F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 17 January 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Damir Vrbanovic (Croatia), member Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member on the claim presented by the player, Player W, from country N as Claimant against the club, Club A, from country S as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 17 January 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Damir Vrbanovic (Croatia), member Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member on the claim presented by the player, Player W, from country N as Claimant against the club, Club A, from country S as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 11 January 2009, Player W, from country N (hereinafter: the Claimant), and Club A, from country S (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid for four years as from the day of signing i.e. for the years of 2009, 2010, 2011 and 2012. 2. Article 1 of the contract established that the Claimant was entitled to receive the amount of USD 400,000 per year as “down payment”, as well as a salary in the amount of USD 10,000 per month, resulting in a total amount of USD 520,000 per year for the Claimant. 3. On 26 February 2013, the Claimant lodged a claim against the Respondent in front of FIFA, requesting outstanding salaries in the total amount of USD 795,000 plus a “legal interest as from 10 January 2010”, indicating that he had received the following amounts: - USD 520,000 in the first year; - USD 320,000 in the second year (USD 200,000 plus USD 10,000 per month); - USD 320,000 in the third year (USD 200,000 plus USD 10,000 per month); - USD 125,000 in the fourth year (USD 40,000 plus USD 85,000 in monthly salaries). 4. On 4 March 2013, after having been requested by FIFA to specify on which dates the relevant payments allegedly fell due, the Claimant requested the amount of USD 795,000, according to the following breakdown: - USD 400,000 as the down payment due for the year 2011, i.e. the third year; - USD 360,000 as part of the down payment due for the year 2012, i.e. the fourth year; - USD 35,000 as outstanding salaries for three and a half months of the year 2012. 5. In addition, the Claimant requested moral damages in the amount of USD 40,000 and legal costs in the amount of USD 15,000. 6. In this respect, the Claimant explained that during the first two years of the contract, he received all the amounts as established in the contract, however in the third year of contract he only received his salaries and not the down payment of USD 400,000. In the fourth year he only received the amount of USD 40,000 as down payment and the sum of USD 85,000 as salaries. 7. On account of the above, the Claimant sent an e-mail to the Respondent on 30 January 2013, requesting the outstanding amounts to be paid by the Respondent within a deadline of 8 days. According to the Claimant, the Respondent did not reply to such e-mail. 8. In response to the Claimant’s claim, the Respondent declared that the Claimant had, throughout the term of the contract, “severely violated his employment obligations”. In this regard, the Respondent explained that it had to fine the Claimant as follows: (i) on 5 July 2009 with the amount of USD 25,000, for not attending the mid-season training camp; (ii) on 20 February 2010 with the amount of USD 25,000, for not attending the pre-season training camp; and (iii) on 15 July 2011 with the amount of USD 50,000, for not attending the mid-season training camp. Furthermore, the Respondent declared that on 20 November 2009, it sanctioned the Claimant with a fine in the sum of USD 70,000 because he was “under the criminal prosecution caused by severe violation of the country S law, i.e. driving in an aggressive and dangerous manner under the elevated influence of alcohol”. According to the Respondent, the above-mentioned four fines, in the total amount of USD 170,000, were deducted from the Claimant’s salaries and were duly notified to the Claimant and the country S Football Association, not having received any objection from the Claimant in this respect. 9. Moreover, the Respondent pointed out that according to the country S tax regulations, the Claimant is subject to the payment of 10,7% tax for the down payment and to the payment of 25% tax for the salaries, for every year of contract. These taxes, according to the Respondent, are directly deducted by the employer from the employee’s remuneration. 10. In this regard, the Respondent highlighted that the amounts provided for as remuneration in the contract are gross amounts. Therefore, according to the Respondent, the total value of the contract is USD 1,453,398 net and not USD 2,080,000 as considered by the Claimant. 11. Hence, according to the Respondent, after deducting the taxes and the fines from the amounts established in the contract, the Claimant was entitled to a full remuneration in the amount of USD 1,283,398. Consequently, as the Claimant acknowledges to have received the amount of USD 1,285,000 during the term of the contract, the Respondent deemed it had paid an excess of USD 1,605 to the Claimant “which actually should be returned to the account of the Respondent”. 12. In addition, the Respondent explained that, between 19 September 2010 and 15 June 2011, the Claimant was loaned to the Club B, from country L, and therefore the Respondent did not have any financial obligations towards the Claimant during that period of time. 13. Finally, the Respondent also referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players alleging that the non-payment of the salaries and down payment for the year 2010 are time-barred. 14. Based on all the above, the Respondent requested the dismissal of the Claimant’s claim. 15. The Claimant submitted his replica to the Respondent’s arguments and firstly pointed out that the sanctions of the Respondent were not signed by him and, therefore, should not be taken into account, as they were imposed in violation of his right to be heard by the Respondent’s management. Moreover, the Claimant referred to the 2010 edition of the Respondent’s internal regulations and stressed its chapter 7, paragraph 33.2, which establishes: “those who are involved in administrative or financial offenses or offenses pertaining to honor and honesty, the Committee shall have the right to execute the following: a) suspension; b) deprival of all or some of the privileges such as imposing a fine not exceeding $ 5,000; c) […]”. Thus, the Claimant rejected the deduction of USD 170,000 as sanctions, for being contrary to the Respondent’s internal regulations. 16. Additionally, the Claimant asserted his right to request the amounts established in the contract, without having to deduct taxes from them. The Claimant as well pointed out that for the first year, he received the full amounts as per the contract, which was enough evidence that the amounts established in the contract where to be paid without deduction of taxes. 17. Equally, the Claimant deems that his claim is not time-barred since his requests concern the period of time between January 2011 and December 2012. 18. In view of the above, the Claimant reiterated his initial petitions and rejected the request of the Respondent to return the amount of USD 1,605 as excess. 19. In its duplica, the Respondent argued that it was fully entitled to apply all the sanctions to the Claimant because, according to it, the “violations committed by the player are not of administrative or financial character. The Claimant severely violated the discipline established within the Respondent’s club” and, thus, the limit of USD 5,000 for the fines does not apply, leaving the Respondent the full discretion to decide on how to sanction the Claimant. 20. Moreover, the Respondent declared that its obligation was only to notify the Claimant about the sanctions to be imposed, which it did, and that the Claimant never expressed any disagreement against the decisions of the Respondent. 21. Finally, the Respondent repeated that it had the obligation to pay the taxes to the country S government by deducting them at the source and pointed out that “it is obvious that in the absence of opposite provisions in the employment contract with the Respondent, the remuneration due for services rendered is paid with all taxes included”. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 26 February 2013. Consequently, the 2012 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 of the 2012 edition of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. In continuation, 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, it 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, on the other hand, to the fact that the present claim was lodged in front of FIFA on 26 February 2013. Therefore, the DRC concluded that the 2012 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 Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the matter as well as the documentation contained in the file. However, the Chamber 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. 5. In this respect, the members of the Chamber acknowledged that the parties had signed a valid employment contract on 11 January 2009 in accordance with which the Respondent would pay the Claimant an amount of USD 400,000 per year as “down payment” as well as a salary in the amount of USD 10,000 per month, resulting in the Claimant being entitled to a total amount of USD 520,000 per year. 6. The DRC then turned to the complaint of the Claimant, who initially maintained that the Respondent had failed to pay him part of the “down payments” for the years 2010, 2011 and 2012 as well as three and a half monthly salaries during the last year of the contract, corresponding to a total outstanding amount of USD 795,000. Later on, upon request, the Claimant specified that the Respondent had only paid him USD 120,000 in 2011 and USD 125,000 in 2012, again coming to a total amount of outstanding remuneration corresponding to USD 795,000. 7. Considering that the Claimant had provided conflicting information in relation to which payment obligations remained unpaid, the DRC concluded that it first of all had to establish which were the payment dates for the amounts allegedly still outstanding. In this respect, the Chamber concluded that in his initial claim the Claimant had indicated that in the year 2010 and 2011 he had only received USD 320,000 per year whilst explicitly confirming that the remaining amount of USD 200,000 for the down payment of 2010 and 2011 had not been paid. The Chamber noted that it was only after the request for a specification that the Claimant amended the payment dates. In view of the foregoing, the Chamber came to the unanimous conclusion that part of the USD 795,000, i.e. an amount of USD 400,000 was in fact claimed in relation to the down payments for the years of 2010 and 2011. The Chamber is comforted in its conclusion by the default communication sent by Claimant to the Respondent on 30 January 2013, in which he equally indicated that for the years 2010 and 2011 the amount of USD 200,000 was still outstanding. 8. At this point, the members of the Chamber referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute. The present claim having been lodged in front of the DRC on 26 February 2013 and the down payments falling due at the beginning of each year of the contract, being in January 2010 and January 2011, the members of the Chamber determined that the petition regarding the down payments for 2010 and 2011 was lodged in front of the DRC outside this two years’ period of time. These specific requests of the years 2010 and 2011 are, thus, barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations. 9. Subsequently, the members of the Chamber went on to deal with the Claimant’s claim for the year 2012, i.e. the claimed amount of USD 395,000, and noted that the Respondent, in its statement of defence, did not contest the allegations of the Claimant regarding the non-payment of his remuneration. However, the Respondent stated that it had imposed several fines on the Claimant and, in consequence, it had deducted the total sum of such fines, in the amount of USD 170,000, from the Claimant’s salaries. Furthermore, the DRC took note that the Respondent alleged an additional deduction of the Claimant’s salaries due to taxation. 10. Regarding the imposition of fines by the Respondent, the DRC wished to highlight the fact that there were four sanctions effectively imposed by the Respondent on the Claimant in 2009, 2010 and 2011. In this respect, the members of the Chamber highlighted that such fines were not related to the season 2012 and can, therefore, not be deducted from the salary of the year 2012. 11. Moreover, the DRC turned its attention to the argument put forward by the Respondent regarding a further deduction from the Claimant’s salaries due to taxation. To this end, the members of the DRC analysed the contract and confirmed that it did not contain any reference to a possible tax deduction from the salaries. The Chamber also noted that the salaries that the Claimant did receive were in the amounts established in the contract, without any tax deduction. Consequently, the DRC concluded that there is no legal basis in the contract that could justify a tax deduction from the Claimant’s salaries. 12. In view of the above, the DRC concluded that it could be established that the Respondent had failed to pay to the Claimant part of the amounts agreed upon between the parties in the agreement dated 11 January 2009. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of USD 395,000 to the Claimant. 13. In continuation and with regard to the Claimant's request for interest, the DRC decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of USD 395,000 until the date of effective payment as follows: a. 5% p.a. as of 11 January 2012 on the amount of USD 360,000; b. 5% p.a. as of 1 October 2012 on the amount of USD 5,000; c. 5% p.a. as of 1 November 2012 on the amount of USD 10,000; d. 5% p.a. as of 1 December 2012 on the amount of USD 10,000; e. 5% p.a. as of 1 January 2013 on the amount of USD 10,000. 14. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral damages in the amount of USD 40,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 15. In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses. 16. The DRC concluded its deliberations in the present matter by rejecting any further claim of the Claimant. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player W, is accepted, insofar as it is admissible. 2. The Respondent, Club A, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 395,000 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 11 January 2012 on the amount of USD 360,000; b. 5% p.a. as of 1 October 2012 on the amount of USD 5,000; c. 5% p.a. as of 1 November 2012 on the amount of USD 10,000; d. 5% p.a. as of 1 December 2012 on the amount of USD 10,000; e. 5% p.a. as of 1 January 2013 on the amount of USD 10,000. 3. If the aforementioned sum plus interest 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. 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 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: Jérôme Valcke Secretary General Encl. CAS directives