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 4 October 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 4 October 2018,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Abu Nayeem Shohag (Bangladesh), member

Alexandra Gómez Bruinewoud (Uruguay), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Player A, Country B

as Claimant / Counter-Respondent

against the club,

Club C, Country D

as Respondent / Counter-Claimant

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 25 July 2017, the player of Country B, Player A (hereinafter: the Claimant / Counter-Respondent) born on 16 November 1989, and the club of Country D, Club C (hereinafter: the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract) valid as from the date of the signature until 30 June 2018.

2. The contract established that the Claimant / Counter-Respondent was entitled inter alia to a monthly salary of currency of Country D (currency of Country D) 2,035,000 payable by the 10th day of each month.

3. Clause 2 of the contract established the following:

“…8. [The Claimant / Counter-Respondent’s] obligations are the following:

…

f) To always cooperate with the managers, trainers, sportsmen of [the Respondent / Counter-Claimant], to behave in a sporting manner towards people of [the Respondent / Counter-Claimant], its managers, trainers, professional management and to have cooperative attitude at the matches, trainings, in the training camps and at all other occasion, and to make all efforts not to damage or endanger with his behaviour the physical safety or health of others and no to cause a moral damage;

…

9. [The Respondent / Counter-Claimant] is obliged:

…

c) To respect and observe the human rights of [the Claimant / Counter-Respondent], in particular his right to freedom of expression and the prohibition on unjustifiable discrimination;

…

The violation of the above obligations is regarded as a material breach of [the contract] on behalf of [the Respondent / Counter-Claimant], and [the Claimant / Counter-Respondent] the right of immediate termination.”

4. Moreover, clause 9 of the contract provided that:

“36. [The Respondent / Counter-Claimant] may terminate the employment relationship with notice:

…

b) If the maintaining of employment relationship becomes impossible due to unavoidable external reason

…

37. [The Claimant / Counter-Respondent] is entitled to terminate the employment relationship with notice in the following cases:

…

b) If the maintenance of the employment relationship becomes impossible by unavoidable circumstances, or if it caused undue harm to [the Respondent / Counter-Claimant].

38. [The Respondent / Counter-Claimant] or [the Claimant / Counter-Respondent] may terminate [the contract] with immediate effect, if the other party breaches its obligations in connection with [the contract] intentionally, or with gross negligence and seriously or otherwise is showing behaviour which makes the maintenance of the employment relationship impossible.

39. With respect to termination of [the contract] with immediate effect the below listed cases are in particular serious breach of [the contract] obligations by [the Claimant / Respondent-Counter-Claimant], or are behaviours which make the maintenance of the employment relationship:

- the breach by [the Claimant / Counter-Respondent] of the obligations contained in [Clause 2] of [the contract], or specifically formulated by the employment contract;

…

- impolite, disrespectful behaviour with the exerciser of human rights of [the Respondent / Counter-Claimant] or with other superiors, with the members of the professional staff, or with the players, fans, employees…”

5. In line with the above, clause 10 of the contract established that “Based on authorization contained in paragraph (1) of article 56 of the Labour Code the parties agree that in the event of guilty infringement of obligations by [the Claimant / Counter-Respondent] – in his sole scope of authority and at his own discretion, instead of the termination with immediate effect of before it – the following negative legal consequences can be applied by [the Respondent / Counter-Claimant] against him depending on the weight of the infringement:

a) verbal or written warning;

b) sanction imposing financial loss (cash penalty) in the first case (up to 66% of monthly wage valid at the time of imposing the sanction);

c) sanction imposing financial loss (cash penalty) in repeated case within one year after the imposition of the first cash penalty, or any time after imposing the repeated cash penalty (up to 66% of monthly wage valid at the time of imposing the sanction)”.

6. In this context, the contract does not contain a clause regarding the financial consequences in case of breach of contract.

7. On 23 November 2017, the Respondent / Counter-Claimant unilaterally terminated the contract after the Claimant / Counter-Respondent had an altercation with one of his teammates (hereinafter: the teammate).

8. In this regard, on 24 November 2017, the legal representative of the Claimant / Counter-Respondent sent the Respondent / Counter-Claimant an email, which reads as follows:

“As we spoke yesterday on the phone, you are trying to terminate the contract of [the Claimant / Counter-Respondent]. We do not agree with this, like I told you yesterday, a small incident is not a valid reason to terminate [the contract]. These things can happen on a pitch. I suggested yesterday that you could give a disciplinary penalty to the [Claimant / Counter-Respondent], but not termination of the contract.

Today, Friday 24 November, the [Claimant / Counter-Respondent] came to the ground for his training but the [Respondent / Counter-Claimant] did not let him in. With this action you are breaching his contract. I strongly advice you to hold you to the contract of the [Claimant / Counter-Respondent] with the [Respondent / Counter-Claimant]. If you keep threatening him with the police and not letting him in, you can leave me no other choice than to take legal steps against the [Respondent / Counter-Claimant]…”.

9. In response thereto, on the same date i.e. 24 November 2017, the Respondent / Counter-Claimant sent the following email:

“Yesterday [The Respondent-Counter-Claimant] terminated [the Claimant / Counter-Respondent’s] contract because of alleged criminal activity on his part. [The Respondent-Counter-Claimant] provided the police the appropriate information and they will decide whether criminal charges should be brought against the [Claimant / Counter-Respondent].

We obviously disagree whether a criminal assault is a ground for contract termination. However, should you wish to contest the termination on behalf of the [Claimant / Counter-Respondent], you are obviously aware of the method by which this should be accomplished. As I explained to you, the [Claimant / Counter-Respondent’s] contract was legally terminated as of 23 November 2017.”.

10. On the other hand, the Claimant / Counter-Respondent’s legal representative replied to the Respondent / Counter-Claimant’s reply stating: “Like I said in my email, we do not agree. And we will make a complain about this termination as well.

You are saying a criminal activity. I think that’s overreacting. Since when is misunderstanding between two players which ends with a small fight / argument a criminal activity?

These thing happen all the time on the pitch. I do see your point of view and as far as I’m seeing you looked for a reason to terminate the contract. We all know that [the Claimant / Counter-Respondent] was signed because your right back was injured. Now he is back you want to get rid of [the Claimant / Counter-Respondent] and this is the reason you want to get rid of him.”.

11. On that basis, the Respondent / Counter-Claimant replied to the Claimant / Counter-Respondent with an email on 24 November 2017. Said email reads as follows:

“As I mentioned in my earlier letter, we made a decision and you are welcome to challenge that. An assault and battery is a reason for termination in every jurisdiction we know of, including the FIFA. Please have your lawyer check the similar cases. By the way, our right back unfortunately has not yet recovered. He needs more time. So your reasoning, which also happens to be irrelevant, is also wrong.”.

12. On 7 December 2017, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in front of FIFA for compensation for breach of contract, requesting the following:

- To determine that the Respondent / Counter-Claimant terminated the contract without just cause;

- The payment of EUR 118,736, plus 5% interest p.a. as from 24 November 2017, as to compensation for breach of the contract;

- To impose sporting sanctions to the Respondent / Counter-Claimant; and

- To award the Claimant / Counter-Respondent with legal costs.

13. On his claim, the Claimant / Counter-Respondent emphasized that towards the beginning of the month of September 2017, his relationship with the teammate worsened. In this context, according to the Claimant / Counter-Respondent, the teammate adopted an aggressive and bossy attitude towards him by issuing orders and showing displeasure towards him whenever the Claimant / Counter-Respondent did not obey the orders from the teammate.

14. Having said that, the Claimant / Counter-Respondent sustained that when he confronted the teammate by telling him he was only supossed to receive orders from the head coach, the teammate allegedly replied “by resorting to racist chants and insults at [the Claimant / Counter-Respondent], and bragged that he was the [Respondent / Counter-Claimant’s] best player, and therefore untouchable”.

15. In light of the above, according to the Claimant / Counter-Respondent, he requested the Respondent / Counter-Claimant to transfer him to the reserve team in order to avoid the teammate. Nevertheless, the Claimant / Counter-Respondent stated that the Respondent / Counter-Claimant did not grant his request and was forced to continue training with the teammate.

16. In so doing, the Claimant / Counter-Respondent referred to the alleged facts that happened in the training session on 23 November 2017. In this respect, he recalled the following “During the training session [the Claimant / Counter-Respondent] was dispossessed off the ball by an opponent at which point [the teammate] angrily confronted him by shouting some unpleasant unnecessary insults hinging on [Claimant /Counter-Respondent’s] racial background.

[The Claimant / Counter-Respondent] ignores [the teammate’s] insults and while in possession of the ball 10 or so minutes later, heard [the teammate] calling him out for a pass. [The Claimant / Counter-Respondent], who was under pressure from an opponent decided to pass the ball to a teammate who was better placed. This angered [the teammate] as he inferred [the Claimant / Counter-Respondent] to have defied his orders. [The teammate] run towards [the Claimant / Counter-Respondent] and hurled further racial insults, shouting that [the Claimant / Counter-Respondent] should return to Country E, among other despicable words. This obviously moved [the Claimant / Counter-Respondent], who’s instincts drove him to push [the teammate] backwards. However, [the teammate] again came towards [the Claimant / Counter-Respondent] and viciously pushed him on the chest, in a manner suggesting that he was ready to attack further. [The Claimant / Counter-Respondent] sensed danger and the need to defend himself. In the heat of the movement, [the Claimant / Counter-Respondent] instinctively punched [the teammate] on the face and the pair wrestled before being separated by the rest of the teammates.”.

17. Furthermore, the Claimant / Counter-Respondent held that after the contract was terminated by the Respondent / Counter-Claimant, the teammate continued training as usual and even played for the Respondent / Counter-Claimant in the match of 25 November 2017. In this regard, according to the Claimant / Counter-Respondent, this is a further indication of the minor nature of the alleged altercation between him and the teammate.

18. On 25 November 2017, the Claimant / Counter-Respondent sent the Respondent / Counter-Claimant a letter by means of which he requested the payment of damages in the amount of currency of Country D 14,652,000 which corresponds to the residual value of the contract, as well as the outstanding amount of currency of Country D 1,628,000 corresponding to the outstanding salary of 23 days of November 2017 before the contract was terminated, establishing a deadline to the Respondent / Counter-Claimant of 10 days for payment, since in his opinion the contract was terminated without just cause.

19. Hence, the Claimant / Counter-Respondent deemed that in connection with the general principle of law, ultima ratio, the contract was terminated without just cause, since the termination of a contract should only be resorted as the last consequence by the aggrieved party in case the existence of a breaching party. In this context, the Claimant / Counter-Respondent argued that as a result of the aforementioned altercation was his first-time offence, he first had to be warned by the Respondent / Counter-Claimant before the latter terminated the employment relationship. Thus, according to the Claimant / Counter-Respondent, the contract could only be terminated with just cause if his conduct persisted for a long time or he committed many breaches; and the Respondent / Counter-Claimant had first warned him about future consequences in case he continued breaching the contract.

20. Moreover, the Claimant / Counter-Respondent stated that “the fact that no action was taken on [the teammate] is further indicative of the [Respondent / Counter-Claimant’s] malicious intention to get rid of the [Claimant / Counter-Respondent]”.

21. Subsequently, the Claimant / Counter-Respondent recalled art. 17 of the Regulations on the Status and Transfer of Players and emphasized that according to it, he is allegedly entitled to compensation after the contract was allegedly terminated without just cause. In this respect, the Claimant / Counter-Respondent requested compensation for breach of contract on the basis of:

- The remaining time of the referring contract; and

- Specificity of sport

22. Regarding the remaining value of the contract, the Claimant / Counter-Respondent requested the amount of currency of Country D 14,719,833, corresponding to the salary as from the date the contract was terminated i.e. 23 November 2017, until June 2018.

23. In relation to the specificity of the sport, the Claimant / Counter-Respondent argued that for the calculation of the amount he is entitled to, it shall be taken into account that the termination took place during the protected period and when the majority of the transfer windows were closed as well as the circumstances that caused the termination. Having said that, the Claimant / Counter-Respondent requested the amount of currency of Country D 22,385,000 corresponding to a complete season salary or an additional 3 months’ salary.

24. As a result of the above, the Claimant / Counter-Respondent requested the total amount of EUR 118,736.

25. Finally, according to the Claimant / Counter-Respondent on the date the claim was lodged, there was no other pending suit nor any proceedings pending from another court.

26. On its reply, the Respondent / Counter-Claimant rejected the Claimant / Counter-Respondent’s claim and lodged a counterclaim against him.

27. In this regard, the Respondent / Counter-Claimant rejected the Claimant / Counter-Respondent’s argument that he was insulted for his racial background.

28. Moreover, the Respondent / Counter-Claimant referred to the altercation between the Claimant / Counter-Respondent and the teammate, and stated that “the attack by [the Claimant / Counter-Respondent] was an unprovoked crime. [The Claimant / Counter-Respondent] did not push or shove [the teammate] but head-butted him, and [the teammate] in no way precipitated the attack, nor he respond to the attack”.

29. In line with the above, the Respondent / Counter-Claimant presented an affidavit under oath of the teammate. Said affidavit reads as follows: “After finishing a particular training exercise, [the Claimant / Counter-Respondent] approached me and without any provocation head-butted my. My skin broke, blood came, and I was injured for the next few days. That day the only communication prior to his attack I had with [the Claimant / Counter-Respondent] was a statement from me that he was moving up slowly on the side. I told him to move faster.

I have never heard any racial expression used with regard to [the Claimant / Counter-Respondent] or any black player at [the Respondent / Counter-Claimant]. I certainly have never used such expression with regard to [the Claimant / Counter-Respondent]”.

30. Having said that, the Respondent / Counter-Claimant held that after the altercation, the teammate allegedly held having injuries that took 8 days to heal, but did not require hospitalization.

31. On that basis the Respondent / Counter-Claimant sustained that “the only legitimate question posed by this case, is whether an unprovoked, criminal attack that could cause serious bodily harm or, in some extreme case, death, perpetrated against one’s own teammate, is on adequate reason for a club to performance among his fellow sportsmen impossible. The [Claimant / Counter-Respondent’s] contract was terminated with immediate effect on 23 November 2017…”, as a consequence, the Respondent / Counter-Claimant deems having terminated the contract with just cause.

32. In continuation, according to the Respondent / Counter-Claimant, after the altercation, a criminal case against the Claimant / Counter-Respondent was opened in Country D. In so doing, the Respondent / Counter-Claimant requested to suspend the proceeding until the Country D court decided whether the Claimant / Counter-Respondent committed a crime or not.

33. Having said that, the Respondent / Counter-Claimant recalled clause 9 of the contract, in particular to paragraphs 38 and 39, and maintained that the contract was terminated with just cause based on the contract, emphasizing that after the alleged circumstance that cause the unilateral termination of the contract “It must be abundantly clear that following [the Claimant / Counter-Respondent’s] criminal behaviour, it would have been impossible to maintain a relationship with other players, and we would have exercised a negative influence on the working climate.”.

34. Subsequently, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent requesting the amount of currency of Country D 506,847 corresponding to an alleged overpaid amount to the Claimant / Counter-Respondent.

35. In his replica, the Claimant / Counter-Respondent acknowledged the alleged overpaid amount made by the Respondent / Counter-Claimant, and in this regard, sustained that the amount of 1,635 EUR should be deducted from the requested amount corresponding to compensation for breach of contract.

36. Moreover, the Claimant / Counter-Respondent rejected the response of the Respondent / Counter-Claimant. In this context, the Claimant / Counter-Respondent first stated that “[He] is at pains to envisage how any ordinary right thinking man would [allegedly] brutally attack another without any provocation”.

37. In particular, the Claimant / Counter-Respondent argued that the Respondent / Counter-Claimant failed to provide medical evidence that could confirm that the teammate was indeed seriously injured. In this respect, the Claimant / Counter-Respondent recalled the statement on his claim by means of which he sustained that the teammate played a few days after the alleged altercation.

38. Regarding the alleged criminal procedure under the Country D courts, the Claimant / Counter-Respondent held that “[the document provided by the Respondent / Counter-Claimant] is nothing other than a fabricated document procured by [the Respondent / Counter-Claimant] in collusion with the Country D police for the sole purpose of frustrating these proceedings.”.

39. Furthermore, the Claimant / Counter-Respondent referred to clause 9 paragraphs 38 and 39 of the contract, and sustained that “Misunderstandings and training ground bust ups are common in all sports. It would be an abuse of power if an employer were to terminate an employment contract on the basis of manifestly unconscionable clause… That is why FIFA and CAS jurisprudence have laid down clear guidelines (such as warnings, fines or suspensions) to be followed by clubs before resorting to termination of contracts. It is only after such measures have been applied on a player… that the player can be said to be a negative influence or a person who cannot possibly cooperate with his colleagues”, therefore, according to the Claimant / Counter-Respondent said clause should be considered null and void.

40. In its duplica, the Respondent / Counter-Claimant insisted in its counterclaim as well as its arguments and rejected all the Claimant / Counter-Respondent’s statements.

41. In this regard, the Respondent / Counter-Claimant referred to clause 9 of the contract and sustained that “These standard behaviour clauses are anything but unconscionable, and the very reason why [the contract] was terminated was because it became impossible or difficult to cooperate with his colleagues. Finally, [the Respondent / Counter-Claimant] will like to respectfully suggest that contrary to the alleged legal doctrine presented by [the Claimant / Counter-Respondent], neither homicide nor repeated brutal attacks are required for the rumination of an employment relationship”.

42. After being requested by FIFA, the Claimant / Counter-Respondent confirmed that on 24 January 2018, he signed a contract with the Country F club, Club G, valid as from 15 January 2018 until 31 December 2019, according to which he is entitled inter alia to receive a monthly salary corresponding to the amount of currency of Country F 45,000 payable on the 25th of each month and a sign on fee corresponding to the amount currency of Country F 80,000 payable on 25 January 2018.

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 7 December 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2017 and 2018 editions 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 2018), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player of Country B and a club of Country D.

3. Furthermore, the DRC 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 (editions 2016 and 2018), and considering that the present claim was lodged on 7 December 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. First of all, the DRC acknowledged that, on 25 July 2017, the Claimant / Counter-Respondent and the Respondent / Counter-Claimant concluded an employment contract valid as from the date of the signature until 30 June 2018.

6. In this regard, the members of the Chamber duly considered the financial terms of the contract at the basis of this dispute. In this context, the Chamber took note that the Claimant was entitled to receive a monthly salary of currency of Country D (currency of Country D) 2,035,000 payable by the 10th day of each month.

7. In continuation, the members of the DRC acknowledged that on 7 December 2017 the Claimant / Counter-Respondent lodged a claim in front of FIFA, by means of which on the one hand, he maintained that the Respondent / Counter-Claimant had no just cause to terminate the employment contract on 23 November 2017 and that therefore, the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract and payment of, inter alia, compensation for breach of contract and legal costs.

8. Subsequently, the members of the DRC observed, that the Respondent / Counter-Claimant, for its part, rejected the claim and held that it terminated the employment relationship with just cause on 23 November 2017 on the basis of clause 9 of the contract, in particular, paragraphs 38 and 39, after a physical altercation between the Claimant / Counter-Respondent and a former teammate, and lodged a counterclaim against the Claimant / Counter-Respondent, requesting the payment of an alleged overpaid amount to the Claimant / Counter-Respondent.

9. In view of the foregoing, the members of the DRC first wished to point out that it remains uncontested that on 23 November 2017, the Respondent / Counter-Claimant unilaterally terminated the contract.

10. On account of the aforementioned, considering the diverging position of the parties with regard to the question as to which party is liable for the early termination of the pertinent employment contract, the members of the Chamber highlighted that the central issue in this dispute was to determine as to whether the Respondent / Counter-Claimant terminated the employment contract with or without just cause as well as to decide the consequences thereof.

11. Hence, the DRC proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well as the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

12. In this regard, the Chamber turned its attention to the main arguments invoked by both the Claimant / Counter-Respondent and the Respondent / Counter-Claimant. In particular, the members of the Chamber observed that, the Claimant / Counter-Respondent alleged that the Respondent / Counter-Claimant had other resorts before unilaterally terminating the contract, and on the other hand that, according to the Respondent / Counter-Claimant the physical altercation is equivalent to a criminal behaviour, and therefore it was impossible to maintain an employment relationship with the Claimant / Counter-Respondent.

13. With those considerations in mind, the members of the Chamber considered that main issue in the matter at stake was to determine if the reasons put forward by the Respondent / Counter-Claimant can be considered as a just cause to prematurely terminate the employment contract.

14. At this point, the Chamber emphasized the fact that the validity of the grounds by means of which a contract was terminated, and if it occurs with just cause must be determined on a case by case basis.

15. In this respect, the DRC referred to the Chamber’s well-established jurisprudence in accordance with which only a breach or misconduct which is of certain severity would justify 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 assure 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 be an ultima ratio measure.

16. On that basis, the DRC members pointed out that it is undisputed by the parties that Respondent / Counter-Claimant did not took any other measures towards the Claimant / Counter-Respondent (e.g., among other, the imposition of a warning or a fine) that would have been more lenient and proportionate with respect to his conduct, in particular to the physical altercation, in order to assure the Claimant / Counter-Respondent’s fulfilment of his contractual duties. In this context, the members of the Chamber did not agree with Respondent / Counter-Claimant that the physical altercation made the continuation of the employment relationship impossible.

17. On account of the above, the Chamber concluded that the Respondent / Counter-Claimant had no just cause to unilaterally terminate the employment contract on 23 November 2017 and, therefore, decided that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract without just cause.

18. Furthermore, the DRC duly noted that, the Claimant / Counter-Respondent acknowledged the payment of currency of Country D 506,847 and, proceeded to amend his initial claim.

19. Bearing in mind the previous considerations, the members of the DRC went to deal with the consequences of early termination of the employment contract without just cause by the Respondent / Counter-Claimant.

20. First of all, the members of the Chamber emphasized that the Respondent / Counter-Claimant had fulfilled its obligations as per employment contract up until the date of termination of the contract.

21. Nevertheless, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract on the basis of the relevant employment contract.

22. In this regard, 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 / Counter-Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

23. In application of the relevant provision, the members of the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

24. In continuation, and in order to evaluate the compensation to be paid by the Respondent / Counter-Claimant, the members of the DRC took into account the remuneration due to the Claimant / Counter-Respondent in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant / Counter-Respondent after the early termination occurred, as well as the payment made by the Respondent / Counter-Claimant. In this respect, the DRC pointed out that at the time of the termination of the employment contract on 23 November 2017, the contract would run until 30 June 2018.

25. Consequently, taking into account the financial terms of the contract, the members of the Chamber concluded that the remaining value of the contract as from its early termination by the Respondent / Counter-Claimant until the regular expiry of the contract amounts to currency of Country D 14,245,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

26. In continuation, the DRC verified as to whether the Claimant / Counter-Respondent 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.

27. Subsequently, the members of the DRC remarked that the Claimant / Counter-Respondent informed FIFA that following the early termination of the employment contract at the basis of the present dispute, he signed a new employment contract on 24 January 2018 with the club of Country F, Club G, valid as from 15 January 2018 until 31 December 2019, according to which he would be remunerated with a monthly salary corresponding to the amount of currency of Country F 45,000 payable on the 25th of each month, and a sign on fee corresponding to the amount of currency of Country F 80,000 payable on 25 January 2018, for a total remuneration of currency of Country F 327,500 during the overlapping period, which corresponds to approximately currency of Country D 10,407,153.

28. Moreover, the members of the Chamber recalled that the Claimant / Counter-Respondent acknowledged the overpaid amount corresponding to the amount of currency of Country D 506,847, and as a result decided, as well, to deduct this amount from the compensation for breach of contract.

29. In view of all of the above, the Chamber concluded that the Respondent / Counter-Claimant must pay the amount of currency of Country D 3,331,000 to the Claimant / Counter-Respondent as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation.

30. In addition, taking into account the Claimant / Counter-Respondent’s request as well as its longstanding jurisprudence, the Chamber decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 7 December 2017, until the date of effective payment.

31. With those considerations in mind, the DRC rejected the counterclaim lodged by the Respondent / Counter-Claimant.

32. Moreover, the DRC referred to the Claimant / Counter-Respondent’s request for additional compensation and legal costs. In this respect, the members of the DRC established that the request of the Claimant / Counter-Respondent cannot be granted as there is no contractual basis in this regard.

33. Finally, the members of the Chamber concluded their deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

*****

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of currency of Country D 3,331,000, plus 5% interest p.a. as from 7 December 2017 until the date of effective payment.

3. In the event that the amount plus interest due to the Claimant / Counter-Respondent in accordance with the above-mentioned point 2. 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.

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

5. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

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

*****

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

CH-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:

Emilio García Silvero

Chief Legal Officer

Encl. CAS directives