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 25 September 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Santiago Nebot (Spain), member on the claim presented by the player, Player R, from country B as Claimant against the club, Club D, from country C 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 25 September 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Santiago Nebot (Spain), member on the claim presented by the player, Player R, from country B as Claimant against the club, Club D, from country C as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 7 February 2012, Player R, from country B (hereinafter: player or Claimant), and Club D, from country C (hereinafter: club or Respondent), signed an employment contract valid as from the day of signature until 30 November 2013. 2. In accordance with the employment contract, the player was entitled to receive, inter alia, a bonus of USD 3,000 for each match won and of USD 1,000 for each match drawn in the country C league competition, if the player was on the pitch during the match. 3. In addition, the player was entitled to receive five business class round-trip air tickets from country B to country C. 4. On 7 February 2012, the player, the club, and the company XX (country C) Investment Co. Ltd. (hereinafter: company) signed a “personal portrait right agreement” (hereinafter: image rights agreement), in accordance with which the parties agreed that the club uses the player’s “personal portrait” and that the company pays the related fee to the player. The total fee agreed upon in the image rights agreement amounts to USD 6,850,000 payable by the company to the player over the period of time between 7 February 2012 and 30 November 2013. 5. According to art. 3 of the image rights agreement, if the company does not pay the fee to the player, the club undertook to “take the full responsibility”. 6. On 27 January 2014, the player lodged a claim against the club in front of FIFA asking that the club be ordered to pay the outstanding amount of USD 952,000, plus 5% interest p.a. as of 30 November 2013, on the basis of the employment contract and the image rights agreement. 7. The player maintains that on the basis of the employment contract he is entitled to receive the outstanding amount of USD 62,000, which was specified as follows: a. USD 35,000 for 5 air tickets; b. USD 27,000 relating to bonuses. 8. On the basis of the image rights agreement, including its art. 3 (cf. point I./5. above), the player claims that he is entitled to receive from the club the outstanding amount of USD 890,000. 9. According to the player, in spite of having put the club in default on 20 December 2013, the aforementioned amounts have remained unpaid. 10. The club has not replied to the player’s claim, in spite of having been invited to do so. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 27 January 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 and par. 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2014) the Dispute Resolution Chamber is competent to deal with the matter at stake, insofar as it concerns an employment-related dispute with an international dimension between a country B player and a country C club. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 19 September 2014 by means of which the parties were informed of the composition of the Chamber, the member Mr M and the member Mr A refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr M has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr A refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2014), and considering that the present claim was lodged on 27 January 2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. 6. The members of the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid as from 7 February 2012 until 30 November 2013, in accordance with which the Claimant was entitled to receive inter alia 5 business class round-trip air tickets from country B to country C as well as result-related bonus payments. 7. In continuation, the Chamber noted that an image rights agreement had been entered into by and between the Claimant, the Respondent, and the company XY (country C) Investment Co. Ltd., in accordance with which the company would pay the amount of USD 6,850,000 to the Claimant in connection with the use by the Respondent of the Claimant’s image rights. The members of the Chamber duly noted that according to the image rights agreement, if the company did not pay said fee to the player, the Respondent undertook “to take the full responsibility”. 8. In this regard, the Chamber took particular note of the fact that the image rights agreement does not include any employment-related benefits payable to the Claimant, i.e. benefits in return of the latter’s player services rendered to the Respondent, but solely includes payments on the basis of the use by the Respondent of the Claimant’s “personal portrait right”. 9. The Chamber then reviewed the claim of the Claimant, who maintains that the Respondent failed to pay the total amount of USD 62,000 relating to air tickets and bonus payments on the basis of the employment contract. In addition, invoking clause 3 of the image rights agreement, the Claimant asks that the Respondent be ordered to pay the alleged outstanding image rights fee of USD 890,000. 10. In continuation, the members of the Chamber highlighted that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right of defence and, thus, has not contested the allegations of the Claimant. 11. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant. 12. Having said this, the Chamber first turned its attention to the Claimant’s claim based on the employment contract. According to the Claimant, the Respondent owes him the amount of USD 35,000 relating to 5 business class round-trip air tickets. In this connection, while referring to art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber highlighted that the Claimant had not presented any documentation corroborating the amount of USD 35,000. On the other hand, the Chamber took into account that said 5 air tickets were contractually due to the Claimant and that the Respondent had not replied to the claim. Hence, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract, the Chamber decided that the Respondent must pay to the Claimant the amount of USD 28,500 for 5 business class round trip air tickets country B – country C. 13. Subsequently, the members of the Chamber pointed out that according to the employment contract, the Claimant was entitled to receive match bonus payments depending on the match result and if he had been on the pitch during the relevant matches. According to the Claimant, bonus payments totalling USD 27,000 remained unpaid. In this respect, the Chamber highlighted once more that the Respondent had not replied to the claim and that it, thus, has remained uncontested that the Claimant had rendered his services to the Respondent during the contractual duration. Therefore, the Chamber decided to accept the Claimant’s claim relating to outstanding match bonus payments and that the Respondent is liable to pay the amount of USD 27,000 to the Claimant for bonuses. 14. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the above-mentioned amounts of USD 28,500 and USD 27,000, respectively, as of 30 November 2013 until the date of effective payment. 15. Having established the above, the members of the Chamber turned to the Claimant’s claim based on the image rights agreement. 16. In this regard, the Chamber had to establish whether, for formal reasons, it was competent to deal with this specific component or not. In fact, it appears that this part of the claim could possibly not be considered due to the Chamber lacking competence to deal with disputes related to image rights. 17. While analysing whether it was competent to hear this part of the claim, the Chamber wished to highlight that the image rights agreement in the matter at stake does not contain any employment-related elements, which, in the opposite case, may have led the Chamber to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract, i.e. directly linked to the services of the Claimant as a player. 18. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as non employment-related and does not have the competence to deal with it on the basis of art. 22 of the Regulations. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. Such elements, like, for instance, stipulations regarding bonuses, the use of a car, accommodation, which are typical for employment contracts and not for image rights agreements, do not appear to be included in the image rights agreement which is at the basis of the Claimant’s petition. 19. Consequently, bearing in mind the above as well as art. 22 lit. b of the Regulations, which stipulates that the Chamber is competent to hear employment-related disputes (emphasis added), the Chamber decided that it cannot deal with the Claimant’s claim pertaining to the amount of USD 890,000 based on the image rights agreement. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player R, is partially accepted. 2. The Respondent, Club D, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 28,500 related to air tickets, plus interest at the rate of 5% p.a. as from 30 November 2013 until the date of effective payment. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 27,000 related to match bonuses, plus interest at the rate of 5% p.a. as from 30 November 2013 until the date of effective payment. 4. In the event that the amounts due to the Claimant 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. 5. Any further claim lodged by the Claimant is rejected. 6. 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