Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 16 October 2023
regarding an employment-related dispute concerning
the player A
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), member
Roy VERMEER (The Netherlands), member
CLAIMANT / COUNTER - RESPONDENT:
A, Country A
Represented by
RESPONDENT / COUNTER - CLAIMANT:
B, Country B
Represented by
INTERVENING PARTY:
C, Country C
pg. 2
I. Facts of the case
1. On 5 July 2021, the Country A player A (hereinafter: the Player) and the Country B club B
(hereinafter: B) concluded an employment contract (hereinafter: the Contract) valid until 30 June
2024.
2. Art. 2 of the Contract reads as follows:
1. For the rendering of the activity mentioned in the previous Clause, the First Party undertakes to pay
the Player the following global gross amounts:
a) € 145. 000 ,00 for the activity rendered by the Player until the end of the sporting season 2021/2022
and the cession of the rights foreseen in the Eight Clause, amount which shall be paid in 12 [twelve)
equal monthly instalments, in the gross amount of € 12.083,33, each, to be paid until the 5th day of
the following month, which include the proportional amounts concerning vacation and Christmas
allowances and food allowance
b) € 150.000,00 for the activity rendered by the Player until the end of the sporting season 2022/2023
and the cession of the rights foreseen in the Eight Clause, amount which shall be paid in 12 equal
monthly instalments, in the gross amount of € 12.500,00, each. to be paid until the 5th day of the
following month (…)
c) € 155.000,00 for the activity rendered by the Player until the end of the sporting season 2023/2024
and the cession of the rights foreseen in the Eight Clause, amount which shall be paid in 12 equal
monthly instalments, in the gross amount of € 12.916,167 each, to be paid until the 5th day of the
following month (…)
3. Art. 10 of the Contract reads as follows:
The Parties agree, following any violation of the present Sporting Employment Agreement and
previously to any other initiative, to notify the other party in order to find e consensual solution to the
dispute within 30 (thirty) days counting from the day of the notification, without which the violation
will not be considered as a reason for the termination of the Agreement by any of the parties being
this clause considered indispensable for the execution of the present Agreement and made in the
mutual interest of the parties.
4. Art. 13 of the Contract reads as follows:
To settle all disputes arising from the interpretation of the present Sporting Employment Agreement,
its execution, validity or enforcement, or any of its' clauses, the Court of Arbitration for Sport in Country
B is competent, being expressly waived any other.
pg. 3
5. Art. 15 of the Contract reads as follows:
Should one of the Parties terminate the present Contract invoking just cause and this is not
acknowledged in Court, the Party which terminated ethe Contract illegally must compensate the other
Party for the damages caused, agreeing the Parties that the amount of the penalty clause is:
a) If the First Party terminates the Contract illegally, it is obliged to pay to the Player compensation
corresponding to the amount of the remunerations due until the term of the Contract, although it may
deduct from the compensation the amounts that the Player should receive for the rendering of the
same activity to another sporting entity during the period of time corresponding to the term of the
terminated Contract;
b) If the Second Party terminates the Contract illegally, namely due to the violation of the previous
Clause, his transfer to a third Club depends on the payment to the First Party of the amount of €
10.000.000,00 regardless of the right of the First Party to demand from the Player the payment of the
compensation foreseen in the labor legislation. To this extent, it is assumed that any Club which
executes an employment contract with the Player induced him to terminate this Contract without just
cause, with the consequent damages to the First Party.
6. In May 2022, the Player travelled to Country A after the end of the season.
7. On 27 May 2022, B contacted the Country B embassy in Country A.
8. In June 2022, B purchased a flight ticket for the Player.
9. On 18 June 2022, the Player asked B to speak with his agent because it appeared that he had a
problem on the necessary paperwork to return to Country B.
10. In June, July and August 2022, B contacted the Player several times regarding his return and the
status of his visa.
11. On 20 October 2022, B sent a “notice of fault” to the Player opening disciplinary proceeding against
him and inviting him to file his position.
12. On 26 October 2022, the Player replied in writing denying the charges.
13. On 27 October 2022, the Player sent a default notice requesting the salaries of August and
September 2022 and to be provided accommodation.
14. On 9 December 2022, B issued a “final decision” deeming that the charges against the Player had
been proven and that the appropriate disciplinary sanction was a dismissal.
15. On 8 February 2023, the Player sent a default notice to B declaring the termination of the Contract
by B to be without just cause and requesting overdue salaries and compensation.
pg. 4
16. On 27 July 2023, the Player concluded an employment contract with the Country C club C
(hereinafter: C).
II. Proceedings before FIFA
17. On 26 February 2023, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Player
18. The Player states that after the end of the 2021/2022 sports season, he travelled to Country A
with his family to enjoy the holidays. However, when he tried to return to Country B the Country
A authorities only issued the Player's visa on 22 August 2022.
19. The Player sustains that B had failed to pay the salaries for August and September 2022, in the
total amount of EUR 25,000. The Player further sustains that B did not pay for his flight tickets and
that he had no financial means to do so.
20. The Player claims that B failed to pay the rent of his accommodation and thus his rental
agreement was terminated by the landlord.
21. According to the Player, on 9 December 2023, B terminated the Contract without just cause as he
“never failed to comply with his obligations towards the Club, nor breached the duty of attendance”.
22. The Player acknowledges art. 13 of the Contract although he deems that the DRC is competent to
hear the dispute.
23. Regarding his absence, the Player submits that he “always had the knowledge and authorization of
the employer, its board of directors and the department of professional football” and he “has always
fulfilled, as he does, his duties, obligations and schedules, both in relation to training and games”.
24. The Player concludes that his absences “can only be considered excused absences”.
25. In the view of the Player, “For the worker to be dismissed, which constitutes the most serious
disciplinary sanction, it is necessary that the worker has acted at fault and that its seriousness is such
that it makes it impossible for the employment relationship to continue. In casu, this serious and
culpable behavior by the player, as mentioned above, was not verified”.
26. Therefore, the Player deems that the disciplinary sanction that B imposed is manifestly unjustified
and abusive since “terminating a contract should always be a last resort (ultima ratio). Consequently,
the less stringent sanctions available to the club, such as warnings, proportionate fines, temporary
suspensions, temporary demotion to the reserves (etc), should be exhausted before this step is
considered. disciplinary proceedings and its Final Decision are illegal and unlawfully”.
27. The Player sustains that B did not comply with clause 10 of the Contract and did not pay to the
following monthly instalments:
pg. 5
i) August 2022, in the gross amount of 12 500,00 €, overdue on 5 September 2022;
ii) September 2022, in the gross amount of 12 500,00 €, overdue on 5 October 2022;
iii) October 2022, in the gross amount of 12 500,00 €, overdue on 5 November 2022;
iv) November 2022, in the gross amount of 12 500,00 €, overdue on 5 December 2022.
28. The Player deems he is entitled to be paid compensation in the following amounts:
For the Season 2022/2023 the total amount of EUR 87,500;
For the Season 2023/2024 the total amount of EUR 155,000.
Total amount of 242 500,00 €, plus interest at 5% rate since 9 December 2022 until effective
payment.
29. The Player filed the following requests for relief:
The Dispute Resolution Chamber shall declare that the termination of the Contract signed between
the parties was unilaterally terminated by the Respondent without just cause.
The Dispute Resolution Chamber shall condemn the Respondent Club to pay to the Claimant the
following amounts regarding outstanding salaries:
i) August 2022, in the gross amount of 12 500,00 €, overdue on 5 September 2022;
ii) September 2022, in the gross amount of 12 500,00 €, overdue on 5 October 2022;
iii) October 2022, in the gross amount of 12 500,00 €, overdue on 5 November 2022;
iv) November 2022, in the gross amount of 12 500,00 €, overdue on 5 December 2022.
TOTAL= 50.000,00€ plus interest at 5% rate since the overdue dates until effective payment.
The Dispute Resolution Chamber shall condemn the Respondent Club to pay to the Claimant the
compensation in the total amount of 242 500,00 €, plus interest at 5% rate since 9 December 2022
until effective payment, for termination of the contract without just cause.
b. Position & Counterclaim of B
30. On 10 April 2023, B filed a reply and a counterclaim. In its reply, B first sustains that the DRC has
no competence to deal with the matter since the parties agreed in the Contract that “the courts –
namely the Court of Arbitration for Sport – in Country B are the ones competent”.
31. Moreover, B sustains that a claim had already been submitted by B against the Player at the
Country B courts (“Lis pendens”).
32. B deems that the existence of such procedure is confirmed by the Court of Arbitration for Sport
in Country B as “the Court formally states that on 24 February 2023, at 21h26, a voluntary arbitration
procedure in labor matters, with procedure reference n.º xxx, has been open having B and A as parties”.
33. B states that the mentioned proceeding “has exactly the same parties, the same object and the same
cause as the request for relief” and therefore the FIFA DRC should not be competent to deal with
pg. 6
this matter.
34. In the alternative, as to the substance of the claim, B sustains that it has no obligations towards
the accommodation of the Player and therefore all arguments of the Player in this regard should
be rejected.
35. B refers to art. 15 of the Contract as a compensation clause and deems that it has the right to
claim not only the remaining value of the contract but also EUR 10,000,000 “when and ever the
Player until 30 June 2024 is registered for a new club”.
36. In the view of B, the Player has failed to prove the following arguments:
a. That the Club was the one responsible to pay the house rent to the Player;
b. Which were the “vicissitudes” (word used in nº20 of the Claim) that lead to the fact that the VISA
was not issued before 27th June 2022;
c. That the Player gave all his collaboration for the visa issuance procedure;
d. That B agreed with the fact that the Player did not show on time;
37. On the other hand, B deems that the following points have been proven and/or admitted by the
Player:
a. The Player knew that it should present himself at 27th June 2022 in the Club to start the preseason training;
b. The disciplinary procedure open by B complied with the legal terms stipulated by the Country B
Law;
c. The right to be heard was respected on the disciplinary procedure opened by B;
d. That B has no fault on the fact that the Player did not had the VISA to return to Country B;
e. That B made all the efforts with the Country B Embassy in Country A to help the Player to return
to Country B;
f. That the salary until July is as per recognized by the Player not due by B;
g. The Player did not return from Country A after the end of his holidays
38. B underlines that the Player has failed to present any reasonable explanation as to what made
his return to Country B impossible. Furthermore, B argues that when referring to the visa the
Player continuously refers to the “Country A authorities” however, the entity responsible to issue
the visa is in fact the Country B embassy. In the view of the Club, “this could be seen as a mere
“clerical mistake” but in fact shows to the Chamber that the Claim made by the Player is not more than
a ungrounded, unfounded and unjustified narrative”.
39. Furthermore, B emphasizes that when the disciplinary proceeding started the Player “had been
unjustifiably absent for at least 60 (sixty) working days, from June 27, 2022 until October 20, 2022, an
absence that remains as stated by the Player himself”.
40. In the view of B, the Player “acted freely, knowingly and voluntarily, well aware that his behaviour is
forbidden, thus violating with direct intent the loyal and contractual obligations imposed on him”.
41. B does not find credible that the Player had no financial means to purchase a flight for his return
to Country B, “a flight, according to himself, may cost between € 1,000.00 and € 1,200.00”.
pg. 7
42. B deems that the Player had a total lack of interest in the pursuit of his profession and maintaining
the employment relationship.
43. Therefore, B concludes that the seriousness of the disciplinary infractions which were deemed
proven during the disciplinary proceeding carried out, justified the dismissal with just cause.
44. Regarding the outstanding salaries claimed, B states that it paid the salary of July and the
proportional amounts concerning vacation, Christmas allowances and food allowance for the
months the Player was absent.
45. B filed the following requests for relief:
I. The Chamber hereby and expressly confirms that the Football Tribunal has no jurisdiction to
decide on the present matter and consequently closes the present procedure.
Subsidiarily, and without prejudice of the above;
In the unlikely event (which is disputed and would be challenged) that this Chamber declares that
the FIFA Football Tribunal has jurisdiction to solve the present dispute, the Respondent hereby
requests the Dispute Resolution Chamber to recognize that:
II. The Claim presented by the Player is unproven, unfounded and therefore shall be dismissed;
Hence,
III. The Dispute Resolution Chamber shall declare that B had valid reasons to terminate the contract
with just cause due to Player’s fault;
and therefore,
IV. The Player shall be condemn to pay to B a compensation of no less than of 242,500.00 €.on
which are added the interest maturing until effective and full payment.
in addition
V. The Player is obliged to pay €10.000.000,00 (ten million euros) upon is registration in a third club
until 30th June 2024;
accordingly;
VI. The decision shall be passed executed in accordance with Art. 24 bis FIFA RSTP and also include
a decision about the consequences of the clubs failure to pay the amounts according to request for
relief no. IV and V;
c. Answer of the Player to the Counterclaim
46. The Player argues that he lacks “sufficient financial means to support the costs of Arbitration in the
pg. 8
Country B National Court of Arbitration for Sport/xxxx”.
47. The Player refers to FIFA Circular no. 1010 and sustains that B has not proven any of the minimum
procedural standards contained therein.
48. The Player considers “false that the Court confirmed that A was regularly cited by email on February
27 2023. The Claimant never received such email, nor even acknowledged its content Nor the Claimant
nor his lawyer, ever rejected to be cited by the Country B Court”.
49. The Player underlines that he “had not yet been able to return from Country A and attend work for
the reasons described below”.
50. The Player reiterates that “due to various vicissitudes related to the processing of the process for
granting the Player's visa by the Country A authorities, they did not issue the said Player's visa before
June 27, 2022. the Country A authorities only issued the Player's visa on August 22, 2022”.
51. The Player insists that B refused to pay the flight tickets between Country A and Country B “as was
its obligation pursuant Clause Two” and he did not have the financial means to pay such airfare at
his expense.
52. The Player sustains that B “was more obliged to the Player to provide and pay for decent
accommodation during the duration and performance of the sports employment contract”.
53. The Player concludes that his “absence was not due to any culpable conduct by the player” and
therefore “can only be considered excused absences”.
54. The Player reiterates his requests for relief.
d. Duplica of B
55. According to B, “Circular 1010 shall not be applicable to the Country B Court of Arbitration for Sport
which is a Court created by the Country B Parliament”.
56. B underlines that the Country B Court of Arbitration (hereinafter: COA) “is a judicial body
independent of from the public administration of sport and of the bodies that make up the sports
system, having administrative and financial autonomy”. B further underlines that the COA is not a
national dispute resolution chamber (“NDRC”) but a civil court.
57. Notwithstanding the above, B clarifies that:
a. The Principle of parity when constituting the arbitration tribunal is enshrined in Art. XXX of XXX
(Doc. 16)
b. The Right to an independent and impartial tribunal is enshrined in Art. XX of the XXX;
c. The Principle of a fair hearing is enshrined in Art. XXX of the XXX;
d. The Right to Contentions proceedings is enshrined in Art. XXX of the XXX;
e. The Principle of equal treatment is enshrined in Art. XXX of the XXX;
58. According to B:
pg. 9
i)
ii)
B ALWAYS state that COA was the competent court and that
the Claimant only presented the Claim in FIFA after having knowledge that there as a
pending claim in COA.
59. For the above, B argues that “FIFA Tribunal has no competence to deal with the present procedure,
and, ultimately, confirm all the Respondent allegations regarding “forum shopping” and procedure bad
faith of the Claimant”.
60. What is more, B sustains that no evidence has been produced regarding the existence of any
obligation towards the Player’s accommodation.
61. B insists that the July salary was paid and therefore when the Player received the visa, on 22
August 2022, there were no salaries in arrears.
62. B therefore reiterated its previous requests for relief.
e. C’s comments
63. As the Player’s new club, C was provided with the case file and invited to submit its position on
the dispute.
64. C states that “due to the difficulty for the former club in collecting the compensation to be earned if
the alleged unilateral termination is justified, the former club deceived C by maliciously keeping it
unaware of the alleged unilateral termination on the POLCED and ITC claim”.
65. C argues that it fully applied the principle of "bona fides" during the conclusion of the contract
with the Player and obtained confirmation from all parties to the transfer that the transfer was a
free transfer due to the expiry of the contract with the former club. In this regard, C refers to the
Proof of Last Contract End Date (hereinafter: POLCED) declaration from B updated in TMS.
66. C submits that “even if [B] has a justifiable reason to carry out the alleged unilateral termination; it is
an indispensable provision of the contract that the former club should try to find a compromise-based
solution within a 30-day period by sending a notice to the Player in accordance with 10th Clause of the
contract, otherwise it may terminate the contract”.
67. C insists that “without this notice and 30 day period, it is not possible to execute the alleged unilateral
termination, and even if the termination was executed, it is obvious that the termination was a
termination contrary to the contract and therefore the termination was without just cause”.
68. Regarding art. 15 of the Contract, C states that the clause cannot be accepted “both because it is
excessive and disproportionate compared to the total fees in the contract”.
69. C filed the following requests for relief:
The DRC Panel shall declare that:
1. The case at issue is dismissed on behalf of C and FIFA RSTP 17/2 should not be applied on behalf
pg. 10
of C and that C would not be liable for any compensation,
2. If there is an alleged unilateral termination, to determine that this termination was carried out
in violation of the procedure set out in the 10th Clause of the contract,
3. That the alleged termination, if any, was due to the former club's failure to fulfill its obligations
as required,
4. That the allegedly unilateral termination made on this ground is an termination without just
cause,
5. That the penalty clause is not enforceable as the condition in the contract has not been met (14th
Clause of termination by the Player),
6. Otherwise, the penalty clause should not be applied as it is contrary to FIFA DRC and CAS
precedents,
7. The Player shall not be liable for any compensation,
8. Otherwise, compensation shall be determined with net amounts in accordance with FIFA RSTP
17/1,
9. Finally, we would like to request that the judicial costs and the attorneyship fees that C is faced
with shall be paid by the Former Club,
f. Position of the Player to the DRC request
70. On 24 August 2023, the parties were requested by the DRC to provide the most updated
information regarding the alleged proceeding pending at the COA.
71. The Player reiterates that he is “unaware” of the proceeding at the COA, and he has not received
any notification or summon regarding such proceeding.
g. Position of B to the DRC request
72. B did not reply to the DRC’s request for updated information within the granted deadline.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
73. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the DRC” or “the
Chamber”) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 26 February 2023 and submitted for
pg. 11
decision on 16 October 2023. Taking into account the wording of art. 34 of the March 2023 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
74. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022), it is – in principle – competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Country A player, a Country B club and a Country C club.
75. The DRC further noted that the Respondent contested the competence of FIFA’s deciding bodies
in favour of the COA, alleging that the latter is competent to deal with any dispute deriving from
the relevant employment contract, in accordance with its clause 13 of the Contract.
76. The DRC also noted that the Claimant insisted on the competence of FIFA to adjudicate the
present claim, sustaining that the COA does not respect the principles of Circular 1010.
77. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 par.
1 lit. b of the Regulations, FIFA is competent to hear employment-related disputes between a
player and a club with an international dimension. However, “parties may, however, explicitly opt in
writing for such disputes to be decided by an independent arbitration tribunal that has been
established at national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration tribunal must
guarantee fair proceedings and respect the principle of equal representation of players and clubs”.
78. In the present matter, the Chamber duly noted that the parties had unambiguously and
exclusively agreed in the contract that any dispute that would arise from the contract would be
submitted to the COA. However, the Chamber underlined that the COA is not established “within
the framework of the association” as per art. 22 par. 1 lit. b of the Regulations. Furthermore, B has
failed to provide any evidence that the said tribunal is recognized in a collective bargaining
agreement (“CBA”). Therefore, it can be established that the COA is not an independent arbitration
tribunal covered by art. 22 par. 1 lit. b of the Regulations.
79. Subsequently, the DRC further referred to the preamble of art. 22 par. 1 of the Regulations,
according to which FIFA is competent to hear employment-related disputes “without prejudice to
the right of any player (…) or club to seek redress before a civil court for employment related disputes”.
Moreover, based on DRC and CAS jurisprudence, such choice shall always prevail.
80. Thus, the Chamber had to assess if the COA is a “civil court” for the purposes of art. 22 of the
Regulation as B sustains that the COA is a civil court created by a national law, the Law xxx which
“establishes the Court of Arbitration for Sport and approves its law” (hereinafter: the Law xxx). The
Chamber referred to several provisions of the Law xxx. In particular, art. 1 of Law xxx reads inter
alia as follows:
1 - the Court of Arbitration for Sport (COA) is an independent judicial entity, in particular of the
bodies of the public administration of sport and bodies that integrate the sports system, having
pg. 12
administrative and financial autonomy.
2 - the COA has specific competence to administer justice in relation to disputes that fall within the
sports legal system or related to the practice of sport.
81. In addition, the Law xxx includes the following provisions:
Article 6 Voluntary arbitration
1 - All disputes not covered by articles 4 and 5, directly or indirectly related to the practice of sport,
which, according to the law of voluntary arbitration (LAV), are susceptible to an arbitration
decision, may be submitted to COA arbitration.
2 - the submission to the COA of the disputes referred to in the preceding paragraph may operate
by arbitration agreement or, in relation to disputes arising from the corresponding associative
relationship, by statutory clause of a federation or other sports body.
Article 7 Voluntary arbitration in labour matters
1 - The provisions of the preceding article shall apply in particular to any disputes arising from
sports employment contracts concluded between athletes or coaches and sports agents or bodies,
and the regularity and lawfulness of the dismissal may be assessed.
2-in accordance with the provisions of the preceding paragraph, the COA shall be assigned the
arbitral competence of the joint arbitration commissions, provided for in law xx. xxx, of xx.
82. Considering the above, the DRC was not convinced by B’s argumentation and found that the COA
could not be considered a “civil court” for the purposes of the Regulations.
83. Based on the above, the Chamber deemed that, insofar B has not proven the COA to be “a civil
court”, B has not discharged its burden of proof as to the competence of the COA under the
applicable framework.
84. Subsequently, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (October 2022 edition) and considering that the
present claim was lodged on 26 February 2023, the October 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Admissibility
85. The Chamber however noted that B challenged the competence of FIFA to hear the dispute at
stake, as it is allegedly affected by lis pendens. In particular, B points out that it had already lodged
a claim with the same parties and object in front of the COA on 24 February 2023, before lodging
the claim at FIFA on 26 February 2023.
pg. 13
86. At this point, the Chamber recalled that, on the basis of the principle of lis pendens, a decisionmaking body is not in a position to deal with the substance of a case, which has already been
brought before and is still pending at another – competent – deciding body. The principle of lis
pendens is applicable if cumulatively and necessarily the parties to the disputes and the object of
the matter in dispute are identical.
87. Based on the evidence on file, the Chamber observed that on 24 February 2023 B claimed to have
started a proceeding against the Player before the COA. However, upon the DRC’s request to
provide for further information, B had failed to provide any arguments or supporting evidence
regarding the status of the proceeding at the COA or if a decision had been passed by such body.
Furthermore, the Player has sustained that he has never been formally notified of such
proceeding, point which B has not demonstrated.
88. Based on all of the foregoing, the DRC found that both the claim of the player as well as the
counterclaim of B are admissible.
c. Burden of proof
89. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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. Likewise, the Chamber stressed the wording of art. 13 par.
4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
d. Merits of the dispute
90. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. 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.
i. Main legal discussion and considerations
91. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties strongly dispute the justice of the early termination of the
Contract by B on 9 December 2022.
92. In this context, the Chamber went on to analyse the allegation of B – disputed by the Player – that
the temporary absence of the latter for a period of approximately 6 months, without
authorisation or justification, consisted of a breach of contract on his part.
93. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which only a
breach or misconduct which is of a certain severity justifies the termination of a contract. In other
pg. 14
words, only when there are objective criteria which do not reasonably permit to expect the
continuation of the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order for an
employer to assure the employee’s fulfilment of his contractual duties, such measures must be
taken before terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio.
94. The Chamber underlined that, in accordance with its well-established jurisprudence, a longlasting absence of a Player from his club without authorisation and without any other justification
consists of a valid reason to suspend the payment of the Player’s salaries and is to be considered
as an unjustified breach of the employment contract by the Player.
95. With the above in mind and after having carefully analysed the parties’ submissions, the Chamber
concluded that the Player’s absence of approximately 6 months was indeed a long one and no
substantial evidence of such absence having been authorised by the club or otherwise justified
by any other particular circumstances was provided by the Player in his submissions to the
Chamber.
96. In particular, the Player is unspecific in his submissions as to what “vicissitudes” he experienced
for not being able to return and therefore failed to properly substantiate his argumentation. The
Chamber acknowledges in this respect that both parties recognise that for a period of around 3
months there were issues in obtaining the renewal of the Player’s visa. However, at the same time,
the Chamber underlines that the Player acknowledges that on 22 August 2022 he was in
possession of a valid visa to return to Country B. As from that moment on, the Player should have
returned to Country B, but he failed to do so, instead sending a default notice in October 2022 for
the salaries of August and September 2022; salaries that would presumably been paid if the
Player would have returned to Country B as soon as his visa was obtained. Given the
circumstances, the Chamber finds that the Player had no justification not to return to Country B
as from 22 August 2022, and also considers that by that time B had no outstanding obligations
towards the Player.
97. Furthermore, B provides evidence that a disciplinary proceeding was conducted, including a
written submission and hearing, which the Player attended via video conference and was assisted
by a legal representative. In this proceeding the Player admitted that he had not returned from
Country A but adduces that it is due to his lack of sufficient means to purchase a flight which costs
“around EUR 1,000 – 1,200”. However, the Chamber observed that B had already purchased a flight
ticket for the Player in June 2022, reason for which the Chamber deemed that this was no longer
the obligation of the Club in August 2022.
98. The Chamber noted that during the said disciplinary proceeding or in this claim, the Player had
neither provided any evidence of attempting to return to Country B nor that his absence was
consented or authorised by B.
99. Therefore, the Chamber understood that the Player indeed committed a severe breach of the
employment contract and that the suspension of the payment of his remuneration for the months
he was absent, and the subsequent termination of the Contract by B, was indeed justified and the
termination of the contract by B was with just cause.
pg. 15
100.
Thus, the Chamber decided that the claim of the Player is to be rejected and the counterclaim
of B partially accepted.
ii. Consequences
101.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to B by the Player in the case at stake. In doing so, 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, the fees and expenses paid or
incurred by the former club (amortised over the term of the contract) and depending on whether
the contractual breach falls within the protected period.
102.
In application of the relevant provision, the Chamber held that it first of all 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.
103.
In this regard, the Chamber took note of the wording of art. 15 of the Contract, which
established that:
Should one of the Parties terminate the present Contract invoking just cause and this is not
acknowledged in Court, the Party which terminated ethe Contract illegally must compensate the
other Party for the damages caused, agreeing the Parties that the amount of the penalty clause is:
a) If the First Party terminates the Contract illegally, it is obliged to pay to the Player compensation
corresponding to the amount of the remunerations due until the term of the Contract, although it
may deduct from the compensation the amounts that the Player should receive for the rendering
of the same activity to another sporting entity during the period of time corresponding to the term
of the terminated Contract;
b) If the Second Party terminates the Contract illegally, namely due to the violation of the previous
Clause, his transfer to a third Club depends on the payment to the First Party of the amount of €
10.000.000,00 regardless of the right of the First Party to demand from the Player the payment of
the compensation foreseen in the labor legislation. To this extent, it is assumed that any Club which
executes an employment contract with the Player induced him to terminate this Contract without
just cause, with the consequent damages to the First Party.
104.
After analysing the content of the aforementioned clause, the Chamber concluded that it did
not fulfil the criteria of reciprocity and proportionality, in line with the longstanding jurisprudence
of the Football Tribunal, and therefore could not be taken into account for establishing the
amount of compensation payable to the club by the Player. In particular, the Chamber noted that
the compensation to be paid by the Player in the event of breach is grossly disproportionate visa-vis the remuneration due to him and the compensation stipulated differs depending on the
pg. 16
party in breach.
105.
As a consequence, the Chamber determined that the amount of compensation payable by
the Player to B 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.
106.
Bearing in mind the foregoing as well as the claim of B, the Chamber proceeded with the
calculation of the monies payable to the Player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of EUR 242,500 (i.e. the residual value
from December 2022 until June 2024) serves as the basis for the determination of the amount of
compensation for breach of contract.
107. In continuation, the Chamber verified whether the Player had signed an employment contract
with another club during the relevant period of time. According to the constant practice of the
Chamber as well as art. 17 par. 1 of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract due by a player to his former club. In particular, the
Chamber explained that its standard practice is to calculate the average between the player’s
remuneration with his former club and his remuneration with the new club, for the exact same
period of time comprised between the early termination of the employment contract with the
old club and the original expiry date of such contract.
108.
In this respect, the Chamber noted indeed, the Player found new employment with C. In
accordance with the pertinent employment contract, for the overlapping period (i.e. September
2023 – June 2024), the Player is entitled to EUR 80,000.
109.
Thus, the Chamber concluded that between the date of early termination of the Player’s
contract with his former club and its original expiry date, the average between his remuneration
with B and his current remuneration amounts to EUR 161,250 [242,500 + 80,000 / 2].
110.
Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Player must pay the amount of EUR 161,250
to B, which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
111.
Lastly, taking into consideration B’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award B interest on said compensation at the rate of 5% p.a.
as of 10 April 2023 until the date of effective payment.
112.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations,
C shall be jointly and severally liable for the payment of the aforementioned amount of
compensation.
iii. Compliance with monetary decisions
pg. 17
113.
Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1
and 2 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.
114.
In this regard, the Chamber highlighted that, against players, the consequence of the failure
to pay the relevant amounts in due time shall consist of a restriction on playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction shall be of up
to six months.
115.
Therefore, bearing in mind the above, the Chamber decided that the Player must jointly pay
the compensation due (including all applicable interest) to B within 45 days of notification of the
decision, failing which, at the request of the creditor, a restriction on playing in official matches
for the maximum duration of six months shall become immediately effective on the Player in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
116.
Furthermore, considering that C is jointly and severally liable for the payment of the
compensation, the Chamber 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration periods.
117.
Therefore, bearing in mind the above, the DRC decided that C must jointly pay the
compensation due (including all applicable interest) to B within 45 days of notification of the
decision, failing which, at the request of B, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on C in accordance with art. 24 par. 2, 4,
and 7 of the Regulations.
118.
The Player and C shall make full payment (including all applicable interest) to the bank account
provided by B in the Bank Account Registration Form, which is attached to the present decision.
119.
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. 24 par. 8 of the
Regulations.
e. Costs
120.
The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures
are free of charge where at least one of the parties is a player, coach, football agent, or match agent”.
Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.
121.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these
proceedings.
pg. 18
122.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
pg. 19
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-respondent, A, is admissible.
2.
The claim of the Claimant / Counter-respondent, A, is rejected.
3.
The counterclaim of the Respondent / Counter-claimant, B, is admissible.
4.
The counterclaim of the Respondent / Counter-claimant, B, is partially accepted.
5.
The Claimant / Counter-respondent must pay to the Respondent / Counter-claimant the following
amount(s):
- EUR 161,250 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 10 April 2023 until the date of effective payment.
6.
The intervening party, C, is jointly and severally liable for the payment of the compensation under
point 5 above.
7.
Any further claims by any of the parties are rejected.
8.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
9.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment (including
all applicable interest) is not made within 45 days of notification of this decision, the following
consequences shall apply:
1. The Claimant / Counter – respondent shall be imposed with a restriction on playing in official
matches up until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months on playing in official matches.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the
event that full payment (including all applicable interest) is still not made by the end of the six
months.
3. C shall be banned from registering any new players, either nationally or internationally, up until
the due amount is paid. The maximum duration of the ban shall be of up to three entire and
consecutive registration periods.
4. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the
event that full payment (including all applicable interest) is still not made by the end of the three
entire and consecutive registration periods.
10. The consequences shall only be enforced at the request of the Respondent / Counter-claimant in
accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
pg. 20
11. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 21
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules Governing the Football Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 22