Labour Disputes
Texto da decisão
REF. FPSD-9731
Decision of the
Dispute Resolution Chamber
passed on 22 June 2023
regarding an employment-related dispute concerning
the player Florian Thauvin
BY:
Omar ONGARO (Italy), Deputy Chairperson
Andre DOS SANTOS MEGALE (Brazil), member
Stefano SARTORI (Italy), member
CLAIMANT:
Florian Thauvin, France
Represented by Mr Didier Domat
RESPONDENT:
Tigres de la UANL, Mexico
Represented by Senn Ferrero Asociados
pg. 2
REF. FPSD-9731
I. Facts of the case
1. On 27 April 2021, the Mexican club, Tigres de la UANL (hereinafter: Tigres, the Respondent or the
club) sent an email to the player’s agents offering a contract for the French player, Florian Thauvin
(born on 26 January 1993) (hereinafter: the Claimant or the player) with, inter alia, a yearly salary
of EUR 4,000,000 net per year.
2. On 30 April 2021, the player and Tigres concluded an employment contract valid as from 1 July
2021 until 30 June 2026.
3. Following art. 3 of the employment contract, the player was entitled to a monthly salary of MXN
6,497,493 net, to be paid in biweekly payments of MXN 3,248,749, on the 15th and 30th day of each
month.
4. The employment contract stipulated that said amount is the equivalent of EUR 3,200,000 per year,
while noting that at the date of signature of the contract, the exchange rate is MXN 24.3656 = EUR
1.
5. Clause 14 of the employment contract stipulated the following:
“DECIMA CUARTA. TERMINACION ANTICIPADA E INDEMNIZACION
En el caso de que el Jugador, durante la Vigencia del Contrato, intente o determine, rescindir el mismo
anticipadamente por cualquier causa, este estará obligado a pagarle al Club, en concepto de
indemnización, una cantidad equivalente a EUR$30,000,000.00 (…), netos (..). Lo anterior en el
entendido que la cantidad mencionada anteriormente, ha sido libre y voluntariamente determinada
par las Partes (…). El Jugador manifiesta su conformidad con lo establecido en la presente Clausula y
reconoce que la rescisión se dará única y exclusivamente si existe el pago previo de la cantidad
mencionada anteriormente.
(…).
la indemnización fijada en la presente Clausula, es resultado de la libre voluntad manifestada par
ambas Partes y prevalecerá, en cualquier caso y sin perjuicio del momento en el que se produjera la
extinción del Contrato, sobre cualesquiera indemnizaciones que pudieran resultar (…) de conformidad
con los criterios establecidos en el articulo 17 del RETJ de la FIFA, en cada momento vigente, o norma
internacional o deportiva que lo sustituyera en un futuro, o reglamento federativo nacional.
Consecuentemente, la indemnización acordada no es amortizable par el transcurso del presente
Contrato y resulta exigible íntegramente, par haber sido justamente acordada (…)
Por su parte, en el caso de que el Club, durante la Vigencia del Contrato, decidiera, sin justa causa,
rescindir el mismo anticipadamente, se estará a lo dispuesto en el articulo 50 fraccion Ill de la LFT, par
el cual se regula el pago indemnización en caso de rescisión de las relaciones de trabajo.”
Free translation into English:
"FOURTEENTH. EARLY TERMINATION AND COMPENSATION
In the event that the Player, during the Term of the Contract, attempts or determines to terminate the
Contract early for any reason, he shall be obliged to pay to the Club, by way of indemnity, an amount
equivalent to EUR$30,000,000.00 (...), net (...). The foregoing on the understanding that the
aforementioned amount has been freely and voluntarily determined by the Parties (...). The Player
agrees to the provisions of this Clause and acknowledges that termination shall only and exclusively
occur upon prior payment of the aforementioned amount.
(...).
pg. 3
REF. FPSD-9731
the compensation set out in this Clause is the result of the free will expressed by both Parties and will
prevail, in any case and without prejudice to the moment in which the termination of the Contract takes
place, over any compensation that may result (...) in accordance with the criteria established in article
17 of the FIFA RETJ, at all times in force, or international or sporting regulations that may replace it in
the future, or national federation regulations. Consequently, the agreed compensation is not
amortisable during the course of the present Contract and is payable in full, as it has been rightly
agreed (...).
For its part, in the event that the Club, during the Term of the Contract, decides, without just cause, to
terminate it early, it will be subject to the provisions of Article 50 section Ill of the LFT, which regulates
the payment of compensation in the event of termination of employment relationships".
6. In addition, on the same date of 30 April 2021, the parties concluded an image rights agreement
valid as from 1 July 2021 until 30 June 2026.
7. According to art. 3 of the image rights agreement, the club committed to pay EUR 800,000 net per
season, in 12 instalments of EUR 66,666 each, either in MXN or EUR (at the player’s choice).
8. In addition, following the image rights agreement, the player was entitled to a sign-on fee of EUR
2,000,000 net, payable as follows:
EUR 500,0000 until 3 July 2021;
EUR 500,000 until 30 July 2022;
EUR 500,000 until 30 July 2023;
EUR 500,000 until 30 July 2024.
9. The image rights agreement stipulated, inter alia, the following:
“PRIMERA. OBJETO
En virtud del presente Contrato, el Jugador otorga su consentimiento, reconocimiento y autorizaci6n a
Sinergia, a efecto de que este ultimo se encuentre en facultad para usar y explotar comercialmente, y
de manera exclusiva, el derecho a su propia imagen, nombre, y voz, apodo, firma, autógrafo y
cualquier característica o rasgo físico personal que identifica al Jugador (en adelante, los "Derechos de
Imagen") y, por consiguiente, Sinergia podrá difundirla por cualquier medio de reproducción o
difusion, siempre que tenga por objeto una (finalidad publicitaria y deportiva de Sinergia y durante la
vigencia del presente Contrato. (…)
SEGUNDA. VIGENCIA
las Partes están de acuerdo en que Sinergia podrá darlo por terminado anticipadamente mediante
simple comunicación por escrito dirigido al Jugador, en el supuesto de que el Jugador deje de
pertenecer, por cualquier motivo, como jugador de futbol profesional para cualquiera de los equipos
de Sinergia.
(…)
QUINTA. USO Y EXPLOTACION DE DERECHOS DE IMAGEN
El Jugador expresamente autoriza a Sinergia para utilizar en exclusiva los Derechos de Imagen, para
efectos de que estos sean fijados, reproducidos, distribuidos, publicados, difundidos y comunicados
públicamente, captados mediante fotografía, video o cualquier otro soporte conocido, así como para
la sublicencia de dichos Derechos de Imagen en forma exclusiva y universal
DECIMA PRIMERA. ACUERDO UNICO
Las Partes están de acuerdo en que el presente Contrato es el único documento que establece los
derechos y obligaciones de las Partes con relación al objeto del presente Contrato,
DECIMA TERCERA. JURISDICCION APLICABLE
pg. 4
REF. FPSD-9731
Las partes del presente Contrato convienen expresa e irrevocablemente en someterse a la y jurisdicción
y competencia del Tribunal Arbitral del Deporte (TAS) en Lausana, Suiza (…)
Free translation into English:
"FIRST. SUBJECT MATTER
By virtue of this Agreement, the Player grants his consent, acknowledgement and authorisation to
Sinergia, to the effect that Sinergia is entitled to use and exploit commercially and exclusively the right
to his own image, name, voice, nickname, signature, autograph and any personal physical
characteristic or feature that identifies the Player (hereinafter, the "Image Rights") and, consequently,
Sinergia may disseminate it by any means of reproduction, (hereinafter the "Image Rights") and,
accordingly, Sinergia may disseminate it by any means of reproduction or broadcast, provided that it
is for Sinergia's advertising and sporting purposes and during the term of this Contract. (...)
SECOND TERM
the Parties agree that Sinergia may terminate this Agreement early by simple written notice to the
Player in the event that the Player ceases, for any reason, to be a professional football player for any
of Sinergia's teams.
(...)
FIFTH. USE AND EXPLOITATION OF IMAGE RIGHTS
The Player expressly authorises Sinergia to make exclusive use of the Image Rights, for the purposes of
being fixed, reproduced, distributed, published, broadcast and communicated publicly, captured by
means of photography, video or any other known support, as well as for the sub-licensing of said Image
Rights on an exclusive and universal basis.
ELEVENTH. SOLE AGREEMENT
The Parties agree that this Agreement is the only document that establishes the rights and obligations
of the Parties in relation to the subject matter of this Agreement,
THIRTEENTH. APPLICABLE JURISDICTION
The parties to the present Contract expressly and irrevocably agree to submit to the jurisdiction and
competence of the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland (...)
10. According to the player, on 23 January 2023, the club invited him in order to sign certain
documents in Spanish that he refused to do.
11. On 23 January 2023, the club sent a termination letter to the player with, inter alia, the following
contents:
“como usted es plenamente conocedor, le hemos venido transmitiendo reiteradamente la necesidad
de buscar consensuadamente una salida, y, por ende, que usted pueda lograr un acomodo con un
tercer club, nacional o extranjero, a efecto de que pueda continuar con su carrera como futbolista
profesional. En este sentido, y tras varios acercamientos entre el Club y el Jugador, Tigres de la UANL
se ha visto imposibilitado en llevar a cabo una terminación de mutuo acuerdo del vinculo laboral que
nos une
(…)
Por lo anterior, el Club, en virtud de los pactos libre y voluntariamente alcanzado entre las Partes en
términos de las clausulas: (i) Decima Cuarta /terminación Anticipada e indemnización) y vigésima
Tercera (Jurisdicción Aplicable} del Contrato Deportivo de Trabajo; (ii) el articulo 50 del Reglamento de
Transferencias y Contrataciones de la FMF; (iii) el Titulo Sexto, Capitulo X, los artículos 12, 50, fracción
III y 181 de la LFT; así como (iv) el articulo 123, fraccion XXI de la Constitución Política de los Estados
Unidos Mexicanos, por medio del presente, la institución
pg. 5
REF. FPSD-9731
que represento le informa formalmente que, a partir de este momento y con efectos inmediatos, el
Contrato Deportivo de Trabajo queda rescindido y terminado definitiva e incondicionalmente: por lo
tanto, el Club en este mismo acto le ha depositado en ventanilla bancaria el cheque (…) por la
cantidad acordada de común acuerdo en el referido contrato equivalente a MXN$16,480,000 (…)
netos, importe correspondiente a 3 (tres) meses de salario por concepto de indemnización y
liquidación”
12. Following the documentation provided by the claimant, a cheque for the amount of MXN
16,480,000 was provided with the termination letter and was apparently deposited on 23 January
2023.
13. On 17 February 2023, the club sent another termination letter for the image rights agreement,
indicating that it was terminated due to the termination, on 23 January 2023, of the employment
contract.
14. The player subsequently concluded an employment contract with the Italian club, Udinese Calcio,
valid as from 30 January 2023 until 30 June 2025.
15. Accordingly, the player was entitled to the following:
EUR 915,700 gross or EUR 700,000 net for the season 2022/2023;
EUR 1,945,000 gross or EUR 1,500,000 net for the season 2023/2024;
EUR 1,945,000 or EUR 1,500,000 net for the season 2024/2025;
(note: from 30 January 2023 until 30 June 2025, the player would have earned EUR 3,700,000
net).
pg. 6
REF. FPSD-9731
II. Proceedings before FIFA
1. On 23 March 2023, the player lodged a claim before the FIFA Football Tribunal for breach of
contract without just cause during the protected period and requested the payment of EUR
10,500,000 as compensation, plus 5% interest p.a. as from 23 March 2023, corresponding to the
following amounts:
EUR 10,400,000 for the residual value of the employment contract;
EUR 3,800,000 for the residual value of the image rights agreements
minus EUR 3,700,000 from his new contract with Udinese Calcio.
2. The claimant argued that the image rights agreement is part of the same employment contract.
3. In its reply, the Respondent argued that clause 14 of the contract is valid and binding.
4. According to the club, during the negotiations, the player and his agent did not require any
adjustments or modifications to the employment contract or the Image Contract in relation to the
clauses related to the early termination, of the contract, and as such, said clauses were agreed
upon by both parties.
5. Tigres further argued that the Image Rights Contract is not under the jurisdiction of FIFA.
6. According to the club, the claim of the Player is in reality an action to request the nullity of Clause
14, and not a claim for breach of contract without just cause.
7. The club argued that, as per art. 516 of the Mexican federal labour law, the statute of limitations
for this type of actions must be calculated within one (1) year from the date of signature of the
employment contract, i.e. by 1 May 2022 at the latest. Accordingly, the club argued that the claim
brought by the Claimant is clearly time-barred.
8. In the opinion of the club, should the player have considered that clause 14 of the contract was
invalid, he should have brought an action for nullity within the period granted by Mexican law.
9. In the alternative, and should the DRC wish to apply Swiss law, the club referred to art. 21 and 31
of the Swiss Code of Obligations, according to which “where the party acting under error, fraud or
duress neither declares to the other party that he intends to not honour the contract nor seeks
restitution for the performance made within one year, the contract is deemed to have been ratified”.
10. The club therefore considered that the player is precluded from bringing any new action against
art. 14 of the employment contract.
11. In sum, Tigres concluded that, in its view, it exercised its right to terminate the employment
contract in strict compliance with the agreed terms and regulations.
12. The Respondent considered that the player should bear the procedural costs.
13. In his replica, the Claimant insisted that art. 14 of the contract is against the FIFA Regulations.
pg. 7
REF. FPSD-9731
14. The Claimant considered that the image rights agreement is in reality an “artifice” made to lower
the payment of social contributions.
15. The Claimant underlined that, as per the offer of 27 April 2021, the club offered to agree upon a
contract granting to the player a yearly salary of EUR 4,000,000 net, which in fact corresponds to
the combined yearly amounts of the employment contract (EUR 3,200,000 per year) and the
image rights agreement (EUR 800,000 per year).
16. In its duplica, the Respondent insisted in its initial arguments.
17. The Respondent insisted that the player signed the contract after having been duly assisted by
his lawyers.
18. The club pointed-out that “only now, and in the context of the present proceedings, and
notwithstanding having received in due time and form, the freely and voluntarily agreed compensation”
as provided in clause 14 of the contract, the player started to contest said clause.
19. The club further insisted that that the Sports Employment Contract and the Image Contract are
autonomous and not linked.
20. In particular, the club argued that the Image Contract does not include any type of benefit in
favour of the Player (car, accommodation, air tickets, among others) or the payment of any
variable associated with his performance, but only a fixed remuneration that compensates
exclusively for the transfer of his image rights.
pg. 8
REF. FPSD-9731
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 23 March 2023 and submitted for decision on 22 June
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.
2.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (March 2022 edition), 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 from France and a club from Mexico.
3.
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 (March 2023 edition), and considering that the
present claim was lodged on 23 March 2023, the March 2023 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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).
c.
5.
Admissibility
The Chamber considered the arguments presented by the Respondent regarding the nature of the
claim and the prescription. The Respondent contended that the Claimant's action was not a claim
for breach of contract without just cause, but rather a request for nullity of a specific clause in the
employment contract. The Respondent argued that, under the applicable Mexican or Swiss law, this
action would be time-barred.
pg. 9
REF. FPSD-9731
6.
However, with regard to the aforementioned argument, the Chamber duly underlined that the
Claimant's assertion constituted a valid claim for breach of contract without just cause, wherein the
nullity of a specific contractual provision was invoked as an incidental element of the claim. Stated
differently, the present claim encompasses more than a mere challenge to the nullity of said
contractual provision. The Chamber emphasized that the Claimant had the right to raise concerns
about the specific clause within the broader context of a claim for breach of contract. Moreover, the
Chamber verified that the claim was not time-barred under the provisions of art. 23 par. 3 of the
Regulations, according to which “the Football Tribunal shall not hear any case subject to these
regulations if more than two years have elapsed since the event giving rise to the dispute.”
7.
Furthermore, the Chamber also observed that the Respondent disputed FIFA's competence to
adjudicate on the image rights agreement concluded between the parties, asserting that it should
be considered a separate agreement outside the scope of FIFA's jurisdiction. The Chamber explained
that, as a general rule, if there are separate agreements, the FIFA Football Tribunal tends to consider
the image rights agreement as distinct and outside its competence. However, the Chamber noted
that specific elements of the separate agreement might suggest its integration into the actual
employment relationship. In this case, the image rights agreement was clearly signed within the
context of the employment contract. The Chamber also highlighted that employment relations are
broader than employment agreements and may cover aspects not explicitly mentioned in the
written contract. Considering these factors, the Chamber concluded that the image rights
agreement was dependent and subordinated to the employment contract.
8.
The Chamber also took into account the initial offer presented by the club, which indicated a yearly
salary of EUR 4,000,000. This amount was subsequently divided between the employment contract
(EUR 3,200,000 per year) and the image rights agreement (EUR 800,000 per year). The division of the
proposed salary revealed that the intention of the parties was to agree upon a total yearly salary of
EUR 4,000,000. The separation into separate agreements suggested that the image rights
agreement served to partially contain the player's salaries, rather than solely regulating the use of
image rights.
9.
Regarding the admissibility of the claim related to the image rights agreement, the Chamber pointed
out that the burden of proof fell on the club. The club needed to demonstrate that the agreement
was executed as an independent agreement, involving remuneration for sponsorship events or
other activities justifying the payments specified in the image rights agreement. However, no
evidence was provided by the club to support this contention.
10. Based on these considerations, the Chamber concluded that the image rights agreement was, in
fact, an annex to the employment contract and thus falls within FIFA's jurisdiction.
11. In light of the above analysis, the Chamber determined that the claim was fully admissible, as the
image rights agreement is to be considered part of the employment relationship. The Chamber also
emphasized that the claim was not time-barred under FIFA regulations. Since the employment
contract did not specify a specific forum, the FIFA Football Tribunal and its Dispute Resolution
Chamber is competent to hear the case.
pg. 10
REF. FPSD-9731
d. Merits of the dispute
12. 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 abovementioned 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
13. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the, fundamentally, the matter at stake revolves around the club’s
unilateral termination of the contract on 23 January 2023. The Chamber noted that, in its
termination letter, the club did not offer aspecific rationale for the termination apart from indicating
the player's inability to secure a new club or reach an amicable resolution. Consequently, it is clear
that the termination of the contract was without just cause.
14. Furthermore, the Chamber duly noted that the club, in reality, did not raise any objection to the
termination being without just cause, as its statement of defence primarily focused on the
determination of the compensatory amount to be paid.
15. In this context, the Chamber acknowledged that it its task was to determine the consequences of
the unilateral termination of the contract by the club by without just cause.
ii. Consequences
16. 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 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.
17. 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.
18. In this regard, the Chamber recalled that the employment contract included the following clause:
pg. 11
REF. FPSD-9731
“DECIMA CUARTA. TERMINACION ANTICIPADA E INDEMNIZACION
En el caso de que el Jugador, durante la Vigencia del Contrato, intente o determine, rescindir el
mismo anticipadamente por cualquier causa, este estará obligado a pagarle al Club, en concepto de
indemnización, una cantidad equivalente a EUR$30,000,000.00 (…), netos (..). Lo anterior en el
entendido que la cantidad mencionada anteriormente, ha sido libre y voluntariamente determinada
par las Partes (…). El Jugador manifiesta su conformidad con lo establecido en la presente Clausula
y reconoce que la rescisión se dará única y exclusivamente si existe el pago previo de la cantidad
mencionada anteriormente.
(…).
la indemnización fijada en la presente Clausula, es resultado de la libre voluntad manifestada par
ambas Partes y prevalecerá, en cualquier caso y sin perjuicio del momento en el que se produjera la
extinción del Contrato, sobre cualesquiera indemnizaciones que pudieran resultar (…) de
conformidad con los criterios establecidos en el articulo 17 del RETJ de la FIFA, en cada momento
vigente, o norma internacional o deportiva que lo sustituyera en un futuro, o reglamento federativo
nacional. Consecuentemente, la indemnización acordada no es amortizable par el transcurso del
presente Contrato y resulta exigible íntegramente, par haber sido justamente acordada (…)
Por su parte, en el caso de que el Club, durante la Vigencia del Contrato, decidiera, sin justa causa,
rescindir el mismo anticipadamente, se estará a lo dispuesto en el articulo 50 fraccion Ill de la LFT,
par el cual se regula el pago indemnización en caso de rescisión de las relaciones de trabajo.”
Free translation into English:
"FOURTEENTH. EARLY TERMINATION AND COMPENSATION
In the event that the Player, during the Term of the Contract, attempts or determines to terminate
the Contract early for any reason, he shall be obliged to pay to the Club, by way of indemnity, an
amount equivalent to EUR$30,000,000.00 (...), net (...). The foregoing on the understanding that the
aforementioned amount has been freely and voluntarily determined by the Parties (...). The Player
agrees to the provisions of this Clause and acknowledges that termination shall only and exclusively
occur upon prior payment of the aforementioned amount.
(...).
the compensation set out in this Clause is the result of the free will expressed by both Parties and will
prevail, in any case and without prejudice to the moment in which the termination of the Contract
takes place, over any compensation that may result (...) in accordance with the criteria established
in article 17 of the FIFA RETJ, at all times in force, or international or sporting regulations that may
replace it in the future, or national federation regulations. Consequently, the agreed compensation
is not amortisable during the course of the present Contract and is payable in full, as it has been
rightly agreed (...).
For its part, in the event that the Club, during the Term of the Contract, decides, without just cause,
to terminate it early, it will be subject to the provisions of Article 50 section Ill of the LFT, which
regulates the payment of compensation in the event of termination of employment relationships".
19. The Chamber conducted a thorough analysis of the clause in question and observed that it exhibited
an asymmetry in its nature and application. The clause functioned as a buyout clause when it
favoured the club. However, when the clause pertained to the player, it took the form of a liquidated
damages clause, establishing a fixed compensation amount that the player would owe in case of
contract breach. A buyout clause typically allows a party (in this case, the player) to terminate the
contract early by paying a predetermined amount to the other party (the club). On the other hand,
pg. 12
REF. FPSD-9731
a liquidated damages clause establishes a pre-determined amount of compensation that a party (in
this case, the player) must pay as damages for breaching the contract.
20. In this specific case, the buyout clause stated that if the player attempted or determined to
terminate the contract early, they would be obliged to pay the club an amount equivalent to EUR
30,000,000 net. This clause granted the player the option to buy his way out of the contract by paying
the specified sum.
21. Conversely, the liquidated damages clause stated that if the club terminated the contract, the
compensation payable would be calculated based on Mexican law, amounting to 3 monthly salaries
totalling MXN 16,480,000 net (approximately EUR 863,800). This clause sought to establish a
predetermined amount of damages that the club would owe the player in the event of a contract
termination by the club. In this regard, the Chamber was eager to emphasize that the clause in
question did make a specific reference to an article within Mexican labour law, although it did not
provide an exact quotation.
22. With this idea in mind, the Chamber underlined that, while the clause made a reference to an article
of Mexican labour law, it did not address the issue of the actual amount in the contract itself. The
Chamber considered that, without an explicit mention of the amount within the contract, it would
be difficult to ascertain the precise monetary value or determine whether the reference to the
national regulations adequately addressed the compensation calculation. Indeed, the Chamber also
emphasized that, for a liquidated damages clause, it is essential for the parties to clearly outline the
terms, including any monetary obligations or calculations, to avoid ambiguity and provide a basis
for enforcing those terms. In this case, the lack of an explicit mention of the amount within the
contract itself left room for interpretation and uncertainty as to the exact compensation to be paid.
23. Moreover, the Chamber observed that, in any case, there was a significant economic disparity
between the two clauses. While the buyout clause imposed a substantial financial obligation on the
player, the liquidated damages clause provided the club with a considerably lower financial burden.
24. The Chamber also underlined that, following its jurisprudence, parties to an employment contract
are allowed to include liquidated damages clauses. However, it emphasized that these clauses must
be clear, leave no room for interpretation, and accurately reflect the true intentions of the parties.
In analysing the present case, the Chamber considered the lack of a specified amount within the
contract and the reference to a general provision of Mexican law. Moreover, it considered the
unequal bargaining power between the parties during the contract negotiations. Considering these
factors, the Chamber concluded that the compensation clause, which resulted in a disproportionate
outcome, was unacceptable. Consequently, the Chamber declared the clause null and void.
25. Consequently, 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 to be taken into consideration when calculating the amount of compensation payable.
pg. 13
REF. FPSD-9731
26. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of its
unilateral termination until its end date.
27. In particular, the Chamber noted that, from the date of termination, the contract would run for 42
additional months, i.e. until 30 June 2023. Accordingly, the player's earnings would amount to MXN
272,850,706 for a duration of 42 months, considering a monthly salary of MXN 6,497,493. The
Chamber also observed that the agreed exchange rate corresponds to MXN 24.3656 = EUR 1. After
converting the amount, the player's net earnings would come to EUR 11,198,193.
28. Additionally, under the so-called image rights agreement (which, as mentioned, corresponds to an
annex to the employment contract) the player would receive EUR 66,666 net per month, resulting
in a total of EUR 2,799,972 for the remaining 42 months. Furthermore, the player would also receive
fixed amounts of EUR 500,000 respectively on 30 July 2021, 30 July 2022, 30 July 2023, and 30 July
2024, leading to a total amount of EUR 4,799,972 for this agreement.
29. Thus, taking into account the total residual value of the contract between the parties, the player
would have earned a total amount of EUR 15,998,120 (i.e. EUR 11,198,193 + EUR 4,799,927).
30. Consequently, the Chamber concluded that the amount of EUR 15,998,120 serves as the basis for
the determination of the amount of compensation for breach of contract.
31. 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 as well as art.
17 par. 1 lit. ii) 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 in
connection with the player’s general obligation to mitigate his damages.
32. Indeed, the player found employment with the Italian club, Udinese Calcio. According to the
pertinent contract, the player was entitled to the following net earnings: EUR 700,000 for the season
2022/2023, EUR 1,500,000 for the season 2023/2024, and EUR 1,500,000 for the season 2024/2025.
In total, the player would have earned EUR 3,700,000 net from 30 January 2023 until 30 June 2025.
33. With this information in mind, the Chamber noted that, at this stage, the mitigated compensation
would correspond to EUR 12,298,190 (i.e. EUR 15,998,190 – EUR 3,700,000).
34. However, the Chamber observed that the player limited his claim to EUR 10,500,000 net. Pursuant
to the principle of "non-ultra petita", the player cannot be awarded with a sum exceeding the
aforementioned agreed amount.
35. 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 EUR 10,500,000 net, which
pg. 14
REF. FPSD-9731
was to be considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
36. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the player interest on said compensation at the rate of
5% p.a. as of 23 March 2023 until the date of effective payment.
iii. Compliance with monetary decisions
37. 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.
38. In this regard, the DRC highlighted 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.
39. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full
amount due (including all applicable interest) to the Claimant within 45 days of notification of the
decision, failing which, at the request of the Claimant, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive registration
periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4,
and 7 of the Regulations.
40. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the present
decision.
41. 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
42. 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.
43. 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. 15
REF. FPSD-9731
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Florian Thauvin, is admissible.
2.
The Claim of the Claimant is accepted.
3.
The Respondent, Tigres de la UANL, must pay to the Claimant the amount of EUR 10,500,000 net as
compensation for breach of contract without just cause plus 5% interest p.a. as from 23 March
2023 until the date of effective payment.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
Bank Account Registration Form as available in the FIFA Legal Portal.
5.
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 Respondent 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.
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 three
entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 16
REF. FPSD-9731
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. 17