F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player G, from country V as Claimant against the club, Club E, country C as Respondent regarding an employment-related dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player G, from country V as Claimant against the club, Club E, country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 10 January 2008, the player G from country V (hereinafter: the Claimant), and the club from country C, Club E (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from 1 June 2008 until the end of the 2009-2010 season. 2. In accordance with Clause 1 of the contract, the Claimant was entitled to an overall remuneration of EUR 17,500 for each season. According to the contract, the Claimant’s remuneration for each season shall be paid in 10 equal instalments of EUR 1,750 each, in which the payments shall commence “on or before” 31 August and finish “on or before” 31 May of the relevant season. 3. In addition, Clause 2 of the contract provided inter alia for the following benefits to be paid by the Respondent to the Claimant: - EUR 500 for every win and EUR 160 for every draw in the country C Football Association championship provided that the Claimant plays for at least 1 minute; - EUR 430 as monthly rent; - EUR 5,000 if the Claimant participates in 20 games of the 2008-2009 season; - EUR 5,000 if the Claimant participates in 20 games of the 2009-2010 season. 4. Also, the contract provided for the following benefits: a car, for which the Respondent shall pay the “road tax” as well as the “regular mechanical services” and “two total return flight tickets” for him and his family “to their country”. 5. On 20 June 2008, the parties to the dispute signed another contract (hereinafter: the supplementary contract), valid from the date of signature until the end of the 2009-2010 season. The supplementary contract provided for additional remuneration in the same amount as set out in Clause 1 of the contract, i.e. EUR 17,500 per season, to be paid in the same manner as stipulated in the contract. 6. Clause 5.A of the supplementary contract established that the Claimant “agrees and accepts all disciplinary penalties may be imposed according to the internal regulations of the club, attached to this contract, as Appendix A”. Further, Clause 6 provided that the Claimant would “obey the Rules, the Internal Regulations of the CLUB”. 7. Appendix A to the supplementary contract sets out the penalties that can be imposed on the Claimant. In particular, it establishes the penalty in the amount of EUR 1,708.60 for each “unreasonable” red card received by the Claimant. Such penalties “are imposed by the football committee of the club the latest 48 hours after the end of the relevant football match”. 8. According to Appendix A to the supplementary contract “the definition of Reasonable or Unreasonable Yellow or Red Card, will be decided and announced by the HEAD COACH during the first training session of every relevant football match”. 9. On 2 September 2010, the Claimant lodged before FIFA a complaint against the Respondent for breach of contract, stating that the Respondent had failed to meet its financial obligations under the contractual arrangements between the parties. 10. After amending his claim, the Claimant requested the Dispute Resolution Chamber to order the Respondent to pay a total outstanding remuneration amounting to EUR 11,105, made up of the following amounts: i. EUR 1,750 corresponding to 50% of the salary of May 2010; ii. EUR 5,000 corresponding to the bonus for the Claimant’s participation in 20 games of the 2009-2010 season; iii. EUR 3,420, out of EUR 4,620, corresponding to bonus payments for wins and draws during 2009-2010 season; iv. EUR 430 corresponding to the rent for May 2010; and v. EUR 505 as residual value of the guarantee alleged paid by the Claimant under the “Vehicle Allocation Agreement” (cf. point I/14 below). 11. In his claim, the Claimant alleged having received only part of the salary for May 2010. Further, the Claimant stated that for the 2009-2010 season, the Respondent paid him EUR 1,200 as bonus for wins. However, according to the Claimant, the bonus payment for wins should have been in the amount of EUR 4,620 instead. In addition, the Claimant claimed to have participated in 24 games during the 2009-2010 season, and thus claimed to be entitled to receive the relevant bonus in the amount of EUR 5,000. Equally, the Claimant claimed that the rent for May 2010 was also outstanding. Moreover, the Claimant submitted a list, made by himself, specifying the games, benefits and minutes played, as well as his bank account declaration with all deposits and withdraws. 12. In its reply, the Respondent admitted owing the Claimant the amounts set out in points 10.i), ii), and iv) (cf. point I/10). However, the Respondent disputed the amount claimed by the Claimant in point 10.iii) as bonus for wins and draws during the 2009-2010 season, and stated that it only owed the Claimant EUR 1,600 out of EUR 3,420, because a verbal agreement was allegedly reached with all the players of the club according to which “in Championship’s Second Phase for Group P5-P8 no bonuses will be granted”. Therefore, the Respondent admitted owing the Claimant an overall amount of EUR 8,780. Notwithstanding this, the Respondent argued that from said owed amount, the following shall be deducted: - penalties amounting to EUR 3,416 (EUR 1,706 x 2) for two “unreasonable” red cards shown to the Claimant, respectively, during two matches played on 14 November 2009 and on 20 December 2009; - EUR 1,495 for “car repair”; and - EUR 665 for 50% of the Claimant’s return flight ticket country C-country V for which an invoice was provided; Therefore, the Respondent agreed to pay a balance of EUR 3,204. 13. The Claimant disagreed with the Respondent’s position, and stated that, pursuant to Appendix A to the supplementary contract, the Respondent should have notified the Claimant within 48 hours from the relevant matches the alleged decisions imposing the penalties for the red cards received by the Claimant. In this regard, the Claimant submitted a letter from the Respondent, dated 28 April 2009, regarding a penalty imposed on the Claimant by means of which the Claimant intended to illustrate the relevant procedure for the notification of penalties. Therefore, the Claimant rejected the two above-mentioned penalties due to the alleged Respondent’s failure to respect the agreed procedure, in particular the failure of the Respondent to duly notify the penalty to the Claimant. 14. As regards the garage service-related expenses in the amount of EUR 1,495, the Claimant provided FIFA with a “Vehicle Allocation Agreement” signed by both parties. According to Clause 6 of this agreement, the Respondent “reserved the right to claim from the footballer the amount of EUR 2,000 as guarantee for the vehicle misuse, negligence, damages or otherwise”. Further, said Clause stipulated that the “above mentioned amount will be returned to the football upon the delivery of the vehicle to Club E” and that “in case of damages or otherwise, the CLUB will break away the proportional amount and returns to the footballer the remainder sum that will result”. Moreover, the Claimant claimed that neither was he informed of any repairs nor was he reimbursed the remaining amount paid as guarantee, once the alleged “car repair” had been deducted. Consequently, the Claimant amended his claim and requested an additional EUR 505 (cf. point 10.V above) from the Respondent, corresponding to the EUR 2,000 guarantee after deducting EUR 1,495 for the ”car repair”. 15. Furthermore, the Claimant rejected the Respondent’s claim for half the price of a return flight ticket because, according to the contract, he was entitled to two return flight tickets for his family and himself. In addition, according to the Claimant’s, his previous club, Club K, had paid for the Claimant’s flight ticket country V-country C and thus the Respondent still owed the Claimant and his family a one-way flight ticket country V-country C. Finally, the Claimant insisted in the payment of the bonus. 16. In its duplica, the Respondent stressed that, according to Appendix A to the supplementary contract, there was no obligation on the Respondent to notify the penalties to the Claimant in writing because the penalties were imposed by the football committee of the Respondent and not by the board of directors of the Respondent. According to the Respondent, the football committee of the Respondent did impose the penalties within the agreed 48 hour time-limit from the relevant matches and not only informed the Claimant orally but also allegedly posted the penalties on the penalty board of the changing rooms of the team during the first training session following the relevant matches. Additionally, regarding the amount corresponding to “car repair” to be deducted, the Respondent held that it did not withhold the amount of EUR 2,000 as guarantee. In this respect, the Respondent clarified that according to the “Vehicle Allocation Agreement” the Respondent had a right to withhold such an amount; however, the Respondent stated that it did not exercise it. Finally, the Respondent reiterated that it is willing to pay the Claimant a balance amounting to EUR 3,204. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as judge or DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, the judge took note that the present matter was submitted to FIFA on 2 September 2010. Therefore, the DRC judge concluded that the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the judge referred to art. 3 pars. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 pars. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the DRC judge is competent to decide on the present litigation, concerning an employment-related dispute of an international dimension between a player from country V and a club from country C. 3. Furthermore, the DRC judge 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 said Regulations (editions 2012, 2010 and 2009), and considering that the present claim was lodged on 2 September 2010, the 2009 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the Chamber entered into the substance of the matter. The judge started by acknowledging that on 10 January 2010 the parties to the dispute had signed an employment contract valid as from 1 June 2008 until the end of the 2009-2010 season. Also, the judge acknowledged that on 20 June 2008 the parties signed the supplementary contract, which was valid from the date of signature until the end of the 2009-2010 season. 5. Equally, the judge observed that the contracts concluded between the parties stipulated, inter alia, an overall remuneration of EUR 35,000 for each season, to be paid in 10 equal instalments of EUR 3,500 each, in which the payments shall commence “on or before” 31 August and finish “on or before” 31 May of the relevant season. In addition, the DRC judge took note that the contract provides for a number of benefits, namely: (i) EUR 500 for every win and EUR 160 for every draw in the country C Football Association championship provided that the Claimant plays for at least 1 minute; (ii) EUR 430 as monthly rent; (iii) EUR 5,000 if the Claimant participates in 20 games of the 2008-2009 season; and (iv) EUR 5,000 if the Claimant participates in 20 games of the 2009-2010 season. 6. In continuation, the judge noted that on 2 September 2010 the Claimant lodged a claim against the Respondent requesting the payment of a total outstanding remuneration amounting to EUR 11,105. The requested outstanding monies were made up of: i. EUR 1,750 corresponding to 50 % of the salary of May 2010; ii. EUR 5,000 corresponding to the bonus for the Claimant’s participation in 20 games during the 2009-2010 season; iii. EUR 3,420, out of EUR 4,620, corresponding to bonus payments for wins and draws during 2009-2010 season; iv. EUR 430 corresponding to the rent for May 2010; and v. EUR 505 as residual value of the EUR 2,000 guarantee allegedly paid by the Claimant under the “Vehicle Allocation Agreement”. 7. Having said this, the judge turned his attention to the arguments of the Respondent and noted that the latter partially accepted the claim and admitted owing the Claimant the amounts set out in points I.10.i), ii) and iv), i.e. part of the salary regarding May 2010 in the amount of EUR 1,750, the bonus in the amount of EUR 5,000 and the rent for May 2010 in the amount of EUR 430. Furthermore, the judge noted that the Respondent disputed the amount claimed by the Claimant in point iii) above, as bonus for wins and draws, stating that it only owed the Claimant EUR 1,600 out of EUR 3,420, because allegedly a verbal agreement had been reached with all the players of the Respondent according to which “in Championship’s Second Phase for Group P5-P8 no bonuses will be granted”. In addition, the judge observed that the Respondent also intended to deduct from the outstanding amount requested by the Claimant the following: penalties amounting to EUR 3,416 (EUR 1,706 x 2) for two “unreasonable” red cards shown to the Claimant, respectively, during two matches played on 14 November 2009 and on 20 December 2009; EUR 1,495 for “car repair”; and EUR 665 for 50% of the Claimant’s return flight ticket country C-country V for which an invoice was provided. Therefore, the judge observed that the Respondent agreed to pay a balance of EUR 3,204. 8. Considering the disputed facts, the DRC judge recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 9. In view of the above, the judge concluded that the Respondent shall carry the burden of proof that an agreement was actually reached with the player by means of which the latter allegedly renounced the bonus “in Championship’s Second Phase for Group P5-P8”. 10. In this respect, the DRC judge observed that the Respondent has not presented any documentary evidence regarding an agreement concerning the bonus for the relevant period concluded between the Respondent and the Claimant. As a consequence, the judge concluded that the Respondent was not able to prove the existence of such an agreement by means of which the player allegedly renounced a number of bonus payments. Therefore, the DRC judge concluded that the Claimant was entitled to receive the bonus and, consequently, the Respondent could not deduct such amount. 11. In continuation, the DRC judge referred once again to the principle of the burden of proof and stated that the Respondent has equally failed to provide evidence regarding the red cards and of the notification to the Claimant of the penalties referred to in point II/7 above. Therefore, the judge concluded that a deduction on this basis shall also be rejected. 12. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a penalty, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent’s argument in this connection. 13. Furthermore, the judge ascertained that the Respondent had not succeeded in proving (cf. art. 12 par. 3 of the Procedural Rules) that the return flight ticket country C-country V had been provided to the Claimant on top of the agreed “two total return flight tickets” for the Claimant’s himself and his family, as provided for in the contract. Therefore, there was no valid reason for the Respondent to request the Claimant to reimburse the Respondent for 50% of the value of the Claimant’s return flight ticket country C-country V. As a consequence, the judge came to the conclusion that there was no basis to accept such deduction as well. 14. Finally, as to the Respondent’s request for the deduction of EUR 1,495 corresponding to “car repair”, the judge observed that, on one hand, according to the contract, the Respondent was responsible to pay for the “regular mechanical services” and, on the other hand, that the Respondent only enclosed a copy of an invoice in the amount of EUR 1,495. In this respect, the DRC judge referred once more to art. 12 par. 3 of the Procedural Rules and considered that the Respondent could not demonstrate that such amount was paid and, in any case, that it was the Claimant’s duty to pay for such service. Consequently, the argument of the Respondent is also rejected. 15. In continuation, the DRC judge considered that the Claimant’s request for the reimbursement of EUR 505 as residual value of the EUR 2,000 guarantee allegedly paid by the Claimant under the “Vehicle Allocation Agreement” shall not be taken into account since the DRC judge shall base its considerations solely on the rights and obligations contained in the relevant employment contract and supplementary contract. The “Vehicle Allocation Agreement” shall be disregarded and the contracts do not include any guarantee in the amount of EUR 2,000. Moreover, the Claimant also failed to prove having paid the amount of EUR 2,000 to the Respondent. 16. On account of the aforementioned considerations, the judge established that the Respondent failed to pay the Claimant EUR 3,420 corresponding to bonus payments for wins and draws during the 2009-2010 season. Moreover, the DRC judge recalled that the Respondent admitted not having paid the player EUR 1,750 corresponding to 50% of the salary of May 2010, EUR 5,000 corresponding to the bonus for the Claimant’s participation in 20 games during the 2009-2010 season, and EUR 430 corresponding to the rent for May 2010. The judge further recalled that the Respondent’s request for deduction of several amounts (cf. point II.7) was rejected. As a consequence, the DRC judge decided that the Respondent, in accordance with the general legal principle of pacta sunt servanda, is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 10,600. 17. Taking into account all the above, the DRC judge decided to partially accept the Claimant’s claim. Consequently, the Respondent has to pay to the Claimant the amount of EUR 10,600. 18. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ******** III. Decision of the DRC judge 1. The claim of the Claimant, Player G, is partially accepted. 2. The Respondent, Club E, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 10,600. 3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2 is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge 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: info@tas-cas.org www.tas-cas.org For the DRC judge: Jérôme Valcke Secretary General Encl. CAS directives