F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 25 February 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Jérôme Perlemuter (France), member

Stéphane Burchkalter (France), member

on the dispute between the player,

Player A, Country B

as Claimant / Counter-Respondent 1

the club,

Club C, Country D

as Respondent / Counter-Claimant

and the club,

Club E, Country B

as Counter-Respondent 2

regarding a dispute between the parties

I. Facts of the case

1. On 16 January 2018, the club from Country B, Club E (hereinafter: Club E or the Counter-Respondent 2) and the club from Country D, Club C (hereinafter: Club C or the Respondent / Counter-Claimant), concluded a transfer agreement (hereinafter: the transfer agreement) for the loan of the player from Country B, Player A (hereinafter: the player or the Claimant / Counter-Respondent 1), from Club E to Club C, as from the date of signature until 30 June 2019.

2. According to art. 2 of the transfer agreement, Club C agreed to pay USD 120,000 to Club E for the loan of the player. A purchase option was included in art. 6 of the transfer agreement, according to which Club C could decide to contract the player on a permanent basis for a fixed net amount of USD 600,000.

3. Pursuant to art. 3 of the transfer agreement, Club E guaranteed that “to its knowledge, the medical record of the player is free of any serious injury or health problem worth to be communicated (i.e. other than small transient and common injuries to a footballer)”.

4. On 11 January 2018, the player and Club C concluded an employment contract (hereinafter: the contract) valid until 30 June 2019.

5. According to art. 4 of the contract, the player was entitled to a monthly net salary of USD 13,000. Furthermore, art. 9 of the contract stipulated that the player’s salary for the season 2018/2019 would be increased to USD 17,000 net per month.

6. In addition to the above, Club C also undertook to provide the player with the following:

 “(…) a suitable apartment as well as a club vehicle or to pay the player USD 3'000 per month as a participation to his rent and vehicle expenses (…)”

 “The player is entitled to 6 return tickets Country D-Country B per season”.

 “In case the player is called up to play with the national team of Country B during the 2018 World Cup, the player will receive an exceptional bonus, which will be paid as follows :

- USD 5'000.00 net each time he is a starter

- USD 2'000.00 net each time he is a substitute”.

This bonus will be paid together with the salary for the month of August 2018.”

 “In case the player is transferred to Club C on a definitive basis, the player will receive 5% of the amount paid to Club E.”

(Free translation from French)

7. Pursuant to art. 1 of the contract, the general conditions of the working contract for non-amateur players of the Football Federation from Country D (hereinafter: the General Conditions) formed an integral part of the contract. In this regard, art. 5 of the contract set out the mechanism for the payment of salary in the event of a work incapacity due to no fault. In particular, it stated that in the event of work incapacity due to illness, the “legislation pursuant to art. 22, lit. A of the General Conditions” would apply and the “supplement to the legislation pursuant to art. 23, lit. B of the General Conditions” would apply in case of work incapacity due to an accident.

8. In this regard, art. 22, lit. A of the General Conditions, applicable in the event of work incapacity due to illness, reads as follows:

“(a) Legal regulation

1. If the employee is prevented from working through no fault of his own, art. 324a CO is applicable. During the first year of service, the club is obliged to pay the player a three-week salary (art. 324a para. 2 CO). Thereafter, the club shall pay the player the salary in accordance with the Scale X (art. 324a para. 2 in fine CO; annex 2 of the General Conditions).

2. The net salary shall be adjusted; in principle, a player who is prevented from working through no fault of his own shall not receive more compensation than he would have received if he had worked normally (art. 6 RAVS).

b) Other legal regulations

1. If the club has taken out a group insurance policy for daily allowances due to illness that covers at least 80% of the salary for 730 days and pays at least half of the premium, it is then released from the obligation to continue paying salary in accordance with lit. a) above (art. 324a para. 4 and 324b CO).

2. If the club has taken out such insurance, the general terms and conditions of such insurance shall form an integral part of this contract (annex 3 of the General Conditions). Any reservations made by the insurance company shall apply to the player".

(Free translation from French)

9. Moreover, the “Scale X”, referred to in art. 22 lit. a) par. 1 of the General Conditions, is contained in Annexe 2 of the General Conditions and sets out the following:

“When the player cannot work through no fault of his own (art. 324a CO), he is entitled to receive his salary during a period which is defined in accordance with the number of years of service.

Number of years of service Period of entitlement to salary

As of 3 months 3 weeks

As of one year 1 month

As of 3 years 2 months

As of 5 years 3 months

As of 10 years 4 months

As of 15 years 5 months

As of de 20 years 6 months“

(Free translation from French)

10. On 10 January 2018, prior to the signature of the contract, Club C performed a medical examination on the player. The conclusion of the medical examination was the following:

“In sum, this examination only showed some minor damage without any hemodynamic consequence (…)” (free translation from French).

11. On 15 June 2018, the doctor of Club C prepared a medical report of the player, whereby he explained that a recent MRI demonstrated that the player suffered from a “calcificating enthesopathy as a possible consequence of a growth disease (Sever’s Disease), which results in a major ossification of the heel” (free translation from French).

12. According to the said medical report, the player often complained about local pains during the season 2018, but physiotherapy and a change of his football shoes allowed him to continue playing.

13. On 22 June 2018, Club C declared to its insurance company that the player had suffered an injury during training on 16 June 2018. The insurance company took note of the full inability to work and paid insurance compensation to the player from 19 to 29 June 2018. However, as from 30 June 2018, the insurance company refused to further pay compensation as it considered that the player’s condition was a disease, rather than an accident.

14. By a letter dated 22 June 2018, Club C informed Club E about the medical condition of the player and already mentioned that it would not “take the option to buy agreed in our loan agreement”. Moreover, Club C indicated that “we could agreed to finish our loan agreement before the fixed date or to help him find another solution.” Finally, Club C also expressed its disappointment as the medical condition of the player is chronic and would have been “hidden from us at the moment of signature”.

15. On 5 July 2018, the player asked Club C’s authorisation to consult an orthopedist doctor in City X. By a reply dated the same day, a representative of Club C authorised the player to do so.

16. On 16 July 2018, the player submitted to Club C the recommendation of the Clinica Cemtro to undergo surgery on both heels, as well as the costs it would incur. It appears that Club C never answered.

17. On 5 November 2018, Club C informed its insurance company that the player had suffered an accident on the same day. By a letter dated 27 March 2019, the insurance company informed the player that according to the information at its disposal, no accident had occurred and that it could therefore not compensate him in any way. The insurance company advised the player to inform his health insurance about his situation.

18. On 14 December 2018, the player sent a default notice to Club C, requesting within 15 days, the payment of his salary for the months of July, August, September, October and November 2018.

19. By means of a letter dated 19 December 2018 sent to the player’s from Country D address, Club C indicated the following:

 The player had received overdue payments in the amount of 32,666.70;

 No salary was due to the player for the months of August, September and October 2018, as he was unable to work for more than 3 weeks;

 As from 5 November 2018, the player was entitled to his salary on the conditions of the insurance company policy. As such, Club C would make a deduction of USD 7,166.65 corresponding to overpayments ;

 The deductions made were explained to the player during a meeting between him and Mr Y, a representative of Club C, on 14 December 2018;

 The player still owed the amount of 25,500.05 to Club C as overpayments.

20. On 2 January 2019, the player sent a “unilateral resolution of the contractual link” (hereinafter: the termination letter) to Club C, referring to the non-payment of the monthly salaries mentioned above, as well as the salary of December 2018.

21. By a letter dated 9 January 2019, Club C contested the termination of the contract by the player and reserved its rights. Moreover, Club C confirmed that regardless of the termination, the player was no longer an employee of the club and asked the player to return his apartment keys.

22. As regards the player’s apartment, Club C provided the player with an invoice dated 4 April 2019 from Agency X, the estate agency of the player’s apartment, for the “apartment refurbishment, cleaning, painting” (free translation from French) in the amount of 2,100.

23. On 2 March 2019, Club E and the club from Country G, Club H, concluded a loan agreement for the player as from the date of signature until 31 December 2019. In this regard, by means of a letter dated 23 January 2019, Club C informed Club E of the following:

“(…)

As the player terminated his contract with our club, we accept to release him.

But this cannot be interpreted as an agreement with the termination or with the content of your letter.

On the contrary, we want to stress out that the termination is unlawful and that we hold your club as responsible for having induced the player to terminate his contract prematurely.

With all rights reserved.

Sincerely”.

24. On 3 March 2019, the player and Club H signed an employment contract, according to which the player was entitled to a monthly net salary of USD 13,000, plus a bonus of 25% of his annual remuneration and 300,000 per month for transport and accommodation.

25. On 30 April 2019, the player sent a default notice to Club C, requesting the payment of USD 182,574, corresponding to USD 173,224.74 plus interests, as well as EUR 8,264.

26. By a reply dated 10 May 2019, Club C rejected the player’s demand and affirmed that the player’s behavior was purely to “cause a damage to our club” and that “we do not see now any possibility – if any existed previously – to find a settlement with the Player”.

27. On 1 July 2019, the player lodged a claim against Club C in front of FIFA, requesting the amounts of USD 230,574 , EUR 8,264 and 6,300.45, plus 5% interest, broken down as follows:

 USD 182,574 as the salaries of 1 August 2018 until 30 June 2019;

 EUR 8,264 as the costs of the medical intervention and post rehabilitation at the Clinic in City X;

 6,300.45 as the “Bank Deposit-Warranty” paid by the player for the rent of his apartment, “which has been duly retained from the Defendant without giving any valid reason”;

 USD 48,000 as the losses suffered by the player resulting from the lower salary with Club H.

28. The player also requested that Club C be sanctioned with a national and international transfer ban for two consecutive transfer periods and with disciplinary and ethics proceedings before the relevant FIFA bodies. Moreover, the player requested that all his legal costs and the costs of the proceedings be borne by Club C.

29. In his claim, the player held that upon his arrival at Club C, he passed his medical examination with success and was never provided with a copy of the report of said examination.

30. The player considered to have always behaved as a professional. In this context, the player claimed to have started in two official league games and to have made four appearances as a substitute. Despite the foregoing, the player explained that on 19 June 2018, the President of Club C told him that he was no longer part of the team’s plans for the upcoming season and that he would no longer play during the term of his contract. The player further mentioned that the President later told him that he could no longer play because of his injury and that he would be authorised to move to another club.

31. The player further claimed that Club C “clearly induced a breach of contract by The Player for the unpaid wages (…)” and “abandoned The Player while he undergone to surgery in the Clinic not paying and covering all the costs and fees of this intervention. The Player at his own has paid for all this expenses.” Due to the non-payment by Club C, the player asserted that Club E “was forced to pay his wages” and helped him, with the support of his agent, to find a new club following the termination of the contract.

32. In its reply to the claim, Club C submitted a counter-claim against the player and Club E, requesting the payment of 25,456.78 and 718,778.10, plus 5% interest as from 2 January 2019.

33. In support of its allegations, Club C firstly argued that the player did not complain about any pain or injury in his heel during the medical examination on 10 January 2018.

34. Secondly, Club C held that due to an internal mistake, it erroneously paid to the player the amount of USD 20,000 per month as salary between February and June 2018.

35. Thirdly, Club C clarified the from Country D health care regime, according to which it is everyone’s responsibility, on an individual basis, to contract a health care insurance, regardless of the employer. In this context, Club C also referred to the mechanism chosen by the parties as per art. 5 of the contract, in particular art. 22 lit. a) and the “Scale X” contained in Annexe 2 of the General Conditions, as well as the from Country D Code of Obligations and claimed that an employer only has the obligation to pay an employee’s salary for a certain period of time in case of health conditions leading to work incapacity. In this regard, considering that the player had been working for less than one year at the moment of his injury, Club C considered that he was only entitled to 21 days salary. This said, Club C emphasised that it had paid to the player his salary of July 2018 with a deduction of USD 7,000 corresponding to the overpayments wrongly made between February and June 2018 as well as USD 5,000 as part of the salary of November 2018, even though it had no obligation to do so.

36. Notwithstanding the above, Club C claimed that it had done everything in its power to assist the player, in particular by declaring his medical condition twice to its insurance company. In reference to the refusal of the insurance company to pay any compensation to the player, Club C underlined that only the health insurance company could have compensated the player in such situation. Club C asserted that the situation was explained in detail to the player on numerous occasions, but that the latter refused to understand.

37. As regards the medical costs incurred by the player in Spain for his heel surgery, Club C considered that he should also have contacted his health insurance for any reimbursement, as this matter was not related to the employer in any way.

38. Concerning the player’s apartment, Club C explained that renovations in the amount of 2,100 had to be made, as set out in the invoice sent by the real estate agency, Agency X, on 4 April 2019. In this context, Club C asserted that the bank deposit of 6,300.45, claimed by the player and blocked on a bank account, could not be unblocked or used by Agency X to pay for the renovations, without the prior approval of the tenant, i.e. the player. In these circumstances, Club C considered that it could not be involved in this matter.

39. Referring to the termination of the contract, Club C considered that the player did not terminate the contract with just cause, as per the definition of “just cause” under Law of Country D and the FIFA Regulations. Consequently, Club C submitted a counter-claim against the player and Club E. As such, Club C claimed the amount of 718,778.10 as compensation plus 5% interest as from 2 January 2019, corresponding to the amount of the loan (USD 120,000) and the purchase option (USD 600,000), as well as 25,456.75, corresponding to the USD 25,000 overpaid to the player.

40. In the context of the counter-claim and the joint liability of Club E, Club C emphasised that Club E made a request in the Transfer Matching System (TMS) for the loan of the player to Club H, even though the player was still officially under contract with Club C. In particular, Club C held that Club E never sought to obtain elements regarding the validity of the contract termination by the player and never suggested to compensate Club C for this situation.

41. Finally, Club C requested that sporting sanctions be applied against both the player and Club E and that all the costs of the proceedings be borne by the latter.

42. In their comments on the counter-claim, the player and Club E first contested the application of from Law of Country D to the dispute, as only FIFA Regulations should apply. In this context, the player and Club E mentioned that the contract made an explicit reference to the FIFA Regulations.

43. Furthermore, the player affirmed that he never sustained any serious injury during his entire career. In support of his claim, the player provided medical reports performed in 2016 and 2017. As such, he considered to be in good physical condition at the moment of concluding the contract.

44. The player then explained that when concluding the contract with Club C, he had to contract a health insurance with the Company Z and that the cost of this insurance was deducted from the player’s salary in April, May, June, July and November 2018.

45. The player further acknowledged that he was informed by Club C on 15 June 2018 of the content of the health insurance coverage and that his injury could not be covered and paid for. However, the player emphasised that Club C’s president and doctor provided very little information about the injury.

46. The player contested Club C’s allegations about his health. According to the player, the tests undergone at the hospital in City X demonstrated that he had no medical history related to the relevant injury.

47. The player further held that Club C was responsible to insure its players with the relevant insurance companies, in order to ensure the payment of salary in the case of an injury. In this context, the player contested Club C’s arguments, whereby deductions had to be made to his salaries.

48. In regards to the renovation costs of the apartment, the player noted that the invoice presented by Club C did not contain any specifications, as to the nature of said costs.

49. Finally, Club E argued that it did not induce the player to terminate the contract.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the DRC analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was first submitted to FIFA on 1 July 2019. Consequently, the 2018 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 Procedural Rules).

2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations (edition 2020), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a player from Country B, a club from Country D and a club from Country B.

3. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2020) and considering that the present matter was submitted to FIFA on 1 July 2019, the June 2019 edition of said Regulations is applicable to the present matter as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Chamber emphasized that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the DRC acknowledged that it was undisputed by the parties that the player and Club C had signed an employment contract, valid as from 11 January 2018 until 30 June 2019, and according to which the player was entitled to receive, inter alia, a monthly salary of USD 13,000, increased to USD 17,000 for the season 2018/2019, as well as several benefits, as detailed in point I.6. above.

6. What is more, the Chamber further noted that on 2 January 2019, the player unilaterally terminated the employment contract with Club C, alleging that his salary for the months of July, August, September, October, November and December 2018 were unpaid. The Chamber also noted that by means of a letter dated 9 January 2019, Club C contested such termination by the player and reserved its rights.

7. Furthermore, the Chamber noted that, on 2 March 2019, Club E and the club from Country G, Club H, concluded a loan agreement for the player as from the date of signature until 31 December 2019. In this context, the Chamber also observed that the player and Club H concluded an employment contract on 3 March 2019, according to which the player was entitled to a monthly net salary of USD 13,000, plus a bonus of 25% of his annual remuneration and 300,000 per month for transport and accommodation.

8. Summarising the parties’ respective positions in this dispute, the members of the Chamber noted that the player, on the one hand, claimed that Club C had not paid him his salary for the months of August, September, October, November and December 2018, as well as the costs of the medical intervention and post rehabilitation he had to undergo in the context of his injury.

9. Equally, the members of the Chamber took note of the reply of Club C, which, on the other hand, considered that it had done everything in its power to assist the player, in particular by declaring the player’s medical condition twice to the insurance company and by explaining on numerous occasions the functioning of the from Country D health system to the player, especially for the payment of his salaries while being injured. In this context, the Chamber observed that Club C deemed that the player did not terminate the contract with just cause and lodged a counter-claim against the player and Club E. Club C requested the amounts of CHF 718,778.10 and CHF 25,456.78, plus 5% interest.

10. Finally, the Chamber noted that Club E supported the allegations of the player, arguing that it did not induce the player to terminate the contract and requested primarily the rejection of the counterclaim lodged by Club C.

11. In view of the foregoing, the Chamber established that the main issue to be analysed in the present case is whether the player in fact had a just cause to unilaterally and prematurely terminate the contract with Club C on 2 January 2019 or not. Subsequently, the Chamber shall establish the financial and/or sporting consequences to be borne by the party found to be in breach of contract.

12. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken, 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.

13. Furthermore, the members of the Chamber deemed it appropriate to recall the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

14. In this context, the Chamber noted that the player based the termination of the contract on the non-payment of salaries over a period of 5 months, as well as the refusal of Club C to cover his medical expenses incurred in the context of his injury.

15. On the other hand, the Chamber thoroughly analysed the position of Club C, which considered that it complied with the “Scale X” set out in the General Conditions of the Football Association of Country D as well as with art. 324a of Country D’s Code of Obligations, by paying to the player 3 weeks of salary during his incapacity, as the latter had been under contract for less than one year. The Chamber further observed the position of Club C, whereby the player should have contacted his health insurance directly for any further payment of salaries, as provided by Law of Country D. Finally, the Chamber noted that Club C strongly emphasised that the foregoing had been explained in detail and on numerous occasions to the player.

16. Having thoroughly analysed the information and documentation on file, the Chamber concluded that it is not possible to follow the argumentation of Club C as to the justification for the non-payment of the player’s salaries.

17. First, the Chamber recalled that on 10 January 2018, prior to the signature of the contract, Club C performed a medical examination on the player, according to which no specific health condition was observed. Furthermore, the Chamber observed that the documentation on file does not allow to establish that Club E or the player himself were aware of any health issue.

18. Second, the Chamber focused on the constant jurisprudence of the DRC and the Court of Arbitration for Sport (CAS), according to which the illness or the injury of a player is not a valid reason for a club to reduce the salaries of the player, let alone to stop paying the salaries.

19. Having established the above, the Chamber observed that Club C failed to pay the salaries for the months of August, September, October and December 2018 to the player, corresponding to a total amount of USD 68,000. The Chamber was eager to highlight that this amount is a substantial amount since it represents 4 monthly salaries unpaid. Moreover, the Chamber noted that it appeared from the documentation on file that the salaries for the months of July and November 2018 had only been partially paid by Club C. In this context, the Chamber observed that Club C did not contest having failed to pay the aforementioned amounts to the player, but simply considered that these amounts should have been paid by the health insurance directly to the player.

20. Therefore, the members of the DRC highlighted that, at the moment the player terminated the contract, and taking into account the large amount that remained outstanding at the date of termination, representing at least 4 monthly salaries, the player could have legitimately lost faith in the ability and will of the Respondent / Counter-Claimant to fulfill its contractual obligations in due course.

21. Consequently, and considering the situation of the player at the time of termination, the Chamber was of the opinion that the objective circumstances at the time did provide the player with just cause to terminate the employment contract.

22. In light of all of the aforementioned considerations, the DRC came to the conclusion that the player had terminated the contract on 2 January 2019, with just cause.

23. As an immediate consequence of such, the Chamber concluded at this point that the counterclaim lodged by the Respondent / Counter-Claimant against the player and the Counter-Respondent 2 is rejected.

24. Having established that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequence of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive from the Respondent / Counter-Claimant an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

25. First of all, the Chamber reverted to the player’s claim, in which he claimed the total amount of USD 182,574 as outstanding remuneration and compensation for breach of contract.

26. The Chamber then considered relevant to recall that the months of August, September, October and December 2018 were outstanding in full and that the player had acknowledged receipt of a partial payment of USD 235.65 for the month of November 2018. In light of the foregoing, the Chamber concluded that the player was due outstanding remuneration in the amount of USD 84,764.35.

27. At this stage, the Chamber noted that Club C considered to have erroneously overpaid, due to an internal mistake, the amount of CHF 25,456.75, corresponding to USD 25,000, to the player. However, due to the lack of evidence provided by Club C in this context, the Chamber decided to disregard said alleged overpayments.

28. Having said this, the Chamber took into account the fact that the injury of the player was not due to any fault of Club C and that as a result of the injury, Club C could not use the services of the player. In light of the foregoing, the members of the Chamber were of the opinion that the amount due to the player should be reduced in consequence, to balance the services that he was unable to render to Club C. In this context, the Chamber deemed that a reduction of 20% of the amount due to the player was reasonable and proportionate.

29. Consequently, taking into account that the contract was terminated on 2 January 2019, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent / Counter-Claimant is liable to pay the player 80% of USD 84,764.35, which amounts to USD 67,811.48, plus 5% interest as of 1 July 2019.

30. 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.

31. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that the contract did not contain such a provision.

32. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent / Counter-Claimant to the player 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.

33. 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 contract until 30 June 2019, taking into account that the player’s remuneration up to 2 January 2019 is included in the calculation of the outstanding remuneration. Consequently, the Chamber concluded that the amount of USD 102,000 (i.e. salaries of January until June 2019) serve as basis for the determination of the amount of compensation for breach of contract.

34. 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.

35. In this context, the Chamber noted that the player had signed on 3 March 2019 an employment contract with the club from Country G, Club H, valid as from the date of signature until the end of the season 2019, by means of which he was entitled to receive a monthly remuneration of USD 13,000. The DRC noted that for the overlapping period, the player had been able to mitigate his damages in the amount of USD 52,000.

36. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the mitigated compensation due to the player was USD 50,000.

37. With this mind, the members of the Chamber decided to reduce the amount due to the player on the basis that Club C did not bear any particular fault in the player’s injury and as a result could not use the services of the player. As determined above, the Chamber deemed that a reduction of 20% of the amount due to the player was reasonable and proportionate.

38. Having established the above, the Chamber concluded that the Respondent / Counter- Claimant must pay the amount of USD 40,000 as mitigated compensation to the player.

39. Moreover, taking into account art. 17 par.1 (ii), the DRC recalled that it had found that the player had unilaterally terminated the contract due to overdue payables and took note that the player had been able to mitigate his damages. Consequently, the Chamber decided that on top of the mitigated compensation, the Respondent / Counter-Claimant had to pay to the player an additional compensation in the amount of USD 51,000 corresponding to the equivalent of 3 monthly salaries of the player.

40. However, applying the same reduction as above (cf. II. 28 and 37), the Chamber considered that only 80% of the additional compensation should be due to the player. Therefore, the Chamber concluded that the Respondent / Counter-Claimant must pay the amount of USD 40,800 as additional compensation to the player.

41. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent / Counter-Claimant must pay the total amount of USD 80,800 to the Claimant / Counter-Respondent 1, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand.

42. In addition, 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 the club must pay to the player interest of 5% p.a. on the total amount of compensation, i.e. USD 80,800, as of 1 July 2019 until the date of effective payment.

43. Having established the above, the Chamber then addressed the request of the player for the payment of the medical intervention and post rehabilitation at the “Clinic X” in City X, in the amount of EUR 8,264. In this regard, the Chamber observed that the player failed to provide any proof of payment or any evidence thereof as to the medical costs incurred in the context of his injury. Therefore, the DRC decided to reject this claim.

44. Furthermore, the Chamber analysed the player’s claim for the payment of CHF 6,300.45 corresponding to the “Bank Deposit-Warranty” paid by the player for the rent of his apartment. Summarising the parties’ respective positions on this matter, the members of the Chamber noted that the player, on the one hand, considered that Club C had retained said warranty “without giving any valid reason”. On the other hand, the Chamber observed that Club C argued that it could not be involved in this matter, as the bank warranty had been blocked on a bank account and that this matter could only be resolved between the real estate agency and the tenant, i.e. the player. In view of the foregoing and due to the lack of any further evidence and substantiation thereof, the DRC decided to reject this claim.

45. Finally, the members of the Chamber addressed the player’s request for the payment of an additional compensation in the amount of USD 48,000, corresponding to the losses incurred resulting from the player’s lower salary as per the employment contract with the club, Club H.

46. In this regard, the Chamber noted that this request was not based on any contractual provision, nor was it substantiated. Consequently, the DRC decided to reject the player’s request for an additional compensation.

47. Furthermore, the DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

48. In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

49. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent / Counter-Claimant does not pay the amounts due to the Claimant / Counter-Respondent 1 within 45 days as from the moment in which the Claimant / Counter-Respondent 1, following the notification of the present decision, communicates the relevant bank details to the Respondent / Counter-Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent / Counter-Claimant in accordance with art. 24bis par. 2 and 4 of the Regulations.

50. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

51. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant / Counter-Respondent 1 is rejected. Equally and considering that the Respondent / Counter-Claimant was, overall, found to be in breach of the contract, the counterclaim of the Respondent / Counter-Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / Counter-Respondent 1 outstanding remuneration in the amount of USD 67,811.48, plus 5% interest p.a. as from 1 July 2019 until the date of effective payment.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent 1 compensation for breach of contract in the amount of USD 80,800, plus 5% interest p.a. as from 1 July 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant / Counter-Respondent 1 is rejected.

5. The counter-claim lodged by the Respondent / Counter-Claimant is rejected.

6. The Claimant / Counter-Respondent 1 is directed to inform the Respondent / Counter-Claimant, immediately and directly, preferably to the e-mail addresses as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent / Counter-Claimant must pay the amounts mentioned under points 2. and 3. above.

7. The Respondent / Counter-Claimant shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amounts due in accordance with points 2. and 3. above are not paid by the Respondent / Counter-Claimant within 45 days as from the notification by the Claimant / Counter-Respondent 1 of the relevant bank details to the Respondent / Counter-Claimant, the Respondent / Counter-Claimant shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

9. The ban mentioned in point 8. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

10. In the event that the aforementioned sum is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the appeal procedure:

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. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne, Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org / www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer