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 passed in Zurich, Switzerland, on 27 February 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Takuya Yamazaki (Japan), member Essa M. Saleh Al-Housani (UAE), member Theodoros Giannikos (Greece), member on the claim presented by the player Player A, from country P as Claimant against the club Club F, from country I 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 passed in Zurich, Switzerland, on 27 February 2013, in the following composition: Geoff Thompson (England), Chairman Rinaldo Martorelli (Brazil), member Takuya Yamazaki (Japan), member Essa M. Saleh Al-Housani (UAE), member Theodoros Giannikos (Greece), member on the claim presented by the player Player A, from country P as Claimant against the club Club F, from country I as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 20 February 2009, Player A, from country P (hereinafter: the Claimant), and the Club F, from country I (hereinafter: the Claimant), signed an employment contract (hereinafter: the contract), valid for the sporting season 2009/2010. 2. According to the contract, the Claimant was entitled to receive, inter alia, the following payments: - USD 84,000, payable in ten equal monthly instalments of USD 8,400 each, starting as from 6 July 2009; - USD 63,000 due on 21 January 2010; - USD 52,500 due on 18 June 2010; - Three economic round trip flight tickets routing country I - country P - country I each for the player and his wife. 3. Furthermore, par. j) of the contract established that the Claimant was entitled to receive the amount of USD 52,500 for “the right of playing in at least 25 effective games which will be paid to [the Claimant] after every five games (25 games x USD 2,100 = USD 52,500)” (hereinafter: the match bonus) as well as that “in case [the Claimant] is ready or injured, after recognition of Medical Staff, this payment will be paid after confirmation of the Managing Director”. 4. Article 4 of Section II of the contract stipulated that “Championship in Asian competitions, country I League and country I Cup will be considered and rewarded according to the regulations of [the Respondent]”. 5. On 4 November 2010, the Claimant lodged a complaint in front of FIFA against the Respondent for breach of contract and claimed the total amount of USD 118,483 plus 5% interest p.a., made up of: - USD 16,800 corresponding to the monthly salaries of March and April 2010 of USD 8,400 each; - USD 52,500 due on 18 June 2010; - USD 20,000 for winning the country I’s League cup (hereinafter: the championship bonus); - USD 29,400 regarding match bonuses; - USD 3,339 regarding flight tickets. 6. In this respect, the Claimant explained having deducted the amount of USD 3,556 from the aggregate amount of USD 122,039, since he owed that amount to the Respondent, and thus claiming the residual amount of USD 118,483. The Claimant further detailed that the amount of USD 3,556 to be reduced corresponded to expenses related to rent, damages caused, watch, fines, and cell phone payments. 7. The Claimant provided a letter, dated 2 September 2010, sent to the Respondent, reminding the latter of its outstanding debts, requesting the immediate payment. 8. Furthermore, the Claimant provided a letter dated 10 October 2010 received from the Respondent, by means of which it acknowledged that it owed USD 76,839 to the Claimant, which was made up of two monthly salaries of USD 16,800, USD 52,500 due on 18 June 2010, USD 4,200 for two match bonuses as well as flight tickets in the amount of USD 3,339. In the same letter, the Respondent rejected the request for the championship bonus. In addition, it stated that the Claimant allegedly owed the Respondent the total amount of USD 35,556, thus it would pay the amount of USD 37,508 only. 9. Moreover, the Claimant stressed that the Respondent had established a bonus of USD 20,000 for the country I Championship League and that such amount was paid to all team players, except to him. 10. Additionally, regarding the match bonuses claimed, the Claimant held having played in 17 matches, but having only received the amount of USD 23,100, which allegedly corresponds to 11 matches only. 11. Finally, the Claimant argued that he was only informed through the letter, dated 10 October 2010, that he was fined by the Respondent twice in the amounts of USD 12,000 and USD 20,000, respectively. The Claimant stressed that he was not informed of any disciplinary proceedings against him and thus, did not have the opportunity to defend himself. Therefore, the Claimant rejected the imposition of such fines. 12. The Respondent submitted its response to the claim, by means of which it acknowledged that it owed the Claimant the total amount of USD 40,341. In this respect, it explained that it originally owed the Claimant the amount of USD 72,997, which corresponds to USD 76,839 deducted by 5% state tax allegedly applicable, but that it had to also deduct from the relevant sum the amount of USD 32,656, which the Claimant owed to the Respondent. In this respect, the Respondent explained that the Claimant owed USD 1,100 to the landlord, USD 1,680 regarding rent expenses, USD 330 for the watch “pulsometer”, USD 546 for the cell phone payment, USD 9,000 for the fine dated 10 January 2010, and USD 20,000 for the fine dated 10 October 2009. 13. Furthermore, the Respondent rejected the Claimant’s claim in the amount of USD 20,000 as championship bonus, since such bonus was not authorized in accordance with the Respondent’s regulations. 14. In addition, regarding the match bonuses, the Respondent stated that the Claimant indeed participated in 17 matches, but that it was not satisfied with his performance. Hence, no payment should be made as match bonuses. Moreover, the Respondent made reference to par. j) of the contract, according to which the Claimant shall receive USD 52,500 if he participates in at least 25 matches. Since the Claimant did not participate in 25 matches the Respondent could have paid nothing to the Claimant, but instead the amount of USD 31,500 was allegedly paid for 15 out of 17 matches. As a consequence, it stated that the Claimant shall additionally receive USD 4,200 for two matches. In this regard, the Respondent submitted payment receipts in the aggregate amount of USD 29,925 15. In continuation, the Respondent referred to the fine of USD 9,000 for unauthorized absence of 4 days, which was decided by the Respondent’s Disciplinary Committee on 10 January 2010 and submitted a copy of the minutes signed by the Claimant and the Respondent as well as the Respondent’s decision on file signed solely by the Respondent. According to the Respondent, once the decision was taken, the decision was orally communicated to the Claimant, since he refused to acknowledge and sign the notification letter. 16. Finally, the Respondent stated that, due to the Claimant’s improper behaviour “in conducting himself in a manner contrary to the Respondent’s status and prestige leading to abnormalities”, a third party allegedly filed a complaint in front of an country I’s court on 3 October 2009. Moreover, the Respondent held having reached an agreement with the third party before any court session started. In this context, the Respondent’s Disciplinary Committee sanctioned the Claimant in the amount of USD 20,000 and gave him a written warning. In this respect, the Respondent affirmed that the Claimant accepted the disciplinary procedure by signing the minutes of the Respondent’s meeting. The Respondent submitted a copy of its decision, dated 10 October 2009, which, inter alia, states that “the Claimant has agreed to the disciplinary investigation about him”. Once again, the decision was allegedly orally communicated to the Claimant, since he would have refused to receive and sign the communication letter. 17. In his replica, the Claimant stated that the match bonuses and the championship bonus do not depend on the authorization of the Respondent’s chief and referred to par. j) and article 4 of Section II of the contract, affirming that the Respondent had violated its regulations as such document established a bonus of USD 20,000 in case of winning the Championship of country I. 18. The Claimant stressed that the disciplinary proceedings of the fines were not communicated to him and were taken without a hearing, thus must be both considered null and void. Finally, he highlighted that it was only after the contract expired that he became aware of the decisions. 19. In its final position, the Respondent stated that, concerning the championship bonus, the Respondent board’s decision dated 7 July 2009 stated that “it was decided on June 22th ’09 that in the event that our soccer team should top the Asian Championship country I League and playoff cup, subject to the Managing Director’s Decision and Board approval FMSCSC would make a bonus payment to each player of currency of country I One Million to Two Hundred Million”. Therefore, the Respondent deemed that the Claimant’s claim for such bonus is vague and unsubstantiated, since he did not provide any evidence. 20. Furthermore, concerning the fine in the amount of USD 9,000, the Respondent insisted that the Claimant was informed of such decision, but declined to sign the notice. Hence, the Claimant’s allegation that he was unaware of the decision’s contents is unfounded. Therefore, the Claimant had the opportunity to appeal in writing against the fine, which he did not. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the present matter. In this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) and took note that the present matter was submitted to FIFA on 4 November 2010, thus after 1 July 2008. Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. Subsequently, the members of the DRC 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, the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player of an international dimension. As a consequence, the Dispute Resolution Chamber confirmed to be competent to deal with the matter at stake, which concerns an employment-related dispute between a country P player and an country I club. 3. Furthermore, the members of the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012 and 2010) and, on the other hand, to the fact that the present claim was lodged on 4 November 2010. In view of the aforementioned, the Dispute Resolution Chamber concluded that the 2010 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 Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the members of the DRC started to acknowledge the facts of the case as well as the documents contained in the file. 5. In this respect, the Dispute Resolution Chamber started by acknowledging that it was undisputed by the parties that, on 20 February 2009, the Claimant and the Respondent concluded an employment contract valid for the sporting season 2009/2010. 6. Subsequently, the Chamber acknowledged that the Claimant lodged a claim against the Respondent for the breach of the contract, requesting the total amount of USD 118,483 plus 5% interest p.a.. 7. In continuation, the DRC took note that the Respondent recognized to have outstanding salaries towards the Claimant, but disagreed on the relevant amount. According to the Respondent the amount actually owed to the Claimant should be of USD 40,341 (cf. point I.12). 8. At this point, and considering the opposite position of the parties, the DRC proceeded to analyse the financial terms of the contract and the arguments and documentation submitted by the parties. 9. First and foremost, the Chamber acknowledged that it remained undisputed by the Respondent that the salaries for April and May 2010 in the total amount of USD 16,800 remained outstanding as well as the lump sum of USD 52,500 due on 18 June 2010. Furthermore, the DRC considered that the claim for USD 3,339 concerning flight tickets also remained undisputed by the Respondent. 10. Having established the above, the DRC acknowledged that the Claimant was entitled to receive the outstanding amount of USD 72,639 regarding the contract. 11. Moreover, the DRC acknowledged that the Claimant recognized owing the Respondent the total amount of USD 3,556 that should be reduced from the outstanding amounts. Furthermore, the DRC acknowledge that the Respondent alleged that the Claimant actually owed USD 3,656, however without submitting any documentary evidence in this respect. In this context, the members of the DRC made reference to to art.12 par. 3 of the Procedural Rules, which establishes that any party claiming a right on the basis of an alleged fact shall carry the burden of proof, and concluded that the amount of USD 3,556 should be deducted from the total outstanding amount owed to the Claimant. 12. In continuation, regarding the championship bonus, the DRC considered that such bonus was not established in the contract. In this respect, the Chamber referred once again to the contents of art. 12 par. 3 of the Procedural Rules and determined that the Claimant did not provide any evidence in this regard. Therefore, the DRC concluded that the Claimant failed to prove his entitlement to receive the championship bonus. 13. Subsequently, the DRC analyzed the match bonuses, which was established in the contract. In this regard, the DRC took note that the Claimant requested the amount of USD 52,500 as outstanding match bonuses. On the other hand, the Respondent held that the amount of USD 52,500 would be due to the Claimant conditioned to his participation in at least 25 matches. As a consequence, considering that the Claimant participated in 17 matches, the Respondent alleged having already paid the amount of USD 31,500 regarding 15 matches and, thus recognized still owing USD 4,200, regarding 2 matches. 14. At this point, the DRC proceed to analyze par. j) of the contract, which established that the match bonuses in the amount of USD 52,500 for “the right of playing in at least 25 effective games which will be paid to [the Claimant] after every five games (25 games x USD 2,100 = USD 52,500)”. The DRC could not establish the meaning of the relevant clause trough a literal interpretation. Therefore, the members of the Chamber proceeded to a logical interpretation of the clause and considered that the Claimant was entitled to bonuses for the matches that he actually played. In this line, considering that the total amount of USD 52,500 concerned 25 matches, it was only logical to conclude that for each match the Claimant would be entitled to USD 2,100. 15. In continuation, the DRC first considered that it remained undisputed that the Claimant had participated in 17 matches and that the bonus amount for each match was USD 2,100. Therefore, the Claimant was entitled to receive USD 35,700 for the matches he had played. 16. Subsequently, the DRC once again referred to art. 12 par. 3 of the Procedural Rules and considered that the Respondent has the burden of proof to demonstrate that the relevant amounts were actually paid. In this regard, the Chamber took note that the Respondent alleged having already paid USD 31,500 to the Claimant, however, it provided payment receipts in the aggregate amount of USD 29,925 only. On account of the above, the Chamber concluded that the Claimant was still entitled to receive USD 5,775 as match bonuses. 17. Therefore, the total amount to be considered as outstanding is USD 78,414 [USD 72,639 (cf. point. II.10) and USD 5,775 (cf. point II.16)], which shall be reduced by the amounts owed by the Claimant to the Respondent, i.e. USD 3,556 (cf. point II.11). Therefore, the DRC concluded that the total outstanding remuneration aggregates to USD 74,858. 18. At this moment, the Chamber reverted to the Respondent’s line of defense, according to which its debts towards the Claimant were to be reduced by the amounts of the fines that had been imposed on the Claimant. 19. In this respect, the DRC acknowledged that the Respondent’s Disciplinary Committee had imposed two fines on the Claimant, one in the amount of USD 9,000 for an unauthorized absence of 4 days, as well as one in the amount of USD 20,000 for improper behavior. The Claimant, for its part, alleged that the imposition of such fines were decided without a hearing and communicated to him after his contract expired. 20. Considering the arguments of both parties, the Chamber concurred that the fine imposed on the Claimant in the amount of USD 9,000 for delay to return from vacation appears to be disproportionate, since it corresponds to more than a monthly salary. Moreover, the Claimant challenged the fine, affirming that it was never informed about the hearing. The DRC continued to analyze the fine in the amount of USD 20,000 imposed on the Claimant for improper behavior and also considered it disproportionate. Furthermore, the DRC highlighted that the Respondent did not provide any evidence regarding the alleged improper behavior (cf. art. 12 par. 3 of the Procedural Rules) and apparently did not allow the Claimant to defend himself. As a consequence, the Chamber considered that the fines imposed by the Respondent shall be disregarded. 21. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, 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. 22. Thus, the Dispute Resolution Chamber held that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the employment contract concluded with the Claimant and, consequently, pay the outstanding remuneration, which is due to the latter. 23. In view of all the above, the Chamber considered that, the claim of the Claimant is partially accepted and that the Respondent shall pay the Claimant the total amount of USD 74,858. 24. Concerning the interests claimed by the Claimant, the DRC noted that the contract did not provide for any specific interest rate in case of late payment. Consequently, the DRC decided to award, in accordance with the constant practice of the Dispute Resolution Chamber, default interest at a rate of 5% p.a. to the Claimant as of the date when the claim was lodged, i.e. 4 November 2010. 25. 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 Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club F, has to pay to the Claimant, Player A, within 30 days as from the date of notification of this decision, the amount of USD 74,858 plus 5% interest p.a. on said amount as from 4 November 2010 until the date of effective payment. 3. If the aforementioned sum plus interest is not paid within the above-mentioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its consideration and a formal decision. 4. Any further request filed by the Claimant, Club F, is rejected. 5. The Claimant, Player A, is directed to inform the Respondent, Club F, immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl. CAS directives