Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), member on the claim presented by the club, Club A, country B, as Claimant against the player, Player C, country D, as 1 st Respondent and the club, Club E, country B as 2 nd Respondent regarding an employment-related dispute arisen between the parties

2 I. Facts of the case 1. On 30 August 2011, the player from country D, Player C (hereinafter: the 1 st Respondent), born on 19 March 1987, and the club from country B, Club A (hereinafter: the Claimant) signed an employment contract (hereinafter: the contract) valid as of the date of signature until 30 June According to the contract, the Claimant had to pay to the 1 st Respondent a monthly salary of EUR 2,000 net as well as different bonuses. 3. Pursuant to article 7 of the contract, special conditions are determined in Appendix No. 1 [hereinafter: the appendix] that is an integral part of the Employment Contract. 4. The appendix stated that the 1 st Respondent was to receive an annual salary amounting to EUR 2,000,000 net divided in equal instalments on a monthly basis. 5. On 30 May 2014, the 1 st Respondent terminated the contract in writing referring to article 17 paragraph 3 of the FIFA Regulations as well as to the last match of the championship of country B held on 15 May On 10 June 2014, the Claimant replied to the 1 st Respondent, stating that such termination did not comply with FIFA Regulations. 7. On 3 July 2014, the Claimant lodged a complaint before FIFA against the 1 st Respondent for breach of contract and against Club E (hereinafter: the 2 nd Respondent) for inducement to the breach of contract, requesting the following: the payment of EUR 19,578,654 by both the 1 st Respondent and the 2 nd Respondent, plus 5% interest p.a. as of 30 May 2014, broken down as follows: o EUR 13,980,898 as the value of the 1 st Respondent s services, composed of the following amounts: - EUR 4,980,898 corresponding to the remuneration and other benefits of the 1 st Respondent for the residual duration of the contract; - EUR 9,000,000 as lucrum cessans for a possible transfer of the 1 st Respondent; o EUR 3,298,880 as replacement cost in order to acquire an equivalent player; o EUR 2,298,876 as damages for specificity of sport. the imposition of sporting sanctions on the 1 st Respondent and 2 nd Respondent; 2/17

3 the payment of legal costs to be borne by both the 1 st Respondent and 2 nd Respondent. In addition, referring to art. 17 par. 5 of the FIFA Regulations, the Claimant requested to forward the present matter to the FIFA Disciplinary Committee for the opening of a disciplinary procedure against the player s agent, Agent F. 8. As to the substance, the Claimant asserted that the 1 st Respondent terminated the contract without just cause. According to the Claimant, the 1 st Respondent did not adduce evidence in support of his behaviour and never showed the will to leave the Claimant in these circumstances until the termination of the contract. 9. In this context, on 20 June 2014, when the Claimant allegedly called him up in order to start preseason training at its premises, the 1 st Respondent did not show up. Therefore, on 29 June 2014, the Claimant alleged that it had to start its preseason camp in country G without the 1 st Respondent. 10. Moreover, the Claimant sustained that the termination of the contract occurred within the protected period insofar as the contract was signed on 30 August 2011 and the 1 st Respondent was 24 years old at that time. In this respect, the Claimant pointed to the special context of the Premier League of country B for the season which was held in two stages, i.e. the first from spring to autumn 2011 and the second from autumn 2011 to spring Since the season started on 6 March 2011 and that the last match was on 13 May 2012, the Claimant deemed that the parties signed the contract at the very end of the second registration period of that season and thus, the season shall not be counted as an entire season according to the definition of the protected period. 11. With regard to the amount claimed as compensation for breach of contract, the Claimant first of all referred to the 1 st Respondent s annual remuneration with the Claimant in order to evaluate the value of his services. According to the Claimant, considering the tax rate in country B equivalent to 13%, the total annual salary of the 1 st Respondent amounts to EUR 2,298,880 gross. The Claimant also took into consideration the new salary and benefits of the 1 st Respondent with his new club. Considering the lack of details of any possible new employment contract of the 1 st Respondent at the time it lodged the claim, the Claimant deemed that the value to be taken into account should at a very minimum be the said gross salary of the 1 st Respondent with the Claimant, multiplied by a factor of two, inter alia due to the 1 st Respondent s age and the fact that the new club will not have to pay a transfer fee to the club. Therefore, the value attributed in terms of remuneration to the 1 st Respondent s services at the moment of the breach of contract for the residual duration of the contract allegedly amounts to EUR 4,980,898. 3/17

4 12. The Claimant further referred to the lucrum cessans in order to evaluate the value of the 1 st Respondent s services. In this regard, the Claimant took into consideration the costs actually incurred for acquiring such services apart from the remuneration and other benefits and their non-amortised part. In this particular case, the Claimant stated that in order to obtain the services of the 1 st Respondent, it paid a transfer fee of EUR 12,900,000 to Club G and provided the transfer agreement dated 29 September 2011 between the relevant clubs in this respect. The Claimant also alleged having paid the amount of EUR 1,000,000 to the agent of the 1 st Respondent for his activities which was apparently causal to obtain the services of the 1 st Respondent. In this regard, the Claimant submitted the contract of representation dated 31 August 2011 signed by the Claimant and the alleged agent s company as well as a bank statement dated 6 October 2011 evidencing said payment. Therefore, according to the Claimant s allegations, the total cost incurred to acquire the services of the 1 st Respondent amounted to EUR 13,900, As for the amortisation of such value, considering the duration of the contract and the date of termination of the contract by the 1 st Respondent, the Claimant held that the non-amortised period in the dispute at stake is 13 months. Consequently, the non-amortised fees and expenses incurred by the Claimant are allegedly equivalent to EUR 3,928, Following the same line of reasoning, the Claimant recalled that in July 2013, it received an offer from the club from country B, Club H, for the envisaged transfer of the 1 st Respondent against payment of a transfer fee amounting to EUR 9,000,000. In this respect, the Claimant provided an undated letter from Club H addressed to the Claimant containing such an offer as well as several press articles. However, since the Claimant considered that the 1 st Respondent s services had a higher value than the amount offered by Club H, it alleged having declined the said offer. 15. Therefore, the Claimant deemed that the offer from Club H compared to the non-amortised amounts demonstrated the amount of money a club would have paid in order to obtain the services of the 1 st Respondent. Consequently, the Claimant considered that the minimum amount of EUR 9,000,000 shall be paid by the 1 st Respondent as lucrum cessans and, should it so be concluded by the DRC, the Claimant was prepared to consider that such lost transfer fee included the value of the non-amortised fees and expenses. 16. In view of all the above, the Claimant deemed that the actual value of the 1 st Respondent s services amounts to EUR 13,980,898 and should be regarded as the starting point to calculate the compensation payable by the 1 st Respondent to the Claimant. 4/17

5 17. In continuation, the Claimant considered that art. 17 par. 2 and 4 of the FIFA Regulations shall apply to Respondent 2. In this respect, the Claimant referred to a letter dated 31 July 2014 from 2 nd Respondent by means of which the latter expressed its interest in obtaining the 1 st Respondent s services for an amount of EUR 4,000,000, setting a deadline by 1 August 2014 in order for the Claimant to take a decision. In response thereto, on 5 August 2014, the Claimant informed the 2 nd Respondent that the 1 st Respondent unilaterally terminated the contract on 30 May 2014 and therefore, it could not discuss about any amount as transfer fee. Thereafter, on 25 August 2014, the 2 nd Respondent sent a letter to the Claimant by means of which the 2 nd Respondent informed the Claimant about the possible signing of a contract with the 1 st Respondent and offering the Claimant the amount of EUR 2,200,000 as compensation for the unilateral termination of the contract by the 1 st Respondent. 18. Bearing in mind the above, the Claimant considered that the 2 nd Respondent tried to cover up the fact that negotiations were conducted for quite long time with the 1 st Respondent, by firstly creating a fake request of transfer by the 2 nd Respondent to the Claimant, i.e. letter dated 31 July 2014; and then, by deciding to wait until the last days of August 2014 to officially finalise the deal. 19. Finally, the Claimant deemed that art. 17 par. 5 of the FIFA Regulations shall be enforced to any third party that induced such breach of contract, i.e. the 1 st Respondent s agent. In particular, the Claimant pointed to an dated 19 May 2014 from the 1 st Respondent s agent, relating a meeting held the previous day between the agent and an alleged representative of the Claimant and by means of which the agent informed the Claimant that in the event the 1 st Respondent decided to leave the Claimant, it would be for a transfer fee amounting to EUR 3,000,000, setting a deadline by 22 May 2014 in order for the Claimant to take a decision. 20. In his reply to the Claimant s claim, the 1 st Respondent acknowledged having terminated the contract without specifying any reason in the termination notice. However, in order to substantiate his decision, the 1 st Respondent underlined that in his third season with the Claimant, the latter did not show as much interest as during the two previous seasons since he was apparently regularly substituted in championship matches or kept on the bench. In this respect, the 1 st Respondent demonstrated that in the season , he played in less than 50% of the total championship matches played by the Claimant s first team. 21. In addition, the 1 st Respondent justified his decision based on the Claimant s sporting situation. In particular, the descent of the Claimant s first team to the 10 th position in the Premier League of country B at the end of the season /17

6 2014, which left the Claimant out of the UEFA competitions for the season is stressed by the 1 st Respondent. 1 st Respondent emphasised that he was also driven by the fact that 2 nd Respondent became champion of country B in the season and was thus participating in the UEFA Champions League The 1 st Respondent further held that in May 2014, the Claimant started to pressure him into extending the contractual relationship and allegedly threatened to keep him on the side-lines in the final season of his contract should he not accept the extension of the contract. 23. Furthermore, the 1 st Respondent stated having been unaware of the alleged offer of Club H and never consented to go to said club. The Respondent 1 also stated that it is not clear how such offer was transmitted to the Claimant and even more, that it was created by the Claimant in order to serve its own interest. The 1 st Respondent pointed to the lack of evidence from the Claimant in order to demonstrate that the relevant offer was genuine and true. In particular, according to the 1 st Respondent, the press articles adduced by the Claimant are pure speculations. 24. As to the calculation of the compensation, the 1 st Respondent rejected all of the criteria used by the Claimant and was of the opinion that the FIFA Dispute Resolution Chamber (DRC) should use its well-established jurisprudence based inter alia on the average between the remuneration due until the expiry of the former contract and the remuneration due under the new contract for the same period of time which allegedly amounted to EUR 2,063,000 for the period from 18 August 2014 until 30 June The 1 st Respondent also rejected the Claimant s calculation of taking grossedup amounts by adding 13% since he moved to another club from country B and thus, there was no change of his tax residency that required further consideration. He also asserted that the Claimant did not substantiate its allegation in this regard. 26. Concerning the fees and expenses paid or incurred by the Claimant, the 1 st Respondent deemed that there was no tangible evidence on file proving that the Claimant had borne the burden to pay the transfer fee of EUR 12,900,000 or that such amount has ever been paid at all. Moreover, the 1 st Respondent was of the opinion that said amount cannot be considered due to the fact that the Claimant signed the relevant transfer contract with a company, in spite of the prohibition laid down in article 17 par. 2 sent. 1 of the FIFA Regulations for clubs to pay transfer compensation to companies that are not registered as football clubs. In this respect, the 1 st Respondent requested FIFA to transfer the file to the FIFA Disciplinary Committee. 6/17

7 27. As for the amount of EUR 1,000,000 paid to his alleged agent, the 1 st Respondent sustained that such amount could not be considered since the payment had been made in violation of art. 27 par. 2 of the FIFA Players Agents Regulations. The 1 st Respondent maintained that the payment had been made to an Agency and not to a licensed players agent. Alternatively, only if this argument was rejected, the non-amortised portion of the amount of EUR 1,000,000 should be EUR 282, Moreover, the 1 st Respondent alleged that, on 15 August 2014, the Claimant acquired the services of a player from country J, Player I, on a two-year contract, as a free agent. Since the said player from country J apparently played in the same position as him, the 1 st Respondent considered that the amount claimed by the Claimant should be mitigated taking into consideration the market value of the said player from country J which amounted to EUR 1,500, Regarding the alleged breach within the protected period, the 1 st Respondent sustained that the DRC shall apply the Football Union of country B match calendar of the season according to which the sporting season starts in August and ends in May of the following year. Thus, the 1 st Respondent concluded having terminated the contract outside the protected period. 30. Alternatively, only in the event the above was rejected, the 1 st Respondent emphasised that the Football Union of country B s decision to reverse the scheme of the championship could not and should not be held to his detriment and his right to freedom of movement. The 1 st Respondent further maintained that the season spring-autumn 2011 in the championship of country B ended with the 30 th championship match which was held on 5 November 2011, i.e. after he joined the Claimant in August 2011, and that therefrom, the season autumn 2011 spring 2012 started. Consequently, the 1 st Respondent deemed having played for the Claimant throughout the entire season and thus, when he terminated the contract with the Claimant, considered having competed for the Claimant during three entire consecutive seasons. Therefore, the termination should be considered as falling outside the protected period. 31. In this context, the 1 st Respondent held that sporting sanctions shall not apply considering the termination outside the protected period and the specific circumstances of the present matter. The 1 st Respondent deemed that the contrary would be unfair and disproportionate. 32. Subsequently, the 1 st Respondent acknowledged having signed a contract with 2 nd Respondent on 18 August According to the 1 st Respondent, he left the Claimant without any offers or contracts from 2 nd Respondent or any other clubs beforehand. In this respect, the 1 st Respondent pointed to the fact that 7/17

8 he remained unemployed for more than two months after the termination of the contract with the Claimant and before signing an employment contract with 2 nd Respondent. 33. As to the letters exchanged between the Claimant and the 2 nd Respondent as from 31 July 2014 onwards, the 1 st Respondent underlined that he has never been notified of such offers by any of the parties. In particular, the 1 st Respondent affirmed that he never gave his consent to be transferred from the Claimant to the 2 nd Respondent for a fixed transfer fee of EUR 4,000,000 or agreed to pay EUR 2,250,000 as compensation to the Claimant. The 1 st Respondent further pointed out that, in any event, such offers were rejected by the Claimant and are irrelevant with regard to the determination of the level of compensation due to the Claimant. 34. As a result, the 1 st Respondent alleged that the only amounts the Claimant might claim for compensation based on the breach of contract without just cause should be the following: Primary, EUR 614, corresponding to: o EUR 2,114, as the average salary due to the 1 st Respondent under the contract with the Claimant and under the contract with the 2 nd Respondent for the remaining period of the contract, i.e. EUR 2,166,667 + EUR 2,063,000 / 2; o minus EUR 1,500,000 as the amount the Claimant managed to mitigate its damage through the hiring of an equivalent player as a free agent. Alternatively, EUR 897, corresponding to: o EUR 2,114, as the average salary; o EUR 282, as the non-amortised portion of the fee paid to the alleged agent to obtain the services of the 1 st Respondent; o minus EUR 1,500,000 as mitigation. The 1 st Respondent also deemed that an interest of 5% p.a. should apply as of the day following the date of claim, i.e. as of 4 July The 1 st Respondent further requested to submit the file to the FIFA Disciplinary Committee in order to start disciplinary proceedings against the Claimant for breach of art. 17 par. 2 of the FIFA Regulations and art. 27 par. 2 of the FIFA Players Agent Regulations. 35. As regards the 2 nd Respondent, it acknowledged having approached the Claimant in late July, offering the amount of EUR 4,000,000, allegedly to secure his services before any potential rival clubs. The 2 nd Respondent asserted having contacted the 1 st Respondent only after the Claimant s reply on 5 August 2014 rejecting the offer of EUR 4,000,000 due to the early termination of the contract by the 1 st Respondent and alleged that only after tough and long-lasting negotiations for several weeks, [the 2 nd Respondent] finally entered into an employment contract with him on 18 8/17

9 August 2014, valid as from the date of signature until 30 June The 2 nd Respondent also sustained that the offer of EUR 2,250,000 dated on 25 August 2014 was made after having evaluated the documents submitted by the FIFA administration on 12 August 2014, with the intent to settle the matter amicably. 36. With regard to the application of art. 17 par. 1 of the FIFA Regulations, the 2 nd Respondent recalled that it is not disputed by the 1 st Respondent that he did not have just cause to unilaterally terminate the contract with the Claimant. However, the 2 nd Respondent concurred with the 1 st Respondent as to the calculation of the compensation of which the Claimant is entitled to and thus, rejected all of the Claimant s arguments as to the said calculation. 37. The 2 nd Respondent also concurred with the 1 st Respondent as regards the termination of the contract outside the protected period. 38. Regarding the application of art. 17 par. 2 of the FIFA Regulations, the 2 nd Respondent stated that, in principle, it could be held jointly and severally liable for the payment of the compensation due by the 1 st Respondent to the Claimant. However, the 2 nd Respondent recalled that, as a general rule, the main and primary debtor for the payment of compensation due to the contractual breach of contract remains being the player and therefore, the request for compensation against the new club is de facto accessory to the request for compensation to the player. 39. In addition, the 2 nd Respondent emphasised that it did not induce the 1 st Respondent to terminate his contract with the Claimant and stressed the lack of evidence from the Claimant in this respect. The 2 nd Respondent recalled that prior to the signing of the employment contract with the 1 st Respondent on 18 August 2014, the 2 nd Respondent first of all contacted the Claimant in late July. Moreover, the 2 nd Respondent stressed that from the day of termination of the contract, i.e. 30 May 2014, until the signing of the contract, i.e. 18 August 2014, more than two months elapsed. Therefore, the 2 nd Respondent deemed that its responsibility should be limited to being jointly and severally liable with the 1 st Respondent for the payment of compensation to the Claimant. 40. In this context, the 2 nd Respondent reiterated the 1 st Respondent s proposal and requested the DRC to conclude that: The 1 st Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 614,833.5 or, alternatively EUR 897,442.2, plus 5% interest p.a. as from 4 July 2014; The 2 nd Respondent is jointly and severally liable with the 1 st Respondent for the payment of the aforementioned compensation to the Claimant; All further claims from the Claimant are rejected. 9/17

10 41. Pursuant to the contract signed with the 2 nd Respondent, the 1 st Respondent was entitled to the following fixed-remuneration from 18 August 2014 until 30 June 2015: From 18 August 2014 until 31 August 2014 EUR 61, net as salary; EUR 26, net as additional remuneration. From 1 September 2014 until 30 June 2015 EUR 140, net as monthly salary; EUR 49, net as monthly additional remuneration. 42. Upon its own request, the Claimant submitted additional comments and documentation pertaining to the matter at stake. First of all, the Claimant provided the FIFA administration with a bank statement dated 31 August 2011 corroborating the payment of the transfer fee of EUR 12,900,000 to Club G. 43. As regards the company which was party to the transfer agreement with the Claimant and Club G, the Claimant asserted that said company acted as a mere receiver of the transfer fee of Club G and that, in any event, FIFA recognised the said company in transfer matters. In this respect, the Claimant referred to the CAS award 2012/XXXXX Club K v. Club G. 44. With regard to the acquisition of the player from country J, Player I, by the Claimant on 15 August 2014, it acknowledged having hired the player as a free-agent but only with the intent to replace the midfielder of country B, Player L, who was on loan with the Claimant until 30 August 2014, as evidenced by the loan agreement between Club M and the Claimant. In fact, the Claimant alleged that in order to replace the Respondent 1, it concluded an agreement with Club H on 16 July 2014 for the loan of the player from country B, Player N, as indicated in the loan agreement provided by the Claimant. 45. Consequently, on 23 February 2015, the Claimant amended its claim pertaining to the replacement costs in order to acquire an equivalent player, requesting the amount of EUR 2,700,500. Therefore, the total amount requested by the Claimant as compensation for breach of contract amounts to EUR 18,980, In reply to the Claimant s additional comments and documentation, the 1 st Respondent entirely rejected the Claimant s further submission. In particular, the 1 st Respondent reiterated his position as to the calculation of compensation for breach of contract. In this regard, the 1 st Respondent sustained that Player I was indeed hired by the Claimant as his replacement since the said player has exactly the same field position as him. The 1 st Respondent further held that, on the other hand, there was no nexus between the termination of the contract between the Claimant and the 1 st Respondent and the hiring of Player N by the Claimant. 10/17

11 47. The 1 st Respondent also underlined that the proofs of payment of the transfer fee of EUR 12,900,000 submitted by the Claimant evidence that such payment was made into the bank account of the relevant company as stated in point 26 above. Therefore, such amount could not be qualified as transfer fee and consequently could not be taken into account for the assessment of the compensation for breach of contract. 48. In view of the above, the 1 st Respondent considered that the Claimant did not prove the existence of any unamortised expenses. As a result, the 1 st Respondent reiterated all of his requests for relief put forward previously. 49. Likewise, the 2 nd Respondent entirely rejected the Claimant s further allegations and motions in its latest submission since, according to the 2 nd Respondent, the Claimant did not adduce any conclusive evidence. Therefore, the 2 nd Respondent adhered to its previous requests for relief. 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 3 July Consequently, the 2012 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute between a club from country B and a player from country D as well as another club from country B. 3. In continuation, 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 (edition 2015), and considering that the original claim in the present matter was lodged on 3 July 2014, the 2012 edition of said Regulations is applicable to the matter at hand as to the substance. 11/17

12 4. The competence of the Chamber and the applicable regulations having been established, entering into the substance of the matter, the members of the Chamber started by acknowledging the facts as well as the documentation contained in the file. However, the Chamber emphasised that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC acknowledged that the parties signed an employment contract, valid as from 30 August 2011 until 30 June Furthermore, the Chamber also took note that it is uncontested by the parties that on 30 May 2014, and referring to art. 17 par. 3 of the Regulations as well as the last match of the championship allegedly held on 15 May 2014, the 1 st Respondent terminated in writing the contractual relationship with the Claimant. 6. In this regard, the Chamber took note of the 1 st Respondent s argumentation as to his unilateral termination of the contract. In particular, the members of the Chamber noted that the 1 st Respondent considered that the Claimant did not show him as much interest as during the two previous seasons and, unlike the 2 nd Respondent, the Claimant was left out of the UEFA Champions League The DRC further observed that the 1 st Respondent acknowledged that the Claimant was entitled to receive compensation, but based on the criteria established by the jurisprudence of the DRC. 7. In continuation, the Chamber observed that, according to the Claimant, the 1 st Respondent terminated the contract without just cause since the 1 st Respondent did not adduce evidence in support of his behaviour and never showed the will to leave the Claimant until the termination. 8. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the 1 st Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the 1 st Respondent, and which party was responsible for the early termination of the contractual relationship in question. 9. In this context, the Chamber deemed it fit to outline that although the 1 st Respondent seemed to invoke sporting reasons in order to justify the termination, he expressly based the latter on art. 17 of the Regulations which is titled Consequences of terminating a contract without just cause. 10. In continuation, whilst referring to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber deemed necessary to highlight that the 1 st Respondent had not presented evidence proving that he fell under the scope of art. 15 of the Regulations. 12/17

13 11. Accordingly, and taking into account the above-mentioned considerations, the Chamber concluded that the 1 st Respondent did not have just cause to unilaterally terminate the employment contract on 30 May 2014 and that, consequently, the 1 st Respondent is to be held liable for the early termination of the contract without just cause. 12. In light of the foregoing, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the 1 st Respondent is liable to pay compensation to the Claimant. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the 1 st Respondent s new club, i.e. the 2 nd Respondent, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the 1 st Respondent s new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the Court of Arbitration for Sport. 13. Having stated the above, the Chamber focused 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 reiterated 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 Respondent I under the existing contract and/or the new contract(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party. 14. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the relevant employment contract between the 1 st Respondent and the Claimant contains a provision by means of which the parties had beforehand agreed upon an amount of compensation for breach of contract. In this regard, the Chamber established that no such compensation clause was included in the said employment contracts at the basis of the matter at stake. 15. As a consequence, the members of the Chamber determined that the amount of compensation payable by the 1 st Respondent to the Claimant had to be 13/17

14 assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber 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. 16. Consequently, in order to estimate the amount of compensation due to the Claimant in the present case, the Chamber firstly turned its attention to the remuneration and other benefits due to the 1 st Respondent under the existing contract and the new contract(s), which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the existing contract and the 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). 17. In this regard, the DRC established, on the one hand, that the employment contract between the Claimant and the 1 st Respondent, signed on 30 August 2011, had been set to expire on 30 June Therefore, as of 30 May 2014, i.e. the date of the breach, the total value of the 1 st Respondent s employment contract with the Claimant for the remaining contractual period amounted to EUR 2,166, On the other hand, the members of the Chamber established, based on the statements of both the 1 st Respondent and 2 nd Respondent as well as the documentation provided by the relevant parties, that the value of the new employment contract concluded between the aforementioned parties amounted to a total of EUR 2,063,000 net, for the period running until 30 June On the basis of the aforementioned financial contractual elements, the Chamber concluded that the average of remuneration between the contracts concluded by the 1 st Respondent respectively with the Claimant and the 2 nd Respondent over the relevant period amounted to EUR 2,114, The members of the Chamber then turned to the further essential criterion relating to the fees and expenses paid by the Claimant for the acquisition of the 1 st Respondent s services insofar as these have not been amortised over the term of the relevant contract. The Chamber recalled that a transfer compensation of EUR 12,900,000 had been paid by the Claimant to the Club G for the 1 st Respondent s transfer on 31 August 2011, documentation of which has been presented by the Claimant. According to article 17 par. 1 of the Regulations, this amount shall be amortised over the term of the relevant employment contract. As stated above, the 1 st Respondent was still bound to the Claimant for one further year of contract when he terminated the relevant 14/17

15 employment contract, which was signed by the parties with a view to remain contractually bound for a total period of four seasons. As a result of the 1 st Respondent s breach of contract on 30 May 2014, the Claimant has thus been prevented from amortising the amount of EUR 3,225,000, relating to the transfer compensation that it paid in order to acquire the 1 st Respondent s services, which the Claimant spent with the intention to benefit from the 1 st Respondent s services for the period of time that would then be established by means of the contract of employment. 20. The Chamber then focused on the agent fee of EUR 1,000,000 that the Claimant alleged having incurred in connection with the signing of the 1 st Respondent. In this regard, the members of the Chamber pointed out that according to article 17 par. 1 of the Regulations, agent fees may be included as one of the criteria to be taken into account in the calculation of compensation. In this respect, the members of the Chamber referred to the bank statement submitted by the Claimant in relation to the payment of the amount of EUR 1,000,000 as agent fee on 6 October 2011 and concluded that the amount of EUR 250,000 shall be taken into account as unamortised agent fee for the remaining year. 21. Moreover, the Chamber wished to point out that, in accordance with its longstanding jurisprudence and due to a lack of legal basis, it did not take into account the amount claimed for the loss of a possible transfer fee with Club H, as well as the amount claimed for the replacement of the 1 st Respondent and for the specificity of sport. 22. Consequently, on account of the above-mentioned considerations, the Chamber decided that the 1 st Respondent must pay the amount of EUR 5,589,833 to the Claimant as compensation for breach of contract. Furthermore, the 2 nd Respondent is jointly and severally liable for the payment of the relevant compensation (cf. point II.12. above). 23. In addition, with regard to the Claimant s request for interest and as per the well-established jurisprudence of the DRC, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 3 July 2014 until the date of effective payment. 24. For the sake of completeness, the Chamber finally analysed whether the breach of contract by the 1 st Respondent had occurred within the protected period. In this regard, the members of the Chamber referred to item 7. of the Definitions section of the Regulations, which stipulates inter alia that the protected period comprises three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28 th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a 15/17

16 contract, where such contract is concluded after the 28 th birthday of the professional. Having stated the above, the DRC recalled the specificity of the sporting season in country B which was held in two stages in In view of the above, and in particular, with due consideration to the special circumstances of the sporting seasons in country B in casu, as well as considering that the player was 24 years old when he signed the contract and that he breached the contract on 30 May 2014, the Chamber concluded that the breach occurred outside the protected period. 25. In conclusion, the DRC decided that the claim of the Claimant is partially accepted and that the Respondent 1 has to pay to the Claimant EUR 5,589,833, plus 5% interest p.a. on said amount as from 3 July 2014 until the date of effective payment, as compensation for the unilateral termination of the contract without just cause. In this respect, the DRC also determined that the 2 nd Respondent is jointly and severally responsible for the payment of the above-mentioned amount of compensation to the Claimant. 26. Furthermore, the Chamber held that the Claimant s claim pertaining to legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber s respective longstanding jurisprudence. 27. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant is partially accepted. 2. The 1 st Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 5,589,833 plus 5% interest p.a. on said amount as of 3 July 2014 until the date of effective payment. 3. The 2 nd Respondent is jointly and severally liable for the payment of the aforementioned amount (cf. point III.2 above). 4. If the aforementioned sum plus interest 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. 5. Any further claim lodged by the Claimant is rejected. 16/17

17 6. The Claimant is directed to inform the 1 st Respondent and the 2 nd Respondent 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Marco Villiger Acting Deputy Secretary General Encl. CAS directives 17/17