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 passed in Zurich, Switzerland, on 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos (Ecuador), member 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 passed in Zurich, Switzerland, on 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos (Ecuador), member 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 19 August 2011, the player from country B, Player A (hereinafter: the Claimant) and the club from 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 2012. 2. According to said private agreement, the Claimant was entitled to receive a total remuneration of EUR 300,000 plus various performance-related bonuses. 3. On 30 January 2012, both parties signed a document (hereinafter: the termination agreement), by means of which they decided to mutually terminate the “contract of employment” signed “in August 2011”. 4. According to art. 1 of the termination agreement, the parties agree that : “(a) [The Claimant] is entitled to be paid the amount €170,000.00 (one hundred seventy thousand Euro). The player holds a cheque of Bank X dated 30/4/2012 for the sum of €150,000.00 (one hundred fifty thousand Euro) and the club its obliged to give another cheque until 3rd of February 2012 of €20,000.00 (twenty thousand Euro) payable at the 10th of March 2012. Both cheques mentioned in this paragraph must be paid on time. (b) The player also holds a cheque dated 30/12/2011 of the amount €150,000.00 (one hundred fifty thousand Euro) which is obliged to return to the club as soon as the player received the cheque of the €20,000.00 (twenty thousand Euro-mention on paragraph (a) of this agreement)”. 5. Art. 4 of the termination agreement further specifies that “with the signing of this agreement all past and present obligations of the parties are full and finally settled and both parties are estopped to claim any amount of money against each other”. 6. On 1 February 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 [the Respondent] or/and the President/CEO or/and its members of Board Directors (BOD)”. 7. On 9 October 2012, the Claimant put the Respondent in default of paying the amount of EUR 170,000 stipulated in the termination agreement within 8 days. 8. On 18 October 2012, the Claimant lodged a claim in front of FIFA against the Respondent, requesting to be awarded with the amount of EUR 170,000 plus 5% interest p.a. until the date of effective payment as follows: - 5% p.a. as of 30 May 2012 on the amount of EUR 150,000; - 5% p.a. as of 30 June 2012 on the amount of EUR 20,000. 9. In his claim, the Claimant explains that he returned the cheque dated 30 December 2011 and received two cheques: one dated 31 May 2012 with a nominal value of EUR 150,000 and the other dated 30 June 2012 with a nominal value of EUR 20,000. However, the Claimant further asserts that he had been unable to cash them in. 10. In its response to the Claimant’s claim, the Respondent asserts that at the beginning of January 2012, it was agreed with the Claimant that in case the latter would find a new club, he would waive his rights towards the Respondent and the Respondent would let him leave without asking any compensation. The Respondent further sustains that on 30 January 2012, i.e. one day before the closure of the transfer window, and since the Claimant had not found a new club, both parties signed the termination agreement. Nevertheless, the Respondent emphasises that said agreement was not valid and final since according to country D law, such type of agreement must be certified by a public authority, which should have been done in the following days but was not. Indeed, the Respondent explains that the Claimant found a new club on the next day, i.e. 31 January 2012, and consequently, it agreed to let him leave without requesting compensation in exchange for the Claimant’s waiver of his rights in accordance with what was allegedly agreed at the beginning of January 2012. In view of the foregoing, the Respondent stresses that the termination agreement did not come into force and that it did not hand the referred cheques to the Claimant. In this regard, the Respondent maintains that the cheques enclosed to the Claimant’s claim are actually the ones he received when he signed the contract in August 2011 ”as a guarantee for the installments of his contract (150.000 euro) and for his salaries and benefits he would get until the end of the season”. 11. In addition, the Respondent outlines that on 1 February 2012, the parties signed a document certified by a public authority, by means of which the Claimant acknowledged that he had no financial claim against the Respondent. Furthermore, the Respondent highlights that the parties did not enter into a new agreement after 1 February 2012, by means of which the Respondent would have assumed financial obligations towards the Claimant and remitted him the cheques. 12. In continuation, and notwithstanding the above, the Respondent rejects the competence of FIFA to deal with the matter. First of all, the Respondent outlines that none of agreements signed with the Claimant contained an arbitration clause in favour of FIFA and that, “the competent bodies are the country D sports courts as it is clearly mentioned to par. 11 of his contract”. Finally, the Respondent alleges that any claim related to the cashing of the cheque has to be lodged before civil courts. 13. In his replica, the Claimant first of all sustains that FIFA is competent to deal with disputes of an international dimension even in the absence of jurisdiction clause in the contract. In addition, the Claimant refers to DRC decisions in which it had been held that FIFA was competent to deal with issues related to cheques. 14. In continuation, the Claimant outlines that the termination agreement does not contain a clause making its validity or the execution of the termination agreement subject to the fulfilment of a resolutive or suspensive condition and therefore has to be considered valid and binding. 15. The Claimant further underlines that the amount of EUR 170,000 stipulated in the termination agreement actually corresponds to the remuneration that he should have received since the signature of the contract. In this regard, the Claimant reiterates that he received the two cheques mentioned in the termination agreement after having returned the cheque dated 31 December 2012, while stressing that the one of EUR 150,000 was to be cashed on 31 May 2012 instead of 30 April 2012 and the one of EUR 20,000 on 30 June 2012 instead of 10 March 2012. Finally, the Claimant highlights that he would not have waived his right to claim against the Respondent in art. 4 of the termination agreement, if he had not received at the same time the two cheques. 16. Moreover, the Claimant asserts that in a previous decision, FIFA considered that a document similar to the contract termination was a purely administrative document drafted in order to ratify the termination of the contractual relationship at the Football Federation of Country D. In support of the latter assertion, the Claimant refers to the Respondent’s statement according to which the contract termination “is the statement that was used to complete his release and eventually to be registered to his new club from country D, Club E”. Besides, the Claimant sustains that if he acknowledged having no financial obligations against the Respondent in the contract termination, it is solely because the Respondent had fulfilled its obligations by remitting him the two cheques on 30 January 2012. 17. Finally, the Claimant points out that the Respondent did not submit any evidence proving that the validity of the termination agreement was subject to the certification of a public authority, that he would have renounced to cash the two cheques and that the contract termination would have replaced the termination agreement. 18. In spite of having been invited to do so, the Respondent did not submit additional comments. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 18 October 2012. 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 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 2015), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. However, the DRC acknowledged that the Respondent had contested the competence of FIFA, alleging that “the competent bodies are the country D sports courts as it is clearly mentioned to par. 11 of his contract”. In addition, the members of the Chamber took note that 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 cash cheques. 4. While analysing whether or not it was competent to hear the present matter, the DRC deemed it of utmost importance to recall that the Claimant’s claim is based on the termination agreement concluded on 30 January 2012. In this regard, the members of the Chamber outlined that said termination agreement does not contain any arbitration or jurisdiction clause. In addition, the Chamber highlighted that the Respondent did not submit a copy of the employment contract which would allegedly contain an arbitration clause in favour of the “country D sports courts”. 5. In continuation, the DRC ascertained that the Claimant is requesting the payment of his alleged outstanding remuneration in the total amount of EUR 170,000 and stressed that the relevant cheques were issued by the Respondent in order to fulfil its obligations towards the Claimant in relation to the termination agreement concluded between both parties on 30 January 2012. In this regard, the DRC pointed out that from the content of the aforementioned agreement dated 30 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 expressly refers to the “contract of employment” signed “in August 2011”. Therefore, the members of the Chamber were of the firm opinion that the present matter concerns an employment-related dispute. 6. In view of all the above, the DRC established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Chamber is competent, on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the substance. 7. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the members of the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2015), and considering that the present claim was lodged in front of FIFA on 18 October 2012, the 2010 edition of said Regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 8. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. The Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the DRC emphasised that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 9. In this respect, and first of all, the Chamber acknowledged that, on 30 January 2012, the Claimant and the Respondent had concluded a termination agreement, by means of which they agreed that the Respondent would pay to the Claimant the amount of EUR 170,000 by means of several cheques. 10. Subsequently, the Chamber observed that the Claimant is requesting the payment of the amount of EUR 170,000 thereby asserting that the Respondent had not yet paid this amount. 11. Furthermore, the DRC took note that, for its part, the Respondent first of all asserted that the termination agreement was not valid since it was not signed by a public authority. The members of the Chamber also observed that the Respondent alleged that by means of the contract termination the Claimant acknowledged that he had no financial claim against it. In this regard, the Chamber noted that the Respondent insisted on the fact that the contract termination was signed on 1 February 2012, i.e. 2 days after the termination agreement, and should therefore supersede the latter. 12. Having stated the aforementioned, the DRC recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 13. According to this, the Dispute Resolution Chamber noted that the Respondent failed to provide evidence substantiating that the validity of the termination agreement was subject to a formal requirement, i.e. its signature by a public authority. 14. In continuation, the Chamber highlighted that according to the information uploaded into Transfer Matching System (TMS), on 30 January 2012, the Respondent and the club from country D, Club E, concluded an agreement for the transfer of the Claimant. In the same vein, the DRC pointed out that on the same day, the Claimant and the club from country D entered into an employment agreement valid as of 30 January 2012. In view of the foregoing elements, the members of the Chamber concurred that the parties were not in a position to validly conclude an agreement for the termination of their contractual relationship on 1 February 2012 since the Claimant had already entered into a contractual relationship with Club E by that date and was therefore no longer a member of the Respondent. In this respect, the DRC deemed it important to stress that the Respondent acknowledged in its submission that the contract termination was signed for registration purposes. Moreover, the Chamber underlined that the Respondent did not submit evidence attesting that at the beginning of January 2012, it was agreed that in case he would find a new club, the Claimant would waive his rights towards it. 15. In light of the foregoing, the Chamber held that the contract termination was a purely formal document, linked to registration issues, that the Claimant signed because he had received the cheques and relied on the fact that he would be able to cash them. Consequently, the members of the Chamber came to the conclusion that the contract termination did not supersede the termination agreement and that therefore the parties had to comply with the obligations set in the latter agreement. 16. With due consideration to the above, the DRC concluded that the amount of EUR 170,000 had not yet been paid and that the only reason for the non-payment was that the cheques issued by the Respondent could not be cashed by the Claimant. 17. On account of the aforementioned consideration, the Chamber established that the Respondent had failed to pay to the Claimant the total amount of EUR 170,000 and that, consequently, the Respondent is liable to pay the Claimant the amount of EUR 170,000. Equally, the DRC decided that the Claimant has to return to the Respondent the cheque with the number 05741337-1, dated 31 May 2012, and the cheque with the number 10238756-7, dated 30 June 2012. 18. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as follows: a. 5% p.a. as of 1 June 2012 on the amount of EUR 150,000; b. 5% p.a. as of 1 July 2012 on the amount of EUR 20,000. 19. Finally, 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 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 170,000 plus 5% interest p.a. until the date of effective payment as follows: c. 5% p.a. as of 1 June 2012 on the amount of EUR 150,000; d. 5% p.a. as of 1 July 2012 on the amount of EUR 20,000; 4. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned point 3 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. 5. The Claimant is ordered to return to the Respondent the cheque with the number 05741337-1, dated 31 May 2012, and the cheque with the number 10238756-7, dated 30 June 2012, within 30 days as from the date of notification of this decision. 6. Any further claim lodged by the Claimant is rejected. 7. 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 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 Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS Directives