Decision of the Dispute Resolution Chamber · 2015-07-16 · Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 20 August 2014, in the following composition:

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 August 2014,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Taku Nomiya (Japan), member

Theo van Seggelen (Netherlands), member

on the matter between the player,

Player A, from country B

as Claimant / Counter-Respondent

and the club,

Club C, from country D

as Respondent / Counter-Claimant

and the club,

Club E, country F

as Intervening Party

regarding an employment-related dispute

arisen between the parties

Player A, from country B / Club C, from country D/ Club E, from country F 2/19

I. Facts of the case

1. In August 2010, the player from country B, Player A (hereinafter: the player or Claimant

/ Counter-Respondent) born on 13 January 1987, and the club from country D, Club C

(hereinafter: the club or Respondent / Counter-Claimant), concluded an employment

contract (hereinafter: the contract) for “3,5 seasons”, valid as from “the season

2010/2011 until the end of the season 2013/2014.”

2. The player submitted the following three contracts:

i) Contract 1:

Contract 1 consists of 8 pages and every page is signed by the player, however,

not by the club. Contract 1 stipulates that the club would pay the player the

amount of USD 775,000 as follows:

- USD 100,000 on 1 January 2011;

- USD 200,000 in the 2011/2012 season,

- USD 225,000 in the 2012/2013 season, and

- USD 250,000 in the 2013/2014 season

Regarding the amounts due for the 2011/2012, 2012/2013 and 2013/2014, the

contract does not provide any further specification as to when the payments are

due. Contract 1 also specifies as “special conditions” that the player will receive

USD 2,500 per month between 1 January 2011 and 30 June 2011, a signing-on

fee of USD 10,000 “on signing date” and 10% of a future transfer.

ii) Contract 2:

Contract 2 consists of 8 pages and every page is signed by both the player as well

as the club. Contract 2 stipulates that the club would pay the player the amount

of USD 775,000 as follows:

Season 2010/2011, USD 100,000:

- “First instalment: amount of (25,000 USD Pound)”

- “Only 100,000 USD pound settled on 1 January 2011”

- USD 12,500 on 1 February 2011;

- USD 12,500 on 1 March 2011;

- USD 12,500 on 1 April 2011;

- USD 12,500 on 1 May 2011;

- USD 25,000 on 1 June 2011;


Season 2011/2012, USD 200,000:

- USD 50,000 due on 1 August 2011;

- USD 100,000 payable in 8 monthly instalments of USD 12,500 each, due

on the first day of each month as of September 2011 until May 2012;

- USD 50,000 payable on 1 June 2012.

Season 2012/2013, USD 225,000:

- USD 56,500 payable on 1 August 2012;




Season 2013/2014, USD 250,000:

- USD 62,600 payable on 1 August 2013;




Contract 2 also specifies as “special conditions” that the player will receive USD

2,500 per month between 1 January 2011 and 30 June 2011, a signing-on fee of

USD 10,000 “on signing date” and 10% of a future transfer as well as a “right

of player’s airline ticket per year.”

iii) Contract 3:

Contract 3 consists of 16 pages and every page is signed by both the player as

well as the club and apparently Contract 3 is the contract registered with the

Football Association from country D. Contract 3 stipulates that the club would

pay the player the total remuneration of USD 775,000 as follows:

Season 2010/2011, USD 100,000:

- USD 25,000 to be paid on 1 January 2011;

- USD 12,500 on 1 February 2011;

- USD 12,500 on 1 March 2011;

- USD 12,500 on 1 April 2011;

- USD 12,500 on 1 May 2011;

- USD 25,000 on 1 June 2011;

For the 2011/2012, 2012/2013 and 2013/2014 season as well as the “special

conditions”, Contract 3 includes the same conditions as stipulated in Contract 2.

In addition, art. 4 of Contract 3, which is included on page 9 of the contract

and therefore not included in Contract 1 and Contract 2, states that:


“The player will incur the taxes of the total amount of the contract according

to law. The club will settle the taxes to the concerned tax administration and

inform the player for the document of paying after the end of the season and

before the beginning of the next season.”

3. According to the information contained in the Transfer Matching System (TMS), the

Football Association from country D requested the player’s ITC on 4 January 2011 and

received it on 27 January 2011. TMS indicates as well that the player was engaged “out

of contract, free of payment” and as proof of the “last contract date”, the contract of

the player with the club from country B, Club G, is uploaded which has as an expiry

date of November 2009.

4. On 9 February 2011, the coach of the club, Mr H, informed the agent of the player that

the board of the club wanted to deduct USD 50,000 from USD 100,000 for the ITC and

that it promised him “to pay 25,000 from the 50,000 to get his ITC. (…) I have advised

Player A to take the 27,500 now and send a very strong message that he will not

participate in the Championship (in 2 weeks) before he gets the remaining signing fee

money. (…) ps they also want to make a new contract with 20 percent taxes, I told

them to increase all numbers by 20% to get the same net income for Player A.”

5. On 10 February 2011, the agent of the player wrote an e-mail to a certain Mr X

informing him of the following: “(…) Consequent to the ongoing discussion with my

client, Player A, regarding the payment of his sign on fee. It is my believe that a broad

based conversation about this and other matters would help Player A and I make

informed decisions as well as enhance our working relationship with the club

throughout the duration of his contract. (…)”. Apparently, no reply was received to the

aforementioned e-mail and a similar e-mail was sent to the club on 24 February 2011.

6. On 5 May 2011, the agent wrote an e-mail to Mr X in which he, inter alia, stated that

“(…) you agreed to making travel arrangement that would bring me to country D for

discussions on contract extension and related matters. (…) It is important for you to

know that Player A and I, are fully aware of the inconsistencies in the contract you

registered with the Football Association from country D. Those inconsistencies could

serve as reasonable grounds to opt out of the contract, once we are convinced that the

Club C organization does not represent our best interest. (…)”

7. On 22 July 2011, the player sent an e-mail to Mr X by means of which he informed the

club that he intended to terminate the contract by the end of July 2011, that the club

would be made aware of the grounds for termination when a copy of the termination

letter was sent to the club, FIFA and the Football Association from country D, whilst

indicating that he would be open to negotiate a new contract for the next season.

8. On 11 and 17 August 2011, the agent wrote to a certain Mr Y outlining the situation

and indicating that he still believed that the situation could be resolved.


9. On 24 August 2011, the player lodged a claim against the club in front of FIFA and held

that, for the first half of the season (i.e. January 2011 to July 2011), it was agreed that

he would receive a net salary of USD 120,000 (later amended to USD 125,000, cf. par.

I./25. below), to be paid as follows:

- USD 100,000 as a sign-on fee,

- USD 2,500 as a monthly salary from January until July 2011.

To support his position, the player submitted an e-mail exchange dated 27 August 2010

between the player’s agent and Mr Z, the latter confirming “I have an okay from the

president for 100,000 USD on jan 1st 2011 plus jan-until june 6 x 2,500 per month and

10,000 this weekend after he signed the contract is a total 125,000 for the first half

season.”

10. Nevertheless, the player indicated that he was only paid “USD 27,500 in salary and sign

on fee in three instalments between January and July 2011. Plus 2 matches unpaid

bonus of USD 1,000. I am therefore owed USD 93,500.” In this respect, the player

submitted the following cheques/payment receipts:

USD 1,000 Date illegible

USD 1,500 14 November 2010

USD 5,000 (cheque nr 25570) 12 February 2011

USD 10,000 (cheque nr 25573) 9 March 2011

USD 10,000 (cheque nr 25583) 18 May 2011

11. The player explained that on 29 August 2010, he had signed a blank pre-contract,

drafted in English and the language of country D, in country B (Contract 1).

Thereafter, Club C allegedly “privately post dated and filled out the signed contract

paper with inaccurate contract agreement and registered with Football Association

from country D in January 2011 without giving me or my management a chance to

review the final document.”

12. The player indicated that he only realized the fraud when he requested a copy of the

contract and was given Contract 1 and Contract 2, which were however different

from the contract the club had registered with the Football Association from country D

(Contract 3). In particular, the player pointed out that “USD 100,000 was registered on

the contract by Club C, instead of agreed USD 120,000 net salary and fee for the first

half season, January to July 2011. Club C was supposed to add 20% tax to the USD

775,000 net salary as agreed. Instead they only registered USD 775,000 with the

Football Association from country D, which means that I would lose 20% of my net

salary in taxes (…)”.

13. The player alleged having confronted the club regarding the discrepancies of the terms

of the various contracts, after which the club’s president allegedly proposed a contract


amendment. However, according to the player, the club’s president did not show up

for the scheduled meeting. In this respect, the player submitted a copy of the alleged

amendment agreement, which is undated, not signed by any party and specifies the

following terms:

Season 2010/2011, USD 156,250:

- USD 78,125 payable in May 2011;

- USD 78,125 payable in June 2011

Season 2011/2012, USD 250,000, Season 2012/2013, USD 281,250; Season 2013/2014,

USD 312,500; Season 2014/2015, USD 343,750.

14. The player added that the page with the “special conditions” of the blank pre-contract

contained a condition added by the coach of the club, by means of which he was

entitled to 10% of any future transfer. However, the contract (Contract 3) handed to

the player contained different handwriting, reason for which he believes his signature

“may have been compromised”. The player further explained that the contract has the

date of “January 1 2011 as the signing date and TMS for my ITC request was sent on 4

January 2011, while I was still in country B”. The player states he obtained his visa on

13 January 2011, travelled to country D on 14 January 2011 and, therefore, he could

not have signed a contract on 1 January 2011 in country D.

15. In its reply, the club provided another version of Contract 3 and explained that they

started negotiating with the player in August 2010 in country B, which resulted in the

conclusion of the contract valid as from 1 January 2011. The club alleged that for the

first 6 months the player was entitled to the total gross amount of USD 125,000:

- USD 100,000 as salary,

- USD 10,000 as a sign-on fee,

- USD 2,500 as additional salary for the first 6 months.

16. The club held that the player received all amounts due for the 2010/2011 season (USD

100,000) after deducting 20% relating to taxes and submitted the corresponding bank

statements and cheques:

USD 10,000 (in cash) 29 August 2010

USD 1,000 (western union) 3 January 2011

USD 1,000 (cheque nr 25563) 20 January 2011

USD 50,000 (cheque nr 23994) 27 January 2011

USD 5,000 (cheque nr 25570) 12 February 2011

USD 10,000 (cheque nr 25573) 9 March 2011

USD 1,500 (cheque nr 25577) 18 April 2011

USD 10,000 (cheque nr 25583) 10 May 2011

USD 11,500 (cheque nr 1009598) 11 July 2011, paid on 17 July 2011


17. The club indicated that it paid all amounts by no later than the end of the league

“because of the revolution in country D and the stopping of any football activity from

22 January 2011 to 14 April 2011”. The club provided a letter from the Football

Association from country D confirming such information as well as indicating that the

season ended on 10 July 2011 and that the club registered the player on 18 August

2011 “within its main list”.

18. The club explained that in country D, one must submit to the Football Association from

country D 4 original copies of the contract. After registering the player, the Football

Association from country D gives one copy to the club, one copy to the player and

keeps 2 copies for its records in order to ensure that nobody alters the contract after

registering it.

19. As to the alleged contractual fraud, the club explained that “the player signed one

copy in country B and filling it with all the agreed points which are total USD 775,000

for three and a half years in addition to USD 10,000 signing on fee and USD 2,500

monthly salary and 10 percent of the transfer as stated in the special conditions. and he

sent this copy to Club C, and then the club filled in the rest of the copies the same as

the one he signed in country B as the club couldn’t make any change to the contract

otherwise it will not be registered at the Football Association from country D. After

new negotiations, the player requested an air ticket and the club added this to the

copy he signed in country B and to the other three copies, then the player signed on all

the pages of the other 3 copies and to 4 other copies in the language of country D, it is

clear from the copy of the blank contract and the same one after registering it that an

airplane ticket was added which proves that Club C didn’t work in dishonesty.(…)

Therefore his allegation that the club filled in the contract with inaccurate contract

agreement is not true as it is the same like the one was signed by him in country B but

just added the airplane tickets to it as per a new agreement between them.”

20. The club also disputed that it put USD 100,000 instead of USD 120,000 in the contract;

the contract signed by the player in country B already specified USD 100,000 plus other

amounts for the first season and also specified “USD 775,000 as the total amount for

the whole contract and the player signed all the copies”. Equally, the tax provision

under art. 4 was already included in those contracts.

21. In conclusion, the club holds that it did not act fraudulently; the player signed 4 copies

in English, 4 copies in the language of country D and he read the contract before he

signed it in country B.

22. The club further outlined that the player immediately received a copy of the contract

when he asked for it, participated in the complete second round of the championship

with Club C and never complained about his contract.


23. Finally, the club stated that it had booked a flight ticket for the player to return to

country D on 2 August 2011 and requested the player to return and fulfil his

contractual obligations until a final decision would be issued by FIFA.

24. On 7 November 2011, the player amended his claim requesting payment of the total

amount of USD 193,500, which was further amended on 17 November 2011 to the

amount of USD 293,500 plus interest.

25. In his replica dated 11 April 2012, the player stated that he mistakenly stated that the

parties agreed upon USD 120,000 for the first season, which should be USD 125,000 (cf.

par. I./9. above). Furthermore, the player acknowledged having received the amount of

USD 49,000 from the club as follows:

- USD 10,000 in cash on 29 August 2010;

- USD 5,000 by cheque;


- UDS 1,500 by cheque;



- USD 11,500 by cheque in July 2011.

As to the amount of USD 11,500, the player stated that he mistakenly forgot to

acknowledge receipt of this amount in his initial claim.

26. Therefore, the player claims that the amount of USD 76,000 is outstanding, to which

USD 200,000 should be added regarding the 2011/2012 season, totalling the amount of

USD 276,000.

27. As to the cheque nr. 23994 of USD 50,000 (cf. point I./16. above), the player denies

having ever received said amount as it was paid to his former club, Club G, as a transfer

fee in cash before his ITC was released. The player stated that he “did not see, sign or

tomb print the USD 50,000 check and had no idea if my name was written on the

check.”

28. In this respect, the player argued that a transfer fee was paid to Club G since Club G

falsely claimed that he was still under contract with it. Club C then decided to pay the

player’s former club the amount of USD 50,000 to settle the matter. The player further

explained that Club C had approached him asking him if it could use half of the USD

100,000 he was supposed to get as a sign-on fee and which it would pay back later.

29. The player added that if the USD 50,000 was “withdrawn from the bank with a check

that had my name, I certainly was not aware of it and was not given the money.” In

this regard, the player submitted an e-mail exchange dated between February and

March 2011 between his agent and the club’s coach, in which the coach outlined the

problems in relation to Club G and the alleged proposal of the club to pay the player


only USD 50,000 as a sign-on fee, as it had to pay USD 50,000 for the player’s ITC.

Equally, the player submitted his finger print in order to compare it with the one on

the cheque of USD 50,000.

30. Furthermore, the player denies that the USD 1,000 paid by the club on 3 January 2011

is part of his salary, since this money was sent to cover his travel and hotel expenses.

31. Moreover, the player stated that: “Club C produced a signed hand written document

that states that I received USD 10,000 in cash, as sign on fee, on the 29th of August 2010

in country B. The coach and club president actually gave me USD 10,000 cash, on the

day I signed the blank English contract paper and the contract paper in the language

of country D that was supposed to be a pre-contract, but the hand written document

they presented to FIFA is fake, as it was not presented with any hand written paper to

sign on that day.” The player indicated that the USD 10,000 was a monetary gift

promised if he signed for Club C instead of Club J, the big rival of Club C in country D;

the USD 10,000 was not supposed to count against my salary, if they kept their

promise. I will therefore, include the fund in my amended claim, even-though the

handwritten paper is bogus.”

32. As to the blank contract signed, the player asserts that the club asked him to sign such

document as an assurance that he would sign with the club in January 2011;”a copy of

the blank paper was not given to me”. The player was only provided with a copy after

his agent came to country D and demanded a copy of the blank contract.

33. As to the allegations of the club that the flight ticket was inserted in the contract only

after the negotiations, the player denies such allegations stating that the flight tickets

were offered from the very beginning. In this respect, the player submitted an e-mail

of the club’s coach dated 18 August 2010 in which he offered the agent of the player

the relevant terms including one roundtrip country D-country B.

34. The player denies that he signed any copies when he was in country D; instead, he only

signed one blank contract in English and the language of country D in country B. The

player further points out that the cheques provided by the club are inconsistent, since

the cheque of USD 50,000 “has a signature and tomb print outside the body of the

check, and the same USD 5,000 check I sent with my earlier claim without my signature,

showed up in their defence document with a signature on it.”

35. Finally, the player stressed that his sign-on fee amounted to USD 100,000, otherwise his

agent and the coach would not have referred to it so often in their e-mail

correspondence.

36. On 15 November 2012, the club provided its duplica and lodged a counter-claim

against the player requesting the amount of USD 800,000 plus 5% interest as well as

sporting sanctions and legal expenses. The club deemed that the player terminated his


employment contract without just cause, since he was absent from the club since

almost a year.

37. The club stated that the player’s claim is mainly supported by correspondence sent by

the coach of the club at the time, as well as by his agent. However, the coach did not

have authority to act as a club’s official and whatever he mentioned in his emails and

negotiated with the agent cannot be taken into account.

38. In this respect, the club stated that the coach of the club was “in alliance with the

player agent” and not with the club’s president, which, according to the club, can be

proven by an e-mail dated 27 August 2010 in which the coach proposes a deal to the

agent.

39. Regarding the alleged transfer fee of USD 50,000, the club submitted the player’s TMS

information which confirmed that the player was transferred free of payment and

added that, if there was any dispute, it was handled between the player and his former

club.

40. The club recognized that it told the player to settle his problems with his former club.

In this context, the club alleged that the player then requested the club “to give him

50,000 USD from his salary as to settle the problem of the ITC with his former club and

thus the club issued a cheque amounting to 50,000 USD in favour of the player as to

help him settle any pending issues with his former club […]”. “Nevertheless, the club

president promised the player at the that time that the club may pay for him amount

of USD 25,000 in the form of extra bonuses during the contract duration to

compensate him for the supposed USD 50,000 by him to his former club, Club G, to

solve his problem with them as to encourage the player to perform well with the team,

this promise was provided that the board officially accept it and everything goes well,

which never occurred due to the player termination of the contract after the season

(…)”

41. The club reiterated that the player received USD 100,000 net for the first 6 months he

stayed in the club, despite the club’s troubles due to the revolution in country D. The

club stressed in this respect that the player had received a sign-on fee in August 2010 in

the amount of USD 10,000 when he signed the contact, “the club then took the blank

contract and completed the ordinary information of the parties in the first paper and

wrote the start date of the contract 1 January 2011 (…)”. Thereafter, the player signed

3 more copies when he arrived in country D.

42. Finally, the club denied having forged the player’s signature or fingerprint.

43. On 24 November 2012, the club provided a letter dated 19 November 2012, which was

issued by its bank, certifying that the cheque number 23994 in the amount of USD

50,000 was withdrawn on 27 January 2011 by the player himself.


44. In his reply to the counter-claim, the player stated that:

i) The email exchange between his agent and the coach occurred during the

transfer negotiations;

ii) The coach was “basically the face of the club. He had fully authority to

negotiate and acquire any player he wanted. He only needed approval from

the president.”

iii) The USD 10,000 the club paid in cash in August 2010 was a monetary gift

promised if he signed for Club C instead of Club J. He was not informed it

would be considered as his salary. The player reiterated that said amount was

supposed to be paid in January 2011, was referred to as a signing-on fee in

various e-mails, and there “couldn’t have been two signing fees in one

contract. I went into the hotel room, took the money and signed on the blank

paper and left the room. The USD 10,000 signing fee they wrote with the

special condition on page 8 was not written in my presence. The coach, who

was on the phone with my agent, told my agent he would write that the club

will pay me 10% of any transfer fee they get in case of my transfer as a special

condition. I trusted them and had no reason to suspect any foul play. I only saw

the USD 10,000 on page 8 as signing fee in November, when my agent

retrieved the blank contract paper from the club.(…) I subsequently included

the USD 10,000 in my amended claim to avoid further argument. The signed

hand written paper the club presented was forged.”

iv) As to the USD 50,000, the player repeated the sequence of events regarding his

former club and the issuance of the ITC and reiterated that on 19 January 2011

the coach of the club sent the player’s agent an e-mail that reads as follows:

“Club G send a letter to make a compromise agreement to settle the issue, my

president almost wanted to call him but after consulting Player A I called it

off”.

v) The club had already agreed with Club G to pay USD 50,000 as a settlement.

They paid said amount in cash and “a day or two later, my ITC was released to

Club C. I did not see or cashed the USD 50,000 check. How the club or this

lawyer produced a USD 50,000 check with my name, forged signature and

tomb print is still a mystery to me.”

vi) He did notify the club of its arrears, referring to the e-mails dated 10, 24

February, 15 May, 22 July, 16 and 17 August 2011;

vii) The player indicated that when he signed the pre-contract “I didn’t have to

worry about the fine prints of the blank contract” because the parties planned

on signing a real contract in January 2011 in Club C;

viii) The player denies having signed 3 copies of the contract;

ix) He did not terminate his contract to make more money;

x) Even if 20% was to be deducted from the USD 125,000, the club should have

paid USD 104,000 instead of USD 100,000.

45. In its final position, the club reiterated its previous position and added that:


i) The player received all amounts due for the season 2010/2011, including the

USD 50,000 which can be confirmed by the original documents.

ii) There was no “pre-contract” signed between the parties;

iii) The Football Association from country D standard contract signed by both

parties and stamped by the Football Association from country D proves that

the player agreed to the “total amount of USD 750,000 in addition to USD

10,000 as signing fee and USD 2,500 every month for six months starting from

January 2011 for the three and half years duration of the contract. Thus the

player was entitled to USD 125,000 for half the season 2010/2011, which, after

20% tax, amounts to USD 100,000.”

iv) The player never sent a formal notice to the club; the email dated 22 July 2011

addressed to the former president of the club stipulates that the player

intended to terminate his contract and that “you shall be made aware of my

grounds for termination the contract when a copy of the termination letter is

sent to Club C, FIFA, and Football Association from country D. Consequently, I

shall be open to negotiating a fresh contract with Club C, should my services be

required next season and beyond”. The club deems that such statement cannot

serve as a valid notice of termination as it was not officially sent to the club, he

did not mention the reasons for his termination and he merely showed his

intent.

v) The player first went to the country U to sign a contract, so the argument in

relation with the contract in country B should not be taken into account.

46. Upon request, the player indicated that he signed a contract with the Club K in country

U in August 2011 and with Club R in country B in June 2012, however both transfers

fell through as the Football Association from country D refused to grant the ITC. On 27

March 2013, the player signed a contract with the club from country F, Club E, valid as

from 1 April 2013 until 31 July 2013 in accordance with which he would receive a

monthly salary of 35,000. The player indicated that this was a 4-month trial contract,

which was extended until 30 June 2015.

47. Having requested Club E for its comments in relation to the present matter, said club

replied stating that it was aware of the matter and “currently have the player under a

provisional ITC contract that was granted by FIFA, after all protocols were observed.”


II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber

or DRC) analysed whether it was competent to deal with the case at hand. In this

respect, it took note that the present matter was submitted to FIFA on 24 August 2011.

Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’

Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules)

is 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 and par. 2 in combination

with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition

2014), 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 country B and an club from country D, with the involvement of

a club from country F.

3. Furthermore, the Chamber analysed which edition of the Regulations on the Status

and Transfer of Players 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 2010, 2012 and 2014) and considering that

the present claim was lodged in front of FIFA on 24 August 2011, the 2010 edition of

said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the

substance.

4. The competence of the Chamber and the applicable regulations having been

established, and entering into the substance of the matter, the Chamber started by

acknowledging the above-mentioned facts as well as the documentation contained in

the 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.

5. Having duly examined the arguments of all parties, the members of the Chamber

stated that the first issue that needed to be addressed was which version of the

employment contract should be considered the employment contract binding the

parties in the present dispute.

6. After a careful evaluation of the various contracts submitted, the Chamber concluded

that whereas all contracts submitted established the payment of the amount of USD

125,000 for the first half season of employment, only Contract 3 seemed to be

complete and contained a signature on each and every page. In this respect, the

members of the Chamber noted that the player stated that he had signed a blank


contract on 29 August 2010 in country B and that the club had filled in said contract

with inaccurate information. The club however disputed that a blank contract was

signed and indicated that the player signed Contract 3 which already contained all the

relevant information.

7. At this point, the Chamber was eager to emphasise that it could not establish with

certainty what had happened exactly in August 2010 during the contract negotiations

between the player and club, as no conclusive evidence had been provided by any of

the parties. However, the Chamber stressed that should the player have signed a blank

contract, as indicated by him, it found that the player had acted with negligence, in

the sense that he wilfully took the risk that the eventual contract would not contain

the exact information which he had agreed on, or at the least, thought to have agreed

on. In any case, and with reference to art. 12 par. 3 of the Procedural Rules, which

states that any party claiming a right on the basis of an alleged fact shall carry the

burden of proof, the Chamber was unanimous in its opinion that the player had not

been able to prove that he had signed a blank contract in August 2010 nor that the

club had acted fraudulently.

8. In relation to the above, the Chamber also clarified that it did not give much weight to

the e-mails sent by Mr Z, the coach of the club at the time. The Chamber underlined

that it had not been provided with any document confirming that the coach was

indeed authorised to act on behalf of the club and noted that it rather seemed that Mr

Z was passing on messages from the club to the player and vice versa. As a result, the

Chamber held that the e-mail communications with Mr Z could not serve as evidence

as to which exact contractual provisions the player and club had agreed on.

9. As a consequence, and in order to establish the contractual basis of the relationship

between the player and the club, the Chamber determined to exclusively take into

account Contract 3, which consisted of 16 pages and appeared to contain the genuine

signatures of both the player and club (hereinafter: the contract).

10. Having established the aforementioned, the Chamber turned its attention to the e-

mail of the player dated 22 July 2011 by means of which he showed his intention to

terminate the contract by the end of July 2011, but, at the same time, indicated that

he was open to negotiate a new contract with the club. Although the player stated

that he only “intended” to terminate the contract, the Chamber observed that the

player, as from 22 July 2011, effectively stopped rendering his services to the club and

had not returned to the club on 2 August 2011, in accordance with the flight ticket

bought by the club.

11. As a result, the Chamber determined that by not returning to the club in August 2011,

the player had de facto terminated the employment contract with the club. In this

respect, the Chamber acknowledged that the subsequent question which needed to be

addressed was whether the player had terminated the contract with or without just

cause.


12. In this context, the Chamber emphasised that the reason for which the player had not

returned to country D and consequently put an end to the contract, was his belief that

the club had failed to honour its financial obligations towards him. Prior to assessing

this issue, the Chamber underlined that in accordance with the contract the player was

entitled to the total gross amount of USD 125,000 for the first half season and that,

thus, tax was to be deducted by the club from the relevant payments. Since the

percentage of 20% was not contested by the player, the Chamber was satisfied that

the percentage of 20% corresponded to the tax to be deducted from the payments at

the time the player was playing at the club. As a result, the Chamber came to the

conclusion that the player was entitled to a net amount of USD 100,000 during the

first half season of employment with the club.

13. In continuation, the members of the Chamber acknowledged that the player asserted

having received the amount of USD 49,000, whereas the club sustained that had it paid

the full amount of USD 100,000 to the player. Thus, the main dispute between the

parties was whether or not the player received the amount of USD 50,000 which was

allegedly paid on 27 January 2011. In this respect, the Chamber noted that the player

explained that he never received said amount and that he never signed the relevant

cheque.

14. In this respect, the Chamber wished to underline that although the player argued that

the documents submitted by the club were forged, the club provided the original

documentation. At this stage, the DRC considered it appropriate to remark that, as a

general rule, FIFA’s deciding bodies are not competent to decide upon matters of

criminal law, such as the ones of alleged falsified signatures or documents, and that

such affairs fall into the jurisdiction of the competent national criminal authority.

15. In this context, the DRC recalled that all documentation remitted shall be considered

with free discretion and, therefore, it focused its attention on the original documents

containing the player’s signature, provided by the club in the present dispute. After a

thorough analysis of the relevant documents, in particular, comparing the relevant

signatures of the player with the signatures in the other documents provided in the

present affair, the DRC had no other option but to conclude that, for a layman, the

signatures appear to be the same. Therefore, the Chamber considered the cheque to

be valid.

16. The Chamber was comforted in its conclusion by two supporting elements: i) the

statement of the bank in country D provided by the club which confirmed that the

player had received the money and ii) the fact that according to TMS the player was

engaged “out of contract, free of payment”; thus the Chamber could not follow the

player’s allegation that the payment of the amount of USD 50,000 was in settlement

of a dispute between the club and his former club regarding his transfer.


17. As a result, the Chamber, taking into account that the club provided a copy of the

cheque with the original signature of the player, by means of which he confirmed

having received the amount of USD 50,000, concluded that the player had received the

USD 50,000 and that therefore he received the total amount for the first half of season

of employment.

18. The Chamber emphasised that the consequence of the foregoing conclusion is that the

player did not have a just cause to terminate the contract and leave the club by the

end of July 2011. As an additional point, the Chamber also pointed out that by the end

of July 2011 the player did not appear to consider the relationship between the parties

to be disrupted to the extent that a continuation was no longer an option, since he

himself indicated that he was willing to negotiate a new contract with the club. In

view of all the foregoing, the Chamber determined that the player is to be held liable

for the early termination of the contract. As such, the Chamber first of all decided to

reject the claim lodged by the player against the club.

19. Consequently, having determined which party terminated the employment contract

without just cause, the Dispute Resolution Chamber focused on the financial

consequences for the player of said termination of contract without just cause. The

Chamber decided that, by unilaterally and prematurely terminating the employment

contract with the club without just cause, in accordance with article 17 par. 1 of the

Regulations, the player is liable to pay compensation to the club.

20. In continuation, the Chamber focussed its attention on the calculation of the amount

of compensation for breach of contract in the case at stake. In doing so, the members

of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the

Regulations, the amount of compensation shall be calculated, in particular and unless

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 whether the contractual

breach falls within the protected period.

21. In application of the relevant provision, the Chamber held that it first of all had to

clarify as to whether the pertinent employment contract contains a provision by which

the parties had beforehand agreed upon an amount of compensation payable 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.

22. As a consequence, the members of the Chamber determined that the amount of

compensation for breach of contract in the present matter 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. Therefore, other objective criteria may be taken into account at the discretion

of the deciding body. Furthermore, the Chamber highlighted that each request for

compensation for breach of contract has to be assessed on a case-by-case basis taking

into account all specific circumstances of the respective matter, as well as the

Chamber’s specific knowledge of the world of football and its experience gained

throughout the years.

23. Having said this, the Chamber turned its attention to the remuneration and other

benefits due to the player under the existing contract and/or the new contract. The

members of the Chamber deemed it important to emphasise that the wording of

article 17 par. 1 of the Regulations allows the Chamber to take into account both the

existing contract and any new contract(s) in the calculation of the amount of

compensation thus enabling the Chamber to gather indications as to the economic

value attributed to a player by both his former and his new club(s).

24. In this respect, the Chamber noted that the total remuneration of the player with the

club, after deducting the 20% of tax, amounted to the sum of USD 540,000.

25. Equally, the Chamber noted that subsequent to the moment in time when the breach

of contract occurred, starting as from July 2011, until April 2013, the player remained

unemployed until he signed a contract with Club E. Said contract was valid as from 1

April 2013 until 31 July 2013, and further extended until 30 June 2015, and stipulated

that the player would receive a total salary of approximately USD 76,000 for the

overlapping period of time.

26. In this respect, the DRC came to the conclusion that, in the present matter, the salaries

of the player were the only indication as to the economic value attributed to the

player and, thus, as to the potential market value of the player.

27. Notwithstanding the above, the members of the Chamber, after considering all the

facts of the case, deemed it important to recall that, although it had considered that

the player was to be held responsible for having terminated the contract without just

cause, one should not omit the fact that the club’s behaviour had not been without

flaws either, a fact that should be taken into account when establishing the amount of

compensation payable for breach of contract without just cause.

28. Indeed, the mitigating factors, in the Chamber’s view, are the following: i) the fact

that more than 1 version of the employment contract had been signed and provided,

therefore, creating some confusion in establishing which version of the employment

contract governed the employment relationship; ii) the fact that the club had not

specified the salary payments, i.e. the club did not indicate to which contractual


payment obligation each payment related, and iii) the fact that the salaries were paid

on different dates from the dates established in the contract.

29. On account of all of the above-mentioned considerations, in particular the attenuating

circumstances and the specificities of the case at hand, the Chamber decided that the

player must pay the amount of USD 125,000 to the club as compensation for breach of

contract, which was considered by the Chamber as a fair and adequate amount of

compensation in the present matter. Furthermore, in accordance with the

unambiguous content of article 17 par. 2 of the Regulations, the Chamber established

that the player’s new club, i.e Club E, shall be jointly and severally liable for the

payment of compensation.

30. In this respect and in relation to Club E, the Chamber was eager to point out that the

joint liability of a player’s new club is independent from the question as to whether

this new club has committed an inducement to contractual breach. This conclusion is in

line with the well-established jurisprudence of the Chamber that was repeatedly

confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided

that Club E is jointly and severally liable for the payment of the relevant

compensation.

31. The Chamber concluded its deliberation by rejecting any further claim lodged by the

club.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Player A, is rejected.

2. The claim of the Respondent / Counter-Claimant, Club C, is partially accepted.

3. The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant,

within 30 days as from the date of notification of the present decision, compensation for

breach of contract in the amount of USD 125,000 plus 5% interest p.a. on said amount as

from 15 November 2012 until the date of effective payment.

4. The Intervening Party, Club E, is jointly and severally liable for the payment of the

aforementioned amount.

5. In the event that the amount due to the Respondent / Counter-Claimant is not paid within

the stated time limit, the present matter shall be submitted, upon request, to the FIFA

Disciplinary Committee for consideration and a formal decision.

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


7. The Respondent / Counter-Claimant is directed to inform the Claimant / Counter-Respondent

and the Intervening Party, immediately and directly, of the account number to which the

remittance is 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. 67 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 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: [email protected]

www.tas-cas.org

For the Dispute Resolution Chamber:

_____________________

Markus Kattner

Deputy Secretary General

Encl. CAS directives

http://www.tas-cas.org/

Documents

Decision of the Dispute Resolution Chamber · 2015-07-16 · Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 20 August 2014, in the following composition: