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 6 March 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player R, from country B as Claimant against the club, Club C, from country S 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 6 March 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player R, from country B as Claimant against the club, Club C, from country S as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 16 August 2010, Player R, from country B (hereinafter: player or Claimant), and the Club C, from country S (hereinafter: club or Respondent), signed an “Annex to the loan agreement No. 416” (hereinafter: contract). 2. According to the contract, the player was entitled to receive, inter alia, two equal instalments of EUR 5,000 each, falling due seven days after his registration and on or before 10 February 2011, respectively, as well as ten equal monthly instalments of EUR 1,000 each. 3. Article 2 of the contract stipulates that in order for the player to obtain the entire monthly salary of EUR 1,000, ``In the months during the championship the player must have 70% minutes played”, otherwise he would receive a monthly salary of EUR 600. Said article further stipulates that the ``minutes played’’ do not include injuries recognized by a club doctor and yellow cards. 4. The player explained that the duration of the contract was until the last official match of the 2010/11 season and that he honored and fulfilled his contractual duties. 5. On 2 July 2011, the player lodged a claim against the club before FIFA maintaining that the club had not fulfilled its obligations and failed to pay him the amount of EUR 10,000, which was detailed as follows: - second instalment falling due on or before 10 February 2011 EUR 5,000 - last five monthly salaries (as of January until May 2011) (5 x EUR 1,000) EUR 5,000 6. As a consequence, the player requested that disciplinary sanctions be imposed on the club and that the club be ordered to pay the total amount of EUR 10,000 plus 5% interest p.a. as of 1 January 2011. 7. In its response to the claim, the club maintained that the player did not abide by the club’s disciplinary rules and regulations. In this respect, the club submitted a medical report and a written statement from the coach. According to the latter, during one of the club’s training sessions the player affirmed to experience pain in the Achilles tendon which prompted him to take a break. 8. According to the club, he did not play any of the preliminary matches and was absent as from 13 February 2011 until 5 May 2011. According to the medical report issued by the club’s doctor, on 3 February 2011 the player was diagnosed with a ``tendinitis extremitatis inferiourus M76’’, for which a period of rest from training and physical treatment was required. The club further held that ten days later, the player was proposed to continue treatment with light trainings. According to the medical report, the player refused the club’s proposition and went to a different doctor to seek medical treatment, failing to inform the club of the status and/or possible success of his treatment. 9. Furthermore, the club highlighted that pursuant to article 2 of the contract, the player ``must have more than 70% of the time spent in matches (played) in order that his monthly would be paid in the net amount of EUR 1,000’’. 10. As a consequence, the club maintained that the player is not entitled to the amounts claimed and requested that the proceedings against it be suspended. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 2 July 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. (b) of the Regulations on the Status and Transfer of Players (edition 2012) he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country B player and a country S club. 3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2010), and considering that the present claim was lodged on 2 July 2011, the 2010 edition of said Regulations (hereinafter: Regulations) is applicable to the present matter as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging that the parties do not contest having been contractually bound as from 16 August 2010 until the last official match of the 2010/11 season, and that the Claimant duly executed his contractual duties until the expiry of the contract signed between the parties to the dispute. 5. The DRC judge further noted that the Claimant maintains that the club failed to pay the second instalment in the amount of EUR 5,000 as well as his salaries for the months of January, February, March, April and May 2011, i.e. EUR 5,000. Therefore, the Claimant asks that the Respondent be ordered to pay the amount of EUR 10,000 plus 5% interest p.a. as of 1 January 2011. 6. In continuation, the DRC judge noted that the Respondent, for its part, asserts that the Claimant was diagnosed with an injury by the club’s doctor. In this respect, the DRC judge further noted that the Respondent sustains that pursuant to article 2 of the contract, the Claimant ``must have more than 70% of the time spent in matches (played) in order that his monthly would be paid in the net amount of EUR 1,000’’ and that the Claimant had disrespected the club’s disciplinary rules and regulations. Therefore, the Respondent rejects the claim put forward by the Claimant. 7. First and foremost the DRC judge took into account that the Respondent had not denied that it had not paid any remuneration to the Claimant as of January 2011 in accordance with the contract. 8. In continuation, the DRC judge turned his attention to the reasons invoked by the Respondent in respect of the non-payment of the Claimant’s remuneration. In this respect, the DRC judge recalled that the contract stipulates that for the Claimant to obtain the entire monthly salary of EUR 1,000, ``In the months during the championship the player must have 70% minutes played”, otherwise he would receive a monthly salary of EUR 600. 9. Furthermore, the DRC judge acknowledged that, according to the contract, the ‘’minutes played’’ by the Claimant do not include yellow card sanctions and/or injuries attested by the club’s doctor. 10. In continuation, the DRC judge recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 11. In this regard, the DRC judge concluded that the written statement of the club’s coach as well as the medical report issued by the club’s doctor cannot be validly relied upon, since these documents were issued by persons closely linked to the Respondent and, as such, do not fulfil the requirement of objectivity and impartiality. 12. Bearing in mind the foregoing, the DRC judge concluded that the Respondent had failed to submit documentary evidence demonstrating that the player was not entitled to the entire monthly salary of EUR 1,000 and/or the sums claimed. 13. Consequently, the DRC judge established that the Respondent had neglected its financial contractual obligations towards the Claimant and failed to pay to the latter the second instalment in the amount of EUR 5,000 plus EUR 5,000 corresponding to the monthly salaries of January, February, March, April and May 2011. Therefore, the DRC judge decided that in accordance with the general legal principle of “pacta sunt servanda”, the Respondent must pay to the Claimant the amount of EUR 10,000. 14. In continuation, taking into account the Claimant's request for interest as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on each of the outstanding instalment and monthly salaries as of the day following the day on which such payments had fallen due. 15. Furthermore, the DRC judge decided that, in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution Chamber’s respective longstanding jurisprudence, the Claimant’s claim for legal costs is rejected. 16. The DCR judge concluded the 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 R, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant the amount of EUR 10,000, within 30 days as from the date of notification of this decision, plus interest at the rate of 5% p.a. until the date of effective payment as follows: a) 5% p.a. as of 11 February 2011 on the amount of EUR 5,000; b) 5% p.a. as of 1 February 2011 on the amount of EUR 1,000; c) 5% p.a. as of 1 March 2011 on the amount of EUR 1,000; d) 5% p.a. as of 1 April 2011 on the amount of EUR 1,000; e) 5% p.a. as of 1 May 2011 on the amount of EUR 1,000; f) 5% p.a. as of 1 June 2011 on the amount of EUR 1,000. 3. If the aforementioned sum plus interest is not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its consideration and 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