Decision of the. Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 7 June 2018, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Pavel Pivovarov (Russia), member on the claim presented by the player, Player A, Country B as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute between the parties

2 I. Facts of the case 1. On 15 July 2016, the player of Country B, Player A (hereinafter: the player or Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent) concluded an employment contract (hereinafter: the contract), valid as from 15 July 2016 until 31 May Further, the player and the club also signed a document referred to as additional agreement (hereinafter: the additional agreement), which document is, according to article 3, valid exceptionally during the term of the contract dated 15 July 2016, but enters into force, subject to receiving the International Transfer Certificate by the Football Federation of Country D and positive conclusion after a medical examination of football player. 2. Based on article 4.2 of the contract, the player was entitled to receive inter alia the following amounts: For the 2016/2017 season: - a monthly salary of USD 4,500; For the 2017/2018 season: - a monthly salary of USD 4,500; or - if the professional football player will participate in more than 70% of the official games in the first eleven of the main team of the club during the 2016/2017 season, then the monthly salary of the professional football player for the following season 2017/2018 will be USD 5,000 ; For the 2018/2019 season: - a monthly salary of USD 4,500; or - if the professional football player will participate in more than 70% of the official games in the first eleven of the main team of the club during the 2017/2018 season, then the monthly salary of the professional football player for the following season 2018/2019 will be USD 6,000, however in case that the monthly salary of the professional football player in the season 2017/2018 was USD 5,000 under the terms stipulated above and the professional football player fails to participate in more than 70% of the official games in the first eleven of the main team of the club during the 2017/2018 season then the salary of the professional player will remain USD 5,000 for the season 2018/ In addition, article 2.2 of the contract inter alia holds the following clause: The club is the main employment place (trainings place, competitions place, and 2

3 school of professional craft improvement) for the professional football player, thus till the contract expiry the latter has no right to enter into employment relationship or negotiations with other football clubs unless there is an official written agreement from the club [ ]. 4. What is more, according to article of the contract, the player has to fulfil his work duties, to take part in games (matches) of the club s football teams and in all events which are related to the training process [ ]. In addition, article of the contract stipulates that the club is obliged to hand the contract and its addenda to the professional football player. 5. Furthermore, article 6.2 of the contract stipulates the following: Alterations to this contract are possible upon the mutual consent of the parties at any time. Amendments and addenda to the contract are to be concluded in written, to be signed by the parties, to be registered in a corresponding league/association or organization, which holds the competition; such amendments shall be integral parts to the contract. Unilateral alterations are not allowed. 6. According to article 2 of the additional agreement, the player is entitled to receive inter alia the following amounts: For the 2016/2017 season: - a monthly salary of USD 9,000; - 8,000 in the currency of Country D (approximately USD 320 on 15 July 2016) as monthly rent allowance; - 2 (two) round air trips during one calendar year on the route Country D Country B ; For the 2017/2018 season: - a monthly salary of USD 9,000; or - if the football player will participate in more than 70% of the official games in the first eleven of the main team of the club during the 2016/2017 season, then the payment to the player for the following season 2017/2018 will be USD 10,000 ; - 8,000 in the currency of Country D as monthly rent allowance; - 2 (two) round air trips during one calendar year on the route Country D Country B ; For the 2018/2019 season: - a monthly salary of USD 9,000; or 3

4 - if the football player will participate in more than 70% of the official games in the first eleven of the main team of the club during the 2017/2018 season, then the payment to the player for the following season 2018/2019 will be USD 12,000, however in case that the payment to the football player in the season 2017/2018 was USD 10,000 under the terms stipulated above and the football player fails to participate in more than 70% of the official games in the first eleven of the main team of the club during the 2017/2018 season then the payment to the player will remain USD 10,000 for the season 2018/2019 ; - 8,000 in the currency of Country D as monthly rent allowance; - 2 (two) round air trips during one calendar year on the route Country D Country B. 7. On 30 Mach 2017, the player lodged a claim against the club in front of FIFA, requesting that the club has to be ordered to pay him the total amount of USD 574,800, specified as follows: Outstanding remuneration in the amount of USD 63,900, as follows: - USD 63,000 as 3 monthly payments of USD 9,000 each for the period between December 2016 and February 2017, as well as 8 monthly salaries of USD 4,500 each, for the period between July 2016 and February 2017; - USD 900 as 8 outstanding monthly rental allowances in the alleged amount of USD each for the period between July 2016 and February 2017; Compensation for breach of contract in the amount of USD 510,900, as follows: - USD 54,000 as residual value of the contract in the 2016/2017 season, corresponding to 4 monthly payments of USD 9,000 each, as well as 4 additional payments of USD 4,500 each, for the period between March 2017 and July 2017; - USD 180,000 as residual value of the contract in the 2017/2018 season, corresponding to 12 monthly payments of USD 10,000 each, as well as 12 additional payments of USD 5,000 each, for the period between August 2017 and July 2018; - USD 216,000 as residual value of the contract in the 2018/2019 season, corresponding to 12 monthly payments of USD 12,000 each, as well as 12 additional payments of USD 6,000 each, for the period between August 2017 and July 2018; - USD 2,700 as remaining rental allowance for the 2016/2017 season; 4

5 - USD 3,600 as remaining rental allowance for the 2017/2018 season; - USD 3,600 as remaining rental allowance for the 2018/2019 season; - USD 3,000 as yearly round trips Country D Country B ; - USD 7,500 as moral damages ; - USD 7,500 as legal fees ; - USD 60,000 as specificity of the sport as a factor for damages ; - minus the amount of USD 27,000, the player confirms to have received form the club after sending his letter of termination. Moreover, the player requested 5% interest p.a. as of the respective due dates in relation to the amounts claimed as outstanding remuneration, as well as 5% interest p.a. as from the date of claim on the amount claimed as compensation for breach of contract. Finally, the player requested that sporting sanctions will be imposed on the club. 8. In his claim, the player explains that as from the beginning of the contract, the club showed bad faith by not sending him a copy of the contract, as well as by only paying him a salary of USD 9,000 instead of the agreed amount of USD 13,500. The player states that he discussed this problem with the club, and that the club promised to send him a copy of the contract and to fulfil its financial obligations. 9. Further, the player argues that, after the club had failed to pay him his salaries for December 2016, January 2017 and February 2017, on 25 February 2017, he put the club in default for the total amount of USD 27,900, however to no avail. The player clarifies that the amount of USD 27,900 consists of three outstanding salaries of USD 9,000 each, as well as an amount of USD 900 as unpaid rental allowances. 10. Furthermore, the player explains that on 5 March 2017, after not having received a reply from the club, neither a payment of the requested amount, he unilaterally terminated the contract due to the outstanding amount of USD 27,900. Furthermore, in his termination letter, the player requested the club to pay him the outstanding remuneration and compensation for breach of contract, and further points out that in the absence of payment, announced that he would lodge a claim before FIFA. 5

6 11. Moreover, the player states that both the contract and the additional agreement have to be taken into account while establishing the consequences of the breach of contract by the club, as both documents were validly agreed upon between the parties. In this respect, the player points out that while signing the documents, he could reasonably expect that both documents were valid and binding. 12. Subsequently, the player deems that he had a just cause to terminate the contract, as on 5 March 2017, he had been without income for three months, as the club failed to pay him the monthly salaries for December 2016, January 2017 and February In its reply to the player s claim, the club submitted a copy of the contract and argued that the player had terminated the contract without just cause. Further, the club referred to article 6.2 of the contract and points out that only the contract was uploaded in TMS, and that there are no changes to the contract. What is more, the club states that the player only submitted a copy of the additional agreement, which document therefore cannot be taken into account. 14. Moreover, the club explains that the player missed a training session of the U-21 team of the club on 4 March 2017, without a valid reason. The club explains that the player was recovering from an injury and that he had to train with the U-21 team, but that with missing said training, he breached article of the contract. The club further states that the player did not submit evidence that he indeed sent his default letter dated 25 February 2017 to the club. 15. Furthermore, the club points out that on 6 March 2017, it found out that the player had accepted an offer from the club of Country E, Club F, and that he had already left the Country D on 5 March The club argues that this behaviour is a breach of article 2.2 of the contract, as it received the player s termination letter only by fax on 6 March 2017, which is after the moment the player decided to sign for Club F. 16. In relation to the alleged outstanding payments, the club argues that the player could not prove that the club was obliged to pay him two salaries at once: USD 4,500 and USD 9,000. In this respect, the club also refers to the fact that the player allegedly sent a default letter to the club (which it deems to not have received), in which he only mentions outstanding salaries in the amount of USD 9,000. The club concludes that it only had to pay a monthly salary of USD 4,500 to the player, and that it addition, it paid bonuses to the player, leading to a total monthly salary of approximately USD 9, Moreover, the club explains that on 25 February 2017, the salary for the month of February 2017 had not yet fallen due, and that thus, on the day the player alleged to have sent his default notice, only the salary for December 2016 and January 6

7 2017 could be claimed by him. In this respect, the club further holds that it made the following payments to the player: on 25 November 2016, an amount of 141, in the currency of Country D (approximately USD 5,430 on 25 November 2016), corresponding to the salary for the month of October 2016; on 25 January 2017, an amount of 225, in the currency of Country D (approximately USD 8,216 on 25 January 2017), corresponding to the salary for the month of November 2016; on 9 March 2017, an amount of 591, in the currency of Country D, corresponding to the salaries for the months of December 2016, January 2017 and February In addition, the club states that at the beginning of March 2017, its president, President G, gave USD 1,000 to the player as rental allowances for the upcoming three months. 18. In conclusion, the club holds that the player breached the contract without just cause in the protected period, however explicitly points out that it has no intentions to lodge any claims of material character against the Claimant and therefore, asking for the rejection of the player s claim. 19. In his replica, the player argues that both the contract and the additional agreement are legally binding documents, and that the fact that he only submitted a copy of the additional agreement, can be of no influence on the question whether or not he was entitled to terminate the contract with just cause. 20. What is more, the player submitted a document referred to as appendix 4 model employer s statement, in which the club s president, President G, declares that the player s yearly income is EUR 119, Furthermore, the player submitted an undated declaration, in which President G confirmed that the player s gross salary in the period between 15 July and 31 December 2016 is EUR 59, and that he also receives money for renting apartment in the amount of EUR 2, The player states that based on these documents, it can be established that during the first period, the salary was paid in accordance with the additional agreement and NOT following the employment contract. 21. In conclusion, the player holds that both sums (employment agreement + additional agreement) should be added and are in this phase claimable by the player. According to the player, this also follows from the contents of article and article 3 of the additional agreement. 7

8 22. Additionally, the player explains that both the contract and the additional agreement contain the essentialia negotii and are to be considered valid and legally binding documents. 23. With respect to the default notice dated 25 February 2017, the player explains that said letter was sent by to the addresses XXX, YYY and ZZZ, as well as by fax, on 26 February In relation to the outstanding salaries, the player argues that the club did not prove that the amounts it alleged to have paid in the period between 25 November 2016 and 9 March 2017, were effectively transferred to his bank account. Further, if this would have been the case, the player argues that he only received the salaries for December 2016, January 2017 and February 2017 on 9 March 2017, i.e. 4 days after he unilaterally terminated the contract. As such, the player deems to have had a just cause to terminate the contract on 5 March Finally, the player holds that only after the termination of the contract on 5 March 2017, he was informed by his agent about an opportunity to play in Country E for Club F, and that only on 15 March 2017, he signed a new contract with Club F. 26. In its duplica, the club reiterates its request to reject the player s claim and argues that the address ZZZ does not belong to the club, as the correct addresses are QQQ and TTT. These addresses are according to the club also mentioned in the letters of the salary specifications that the club had sent to the player in the period between July and December Further, the club argues that the addresses XXX, YYY belong to employees of the club, who are not authorized to represent the club in matters like contractual obligations. 27. As a result of the foregoing, the club deems that the player never duly informed the club about the alleged outstanding payments. What is more, according to the club, the player could not clarify his absence on a training session on 4 March 2017, neither that he stayed in Country D until 6 March Based on these circumstances, the club deems that the player had no just cause to terminate the contract. 28. In relation to the alleged outstanding salaries, the club points out that the player implicitly confirmed that he received the salaries for October and November Furthermore, the club argues that based on the established mode of payment - it only had the obligation to pay the salary for December 2016 at the latest on 1 February 2017, and that the salary for January 2017 had to be paid at the latest on 1 March Therefore, on 4 March 2017, only two salaries (for December 2016 and January 2017) were outstanding, which circumstance was, according to the club, caused by the lack of a shirt sponsor. 8

9 29. In addition, the club again points out that the player already on 5 March 2017 accepted the offer of Club F and that this is contrary to the contents of the contract. 30. Finally, the player informed FIFA that on 10 March 2017, he signed an employment contract with the club of Country E, Club F, valid as from 10 March 2017 until 10 December 2017 and provided a copy of said contract. Based on this document, the player is entitled to receive a total amount of 1,138,000,000 in the currency of Country E, or equal to USD 85,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 30 March Consequently, the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 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. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA s letter dated 31 May 2018 by means of which the parties were informed of the composition of the Chamber, the member, Member H, and the member, Member L, refrained from participating in the deliberations in the case at hand, due to the fact that the member, Member H has the same nationality as the player and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member, Member L, refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2016 and 2018), and considering that the present claim was lodged on 30 9

10 March 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. 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. 6. In this respect, the Chamber recalled that, according to the player, he has signed an employment contract with the club, valid as from 15 July 2016 until 31 May 2019, on the basis of which he was entitled to receive a monthly salary of USD 4,500, as well as that said monthly salary would be raised to USD 5,000 in the 2017/2018 season, in case the player would play in 70% of the club s official matches in the 2016/2017 season. Furthermore, the contract stipulates that in the 2018/2019 season, the player s monthly salary would be USD 6,000, if the player would play in both the 2016/2017 season and the 2017/2018 season in 70% of the club s official matches, however that the monthly salary for the 2018/2019 would remain USD 5,000, if the player would have only played in 70% of the club s official matches in the 2017/2018 season. 7. In continuation, the Chamber noted that the player also alleged that he signed an additional agreement with the club, valid exceptionally during the term of the contract dated 15 July 2016, on the basis of which the player was entitled to receive a monthly salary of USD 9,000. Further, the additional agreement contained a similar salary raise clause as the contract, stipulating that said monthly salary would be raised to USD 10,000 in the 2017/2018 season, in case the player would play in 70% of the club s official matches in the 2016/2017 season. Furthermore, the contract stipulates that in the 2018/2019 season, the player s monthly salary would be USD 12,000, if the player would play in both the 2016/2017 season and the 2017/2018 season in 70% of the club s official matches, however that the monthly salary for the 2018/2019 would remain USD 10,000, if the player would have only played in 70% of the club s official matches in the 2017/2018 season. 8. On account of the above, the player deems that during the period he was under contract with the club, he was entitled to a total salary of USD 13,500, consisting of a monthly salary of USD 4,500 as per the contract, and an additional monthly salary of USD 9,000 as per the additional agreement. What is more, the player holds that he could only submit a signed copy of the additional agreement, as he never received a signed copy of the contract from the club. 10

11 9. In continuation, the members of the Chamber noted that the player lodged a claim against the club, maintaining that he had terminated the employment contract with just cause on 5 March 2017, after having previously put the club in default on 25 February 2017 for the outstanding payments. The player held that the club allegedly failed to pay him the remuneration he was entitled to, and that on 5 March 2017, his remuneration due under the contract in the period between July 2016 and February 2017, as well as the remuneration due under the additional agreement in the period between December 2016 and February 2017, remained outstanding. Consequently, the player requested to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 10. Subsequently, the DRC observed that the club contested the player s allegations and first of all argued that only the contract was validly concluded between the parties and therefore applicable, and submitted a copy of this document. In relation to the additional agreement, the club holds that this document is not applicable, as the player could only submit a copy of it. Further, the club argues that the player missed a training session with its U-21 team and that on 5 March 2017, he already left the Country D, accepting an offer from the club of Country E, Club F, on 6 March 2017, and that such behavior constituted a breach of contract by the player. What is more, the club explains that the player did not correctly put the club in default and denied that there were any outstanding payments, as on 9 March 2017, it paid all outstanding salaries to the player. In conclusion, the club asks for the rejection of all the player s claims. 11. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute was to establish which documents were validly concluded between the parties and applicable to the matter at hand, as well as to determine whether one of these agreements or both of them had been prematurely terminated by one of the parties with or without just cause, and subsequently, to determine the consequences of said early termination of the contractual relationship. 12. First of all, in relation to the discussion arisen between the parties about the validity of the contract and the additional agreement, the Chamber wished to emphasise that in order for a contract to be considered as valid and binding, it must at least contain the names of the parties, the object, the duration of the employment relationship, and the signature of the parties. 13. Turning its attention to the contents of the contract and the additional agreement, the Chamber noted that both documents were duly signed by all parties, and that in addition, inter alia, the name of the parties, the object, the duration of the contractual relationship, were included said documents concluded between the parties on 15 July

12 14. In view of the aforementioned, the Chamber came to the conclusion that, in principle, both the contract as well as the additional agreement signed on 15 July 2016 contained all the essentialia negotii, in order to be considered valid and binding employment contracts. Notwithstanding the foregoing, the Chamber declared that it still needed to analyse whether these two contracts were in fact valid simultaneously, i.e. complementary to each other as alleged by the player, or whether one of them prevailed over the other. In this regard, the Chamber referred to the content of art. 12 par. 3 of the Procedural Rules and established that the player bore the burden of proving that both contracts were in fact valid simultaneously. 15. In this respect, the Chamber first noted that the additional agreement does not hold any clause mentioning that the remuneration therein established was to be paid in addition to the remuneration stipulated in the contract. In fact, the Chamber noted that in accordance with art. 3 of the additional agreement, the latter was valid exceptionally during the term of the contract dated 15 July 2016, confirming that the additional agreement was in fact to be considered as the one valid document governing the employment relationship between the player and the club, during the validity of the first employment contract. 16. In addition to that, the members of the Chamber noted that from the very beginning of the contractual relationship between the parties, more specifically in the period between 15 July and 31 December 2016, it appears that the player was paid the monthly amount of approximately EUR 10,000 gross or EUR 8,000 net, corresponding to USD 9,000, which is his salary as stipulated in the additional agreement. The aforementioned in confirmed by a document named appendix 4 and in a declaration of the club, both submitted by the player himself, in which his remuneration corresponds to the one stipulated in the additional agreement. Based on these circumstances, the members of the Chamber were of the opinion that for the analysis of this case in relation to possible outstanding remuneration and breach of contract, the additional agreement signed on 15 July 2016 is the document to be considered at the basis of the employment relationship between the player and the club. 17. Having concluded the above, the Chamber went on to analyse article 2 of the additional agreement in relation to the salary the player was entitled to during the validity of the employment relationship, which reads inter alia as follows: if the professional football player will participate in more than 70% of the official games in the first eleven of the main team of the club during the 2016/2017 season, then the monthly salary of the professional football player for the following season 2017/2018 will be USD 5,000 and if the professional football player will participate in more than 70% of the official games in the first eleven of the main team of the club during the 2017/2018 season, then the monthly salary of the professional football player for the following season 2018/2019 will be USD 6,000, however in case that the monthly salary of the professional football 12

13 player in the season 2017/2018 was USD 5,000 under the terms stipulated above and the professional football player fails to participate in more than 70% of the official games in the first eleven of the main team of the club during the 2017/2018 season then the salary of the professional player will remain USD 5,000 for the season 2018/ In this respect, the members of the Chamber wished to point out that the decision of lining-up of a player in a match is normally left fully to the discretion of the club. As such, the player had no influence on the question of whether or not he would be fielded in a specific number of matches in the relevant season, consequently leaving it entirely up to the club to decide on the amount of remuneration he would receive for the upcoming season. 19. In this context, the members of the Chamber highlighted that, in general, potestative clauses, i.e. clauses that contain obligations which fulfilment are conditional upon an event that one party entirely controls, can in general not be applied, since they limit the rights of the other contractual party in an excessive manner and lead to an unjustified disadvantage of the latter towards the other. 20. Along those lines, the members of the Chamber agreed that the condition stipulated in article 2 that the player needed to play in 70% of the club s official matches, cannot be taken into consideration, due to its potestative nature. Indeed, as previously mentioned, the club totally controlled the fielding of the player and therefore, only the club was in a position to decide what the actual salary of the player would be in a specific sporting season. 21. Having taken into account the previous considerations, the members of the Chamber came to the conclusion that, by means of the additional agreement, the player and the club agreed that the player was entitled to a monthly salary of USD 9,000 in the 2016/2017 season, a monthly salary of USD 10,000 in the 2017/2018 season and a monthly salary of USD 12,000 in the 2018/2019 season. 22. Turning its attention to the player s allegations that the salary payments for the months of December 2016, January 2017 and February 2017 due under the additional agreement remained outstanding, the members of the Chamber noted that the club contested said circumstance by arguing that a) the salary for February 2017 had not yet fallen due on the day the player sent his default letter, i.e. 25 February 2017 and b) by explaining that on 9 March 2017, it made the payment of the salaries of December 2016, January 2017 and February 2017, in the total amount of 591, in the currency of Country D (corresponding to approximately 3 monthly salaries). 23. The Chamber was eager to emphasize that from the information on file and the contents of the contract, it could be noted that the parties did not agree upon a 13

14 specific due date for payment of the salaries. As a result, it could be established that the salaries were to be paid at the latest on the last day of the respective month, i.e. the salary for February 2017 had to be paid the latest on 28 February Although on 25 February 2017, when the player put the club in default and asked for the payment of his outstanding remuneration, the salary for February 2017 had not yet fallen due, on 5 March 2017, the day the player unilaterally terminated the contract, three monthly salaries related the months of December 2016, January 2017 and February 2017, had fallen due and remained outstanding. 24. Further, the members of the Chamber referred to the fact that the club confirmed to have paid the aforementioned three outstanding salaries only on 9 March 2017, which circumstance is supported by documentary evidence provided by the club and not contested by the player. As a result, and because the payment of the salaries only took place after the termination of the contract, the Chamber established that this circumstance was of no influence on the question whether the player had terminated the contract with or without just cause on 5 March Finally, while analysing the other club s arguments, that the player did not correctly put the club in default and was apparently absent for one training session on 4 March 2017 and that he left the Country D in order to sign a contract in Country E, the Chamber first of all noted that the club confirmed that the default letter dated 25 February 2017 was received by some of its own employees, as a result of which the allegation of the club that it was not aware of said default letter cannot be upheld. 26. Moreover, the Chamber observed that the club did not submit any documentary evidence, which could prove that the player was indeed absent on 4 March Notwithstanding, the Chamber was of the firm opinion that even if the player would have been absent, in any case, said absence could not justify the club s conclusion that the player terminated the contract without just cause on 5 March 2017, by being allegedly absent for one training session, while being owed at least three months of outstanding remuneration. 27. What is more, the club s allegations that the player already left the Country D on 5 March 2017 and that he accepted already on 6 March 2017 a proposal from the club of Country E, Club F, were not backed by any corroborating documentary evidence. Moreover, the player explicitly contested said circumstances, as he argued that only after the termination of the contract on 5 March 2017, he was informed about the possibility to play in Country E by his agent, and that only on 10 March 2017, he signed a contract with Club F. In view of the foregoing, the Chamber deemed that also this argumentation of the club had to be rejected. 28. In conclusion, in accordance with the additional agreement concluded between the parties, and taking into account that the player stated that the club failed to 14

15 pay him his monthly salaries between December 2016 and February 2017, as well as the rental allowances in the alleged amount of USD 900, the Chamber noted that the club could not prove that it paid these amounts before the unilateral termination of the contract by the player, i.e. on 5 March As a result, the members of the Chamber established that on 5 March 2017, the monthly salaries for the months December 2016, January 2017 and February 2017 in the amount of USD 9,000 each, as well as the three payments of rental allowances for these months, remained outstanding. 29. On account of the aforementioned, in particular in view of the considerations under point II./22. and II./27. above, the Chamber established that the club, without any valid reason, failed to remit to the player, until 5 March 2017, the date on which the player terminated the contract, three monthly salaries for December 2016, January and February 2017, as well as the monthly rental allowances the player was entitled to in said period. Consequently, and considering that the club had repeatedly and for a significant period of time been in breach of its contractual obligations towards the player, the Chamber decided that the player had just cause to unilaterally terminate the employment contract on 5 March As a result, the club is to be held liable for the early termination of the employment contact with just cause by the player. 30. In continuation, having established that the club is to be held liable for the early termination of the employment contract with just cause by the player, the Chamber focused its attention on the consequences of such termination. 31. First of all, the members of the Chamber concurred that the club must fulfil its obligations as per the employment contract in accordance with the general legal principle of pacta sunt servanda. In this respect, the Chamber wished to point out that the club provided documentary evidence of the payment of the player s salaries for the months of December 2016, January 2017 and February 2017, which were outstanding at the date of termination, i.e. 5 March 2017, shortly after said termination, that is, on 9 March Such evidence was not contested by the player. Consequently, the Chamber decided that the club is liable to pay to the player the amounts that were outstanding at the time of the termination and are still not paid by the club to the player, i.e. the unpaid rental allowances in the total of approximately USD Bearing in mind the foregoing, as well as the claim of the player and the agreement concluded between the parties, the Chamber wished to outline that, in accordance with its well-established jurisprudence in this respect, any amount of remuneration in relation to rental allowances, payable to the player would be due in currency of Country D and not in USD as per the player s claim, as the parties had agreed in the contract upon the payment of the rental allowances in several instalments in currency of Country D. As a result, the Chamber established that the player is entitled to payment of outstanding rental allowances in the 15

16 amount of 24,100 in the currency of Country D (corresponding to USD 900, for approximately 3 months). 33. Furthermore, considering the player s claim for interest and also taking into account the Chamber s longstanding jurisprudence, the Chamber ruled that the club must pay 5% interest p.a. on the amount of 24,100 in the currency of Country D until the date of effective payment as follows: a. 5% p.a. as of 2 December 2016 on the amount of 8,033,34 in the currency of Country D ; b. 5% p.a. as of 2 January 2017 on the amount of 8, in the currency of Country D; c. 5% p.a. as of 2 February 2017 on the amount of 8, in the currency of Country D. 34. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract, in addition to any outstanding salaries on the basis of the relevant employment contract. 35. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club 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. 36. In application of the relevant provision, the Chamber held that first of all, it had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 37. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club 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 16

17 to be taken into consideration when calculating the amount of compensation payable. 38. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 31 May In this respect, the Chamber took into account that the player would have been entitled to a monthly salary of USD 9,000 in the 2016/2017 season, a monthly salary of USD 10,000 in the 2017/2018 season and a monthly salary of USD 12,000 in the 2018/2019 season, in view of the considerations under points II./17. and II./21. above, as well as to a monthly rent allowance of 8,000 in the currency of Country D, corresponding to approximately USD 320. Consequently, the Chamber concluded that the amount of USD 296,640 serves as the basis for the determination of the amount of compensation for breach of contract. 39. 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 enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player s general obligation to mitigate his damages. 40. Indeed, on 10 March 2017, the player found employment with the club of Country E, Club F. In accordance with the pertinent employment contract, which has been made available by the player, valid as from 10 March 2017 until 10 December 2017, the player was entitled to receive a monthly salary of 1,138,000,000 in the currency of Country E, corresponding to USD 85,000. Consequently, the Chamber established that the value of the new employment contract concluded between the player and Club F, amounting to USD 85,000, should be deducted from the compensation for breach of contract the player was entitled to. 41. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of USD 211,640 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter. 42. Furthermore, in accordance with its established jurisprudence and taking into account the request of the player, the Chamber further decided that interest at the rate of 5% p.a. was to be applied over the amount of USD 211,640 as from 30 March 2017, i.e. the date of the claim. 43. What is more, as regards the player s claim pertaining to legal fees, additional indemnity in the amount of USD 60,000 and moral damages, which was not at all 17

18 specified by the player, the Chamber concluded that such claims are to be rejected due to a lack of legal basis. 44. Finally, as regards the player s claim pertaining to air tickets, the Chamber decided that - on the basis of the information provided by FIFA Travel and referring to the relevant terms of the contract - the club must pay to the player the amount of CHF 401 for an economy class air ticket from the Country D to the Country B. 45. Additionally, taking into account the Chamber s longstanding jurisprudence, the Chamber decided that the club has to pay 5% interest p.a. on the amount of CHF 401 as from 30 March 2017, the date the claim was lodged by the player. 46. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of 24,100 in the currency of Country D, plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 2 December 2016 on the amount of 8,033,34 in the currency of Country D; b. 5% p.a. as of 2 January 2017 on the amount of 8, in the currency of Country D; c. 5% p.a. as of 2 February 2017 on the amount of 8, in the currency of Country D. 3. The Respondent has to pay to the Claimant within 30 days as from the date of notification of this decision, compensation for breach of contract in the amounts of USD 211,640 and of CHF 401, plus 5% interest p.a. as of 30 March 2017 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 18

19 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Omar Ongaro Football Regulatory Director Encl. CAS directives 19