Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, J, from N, represented by xxxxxx as Claimant against the club, A, from S represented by xxxxxx as Respondent regarding an employment-related dispute arisen between the parties

2 I. Facts of the case 1. On 24 July 2013, the player from N, J (hereinafter: the Claimant), and the club from S, A (hereinafter: the Respondent), signed an employment contract valid from 10 July 2013 until 30 June The employment contract provides that the Claimant will receive a monthly salary of XXX 35,000 for the 2013/14 season; XXX 40,000 for the 2014/15 season and XXX 45,000 for the 2015/16 season, each payable by no later than the final business day of each month. 3. In addition, the contract provides that the Claimant will receive an image rights fee of XXX 110,000 for the 2013/14 season payable in the amount of XXX 55,000 on 31 August 2013 and XXX 55,000 on 28 February The Claimant is entitled to receive XXX 120,000 as an image rights fee for the 2014/15 season payable in the amount of XXX 60,000 on 31 August 2014 and XXX 60,000 on 28 February The Claimant is entitled to receive XXX 130,000 as an image rights fee for the 2015/16 season payable in the amount of XXX 65,000 on 31 August 2015 and XXX 65,000 payable on 28 February The Claimant is entitled to an appearance fee of XXX 3,000 for the 2013/14 season; XXX 3,000 for the 2014/15 season, as well as XXX 3,500 for the 2015/16 season. Appearance fee will relate to all official League games where the player either starts the game or comes on as a substitute. Appearance fee will be paid at month end. The Claimant is also entitled to two economy class flight tickets per season between W and D return. 5. The contract provides that the player confirms that he will be registered as a S at the League. The Respondent provided a copy of the Registration of a player under written contract issued by the League dated 15 November 2013 which states that the Claimant s nationality is N. 6. The contract provides in its article 15 that in case of repeated poor performance a footballer may be given a written warning for repeated minor forms of misconduct or poor performance, or if misconduct of a more serious nature, on the first occurrence thereof, thereafter the Claimant will be summoned for a hearing. The contract provides that after hearing the footballer, the club will decide on appropriate action and when doing so will consider ways, short of dismissal, to remedy the matter. However, disciplinary action taken may include dismissal, if no alternative remedy can be found. Player J, country N/ Club A, country S Page 2 of 15

3 7. The contract provides in its article 19 that in relation to any dispute resolution all disputes arising out of or relating to this contract, including disputes as to the meaning or interpretation of any provision of this contract or as to the carrying into effect of any such provision or as to the termination or consequences of termination shall be referred to Dispute Resolution in accordance with the NSL [National Soccer League] rules from time to time. Furthermore, the contract provides that the parties warrant that, in accordance with the football rules, any and all disputes of whatsoever shall be determined in accordance with the NSL rules and in the Dispute Resolution Tribunals of the NSL rather than before any court or other tribunal insofar as it is a requirement of FIFA and other footballing rules that the internal dispute resolution mechanisms available in football should be utilised by participants in the game save where the football rules do not provide an appropriate tribunal to determine the dispute. 8. The contract provides that notwithstanding the fact that this is a fixed term contract, the Club may terminate this agreement by the giving of 1 (one) month s written notice prior to its expiry if: the footballer is found guilty of misconduct justifying dismissal; or the footballer is found to be incapable of competently fulfilling the job for which he has been employed. 9. The employee handbook, attached to the contract, provides Amazulu may dismiss any employee summarily (without notice or payment in lieu of notice) on any grounds justifying summary dismissal at common law ( ) The contracts of employment of professional footballers are not terminable save by effluxion of time or for a reason and in accordance with a procedure specifically contemplated below on in their letter of appointment. Amazulu will only terminate an employee s employment for a fair reason these reason being misconduct, incapacity or operational requirements ( ). 10. On 15 May 2014, the Respondent notified the Claimant of the unilateral termination of the employment contract on the basis of the player s poor performance (cf. point I.6 above). It states it was found that player has not taken recommendations to assist in improving their game. Club thus terminates contract and pay him till end of June. 11. On 25 July 2014, the Claimant lodged a claim before FIFA against the Respondent asking that he be paid compensation for the unlawful breach of contract in the total amount of XXX 1,270,000 plus 5% interest p.a. on all amounts from the day they became due until the date of effective payment, as follows a. XXX 480,000 pertaining to the monthly salary of XXX 40,000 between 1 July 2014 and 30 June 2015; b. XXX 540,000 pertaining to the monthly salary of XXX 45,000 between 1 July 2015 and 30 June 2016; Player J, country N/ Club A, country S Page 3 of 15

4 c. XXX 120,000 pertaining to the image rights fee payments due for the 2014/15 season (cf. point I.3 above); d. XXX 130,000 pertaining to the image rights fee payments due for the 2015/16 season (cf. point I.3 above); e. Two economy class flight tickets per season for 2014/15 and 2015/16 season: W to D return (cf. point I.4 above); f. Sporting sanctions 12. The Claimant claims that on 12 September 2013 the Respondent made an evaluation of the Claimant s performance. The Claimant noted that the evaluation was made after five matches in each of which he played no part. On 18 December 2013, the Claimant was again evaluated by the Respondent, this time after sixteen matches, whereas the Claimant had only played in two. This evaluation has the mention release? affixed to it. Other evaluations took place on 17 January 2014 as well as on 21 March On the document of the evaluation of 21 March 2014 the mention look to release immediately is affixed. On 7 April 2014, the Claimant was called to a Poor Performance hearing where the document states that if there is no marked improvements before the next hearing contract will be terminated. 13. On 12 May 2014, the Claimant was again evaluated by the Respondent and he notes that the latest evaluation was made five months prior and that he had not played in any matches since the last evaluation. There is a mention on the document which states look to release. 14. The Claimant was summoned to a disciplinary hearing by the Respondent on 15 May 2014 where the Respondent allegedly argued that the contract had to be terminated because the Claimant had refused to implement any recommendations to assist in improving his game. The notice of termination was sent to the Claimant on 15 May 2014 (cf. point I.10 above). 15. The Claimant never accepted the unilateral termination of the contract and acknowledges having received all monies due until the end of June He argues that the decision to terminate the employment relationship on 15 May 2014 on the basis of the Claimant s alleged poor performance is unlawful, at the sole discretion of the Respondent and was performed unilaterally, thereby entitling him to compensation for breach of contract without just cause. 17. With regard to the competence of the DRC, the Claimant states that neither the L Dispute Resolution Chamber (hereinafter: L DRC), nor the S Appeals Board or the S Arbitration Tribunal are independent arbitration tribunals guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. The Claimant claims inter alia that a) the chairperson of the L DRC is Player J, country N/ Club A, country S Page 4 of 15

5 appointed by the L Executive Committee and/or the CEO of the L, the members of which are exclusively clubs, and b) that the costs of lodging a claim or an appeal range from XXX 1,000 to XXX 30,000, in addition to the legal fees incurred, thereby placing players at a disadvantage. 18. In its reply as to the matter of competence, the Respondent asserts that the Claimant should have lodged his claim in front of the L DRC, notably because the contract provides for it through an arbitration clause (cf. point I.7 above). In addition, the Respondent replied by stating that the Claimant s claim does not stipulate that the domestic footballing rules do not provide an appropriate tribunal, but is merely trying to avoid the available tribunals by pointing to what he considers to be shortcomings in the current system. In support of its argument, the Respondent provided a copy of the L Constitution amended on 1 August 2012 and of the L Rules. Furthermore, the Respondent forwarded an independent submission of the NSL confirming that the L DRC is an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. In this respect, the L enclosed affidavits of the secretary and prosecutor of the L. 19. The Respondent further holds that the dispute is not of an international dimension since the player has a N passport but has held a permanent residence visa since 11 December In accordance with the Immigration Act of 2002, the Claimant therefore has all rights, privileges, duties and obligations of a citizen of S. Also, the Claimant concluded a contract with a S club, played in S and the contract is governed by S law. 20. In its submission, the L inter alia equally stressed that the present dispute has no international dimension, since the Claimant has held permanent resident status in S since 21 March With regard to the substance of the matter, the Respondent asserts that it did evaluate the Claimant and that it can be noted from the evaluations that the Claimant s performance had deteriorated. In addition, the mention of the word release (cf. point I.12 above) was merely a question the coach was asking himself and therefore the Respondent denies that it had chosen to release the Claimant in December It adds that the Respondent did not unilaterally dismiss the Claimant because when it evaluated the Claimant, it allegedly gave him advice on how to improve his performance which only he decided not to follow. 22. Furthermore, the Respondent denies that the contract was effectively terminated on 15 May 2014 as the notice was allegedly running from that date until 30 June It adds that had the employment relationship been terminated effective from 15 May 2014, the club would certainly not have paid all salaries until the end of Player J, country N/ Club A, country S Page 5 of 15

6 June, as was acknowledged by the Claimant (cf. point I.15 above). The Respondent therefore considers that the effective date of termination of the contract was 30 June The Respondent claims that it had a right to terminate the contract for poor performance in relation to the explicit terms of the employment laws of S and the employment agreement signed with the Claimant. It therefore considers it had just cause and the Claimant s claim should be rejected in its entirety. 24. In his replica, the Claimant inter alia reiterated the previous arguments notably that the L DRC, the S Appeals Board and the S Arbitration Tribunal are not in compliance with the FIFA Circulars 1010 and In addition, the Claimant denies that any arbitration tribunal has been established at national level within the framework of a collective bargaining agreement. In this regard, the Claimant noted that the intention was to establish a Bargaining Council with a DRC in compliance with the FIFA DRC principles, but asserts that this has not been done as the parties failed to submit any business plan within the allotted timeframe. The Claimant questions why the L would agree to the establishment of such a tribunal if there is already a tribunal which is allegedly fully compliant with the FIFA circular requirements. 26. The Claimant also reiterated that he is a N citizen who is part of the N National Team and the Respondent is a S club playing in the Premier Division of S and as such the case is an employment related dispute of an international dimension. He states that he does not qualify to compete for a position on the S national team, notably as he has previously played for the N national team. The Claimant acknowledges that the contract was effectively terminated without mutual consent on 30 June In its final comments, the Respondent claims that the parties, in case the DRC deems itself to be competent, should be summoned to an oral hearing in light of the allegations presented by each party. It also adds that since the S Football Association and L were not joined as parties to the claim, there is a prejudicial element which establishes a prejudice against the Respondent as the Claimant is apparently making allegations against two institutions which cannot defend themselves in the present matter. The Respondent claims that the S Players Union does recognise the L DRC as being in compliance with the FIFA Circulars as it has previously submitted disputes to it. The Respondent deems that the S Players Union is using the Claimant s claim as a way to attack the L DRC, the S Appeals Board and S Arbitration. Player J, country N/ Club A, country S Page 6 of 15

7 28. In response to FIFA s pertinent request, the Claimant stated that between 1 August 2014 and 31 July 2016, the Claimant was under contract with XY in N. The player was entitled to a monthly salary of yyy 8,000 from the end of August II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 25 July Consequently, the Rules governing the procedures of the Players Status Committee and the Dispute Resolution Chamber (2012 edition; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2016 edition) the Dispute Resolution Chamber is, in principle, competent to deal with employment-related disputes with an international dimension. 3. The Chamber, however, acknowledged that the Respondent contested the competence of FIFA s deciding bodies on the basis that there is no international dimension to the dispute since the Claimant has held a resident s visa in S since 11 December The DRC noted that the Respondent considered that in light of national law, in particular the Immigration Act of 2002, the Claimant has all rights, privileges, duties and obligations of a citizen of S in addition to having concluded a contract with a S club which is governed by S law and playing in S. 4. In this regard, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent. The Claimant added that the international dimension is undeniable on the basis that he is a N citizen holder of a N passport. 5. With regard to the argument of the Respondent that the present matter was not one of an international dimension, the Chamber underlined that in accordance with the documentation on file and statements provided by both parties, the Claimant is a N citizen, holder of a N passport. In absence of any objective evidence that the Claimant had a S passport or that he was registered as a S national (cf. point I.5 above), the international dimension is established by means of the player s N passport. The fact that the player concluded a contract with a S club, was the holder of a S resident s permit, and that he played in S does not change the conclusion of the Chamber. Thus, the Chamber concluded that the present dispute had an international dimension and the DRC is in principle competent to deal with it in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players. Player J, country N/ Club A, country S Page 7 of 15

8 6. In continuation, the members of the Chamber took note that the Respondent contested the competence of FIFA s DRC on the basis of art. 19 of the contract (cf. point I.7 above) alleging that the Claimant should have addressed his claim to the L DRC in S. 7. In this respect, the Chamber took into account all of the above and sought to emphasise that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2012, 2014 and 2016 editions) it is competent to deal with a matter such as the one at hand between a S club and a N player, unless an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular n 1010 dated 20 December Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January In this respect, the DRC turned its attention to the principle of equal representation of players and clubs and underlined that this principle is one of the very fundamental elements to be fulfilled in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the FIFA Circular n 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives ( ); b) between three and ten player representatives who are elected or appointed either on proposal of the players associations affiliated to FIFPro, or, where no such association exists, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives ( ). In this respect, the FIFA Circular n 1010 states the following: The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal ( ). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise influence over the compilation of the arbitrator list. 9. On account of the above, the Chamber went on to examine the documentation presented by the Respondent and noted that the chairperson of the L DRC is appointed by the Executive Committee of the L. Equally, the Chamber noted that it can be established from the documentation provided by the parties that the L is an organisation consisting exclusively of clubs. As such, the members of the Chamber concluded that the chairperson of the L DRC is effectively appointed by the clubs and thus not by consensus by player and club representatives. The Chamber, therefore, was unanimous in its conclusion that the L DRC does not respect the principle of equal representation of players and clubs. Player J, country N/ Club A, country S Page 8 of 15

9 10. In addition, the Chamber noted that it is acknowledged by both parties that for proceedings conducted in front of the L DRC, S Appeals Board and the S Arbitration Tribunal, costs apply varying between XXX 1,000 and XXX 30,000. The Chamber determined that the imposition of these costs does not comply with art. 32 of the NDRC Regulations. 11. As a consequence of all of the above, the Chamber concluded that it could not be established that the L DRC is indeed an independent arbitration tribunal guaranteeing faire proceedings and respecting the principle of equal representation of players and clubs, in accordance with the decisions previously taken in cases with ref. nr. xxxxxx and ref. nr. xxxxxx. 12. On account of all of the above, the Chamber established that the Respondent s objection to the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 13. In continuation, the Chamber analysed which edition of the 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 2016), and considering that the present claim was lodged on 25 July 2014, the 2012 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 14. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. The Chamber, however, 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. 15. In this respect, the Chamber acknowledged that on 24 July 2013 the Claimant and the Respondent had signed an employment contract valid from 10 July 2013 until 30 June The Chamber noted that the Claimant asserted that the Respondent had terminated the employment contract without just cause based on his alleged poor performance by means of a letter dated 15 May 2014, effective as from 30 June 2014, and therefore requests to inter alia be awarded payment of compensation for breach of contract. For its part, the Club asserts that it was entitled to terminate the employment relationship on the basis of the terms of the employment contract, and that the player s poor performance constituted a breach and that the national laws of S permitted it to. It added that it considered the termination to be effective from 30 June 2014 on the basis that it had paid all salaries due until then. 16. The Chamber then acknowledged that it had to examine whether the reasons put forward by the Respondent could justify the termination of the contract in the present matter. Player J, country N/ Club A, country S Page 9 of 15

10 17. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. 18. In order to be able to establish whether the Respondent had terminated the employment contract without just cause, as claimed by the Claimant, the Chamber deemed it was necessary to turn its attention to clause 15 of the contract (cf. point I.6 above), which was invoked by the Respondent in its defence and turn its attention to the applicability of S national law. 19. As stated above, article 15 of the contract provides that in case of repeated poor performance the the footballer may be given a written warning for repeated minor forms of misconduct or poor performance, or if misconduct of a more serious nature, on the first occurrence thereof and the footballer will thereafter be summoned to a hearing. The DRC noted that the contract provides that after hearing the footballer, the club will decide on appropriate action and when doing so will consider ways, short of dismissal, to remedy the matter. However, disciplinary action taken may include dismissal, if no alternative remedy can be found. 20. In this respect, the Chamber held that such a clause could not be deemed applicable since it allows for the unilateral termination of the contract based exclusively on the club s evaluation of the player s performance. The player s poor performance, in accordance with the Chamber s constant jurisprudence, in itself cannot be considered a valid reason to terminate an employment contract as it is the result of a subjective perception of an employee of the club, not measurable and not based on clear, objective criteria. 21. The Chamber, therefore, decided that the Respondent could not legitimately terminate the contractual relationship with the Claimant on the basis of the relevant clause. Consequently, the Chamber rejected the Respondent s argument in this respect, as in accordance with the well-established jurisprudence of the Chamber, poor performance of a player cannot be considered as a just cause for a club to unilaterally terminate the employment contract. 22. With regard to the Respondent s allegation that the termination was with just cause in light of the national laws of S, the Chamber deemed it important to point out that when deciding a dispute before the DRC, FIFA s Regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasised that the main objective of the FIFA Regulations is to create a standard set of rules to which all actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law Player J, country N/ Club A, country S Page 10 of 15

11 of a specific party on every dispute brought to it. This should apply, in particular, also to the termination of a contract. In this respect, the DRC wished to point out that it is in the interest of football that the termination of contract is based on uniform criteria rather than on provisions of national law that may vary considerably from country to country. Therefore, the Chamber deems that it is not appropriate to apply the principles of a particular national law to the termination of the contract but rather the Regulations, general principles of law and, where existing, the Chamber s well-established jurisprudence and therefore rejected the arguments of the Respondent in this respect. 23. In light of all of the above, the Chamber concluded that that the Respondent did not have just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 30 June 2014, in accordance with the declaration of the Respondent and the acknowledgement of the Claimant (cf. point I. 15 and I. 22 above) and that consequently, the Respondent is to be held liable for the early termination of the employment contract without just cause. 24. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the premature unilateral termination of the employment relationship without just cause by the Respondent. 25. In this regard, the members of the Chamber first concurred that the Respondent must fulfil its obligations as per the employment contract until the date of termination of the contract in accordance with the general legal principle of pacta sunt servanda. The DRC recalled the considerations in point II.24 above and concluded that there were no outstanding sums due by the Respondent to the Claimant at the effective time of termination, i.e. 30 June 2014, as the Claimant acknowledges having received all his remuneration up to that date. 26. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive compensation from the Respondent for breach of contract without just cause on the basis of the relevant employment contract. 27. In this context, the Chamber outlined that in accordance with said provision, 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 Claimant 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. 28. In application of the relevant provision, the Chamber held that it first had to clarify whether the pertinent employment contract contained any clause by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber Player J, country N/ Club A, country S Page 11 of 15

12 established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 29. Consequently, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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. In this regard, the Dispute Resolution Chamber 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. 30. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their attention to the remuneration and other benefits due to the Claimant under the existing contracts and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation. 31. The Chamber noted that the contract signed by the Claimant and the Respondent was set to run for two more seasons after the effective time of termination, i.e. until 30 June 2016 and provided that the Claimant would be entitled to a monthly salary of XXX 40,000 for the 2014/15 season and XXX 45,000 for the 2015/16 season. In addition, the members of the Chamber noted that the player would be entitled to XXX 250,000 in four instalments due during the period running from the effective breach of contract until 30 June 2014 as image rights fee. 32. In continuation and with regard to the claim of the Claimant which includes said image rights fee in the calculation of the compensation due, the Chamber had to verify, whether for formal reasons, it was competent to deal with this specific component or not. In fact, it remains that this part of the claim could possibly not be considered due to the Chamber lacking competence to deal with matters relating to image rights. 33. In its analysis, the Chamber, without entering into any discussion regarding the actual wording of the relevant clause, which undoubtedly defines the payments as relating to image rights fees, wished to highlight that said provision is contained in the employment contract with the clauses fixing other remuneration and amenities the Claimant would be entitled to for the duration of the employment relationship. 34. In this regard, the members of the Chamber noted that if there are separate agreements relating to employment and image rights, it tends to consider the agreement on image rights as such and therefore considers it has no competence to deal with it. Such a conclusion might be different, however, if specific elements of the agreement appear to suggest that payments relating to image rights were to be Player J, country N/ Club A, country S Page 12 of 15

13 part of the employment relationship. In casu, the fact that the payments are provided for in the employment contract alongside the provisions relating to other remuneration and also appear to be annual bonuses, led the Chamber to decide not to consider the image rights payment clause as such, but determined that said payments were provided for as remuneration. 35. In light of the above considerations, the Chamber deemed that the image rights fee can be taken into consideration when determining the amount of compensation due to the Claimant by the Respondent. 36. The members of the Chamber, therefore, deemed that in light of the claim of the Claimant and all of the above, in particular the considerations in point II.31 above, the total residual value of the employment contract of XXX 1,270,000 shall serve as a basis for the final determination of the amount of compensation due for breach of contract. 37. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation due for breach of contract in connection with the player s general obligation to mitigate his damages. 38. The members of the Chamber recalled that on 1 August 2014, the Claimant had signed an employment contract with the club XY and was entitled to receive yyy 8,000 until 31 July The Claimant was able to earn income of yyy 184,000 during the relevant period of time. 39. Consequently, on account of all the aforementioned considerations and the specificities of the case at hand as well as the general legal obligation to mitigate his damages, the Chamber decided that the Respondent must pay the amount of XXX 1,086,000, which is considered reasonable and proportionate as compensation for breach of contract in the case at hand. 40. In addition, taking into account the Claimant s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% interest p.a. on the amount of compensation from the date on which the claim was lodged, i.e. 25 July 2014, until the date of effective payment. 41. In continuation, regarding the Claimant s claim pertaining to flight tickets, referring to the relevant terms of the employment contract (cf. point I.4 above) and the information provided by FIFA Travel, the Chamber decided that the Respondent must pay to the Claimant the amount of USD 160 for the Claimant s return to his home country. 42. The Chamber concluded its deliberations in the present matter by rejecting any further claim made by the Claimant. Player J, country N/ Club A, country S Page 13 of 15

14 III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent is ordered to pay to the Claimant the amount of XXX 1,086,000 as compensation for breach of contract within 30 days from the date of notification of this decision plus 5% interest p.a. from 25 July 2014 until the date of effective payment. 4. In the event that the amount and interest due to the Claimant in accordance with the aforementioned point 3. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. The Respondent is ordered to pay to the Claimant the amount of USD 160 as flight tickets within 30 days from the notification of this decision. 6. If the amount indicated in point 5. above is not paid within the aforementioned time limit, an interest rate of 5% p.a. will apply on said amount as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 7. Any further claim lodged by the Claimant is rejected. 8. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the entire remittance is to be made and to notify the DRC of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Player J, country N/ Club A, country S Page 14 of 15

15 Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Marco Villiger Deputy Secretary General Encl: CAS directives Player J, country N/ Club A, country S Page 15 of 15