F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 6 November 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, Country B, as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 6 November 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, Country B, as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 6 August 2011, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded a “private agreement” (hereinafter: the private agreement), valid as of the date of signature until 30 June 2013. 2. Moreover, on 13 August 2011, the Claimant and the Respondent entered into an employment contract (hereinafter: the contract), valid as of the date of signature until 30 June 2013. 3. On 16 January 2012, the Respondent and the Claimant signed a document referred to as “contract termination” (hereinafter: the contract termination) according to which the parties agreed “to terminate their contract of partnership, consensus the second of the two participants and the second of the participants has no economical obligation from Club C”. 4. Moreover, on 17 January 2012, the Respondent and the Claimant signed an agreement (hereinafter: the agreement) by means of which they agreed that “the club pays the NET sum of 85.000,00 € for balance of any account, this amount having to be ventilated as follows: 20.000,00 € in ‘cash’ at the day of signature of the present convention; 65.000,00 € with check #XXXXXXXX-X Bank E dated April 30th, 2012 in the order of the player”. 5. Art. 1 of the agreement stipulates that in case of “delay of payment (one of the instalments noted above), for some reason that it is and without needing preliminary letter of setting in residence, not only the Club is indebted (with a delay of 48 hours) of the totality of the balance remaining due (notwithstanding an interest of 5% per annum from the delay of payment until the perfect payment) but it’s also advisable to add to it a contractual penalty to the amount of EUR 10,000”. 6. Furthermore, art. 3 of the agreement states that “the present agreement prevails on other any kind of documents concluded before by both parts and namely, all administrative documents necessary before the Football Federation of Country D, the Football League of Country D ad all other Authorities of Country D”. 7. In addition, art. 3 of the agreement also provides that “in case of any dispute of any kind concerning the validity, the interpretation and/or the execution of the present agreement, the Dispute Resolution Chamber of FIFA is only and exclusively competent and FIFA Regulations in force are applied”. 8. On 8 June 2012, the Claimant put the Respondent in default of payment of the total amount of EUR 75,365 relating to the second instalment in the amount of EUR 65,000 stipulated in the agreement, EUR 365 as interest and EUR 10,000 as penalty fee. 9. On 15 June 2012, the default notice having remained apparently unanswered, the Claimant lodged a claim against the Respondent in front of FIFA requesting that the Respondent shall be ordered to pay the total amount of EUR 65,000 net plus 5% interest p.a. to be accrued as from 30 April 2012 and EUR 10,000 as penalty fee. 10. In his claim, the Claimant confirms having received from the Respondent the amount of EUR 20,000 on 17 January 2012. However, according to the Claimant, he received a cheque from the Respondent in the amount of EUR 65,000 which was not possible to cash in. 11. On 10 September 2012, the Respondent informed FIFA that “[it] will proceed to a payment in two installments (one this week and one the following week) and that we will send you immediately the receipts of the bank transfers”. 12. On 19 September 2012, the Claimant proposed to the Respondent a plan for the payment of the amounts due by the latter, i.e. EUR 38,230 to be paid on or before 21 September 2012 and EUR 38,230 on or before 27 September 2012. However, the Claimant asserts that the Respondent never replied to his proposal. 13. In the absence of a settlement, the Respondent was requested to submit its position as to the claim. In its submission, the Respondent starts by explaining that “[it] will pay the amount we owe to [the Claimant] soon. We were not able to do the payments because of the tax control and the fact that we couldn’t proceed to any bank transfer abroad”. 14. In continuation, and notwithstanding the foregoing, the Respondent rejects the competence of FIFA to deal with the matter. In support of its assertion, the Respondent makes reference to the contract termination by means of which the Claimant agreed to the mutual termination of the contract and acknowledged that he had no financial claim against Respondent. The Respondent further stresses that said contract termination was ratified by the NDRC of the Football Federation of Country D. As a consequence, the Respondent holds that there is “no financial disputes of an employment contract” and concludes that the FIFA DRC is not competent. Moreover, the Respondent alleges that any claim related to the cashing of the cheque has to be lodged before civil courts. 15. In his final comments related to FIFA’s jurisdiction, the Claimant first of all refers to art. 3 of the agreement signed on 17 January 2012 which provides that “the present agreement prevails on other any kind of documents concluded before by both parts and namely, all administrative documents necessary before the Football Federation of Country D (…)”. 16. The Claimant further highlights that art. 3 of the agreement grants exclusive jurisdiction to the FIFA DRC to deal with any dispute related to its execution. 17. Finally, the Claimant asserts that the challenge of jurisdiction has to be raised “in limine litis”, which the Respondent failed to do since its first reaction was to acknowledge its debt and propose a payment plan. II. Considerations of the DRC judge 1. First, 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 15 June 2012. Consequently, 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: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. With regard to the competence of the DRC judge to decide on the present matter, 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014) the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D. 3. However, the DRC judge acknowledged that the Respondent had contested the competence of FIFA on the basis of art. 22 of the FIFA Regulations on the Status and Transfer of Players (hereinafter: Regulations) in the matter at hand. According to the Respondent, the present matter is not an employment related one and its cause of action does not consist of an alleged violation of the contract of employment but instead shall be regarded as a civil claim of the Claimant to collect the amount EUR 65,000 based on a cheque. Subsidiarily, the Respondent referred to the “contract termination” concluded on 16 January 2012, then ratified by the National Dispute Resolution Chamber of Country D, by means of which the Claimant acknowledged that the Respondent “ha[d] no economical obligation” towards him and concluded that FIFA could not be competent since there is “no financial disputes of an employment agreement”. 4. While analysing whether or not he was competent to hear the present matter, the DRC judge ascertained that the Claimant is requesting the payment of his alleged outstanding remuneration in the total amount of EUR 65,000 and stressed that the relevant cheque was issued by the Respondent in order to fulfil its obligations towards the Claimant in relation to the agreement concluded between both parties on 17 January 2012, a fact not denied by the Respondent. In this regard, the DRC judge pointed out that from the content of the aforementioned agreement dated 17 January 2012, it can be clearly established that it is the vehicle used by the parties to settle the employment relationship existing between them. In fact, the relevant agreement repeatedly refers to the contract signed by the parties on 6 August 2011. Therefore, the DRC judge was of the firm opinion that the present matter concerns an employment-related dispute. As to the second argument raised by the Respondent, the DRC judge stressed on the content of art. 3 of the agreement signed on 17 January 2012, i.e. one day after the signature of the “contract termination”, which provides, inter alia, that “the present agreement prevails on other any kind of documents concluded before by both parts and namely, all administrative documents necessary before the Football Federation of Country D” and therefore concluded that the “contract termination” had a purely formal nature without any influence on the existence or the nature of the dispute between both parties. 5. In relation to the above, the DRC judge also deemed it vital to outline the provision contained in art. 3 of the agreement which makes a clear reference to the FIFA DRC. Indeed, art. 3 stipulates that “in case of any dispute of any kind concerning the validity, the interpretation and/or the execution of the present agreement, the Dispute Resolution Chamber of FIFA is only and exclusively competent and FIFA Regulations in force are applied”. 6. In view of all the above, the DRC judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC judge is competent, on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the substance. 7. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute which value does not exceed CHF 100,000. 8. Furthermore, the DRC judge analysed which edition of the 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 2 of the Regulations (editions 2010, 2012 and 2014), and considering that the present claim was lodged in front of FIFA on 15 June 2012, the 2010 edition of said Regulations is applicable to the matter at hand as to the substance. 9. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 10. In this respect, and first of all, the DRC judge acknowledged that, on 17 January 2012, the Claimant and the Respondent had concluded an agreement, by means of which they agreed that the Respondent would pay to the Claimant the amount of EUR 85,000 as follows : EUR 20,000 in cash on the day of signature and EUR 65,000 “with check #XXXXXXXX-X Bank E dated April 30th , 2012 in the order of the player”. 11. Subsequently, the DRC judge observed that the Claimant is requesting the payment of the amount of EUR 65,000 thereby asserting that the Respondent had not yet paid this amount. 12. Finally, the DRC judge took note that, for its part, the Respondent first of all admitted it did not yet pay the relevant amount to the Claimant; however, the Respondent justified the non-payment by arguing that the payment could not be made due to a tax control and its impossibility to make bank transfers abroad. 13. With due consideration to the above, the DRC judge noted that it was undisputed between the parties that the amount of EUR 65,000 had not yet been paid and that the only reason for the non-payment was that the cheque issued by the Respondent could not be cashed by the Claimant. 14. On account of the aforementioned consideration, the DRC judge established that the Respondent had failed to pay to the Claimant the total amount of EUR 65,000 and that, consequently, the Respondent is liable to pay the Claimant the amount of EUR 65,000. Equally, the DRC judge decided that the Claimant has to return to the Respondent the cheque with the number XXXXXXXX-X, dated 30 April 2012. 15. In addition, taking into consideration the Claimant’s claim as well as the content of art. 1 of the agreement signed on 17 January 2012 which provided for a 48-hour deadline in order for the Respondent to comply with the two payments, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 65,000 as of 3 May 2012. 16. In continuation, the DRC judge reverted to the content of the above-mentioned art. 1 of the agreement signed on 17 January 2012 and outlined that the Respondent failed to pay to the Claimant, within the stipulated deadline, the amounts as agreed upon in the agreement. Consequently, the DRC judge concluded that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the Claimant the amount of EUR 10,000 which was contractually agreed as a penalty fee in case of any delay in payment by the Respondent. 17. The DRC judge concluded his deliberations in the present matter by establishing that any further claims filed by the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is admissible 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 65,000 plus 5% interest p.a. on said amount as from 3 May 2012 until the date of effective payment. 4. The Respondent is ordered to pay to the Claimant the amount of EUR 10,000, within 30 days as from the date of notification of this decision. If the aforementioned amount is not paid by the Respondent within the stated time limit, interest at a rate of 5% p.a. will fall due as of the expiry of the aforementioned time limit. 5. In the event that the amounts due to the Claimant in accordance with the above-mentioned points 3 and 4 are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. The Claimant is ordered to return to the Respondent the cheque with the number XXXXXXXX-X, dated 30 April 2012, within 30 days as from the date of notification of this decision. 7. Any further claims lodged by the Claimant are rejected. 8. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the DRC judge of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 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