F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 13 November 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 November 2020,

regarding an employment-related dispute concerning the player B

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Daan de Jong (Netherlands), member Stijn Boeykens (Belgium), member

CLAIMANT / COUNTER-RESPONDENT:

A, Country A

Represented by

RESPONDENT / COUNTER-CLAIMANT:

B, Country B

Represented by

INTERVENING PARTY:

C, Country B

I. FACTS

1. On 5 January 2018, the Country A club, A (hereinafter: club or Claimant/Counter- Respondent) and the player B (hereinafter: player or Respondent/Counter-Claimant) signed an employment contract (hereinafter: contract) valid as from 1 January 2018 until 30 June 2022.

2. According to the preamble of the contract, “this Individual Employment Contract is executed, freely and in good faith, signed and made in writing”.

3. By means of clause 2 of the contract, the club undertook to pay the player, by the 5th day of the

following month, the “gross” monthly remuneration of EUR 1,000.

4. Pursuant to clause 3 of the contract, the player was entitled to the amount of EUR 1,000 “at the beginning of his vacation and in the Christmas season”.

5. In accordance with clause 5 of the contract, “should the club be promoted to a higher division, the total remuneration of the player may be increased by 10%”.

6. Clause 9 of the contract stipulated the following:

“The club also has the option right regarding the conclusion of a new employment contract with the player at the end of the present contract. The player undertakes to enter into a new employment contract with the club, for a period of one to three years, as intended by the club, and for remuneration at least equal to that fixed in this contract. In order to exercise this option, the club must notify the player, in writing, within 60 (sixty) days before the expiration of this agreement of its intention to exercise such right, informing him, in that same act, of the duration of the contract to be concluded and the proposed remuneration.”

7. On 3 August 2018, the player informed the club in writing that he has reached “the conclusion that it has become impossible [for him] to continue with the labour relationship and return to the club […] Consequently, I have no alternative but to consider terminated the employment contract […] by your exclusive fault, with all the consequences that derive from it”.

8. In said letter of 3 August 2018 the player outlined that the contract contained “abusive and invalid” clauses. With regard to his salary, the player held that the club “did not enrol the contract and did not comply with its social obligations, since when [the player] had health problems, it was difficult [for him] to obtain medical assistance […] by means of which it can be understood that [the club] was illegally retaining sums”.

9. Furthermore, the player held in his letter of 3 August 2018 that, during his return travel to Country B, he was informed by the Country A authorities that his visa was not a work visa and that, consequently, he could not return to Country A without adapting his visa, “something that [the player] requested [the club] to do but never did”. Finally, in the letter, the player argued that the club “works as a bridge club that is only a vehicle so that the company X can obtain the economic rights”, thereby breaching arts 18bis and 18ter of the FIFA

Regulations.

10. On 27 August 2018, the club informed the player in writing that the training activities had commenced on 21 August 2018, but that the player had been absent. In said letter, the club ascertained that during his holiday, the player “might be training […] at the facilities and under the supervision of Club E”. In continuation, the club held that the player still had a valid employment contract with the club, providing him 72 hours to return.

11. According to the information contained in the Transfer Matching System (TMS), on 16 January

2019, the Country B club, C, entered a transfer instruction to engage the player permanently.

12. Furthermore, as per the information contained in the TMS, on 18 January 2019, the Country A FA rejected the ITC request because “the contract between the former club and the professional player has not expired”.

13. By means of his decision rendered on 1 February 2019, the Single Judge of the Players’ Status

Committee authorized the provision registration of the player with C.

14. According to the information contained in the TMS, “no third-party agreement information has been added by” FIFA.

15. On 10 October 2018, the club lodged a claim against the player for breach of contract, requesting compensation in the amount of EUR 209,354.84, plus 5% interest p.a. as from 21 August 2018, as follows:

- EUR 53,354.84 corresponding to the residual value of the contract;

- EUR 150,000 (“or EUR 180,000”) corresponding to “the lost opportunity to transfer [the player] which are the minimum sums that, respectively, D and E were willing to pay for his definitive transfer”;

- EUR 6,000 as compensation due to the “sporting loss, equivalent to, at least, 6 months of

[the player’s] average monthly gross remuneration”.

16. With regard to the claim of the club against the player in front of FIFA, the club was being

represented by “X Advogados”.

17. In its claim, the club firstly argued that during the 2017/2018 season, the club and the player had always fulfilled their respective contractual obligations vis-à-vis each other.

18. In continuation, the club explained that following the 2017/2018 season, the player went on vacation and was orally informed that that the new season would start on 21 August 2018.

19. In this context, the club held that during the 2018 summer transfer window, the club and D agreed on a transfer of the player to D “pending just the player’s return to Country A to the transfer be completed and the agreements signed”.

20. However, as per the club, the player not only did not return from his vacation, but accused the

club of being a “bridge club”.

21. In this light, the club maintained that it never “forced” the player to be transferred to D, and that said transfer could not even take place without the player’s consent.

22. The club further stated that the player never replied to its letter dated 27 August 2018.

23. With regard to the club’s request for compensation in the amount of EUR 53,354.84 corresponding to the residual value of the contract, the club elaborated that “if the club is promoted to higher divisions during the period of this claim […], the aforesaid total amount due shall be increased in 10%, in view of the terms of clause 5 of the contract”.

24. By means of a counterclaim dated 23 October 2018, the player requested “EUR 49,000” [sic] plus

5% interest p.a. as from 3 August 2018, corresponding to the following

- EUR 3,000 for the monthly salaries of May, June and July 2018;

- EUR 47,000 corresponding to the residual value of the contract.

25. In his counterclaim, the player firstly explained that in 2017 he was registered with the Country B club, F, as an amateur.

26. According to the player, during that time, he was contacted by “Mr X and Mr X of the company X”, who informed him that they could relocate him to “important European clubs” provided that he would firstly register with the club “A” of the 4th [training] category of Country A” so that he could later “jump to clubs of the 1st division”.

27. Furthermore, the player stated that F offered him a professional contract, but that

“the counsels of X”, acting on his behalf, refused said offer.

28. The player further stated that on 18 December 2017, he was approached by “Mr X of X in order to sign a new contract of representation […] and with the objective of signing with [the club]”.

29. In this context, according to the player, it was only after signing the contract with the club that he understood that the contract contained abusive and invalid clauses, like the unilateral extension option.

30. Moreover, as regards the monthly salary in the amount of EUR 1,000 gross, the player argued that the club “never enrolled the contract nor paid the taxes […] For that reason [the club] paid the player in a bank account of which he had a debit card, without any receipts, because [the club] was violating Country A labour law by not registering the player”.

31. According to the player, “the reality is that the club […] is merely a vehicle for obtaining the

economic rights [of players] on behalf of the company X [thereby] violating art. 18bis and

18ter” of the regulations.

32. As per the player, “given that it is evident that the club breached its […] fiscal, migratory and FIFA Regulatory obligations […] functioning as a vehicle of third parties, on 3 August 2018, the player sent a letter to the club where he expressed these issues and informed it that it was impossible to continue the employment relationship”.

33. With regards to the club’s allegation that the player had been training with the Country B club, E, the player underlined that “this was false given that it was the club itself, or rather X […] who was negotiating an alternative contract with E, which in the end did not materialize”.

34. In its replica, the club firstly argued that “X” is not a party to the dispute and that, as

such, any claim linked to “X” shall not be considered by FIFA.

35. In continuation, the club recalled that the parties had concluded an employment contract “in good faith” valid between 1 January 2018 and 30 June 2022, and that the contract was properly executed.

36. Therefore, as per the club, the player’s allegations that the contract contains abusive and invalid clauses should have been proved by him, “what has never happened in this case”.

37. Similarly, the club maintained that it does not know whether the player uses an intermediary that works on his behalf.

38. With regard to the hiring of the player itself, the club highlighted that it “was a great opportunity for both parties: from the perspective of the club, it represented an improvement to its roster; for the player, it constituted a career step up, namely, his professionalization […] and his first football experience in Europe, even though still very young”.

39. According to the club, by means of his counterclaim the player is trying to obtain a unilateral termination of the employment contract in order to move to another club without having to compensate the club.

40. Furthermore, regarding the player’s allegation that the club never enrolled the player’s contract in Country A and that it was not complying with its fiscal and migratory obligations, the club denies said accusation, wondering how the player “could he have played for [the club] during the months that he stayed in Country A, fulfilling his contractual obligations”.

41. Moreover, with respect to the player’s position that art. 18ter and art. 18bis of the regulations have been breached, the club held that nor “X” nor “any other legal person or private one have ever influenced on the employment and transfer-related matters regarding the player, including his economic rights”.

42. Finally, the club referred to the decision rendered by the Single Judge of the Players’ Status

Committee on 1 February 2019, stating that that “the provisional registration shall be cancelled, returning the player’s bound to the club, at least until the recognition of abandonment of

employment”.

43. In his duplica, the player firstly argued that during the contract negotiations with the club in January 2018, he was being represented by Mr X and Mr X of the company “X”.

44. In this context, the player reiterated that the club is a “structure improperly controlled or influenced by the company X given that at least 4 players within the club were linked to the company and all contract offers from clubs of a higher category were managed directly by this company”.

45. According to the player, the fact that the club merely functions as a vehicle in order to obtain the economic rights is confirmed “by the fact that [the player’s counterclaim] is contested, as legal representative of the club, by the law firm of Mr x is also the agent of the player as well as the business partner of “Mr xx” (agent)”.

46. Furthermore, as per the player Mr xx’s complete name is “xx, the partner of X in Country B, as confirmed by the corporate agreement signed between Mr xx and the company of X”.

47. In continuation, the player referred to the club’s submissions, and held that no mention was made regarding his “irregular labour migratory situation”, given that he was not enrolled as an employee. In this context, the player reiterated that he was informed by the public authorities that he could not return to Country A without adapting his visa.

48. In addition, according to the player, the club failed to address his position that three monthly salaries were outstanding. However, as per the player, “in accordance with the documentations attached, the club, recognizing its debt in delay, proceeded to paying to the player the amount of EUR 3,000”.

49. In continuation, the player recalled that the club is to be considered a “bridge club” in order for

obtaining the economic rights of players on behalf of third parties.

50. Next, the player explained that he preferred a transfer to E but that the club and “X” attempted by all means to get him to sign a contract with D instead “for a monthly salary of EUR 1,000 gross”.

51. According to the player, “the conduct of the club […] allowing third party influence and ownership, delaying salaries for three months as well as social security contributions, not dispatching the work visa, pressuring the player to sign a contract with a particular club […] constitute an undeniable violation of essential contractual obligations, thereby habilitating the player to a justified unilateral contract termination”.

52. With regards to the club’s request for compensation, the player noted that the club included his additional vacation and Christmas salary. In this context, as per the player, “the club had not registered the player, so it therefore was not paying the player these amounts”. Thus, the player

maintained that the residual value amounted to EUR 46,000.

53. With regard to the requested EUR 150,000 corresponding to “the lost opportunity to transfer”, the player stated that the club failed to provide any evidence that his possible transfer to D amounted to this transfer sum.

54. Finally, the player maintained that the club failed to provide any evidence regarding “sporting loss”.

55. On 14 January 2019, the Player and the Country B club, C (hereinafter:

Intervening Party) signed an employment agreement valid from 1 January 2019 until 31 December

2020.

56. In accordance with said employment contract, the player was entitled to a monthly salary of

Country B currency 4,000,000 “plus taxes” for the year 2019 (approx. EUR 578 on 14

January 2019) and 6,000,000 “plus taxes” for the year 2020 (approx. EUR 858 on 14 January

2019).

57. On 13 July 2020, the player informed FIFA that “in January 2020”, he signed an employment contract with the Country B club G, valid until the end of the “Country B” tournament.

58. In accordance with the employment contract signed with G, the player was entitled to a monthly salary of 25,000,000 (approx. EUR 3,390 on 1 January 2020).

59. According to the player, due to COVID, the club is paying “33% of his salary […] as from March

2020”. In this context, according to the player, he has obtained “USD 5,100 for the months March

– June 2020 due to COVID”.

60. In with the above, the player argued that he has received the following amounts:

- August 2018 – January 2019 – no income;

- 14 January 2019 – December 2019 – “USD 7,150 (USD 650 per month);

- January 2020 – February 2020 – “USD 6,000”;

- March 2020 – June 2020 – “USD 5,100”.

61. Moreover, the player informed FIFA that on 7 September 2020, he signed a new contract with the Country B club E, valid between 7 September and 31 December 2020, based on which the player was entitled to a monthly salary of USD 15,000. Said amount could be reduced by USD

5,000, in case “that competitions are suspended”.

62. By means of its intervention, the intervening party emphasized that on the date of claim of the club, i.e. 10 October 2018, the player had not even signed with it yet.

63. In this context, the intervening party highlighted that it only signed the employment contract with

player “six months after the player’s termination with [the club]”.

64. As per the intervening party, this firstly demonstrates that it had nothing to do with the decision of the player to terminate the contract. Secondly, it demonstrates that the player did not terminate the contract because he had a better alternative.

65. Furthermore, the intervening argued that the club only lodged a claim against the player and never against the intervening party.

66. Having said this, the intervening party held that three monthly salaries were outstanding to the player on the day he terminated the contract, thereby providing him a just cause to terminate.

67. In addition, the intervening party stated that the club did not have a sporting interest in the player’s services. In this context, the intervening party argued that between August 2018 and October 2018, i.e. when it lodged the claim, the club did not insist on the return of the player.

68. Moreover, as per the intervening party, the player’s situation was not going to be improved with a transfer to D, given that D was also only offering him EUR 1,000 per month. This further reveals that there was no real sporting interest in the player’s services.

69. Given all of the above, the intervening party requested that the club’s claim be rejected.

70. On 20 August 2020, following an invitation by the FIFA TMS Compliance department to do so, the club provided its position regarding the alleged breach of arts. 18bis and 18ter.

71. In this context, the club reiterated that, in accordance with the preamble of the contract, the

parties had executed the contract “freely and in good faith”.

72. In continuation, the club held that in order to register the player with the club, it duly uploaded documentation proving that there was no TPO, including a document signed by the player.

73. With regard to the alleged “bridge transfer” of the player, the club stated that “this was not sanctionable at all […] since there were no specific guidelines [and the player] has never been transferred twice within a 16-week period”.

74. Subsequently, the club deemed that the player “was not pressured by third parties to” terminate his contract with the club. As per the club, “the player had never demonstrated any interest on a move or […] indicated that he was not satisfied with his condition at [the club]”.

75. According to the club, the counterclaim of the player “is more directed […] on X (and/or its alleged representatives/employees) than against [the club]”.

76. As per the club, “in respect if the relation of [the club] with X it must be said that [the club] is aware that such company was, at the time of the engagement, a registered intermediary in Country D, and the relation between them is exactly the same that [the club] has with other

intermediaries […] nothing more than a person […] that can present a player to the club […]”.

77. The club thus asserted that “there is no relation between [the club] and X […].

Nonetheless, it shall be emphasized that, if there were any agreements concluded between [the club] and X and/or persons [linked to X] those documents would have been in due course provided to FIFA”.

78. On 6 September 2020, the club submitted further documentation, in which it explained that there is no actual relation between its club and X, and that it only knows about the existence of X.

79. Moreover, the club argues that it is not aware of any connections between X, the player and law firm of Mr X, and that it had the right to hire this law office, based on the freedom of choice principle.

80. Finally, the club concludes that no third party has ever influenced its club during the employment relationship with the player and explicitly denied that no bridge transfer took ever place.

81. In view of the foregoing circumstances, FIFA TMS Compliance concluded its investigation, as it could not be established that there was no infringement of art. 18bis and 18ter.

82. After the closure of the investigation phase, the club submitted unsolicited correspondence, alleging that there are new facts to be considered. In fact, the club explains that the player worked together with E, which was never sincerely interested in concluding a transfer agreement with the club, but still willing to achieve the player’s services for free.

83. What is more, the club explains that on 8 September 2020, the player moved from G to E, after having terminated his contract with G by paying the buyout clause in an amount of roughly EUR 3,000.

84. The club argues that E made use of two smaller clubs in Country B, namely the Intervening party and G in order to eventually obtain the player’s services.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 May 2020. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 August 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment- related dispute with an international dimension between a Country B player and a Country A club, with the involvement of another Country B club, and the competence is not disputed by the parties.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (August 2020 edition), and considering that the claim was lodged on 5 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

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. The members of the Chamber acknowledged that the parties were bound by an employment contract, which was signed on 5 January 2018 and valid as from 1 January 2018 until 30 June

2022. The Claimant/Counter-Respondent, on the one hand, maintains that the employment contract was terminated by the Respondent/Counter-Claimant without just cause as a result of the latter’s lack of returning to its club at the start of the 2018/2019 season. The Respondent/Counter-Claimant, on the other hand, rejects such claim and lodged a counterclaim against the Claimant/Counter-Respondent maintaining that the latter had acted in violation of its contractual obligations and that he could not return to the Claimant/Counter-Respondent, as it was ‘a vehicle of third parties’.

6. The Chamber highlighted that the underlying issue in this dispute, considering the conflicting positions of the parties, was to determine whether the employment contract had been prematurely and unilaterally terminated with or without just cause by either of the parties. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that is to be held liable for the breach of the employment contract without just cause.

7. In continuation, the Chamber, first and foremost, analysed on which date the contract between the parties was terminated and by whom. In this respect, the Chamber noted that on 3 August

20178, the Respondent/Counter-Claimant had issued a letter to the Claimant/Counter- Respondent, in which it is confirmed that he considered the contract terminated, as he could no longer continue with the employment relationship with the Respondent/Counter-Claimant.

8. However, the Claimant/Counter-Respondent never referred to a specific contract termination date, but held that the Respondent/Counter-Claimant was absent as from 21 August 2018, the date on which the new season started. Furthermore, the Claimant/Counter-Respondent argued that by means of his counterclaim the Respondent/Counter-Claimant tried to obtain a unilateral termination of the employment relationship.

9. In this respect, the Chamber established that, given the fact that the Respondent/Counter- Claimant’s intention to terminate the contract on 3 August 2018, and given that it is undisputed that the Respondent/Counter-Claimant did not provide any type of service to the Claimant/Counter-Respondent after 3 August 2018, it can concluded that the Respondent/Counter-Claimant unilaterally terminated the contract on 3 August 2018.

10. Furthermore, the Chamber reiterated that according to the Claimant/Counter-Respondent, the Respondent/Counter-Claimant was absent as of 21 August 2018, when he did not show up for training sessions anymore. What is more, the Claimant/Counter-Respondent explained that it had agreed with the Country A club on a transfer of the Respondent/Counter-Claimant , which transfer would be finalized depending upon the latter’s return. According to the Claimant/Counter-Respondent, the non-return of the Respondent/Counter-Claimant might have to do with his allegations that the Claimant/Counter-Respondent was in fact a “bridge club”, that wanted to force him to transfer to D.

11. The Respondent/Counter-Claimant, for his part, held that in 2017, while he was registered with the Country B club F and that he was contacted by an intermediary company X, that allegedly proposed him to first register with the Claimant/Counter-Respondent in order to later “jump” to the Country A first division. However, after signing a contract with the Claimant/Counter-Respondent, the Respondent/Counter-Claimant explains that he found out that said contract contained abusive clauses, such as a unilateral extension option and that the Claimant/Counter-Respondent never enrolled the contract, paid the relevant taxes or arranged a work visa to return to Country A. The members of the Chamber noted that, according to the Respondent/Counter-Claimant, for these reasons, in August 2018, he could not return to the Claimant/Counter-Respondent anymore, as its club was “a vehicle for obtaining economic rights of players” As a result the Respondent/Counter-Claimant is of the opinion that he could validly not return to the Claimant/Counter-Respondent and that he had terminated the contract with just cause. Therefore, the Respondent/Counter-Claimant deems that he is entitled to outstanding remuneration and compensation for breach of contract.

12. After having received the counterclaim of the Respondent/Counter-Claimant, the Claimant/Counter-Respondent denied all the allegations that is in fact a “bridge club” or that it was acting in breach of the articles 18ter and 18bis, or that it even forced the Respondent/Counter-Claimant to transfer to D. Furthermore, it points out that the Respondent/Counter-Claimant and its club duly executed the contract entered into between the parties and denies the accusation of the Respondent/Counter-Claimant that the contract was never enrolled or that it did not pay the relevant taxes or salaries. Also, after having requested the Respondent/Counter-Claimant to return to its club on 27 August 2018, the Respondent/Counter- Claimant did not show up anymore.

13. Finally, in his duplica, the Respondent/Counter-Claimant reiterated his positon and mentioned that the Claimant/Counter-Respondent failed to pay him three monthly salaries of EUR 3,000 each, which were eventually only paid on 31 October 2018. In this respect, the

Respondent/Counter-Claimant a non-translated bank receipt of said alleged payment.

14. The members of the Chamber pointed out that, given the claim of the Claimant/Counter- Respondent and the counterclaim of the Respondent/Counter-Claimant, it had to analyse whether on the basis of the documentation presented by the parties, it could draw its conclusions as to which party was to be held responsible for the termination of the contract. Also, it shall focus its attention on the events that transpired as of August 2018.

15. In this respect, the Chamber referred to the content of 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.

16. Having analysed the respective documentation on file, the DRC wished to point out that, where the Claimant/Counter-Respondent made clear that it is of the opinion that the Respondent/Counter-Claimant was acting in breach of the contract by not returning anymore to its club in the summer of 2018, the Respondent/Counter-Claimant could not back up his allegations with documentary evidence at all. The Chamber wished to point out that form the information on file, it could not be established at all that the contract contained abusive clauses that made it impossible for the Respondent/Counter-Claimant to stay at the Claimant/Counter- Respondent’s club, or that he was not provided with a work visa. Furthermore, the alleged fact that the Claimant/Counter-Respondent did not fulfil its fiscal obligations or that the Respondent/Counter-Claimant was in fact a “bridge club” that wished to transfer the Respondent/Counter-Claimant were not backed by any piece of documentary evidence.

17. For the sake of completeness and referring to the Respondent/Counter-Claimant’s allegation that at the time of the unilateral termination of the contract, three monthly salaries in the total amount of EUR 3,000 remained outstanding, the Chamber wished to point out that the Respondent/Counter-Claimant only provided a non-translated alleged bank payment made on 31

October 2018. With reference to art. 9 par. 1 under e) of the Procedural Rules, the members if

the Chamber decided to not take into account said bank receipt. As a result, the alleged fact that at the time of the termination of the contract an amount of EUR 3,000 remained outstanding, could be proven by the Respondent-Counter-Claimant.

18. On account of the above considerations, the members of the Chamber established that the Respondent/Counter-Claimant was absent from the club as of July 2018 without the Claimant/Counter-Respondent’s authorisation and did not return to the Claimant/Counter- Respondent anymore and did not resume his duties thereafter. Consequently, he has acted in breach of the employment contract without just cause.

19. In view of the foregoing, the members of the Chamber decided to reject the counterclaim lodged by the Respondent/Counter-Claimant and further concluded that it could not be proven that at the time of the unilateral termination of the contract, any remuneration remained outstanding. As a result, no outstanding remuneration is to be awarded in the matter at hand.

20. Furthermore, following the conclusion that the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contract on 3 August 2012, the Chamber decided that in accordance with art. 17 par. 1 of the Regulations, the Respondent/Counter-Claimant is liable to pay compensation to the Claimant/Counter-Respondent.

21. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the Respondent/Counter-Claimant’s new club, i.e. the Intervening party, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the Respondent/Counter-Claimant’s new club is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the CAS.

22. 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 as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period.

23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. Upon careful examination of said contract, the members of the Chamber assured themselves that this was not the case in the matter at stake.

24. In the calculation of the amount of compensation due by the Respondent/Counter-Claimant, the Chamber firstly turned its attention to the remuneration and other benefits due to the Respondent/Counter-Claimant under the existing contract and/or any new contract(s), a criterion which 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 any new contract(s) in the calculation of the amount of compensation.

25. According to the documentation provided by the parties, it appears that in accordance with the Respondent/Counter-Claimant’s employment contract with the Claimant / Counter-Respondent, which was to run for another 47 months at the moment when the breach of contract occurred, the Respondent/Counter-Claimant was to receive a monthly remuneration of EUR 1,000, i.e. the total amount of EUR 47,000.

26. On the other hand, the Chamber noted that the Respondent/Counter-Claimant signed several other contracts after the unilateral termination of the contract on 13 August 2018, that is, with the Country B clubs, C (the Intervening party), G and E.

The value of the said new employment contracts, concluded between the Respondent/Counter- Claimant and the Intervening party and G, during the overlapping period of time, appears to amount the total amount of EUR 75,852, specified as follows:

- EUR 6,936 in the period between January and December 2019, as per the contract with the

Intervening party;

- EUR 6,780 in the period between January and February 2020, as per the contract with the

Intervening party;

- EUR 4,356 in the period between March and June 2020, as per the contract with the

Intervening party;

- EUR 6,780 in the period between July and August 2020, as per the contract with G;

- USD 60,000 (approximately EUR 51,000) for the period between September and December

2020, as per the contract with E.

On the basis of the aforementioned financial contractual elements at its disposal, the Chamber concluded that the remuneration of the Respondent/Counter-Claimant during the remaining contractual period of time amounted to the average of sum of EUR 61,426.

27. However, the members of the Chamber took into account that, given the specific circumstances of the matter at hand, namely the fact that the Claimant / Counter-Respondent admitted that it was in delay of several contractually agreed payments (i.e. three of the outstanding salaries where paid during the course of the proceedings before FIFA) and the fact that Claimant

/ Counter-Respondent had not shown any genuine interest in the Respondent/Counter- Claimant (i.e. it only requested once – in August 2018 - that the Respondent/Counter-Claimant should return to its club), the compensation payable to the Claimant/Counter-Respondent should be mitigated.

28. In view of the foregoing, the members of the Chamber deemed that an amount of EUR 12,000, equivalent to a yearly salary under the Respondent/Counter-Claimant’s contract with the Claimant/Counter-Respondent, is considered a fair and proportionate amount of compensation.

29. In continuation, and referring to art. 12 par. 3 of the Procedural Rules, the Chamber pointed out that the Claimant / Counter-Respondent also requested an additional amount of compensation of EUR 150,000 corresponding ot the lost opportunity to transfer the Respondent / Counter- Claimant. In this respect, the Chamber established that it had no indications at its disposal regarding a potential offer for the services of the player, or his current market value, and that therefore it could not further consider that criterion in the specific case at hand, due to a lack of documentary evidence presented by the parties.

30. Also in connection with the Claimant / Counter-Respondent’s request for compensation in the amount of EUR 6,000 corresponding to “sporting loss”, the members of the Chamber concluded that said claim is to be rejected, due to the lack of documentary evidence submitted by the Claimant / Counter-Respondent and/or contractual basis to award said amount.

31. All in all, on account of the aforementioned considerations, the Chamber decided that the Respondent/Counter-Claimant is liable to pay compensation for breach of contract to the Claimant/Counter-Respondent in the amount of EUR 12,000.

32. In addition, taking into account the Claimant/Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber, 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 10 October 2018.

33. In this respect, the Chamber also determined that the Intervening party, the club C, is jointly and severally liable for the payment of the above-mentioned amount of compensation to the Claimant / Counter-Respondent.

34. Furthermore, the members of the Chamber decided to reject any further claim lodged by the

Claimant/Counter-Respondent.

35. The Chamber concluded its deliberations in the present matter by rejecting the counterclaim lodged by the Respondent/Counter-Claimant.

36. Furthermore, taking into account the consideration under number II./3. above, the Chamber 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.

37. In this regard, the Chamber pointed out that, against players, the consequence of the failure to pay the relevant amount(s) in due time shall consist of a ban on playing in official matches up until the due amount is paid and for the maximum duration of six months.

38. Therefore, bearing in mind the above, the DRC decided that, in the event that the player does not pay the amounts due to the club within 45 days as from the moment in which the club, following the notification of the present decision, communicates the relevant bank details to the player, ban on playing in official matches up until the due amount is paid and for the maximum duration of six months shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

39. Finally, the Chamber 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.

Emilio García Silvero

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

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

2. The Respondent / Counter-Claimant, B, has to pay to the Claimant / Counter-Respondent, the following amount:

- EUR 12,000 as compensation for breach of contract without just cause plus 5% interest p.a.

as from 10 October 2018 until the date of effective payment.

3. The Intervening party, C, is jointly and severally liable for the payment of the aforementioned compensation.

4. Any further claims of the Claimant / Counter-Respondent are rejected.

5. The counterclaim of Respondent / Counter-Claimant is rejected.

6. The Claimant / Counter-Respondent is directed to immediately and directly inform Respondent / Counter-Claimant and the Intervening party of the relevant bank account to which they must pay the due amount.

7. The Respondent / Counter-Claimant and/or the Intervening party shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the following consequences shall arise:

1. The Respondent / Counter-Claimant shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months . The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid. (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2. In the event that the payable amount as per in this decision is not paid within the granted deadline , the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

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