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 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute 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 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 3 February 2014, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid from 1 February 2014 until 31 December 2014. 2. According to article 4 of the contract, the Claimant was entitled inter alia to a gross monthly salary in the amount of 13,000, payable the 5th of each month. 3. The parties also signed an “Attachment” to the contract (hereinafter: the attachment), dated 25 January 2014, according to which the Claimant was also entitled to receive a monthly allowance of up to 4,000 (article 1). Article 1.2 established that “submitted travel log forms the foundation for payment to be made on the 5th every month of the contract period” and article 1.3 established that “first payment will be 05.03.2014.” 4. On 6 August 2014, the Claimant and the Respondent signed a “Contract Termination Agreement” (hereinafter: the termination agreement), by means of which both parties agreed to terminate the contract “with effect as from August 6, 2014”. 5. Article 3 of the termination agreement established that “Both parties have, with the agreement’s content, fulfilled their obligations and consider the contract as fulfilled and completed, once Club C settles the salary pending (from 1st of July till 6th of August) and withdraws the football license of the player in the Football Federation from country D”. 6. On 26 December 2014, the Claimant lodged a claim against the Respondent for outstanding remuneration, claiming the payment of the amount of 15,600 net as well the corresponding interest. 7. According to the Claimant, he actually received a monthly remuneration in the total amount of 15,000 in accordance with the contract signed with the Respondent, which was valid until 31 December 2014. However, the parties agreed to early terminate the contract through the termination agreement, by means of which the Respondent allegedly recognized owing the Claimant the salaries for the period between 1 July and 6 August 2014, corresponding to 18,000, amount composed of 15,000 for July 2014 and 3,000 for the six days of August 2014. 8. In this respect, the Claimant held that the Respondent only paid the amount of 2,400 and thus, the amount of 15,600 remained outstanding. 9. The Respondent rejected the claim of the Claimant, stating having fulfilled all its financial obligations. 10. In this respect, the Respondent argued that the monthly salary of the Claimant was actually 13,000. In addition, he could receive an additional remuneration of up to 4,000 which allegedly includes coverages of the Claimant’s travel expenses and is settled according to government travel regulations in country D. In particular, the Respondent held that “Travel log” from the Claimant is the foundation of such payments and that it had not receive any travel log from the Claimant to the claimed period. Also, the Respondent held that the Claimant did not have a private car for the claimed period. 11. In consequence, according to the Respondent, any payment of remuneration based on the attachment would not only be impossible, but also illegal according to law in country D. 12. Moreover, the Respondent alleged that the Claimant did not pay for any rent during the whole period he used the apartment and the owner claimed the amount of 4,000 from the Respondent, i.e. 2,000 per month. In addition, since the Claimant apparently left the apartment in “undesirable condition”, the Respondent had to hire a cleaning agency that cost 2,050. The total amount of 6,050 was deducted from the amount to be paid to the Claimant. 13. The Respondent detailed the calculations to explain the final amount of 2,400 paid to the Claimant as follows: Gross salary 13,000 -35% taxes (-) 4,550 Net salary 8,450 Unpaid rent (-) 4,000 Cleaning (-) 2,050 Final amount 2,400 14. Finally, the Respondent mentioned that the Claimant asked to terminate the contract, stating he was desperate to go back to country B, since the level of football in country D was too low. However, the next day, 7 August 2014, it received a transfer request for the Claimant from another club from country D, Club E, clearly showing that the Claimant had been negotiating with the said club. Moreover, the Claimant pretended to be injured previously to also try to terminate the contract. 15. The Claimant rejected the arguments of the Respondent and stated the following: - The additional remuneration of 4,000 was not optional, since established in the contract, and was a supplement to his salary; - The Respondent accepted to pay for his living costs and provided him with an apartment that he shared with a player from country F. Therefore, he never paid for rent and never signed any rental agreement; - If the Respondent deemed that any amounts should be deducted, it should have specified it in the termination agreement; - The Respondent did not submit any evidence to support the deductions. 16. Finally, the Claimant stated that in July 2014 he expressed his disappointment and surprise to the situation of the Respondent, in particular considering the sporting results. The best players allegedly agreed to all leave the Respondent. The Respondent allegedly informed him that he could look for a new club and the Respondent would agree to terminate the contract, since it was necessary to reduce costs considering the season was already lost. Moreover, the Claimant affirmed having played while injured for the Respondent and never having received any support from the Respondent. 17. Although invited to provide its final comments, the Respondent failed to do so. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 26 December 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 2015) he 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. 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 (2015), and considering that the present claim was lodged on 26 December 2014, the 2014 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand 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 all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC judge acknowledged that the parties had signed the contract on 3 February 2014, in accordance with which the player was entitled to receive, inter alia, the amount of 13,000 as a monthly salary. 6. In addition, the DRC judge observed that the parties had also signed the attachment on 25 January 2014, in accordance with which the player was entitled to a monthly allowance of up to 4,000. 7. Finally, the DRC judge took note that the parties signed the termination agreement, by means of which they terminated the contractual relationship. Moreover, the termination agreement established that the contract would be considered “as fulfilled and complete, once Club C settles the salary pending (from 1st of July till 6th of August)”. 8. In continuation, the DRC judge noted that the Claimant alleged that the Respondent had failed to pay the outstanding amount of 15,600, regarding the period between 1 July 2014 and 6 August 2014. In particular, the DRC judge took note that the Claimant indicated that the total amount due for the period between 1 July 2014 and 6 August 2014 was 18,000, but he declared having received only the amount of 2,400 from the Respondent. Consequently, the Claimant asked to be awarded with the payment of the amount of 15,600, plus interest. 9. Equally, the DRC judge took note of the reply of the Respondent, which asserted that it had already fulfilled all its financial obligations towards the player. 10. Considering the opposite position of the parties, the DRC judge started by taking note that considering the contract and the attachment signed by the parties, the Claimant was entitled to receive the amount of 13,000 as well as up to 4,000 as monthly remuneration. In this respect, the DRC judge stressed that the termination agreement did not mention anything specific about a separation between the salary and allowance and, therefore, decided that the Claimant was, in principle, entitled to both amounts, without any further conditions. 11. On the other hand, the DRC judge took note that the Respondent alleged it only paid the amount of 2,400, as confirmed by the Claimant, because it had to deduct from the due amount, taxes in the rate of 35%, the rent for the claimed period and the cleaning costs of the apartment. 12. In this respect, the DRC judge 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 DRC judge noted that the Respondent did not substantiate its defence, as it did not present any documentary evidence together with its response. 14. In view of the above, the DRC judge concluded that the Respondent has not provided any evidence with its defence and thus, it could not justify the deductions indicated regarding taxes, rent and cleaning expenses. Therefore, the Respondent had failed to prove that it could deduct any amount from the monthly remuneration for the period between 1 July 2014 and 6 August 2014 as agreed upon between the parties in the contract and in the attachment, which was outstanding at the moment of the termination, i.e. 6 August 2014, as indicated in the termination agreement. 15. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations regarding the termination agreement concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of 15,600 to the Claimant. 16. With regard to the claimed interests, the DRC judge decided that, in accordance with the long-standing jurisprudence of the Dispute Resolution Chamber as well as taking into account the request of the Claimant, the Respondent had to pay default interest on the amount of 15,600 at a rate of 5% as of the date of the claim. ****** III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is accepted. 2. 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 15,600 plus 5% interest p.a. as from 26 December 2014 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. 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