimant / Counter Respondent I is admissible.

9. In continuation, and before being able to enter into the substance of the matter, the Chamber needed to verify whether the competent FIFA body could deal with this affair or not for formal reasons, in particular with respect to the Respondent / Counter-Claimant’s objection that the claim is to be considered as time-barred.

10. In this respect, the members of the Chamber referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition June 2018) which, in completion to the general procedural terms outlined in the Procedural Rules, clearly established that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

11. In view of the above, the DRC came to the conclusion that the event giving rise to the present dispute took place on 8 February 2017, i.e. on the date of termination of the contract. In this regard, the DRC considered that the claim of the Claimant / Counter Respondent I has to be considered as not barred by the statute of limitations in application of art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition June 2018), in view of the fact that the present claim was lodged on 26 July 2017, thus within the time limit of two years since the event giving rise to the dispute. As a result, the Chamber rejected the the Respondent / Counter-Claimant’s objection.

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 on the Status and Transfer of Players (2016 and 2018 editions), and considering that the present claim was lodged on 26 July 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

13. The competence of the DRC 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 considers pertinent for the assessment of the matter at hand.

14. The Chamber first of all duly noted that on 30 July 2015, the parties entered into an employment contract valid as from 1 July 2015 until 30 June 2020. The DRC noted that according to the contract, the Claimant / Counter Respondent I was entitled to receive, inter alia, a remuneration of EUR 972,000, distributed in 12 monthly salaries of EUR 81,000 for each sporting season from 2015-2016 to 2019-2020.

15. Moreover, the Chamber noticed that it was undisputed by the parties that the aforementioned employment contract was unilaterally terminated by the Respondent / Counter-Claimant on 8 February 2017 following a disciplinary proceeding held against the Claimant / Counter Respondent I.

16. The Chamber further observed that the Claimant / Counter Respondent I lodged a claim against the Respondent / Counter-Claimant maintaining that the latter had terminated the contract without just cause by means of its correspondence dated 8 February 2017. In this respect, the Claimant / Counter Respondent I emphasised that the reasons put forward by the Respondent / Counter-Claimant do not constitute a just cause to terminate an employment contract. The DRC also highlighted that the Respondent / Counter-Claimant, on its part, rejected said claim and lodged a counter-claim against the Claimant / Counter Respondent I and the Counter-Respondent II, asserting that it had just cause to terminate the contract on 8 February 2017 due to the Claimant / Counter Respondent I’s continuous breaches of the contract.

17. In this context, the members of the DRC noted that the Claimant / Counter Respondent I stated having been instructed by the Respondent / Counter-Claimant to train apart from the team at the beginning of the 2016-2017 season “with the single aim of losing weight and getting physically fitter” and admitted that he returned from his summer holidays with an extra weight of 2.1 kg.

18. Furthermore, the DRC noted that the Claimant / Counter Respondent I affirmed that he kept on training despite having been isolated by the Respondent / Counter-Claimant. Moreover, the Claimant / Counter Respondent I stated that the Respondent / Counter-Claimant accused him of numerous disciplinary infringements, in particular misconducts and lack of commitment at the training sessions and at the medical facilities, refusals to measure his weight and his skinfolds, unjustified absences and destruction of training equipment. In this regard, the Claimant / Counter Respondent I held that most of the charges against him were based on false and non-sustained facts and other were taken out of context or exaggerated.

19. In continuation, the Chamber observed that the Claimant / Counter Respondent I deemed that considering his situation and the fact that he had to train alone for a long period of time without practicing football, “even some slight infringements that may have occurred during training sessions are by far not serious enough for the club to terminate the contract”. The DRC further noted that according to the Claimant / Counter Respondent I, other less drastic measures should have been imposed on him instead, such as fines.

20. Subsequently, the members of the DRC took note that the Respondent / Counter-Claimant, on its part, stated that the Claimant / Counter Respondent I’s continuous breaches of his contract had led it to open a disciplinary proceeding against him on 25 August 2016 and that based on the final recommendation of the disciplinary committee, it deemed that it had just cause to terminate the contract on 8 February 2017.

21. In continuation, the DRC observed that the Respondent / Counter-Claimant accused the Claimant / Counter Respondent I of numerous disciplinary infringements. More specifically, the Respondent / Counter-Claimant recalled that in November 2015, the club imposed a fine on the Claimant / Counter Respondent I for having been expelled from the U-19 national team of country A. Furthermore, the Respondent / Counter-Claimant stated that the Claimant / Counter Respondent I was also caught speed driving without a driving licence on 27 November 2015. Moreover, the Respondent / Counter-Claimant held that the Claimant / Counter Respondent I’s behaviour was unsatisfactory, since he showed lack of discipline at work and had a “deplorable physical condition”. The members of the DRC also noted that the Respondent / Counter-Claimant reported several alleged misconducts of the Claimant / Counter Respondent I during training sessions (cf. point I.31 above).

22. Having established the aforementioned, the Chamber concluded that the underlying issue in this dispute, was to determine whether the employment 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.

23. As a consequence of the above, the Chamber duly noted that it had to examine whether or not the Claimant / Counter Respondent I’s alleged misconducts, under the given circumstances, justified the termination of the contract by the Respondent / Counter-Claimant on 8 February 2017.

24. In this respect, the DRC started by acknowledging that it is undisputed that the Claimant / Counter Respondent I had two disciplinary infringements in November 2015, which had been solved with the imposition of fines.

25. Furthermore, the members of the DRC also noted that it is undisputed that the Claimant / Counter Respondent I was instructed by the Respondent / Counter-Claimant at the beginning of the 2016-2017 sporting season to train apart from the rest of the team in order for him to improve his physical condition.

26. The Chamber further observed that the Respondent / Counter-Claimant insisted that it had terminated the contract with just cause, on the basis of the Claimant / Counter Respondent I’s alleged “sever and continuous breaches of the contract”.

27. Bearing in mind the aforementioned arguments presented by all parties, the members of the DRC deemed it appropriate to recall the general principle of burden of proof stipulated in 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.

28. In this context, the DRC analysed the Respondent / Counter-Claimant’s assertion that the Claimant / Counter Respondent I’s “deplorable physical condition” and “unprofessional behaviour”, in particular the fact that he trained “with very low intensity” constitute another breach of his employment contract. In this context, the Chamber was keen to emphasize that, in accordance with its longstanding and well-established jurisprudence, the unsatisfactory performance of a player, in this case, the fact that he trained “with very low intensity” does not constitute a just cause for a club to prematurely terminate the employment relationship, as this judgement is subjective and unmeasurable. Thus, due to the subjective and arbitrary nature of such grounds for dismissal, the Chamber concluded that this argument of the Respondent / Counter-Claimant in order to justify the unilateral termination of the contract could not be sustained.

29. Subsequently, the Chamber observed that the Respondent / Counter-Claimant did not provide conclusive evidence regarding the Claimant / Counter Respondent I’s alleged “reiterative gross misconduct” in particular towards the club’s physical trainer, Mr H or regarding the Claimant / Counter Respondent I’s alleged participation in a brawl in a night club, which facts were contested by the Claimant / Counter Respondent I. Consequently, the Chamber decided that the Respondent / Counter-Claimant’s arguments in this regard could not be upheld.

30. Furthermore, with regards the Claimant / Counter Respondent I’s alleged unauthorized absences during the training sessions, the Chamber wished to emphasise that a 5 days’ absence of a player, even if duly corroborated with relevant document, which is not the case in the matter at hand, cannot be considered a just cause to terminate a contract, particularly without any previous warning.

31. In this regard, the Chamber wished to refer to its well-established jurisprudence by means of which it has been established 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.

32. In view of the above, 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 I, since the fact that the Claimant / Counter Respondent I had allegedly trained with low intensity or the fact that he was slightly overweight or missed a couple of training sessions could not legitimately be considered as being severe enough to justify the termination of the contract. In particular, the Chamber was eager to emphasise that there would have been more lenient measures to be taken (e.g., among others, a suspension or a fine) in order to respect the principle of contractual stability.

33. On account of the above, the Chamber decided that the Respondent / Counter-Claimant had no just cause to unilaterally terminate the employment relationship between the Claimant / Counter Respondent I and the Respondent / Counter-Claimant and, therefore, concluded that the Respondent / Counter-Claimant had terminated the employment contract without just cause on 8 February 2017 and that, consequently, the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contact without just cause. The Chamber subsequently also decided that the counterclaim lodged by the Respondent / Counter-Claimant against the Claimant / Counter Respondent I and the Counter-Respondent II should be rejected.

34. 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 focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant / Counter Respondent I would, in principle, be entitled to receive from the Respondent / Counter-Claimant an amount of money as compensation for breach of contract.

35. 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 Claimant 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.

36. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contracts contain 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. The members of the Chamber recalled that according to clause 14 of the contract, “if the [Claimant / Counter Respondent I] unilaterally rescinds without fair grounds the present sports employment contract or [the Respondent / Counter-Claimant] promotes his dismissal invoking fair grounds, the former is required to pay compensation pertaining to the value of the remunerations which would be due if the contract had ended upon its termination and also payment, by way of a penalty clause, of the sum of € 30,000,000, exc. VAT, (where due), without prejudice to the application of sports’ sanctions by the relevant national and international entities”.

37. The members of the Chamber agreed that this clause is to the benefit of the club only, i.e. it is not reciprocal as it does not grant the same rights to the Claimant / Counter Respondent I, and that, therefore, said clause cannot be taken into consideration in the determination of the amount of compensation.

38. Therefore, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant / Counter Respondent I had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

39. In order to estimate the amount of compensation due to the Claimant / Counter-Respondent I in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant / Counter-Respondent I under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

40. In accordance with the employment contract signed by the Claimant / Counter Respondent I and the Respondent / Counter-Claimant, said contract was to run for another 41 months, i.e. as from February 2017 until 30 June 2020, after the termination of the contract occurred. Furthermore, the Chamber understood that for this relevant period, the Claimant / Counter Respondent I was entitled to receive a total salary of EUR 3,321,000. Consequently, the Chamber concluded that the amount of EUR 3,321,000 serves as the basis for the final determination of the amount of compensation for breach of contract.

41. In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent I had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Claimant / Counter-Respondent I’s general obligation to mitigate his damages.

42. The Chamber recalled that, on 8 June 2017, the Claimant / Counter Respondent I signed an employment contract with the Counter-Respondent II, valid as from 1 July 2017 until 30 June 2019, in accordance with which the Claimant / Counter- Respondent I was to receive a monthly salary of EUR 9,000 during the said period of time. Consequently, the members of the Chamber established that the value of the new employment contract concluded between the Claimant / Counter Respondent I and the Counter-Respondent II for the period as from 1 July 2017 until 30 June 2019 amounts to EUR 216,000.

43. Consequently, and bearing in mind the provision of art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under the new employment contract(s) shall be taken into account for the calculation of the amount of compensation for breach of contract.

44. For all the above considerations, the Chamber decided to partially accept the Claimant / Counter Respondent I’s claim and that the Respondent / Counter-Claimant must pay the amount of EUR 3,105,000, which was considered to be a reasonable and proportionate amount of compensation for breach of contract in the specific case at hand.

45. In addition, taking into account the Claimant / Counter Respondent I’s request, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter Respondent I interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 26 July 2017, until the date of effective payment.

46. Subsequently, the DRC analyses the request of the Claimant / Counter Respondent I corresponding to “an extra financial compensation” in the amount of EUR 243,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant / Counter Respondent I had no contractual basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered. Consequently, the DRC decided to reject this part of the player’s claim.

47. The Dispute Resolution Chamber concluded its deliberations by in the present matter by establishing that the claim of the Claimant / Counter-Respondent I is thus partially accepted and any further claims lodged by the Claimant / Counter-Respondent I are rejected.

III. Decision of the Dispute Resolution Chamber

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

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

3. The Respondent / Counter-Claimant, Club B, has to pay to the Claimant / Counter-Respondent I within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 3,105,000, plus 5% interest p.a. as of 26 July 2017 until the date of effective payment.

4. In the event that the amount plus interest due to the Claimant / Counter-Respondent in accordance with the aforementioned number 3. above is not paid by the Respondent / Counter-Claimant within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

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

7. The Claimant / Counter-Respondent I 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.

*****

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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives