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 matter involving the player, Player B, from country U as Claimant / Counter-Respondent and the club, Club C, from country R as Respondent / Counter-Claimant and the club, Club B, from country P as Intervening party 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 matter involving the player, Player B, from country U as Claimant / Counter-Respondent and the club, Club C, from country R as Respondent / Counter-Claimant and the club, Club B, from country P as Intervening party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 January 2008, Player B, from country U (hereinafter: the Claimant or Counter-Respondent), and Club C, from country R (hereinafter: the Respondent or Counter-Claimant), concluded an employment contract (hereinafter: the contract) valid from the date of signature until 30 June 2013. 2. The clause 5.1 of the contract, established the remuneration as follows: “5.1 The value of this Agreement shall be a gross amount of EUR 1,571,428.57 of which the Club shall pay the income tax (16%) in the amount of EUR 251,428.57 and the net amount of EUR 1,320,000 shall be granted to the player as follows: a) Signing-on fee (“prima de fichaje”) amounting EUR 220,000 to be paid as follows: EUR 120,000 on the date of signature of the contract and EUR 100,000 on 1 July 2009. b) For the period 1 July 2008 - 30 June 2009 the net amount of EUR 180,000 which shall be granted in 12 monthly instalments of EUR 15,000 / month. c) For the period 1 July 2009 - 30 June 2010 the net amount of EUR 200,000 which shall be granted in 12 monthly instalments of EUR 16,666 / month. d) For the period 1 July 2010 - 30 June 2011 the net amount of EUR 220,000 which shall be granted in 12 monthly instalments of EUR 18,333 / month. e) For the period 1 July 2011 - 30 June 2012 the net amount of EUR 240,000 which shall be granted in 12 monthly instalments of EUR 20,000 / month. f) For the period 1 July 2012 - 30 June 2013 the net amount of EUR 260,000 which shall be granted in 12 monthly instalments of EUR 21,666 / month.” (free translation from the original version in Spanish:“5.1 El valor de este acuerdo ascenderá a un monto bruto de 1 571 428.57 EUR, de los cuales el club deberá pagar el impuesto sobre los ingresos (16 %) por la suma de 251 428.57 EUR. El monto neto de 1 320 000 EUR deberá abonarse al jugador así: a) Suma a la firma del contrato (prima de fichaje) que asciende a 220 000 EUR, cuyos pagos se desglosarán así: 120 000 EUR en la fecha de la firma del contrato y 100 000 EUR el 1.° de julio de 2009. b) La suma neta de 180 000 EUR correspondiente al periodo que va del 1.° de julio de 2008 al 30 de junio de 2009, que será abonada en 12 cuotas, cada una de 15 000 EUR mensuales. c) La suma neta de 200 000 EUR correspondiente al periodo que va del 1.° de julio de 2009 al 30 de junio de 2010, que será abonada en 12 cuotas, cada una de 16 666 EUR mensuales. d) La suma neta de 220 000 EUR correspondiente al periodo que va del 1.° de julio de 2010 al 30 de junio de 2011, que será abonada en 12 cuotas, cada una de 18 333 EUR mensuales. e) La suma neta de 240 000 EUR correspondiente al periodo que va del 1.° de julio de 2011 al 30 de junio de 2012, que será abonada en 12 cuotas, cada una de 20 000 EUR mensuales. f) La suma neta de 260 000 EUR correspondiente al periodo que va del 1.° de julio de 2012 al 30 de junio de 2013, que será abonada en 12 cuotas, cada una de 21 666 EUR mensuales”.) 3. Lastly, Clause 12.1 of the contract stated the following: "Any dispute arising between the parties, due to or related to the Contract, including that concerning the validity, interpretation, execution or revocation of it, will be resolved. If the parties did not reach an amicable settlement, the resolution of any dispute shall be subject to the body´s with jurisdictional powers of the country R Football Federation and Professional Football League". (free translation from the original version in Spanish: “Cualquier litigio surgido entre las partes, por causa o relacionado con el presente Convenio, incluido aquel referente a la validez, interpretación, ejecución o revocación del mismo se solucionaran amistosamente. Si las partes no llegasen a un acuerdo amistoso, la resolución de los litigios quedará sometida a los órganos con atribuciones jurisdiccionales de la Federación rumana de Fútbol y de la Liga Profesional de Fútbol”). 4. On 1 June 2009, the parties and Club B, from country P, signed a “Professional Football Player Registration Transfer Agreement” (hereinafter: the transfer agreement) for the transfer of the Claimant on a permanent basis with a duration of five years. 5. On 28 March 2011, the Claimant lodged a claim in front of FIFA, requesting the signing-on fee payable on 1 July 2009 and amounting to EUR 100,000, in accordance with clause 5.1.a) of the contract as well as interests and legal costs. 6. According to the Claimant, this second instalment of the signing-on fee, due on 1 July 2009, is due even after the transfer to another club, as the Claimant was entitled to receive the relevant amount by the mere fact of being registered with the Respondent. The Claimant held having requested this amount to the Respondent in several occasions without any response. 7. On 10 April 2013, the Respondent remitted us its position, by means of which it preliminarily challenged FIFA’s competence, stating that according to clause 12 of the contract, the parties agreed that, in case that a dispute could not be solved amicably, the claim should be lodged in front of the country R Football Federation and the Professional Football League (hereinafter: PFL). Moreover, the Respondent provided a copy of a decision passed by Dispute Resolution Chamber (DRC) of FIFA on 16 July 2009 in a case involving a country P player and the club, in which the DRC concluded that the club was able to prove that, for the period comprehended between October 2008 and January 2009, the arbitration body at national level in country R met the minimum procedural standards for independent arbitration tribunals as requested by FIFA. Also, the Respondent submitted a copy of the 2010 Regulations on the Status and Transfer of Players approved by the country R Football Federation Executive Committee, which, inter alia, stipulates that cases involving clubs that participate in the First League National Championship and their players shall be determined exclusively by the judicial bodies of the PFL according to the annual agreement between the country R Football Federation and the RPFL. Furthermore, it is stated that the RPFL DRC and the RPFL Review Commission are formed of five members, two of them acting as chairman and deputy chairman, respectively. As consequence, the Respondent held that the NDRC fully complies with the requirements as per Article 22 lit. b) of the FIFA Regulations and therefore FIFA Judicial Bodies should not be competent to hear the present dispute. 8. Regarding the substance of the matter, the Respondent rejected the claim, emphasizing that in accordance with general legal principles, a signing-on fee is “a sort of advance payment of salary which shall amortize itself during the duration of the employment contract and/or a certain period of the employment relationship concerned, e.g. one sportive season is specified accordingly”. Therefore, and regarding the first part of the signing-on fee already paid by the Respondent and amounting EUR 120,000, the Respondent held that it is related to the foreseen duration of the contract from 1 July 2008 until 30 June 2013. Due to the transfer of the Claimant on June 2009, only the proportion of said instalment related to the 2008/2009 sportive season was amortized and therefore, the Claimant shall return the amount equal to EUR 96,000 in accordance to the general principle of pacta sunt servanda to avoid the unjustified enrichment of the Claimant. 9. Concerning the second instalment, the Respondent held that this instalment should only be due in the event the Claimant had remained with the Respondent and, thus amortized throughout the original duration of the contract. Therefore, this second instalment never became due as the Claimant was transferred in June 2009 to Club B. 10. Considering the above, the Respondent, on the same date, i.e. 10 April 2013, filed a counterclaim requesting the reimbursement of the amount of EUR 96,000, corresponding to the non-amortized part of the first instalment of the signing-on fee, plus 5% interest from the date of the submission until the effective payment. 11. The Counter-Claimant held that in accordance to the wording of the Contract as established in clauses 4 (regarding the duration of the contract from 1 July 2008 until 30 June 2013) and 5 (cf. point I.2), the total value of the contract should correspond for the entire duration to an amount equal to EUR 1,320,000 and therefore, the first instalment of the signing-on fee should be amortized during the entire duration of the contract. 12. The Counter-Respondent submit his response to the counterclaim and held that FIFA should be competent to hear the present dispute considering the following arguments: - The decision passed by Dispute Resolution Chamber (DRC) of FIFA on 16 July 2009 in the case mentioned cited by the club is not relevant for the present dispute as, in the aforementioned case, the claim in front of the NDRC was lodged before the claim at FIFA and the NDRC already passed a decision. Also in said decision, FIFA clearly admit the impartiality of the NDRC exclusively for the period between October 2008 and January 2009. - In the subsequent decision of FIFA and confirmed by CAS, i.e. CAS 2010/A/2289 Club V Vs Mr L, the impartiality of said NDRC was discussed. - The Counter-Respondent is not anymore playing in country R since four years; therefore the former NDRC cannot be competent to hear this dispute according to the CAS 2010/A/2133 Mr B v/ Club N. 13. Regarding the substance of the matter, the Counter-Respondent insisted that the signing-on fee “is a payment that is due just to the mere fact of having signed the contract” and, as a consequence, “if one of these payments should be subject to the permanence of a player in a club, it should be expressly established in the contract. This signing-on fee is therefore due regardless the duration of the contractual relationship. It constitutes an incentive that clubs agree to pay to the players when they sign long-term contracts, and in exchange the club have the possibility to transfer the player during the duration of the contract“. 14. In his replica, the Counter-Claimant maintains that the NDRC fully complies with the requirements of the art. 22 lit. b), and that according to clause 12 of the contract, the Claimant / Counter-Respondent, should have filed his claim in front of the country R Football Federation or PLF in a timely manner, no matter where the Claimant is playing now. 15. Regarding the substance, the Counter-Claimant insisted in his counterclaim and sustained that when the parties signed the Transfer Agreement with Club B, “the reciprocal contractual obligations between the former club and the player concerned ended and no longer unfold any legal effect”. Additionally, the Counter-Claimant held that “according to well established jurisprudence of the FIFA deciding-bodies and CAS according to which signing-on fees may be considered in the calculation of a club’s damages as per article Art. 17 of the Regulations on the Status and Transfer of Players as a consequence of a players termination of a contract without just cause or the clubs termination of an employment contract for just cause provoked by the player. Therefore, a signing-on fee must be considered as an advance payment of salary which shall amortize itself during the execution of an employment contract concerned.” 16. In his final comments, the Counter-Respondent maintains that the Counter-Claimant did not specify if the competent body is the country R Football Federation or the PLF and therefore, FIFA should be competent. Regarding the substance of the matter the Counter-Respondent reiterated his arguments. 17. Although invited to provide its position, Club B did not provide any comments. ***** 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 which edition of the Procedural Rules are applicable to the matter at hand. In this respect, the DRC referred to art. 21 of the 2008, 2012 and 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. The present matter was submitted to FIFA on 28 March 2011. Consequently, the 2008 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. 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 2014), the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country U player and a country R club regarding the signing-on fee established in the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 12.1 of the contract, which, according to the Respondent, in case that a dispute could not be solved amicably, the claim should be lodged in front of the competent bodies of the country R Football Federation and the PFL. 5. The Chamber equally noted that the Claimant rejected such position and insisted on the fact that FIFA had jurisdiction to deal with the present matter, because the deciding bodies of the country R Football Federation and the PFL are not independent tribunal as well as that, for the season 2009/2010, the deciding body of the PFL did not seem to fulfil the requirements imposed by the Regulations on the Status and Transfer of Players. 6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2014 edition of the Regulations on the Status and Transfer of Players, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC can settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant arbitration tribunal derives from a clear and specific reference in the employment contract. 8. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a clear jurisdiction clause. 9. Having said this, the members of the Chamber turned their attention to clause 12.1 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. The DRC recalled that said clause stipulates that "If the parties did not reach an amicable settlement, the resolution of any dispute shall be subject to the body´s with jurisdictional powers of the country R Football Federation and Professional Football League" (cf point I.3). 10. In view of the aforementioned clause, the members of the DRC were of the opinion that clause 12.1 of the employment contract does not make clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the members of the Chamber deem that said clause can by no means be considered as a clear arbitration clause in favour of either of the national deciding bodies, i.e. of the country R Football Federation or the PFL, and, therefore, cannot be applicable. In this regard, the Chamber pointed out that this lack of clarity is also reflected in the Respondent’s argumentation since it refers to the alleged competence of the deciding bodies of both the country R Football Federation and PFL, without further precision. 11. Having established that the first criteria for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body. 12. In view of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 13. In continuation, 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 par. 2 of the Regulations (editions 2014, 2012 and 2010), and considering that the present claim was lodged on 28 March 2011, the 2010 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. 14. The competence of the Chamber and the applicable regulations having been established, and entering 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 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. 15. First of all, the members of the Chamber acknowledged that, on 1 January 2008 the parties entered into an employment contract in accordance with which the Respondent would pay the Claimant EUR 1,320,000 net for the entire duration of the contract, including a signing-on fee of EUR 220,000, payable in two instalments, respectively EUR 100,000 due on the date of signature and EUR 100,000 due on 1 July 2009. 16. The DRC further observed that on 28 March 2011, the Claimant lodged a claim against the Respondent requesting the payment of the instalment of the signing-on payable on 1 July 2009 and amounting to EUR 100,000. 17. Likewise, the members of the Chamber noted that on 1 June 2009, the Claimant, the Respondent and the Club B, from country P, signed a transfer agreement for the transfer of the Claimant on a permanent basis with a duration of five years. 18. The members of the Chamber noted also that according to the Claimant, this signing-on fee is due, even after the transfer to another club, for the simple fact of having signed the contract and having been registered with the Respondent. 19. On the other hand, the DRC noted that the Respondent rejected the claim of the Claimant as this second instalment of the signing-on fee would only have been due in the event that the Claimant stayed with the Respondent, thus amortized throughout the original duration of the contract. In this regard, the members of the Chamber noted that the Respondent lodged a counterclaim requesting EUR 96,000, corresponding to the non-amortized amount of the first instalment of the signing-on fee paid on 1 January 2008, considering the early transfer of the player to Club B on June 2009 as well as in accordance with the general principle of pacta sunt servanda to avoid unjustified enrichment of the Claimant. 20. First and foremost, the members of the DRC considered that the claim of the Claimant concerns outstanding remuneration only. Therefore, the DRC proceeded to analyze the amount corresponding to the second instalment of the signing-on fee requested by the Claimant. 21. In this regard, the Claimant requested the payment of the second instalment amounting to EUR 100.000, due on 1 July 2009, in accordance with clause 5.1 a) of the contract. 22. In this respect, the DRC highlighted that the claim of the second instalment of the signing-on fee was only due after the termination of the employment contract signed between the Claimant and the Respondent and the transfer to another club, i.e. on xxxx, by means of the transfer agreement signed by the parties and the new club. 23. Consequently, the DRC decided that the claim of the Claimant cannot be acepted as the Claimant was transfer to another club and therefore, the obligations between the parties expired. In view of the foregoing, the DRC decided that the Claimant’s request for the second instalment of the signing-on fee should be rejected. 24. The members of the Chamber then turned their attention to the counterclaim lodged by the Counter-Respondent on 10 April 2013. In this respect, the Chamber deemed that, the counterclaim having been lodged on 10 April 2013 only, a claim relating to the non-amortized amount of the first instalment of the signing-on fee paid on 1 January 2008, falling due in theory at the moment of the transfer of the Claimant/Counter-Respondent to Club B on June 2009, must be considered time-barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations, and thus inadmissible. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player B, is rejected. 2. The counter claim of the Respondent / Counter-Claimant, Club C, is inadmissible. ***** 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: Markus Kattner Deputy Secretary General Encl. CAS directives