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, from country B as Claimant / Counter-Respondent against the club, Club C, from country D as Respondent / Counter-Claimant 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 6 November 2014, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, from country B as Claimant / Counter-Respondent against the club, Club C, from country D as Respondent / Counter-Claimant regarding an employment-related dispute between the parties I. Facts of the case 1. On 6 July 2011, the player from country B, Player A (hereinafter: the Claimant / Counter-Respondent), and the club from country D, Club C (hereinafter: the Respondent / Counter-Claimant), signed an employment contract (hereinafter: the contract) valid as from 1 July 2011 until 30 June 2012. 2. According to the contract, the Claimant / Counter-Respondent was entitled to receive a monthly salary in the sum of 962,118 gross, which according to the Claimant / Counter-Respondent amounted to 800,000 net. 3. Furthermore, in accordance with annex II enclosed to the contract, the Respondent / Counter-Claimant would provide the Claimant / Counter-Respondent with “a flat with one and two half rooms at a quarter of the town and places a Chevrolet type motor car owned by the Association at the employee’s [the Claimant / Counter-Respondent] disposal the maintenance and other costs whereof will be covered by the employee”. 4. Article III.3 of the contract establishes that “the employer [the Respondent / Counter-Claimant] has the right to diminish the benefits set forth in Section III to the extent of damages caused by the employee [the Claimant / Counter-Respondent] through violation of contractual obligations”. 5. On 6 December 2012, the Claimant / Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in front of FIFA requesting outstanding salaries in the amount of 3,609,445 plus 5% interest as from each due date, according to the following breakdown: - 4,000,000 net as outstanding salaries for the period as from February until June 2012, considering a monthly salary of 800,000 net; - 540,000 net for the rental payment of the apartment for the period as from October 2011 until June 2012, in the monthly amount of 60,000; - minus 130,555 net already paid by the Respondent / Counter-Claimant on 11 April 2012; - minus 800,000 net already paid by the Respondent / Counter-Claimant on 24 August 2012. 6. Furthermore, the Claimant / Counter-Respondent requested the amount of EUR 250 per day of delay of the payment of the due amounts by the Respondent / Counter-Claimant, the sum of EUR 5,000 as legal expenses, as well as sporting sanctions for the Respondent / Counter-Claimant. 7. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant paid his salaries with delay during the 2011/2012 season and, as from February 2012, it did not pay his salaries anymore. In this regard, the Claimant / Counter-Respondent sent a letter to the Respondent / Counter-Claimant on 1 August 2012, requesting the payment of his salaries in the amount of 4,540,000. As, according to the Claimant / Counter-Respondent, he did not receive a response to the aforementioned letter, he sent a new one on 10 September 2012, to which he did not receive a reply either. 8. The Respondent / Counter-Claimant replied to the Claimant / Counter-Respondent’s claim fully rejecting it. The Respondent / Counter-Claimant declared that the Claimant / Counter-Respondent had been absent from trainings, without its authorization, between 4 February and 26 March 2012 and for the whole month of June 2012. In this respect, the Respondent / Counter-Claimant asserted that the salaries for the periods of absence of the Claimant / Counter-Respondent were not due according to the from country D law. 9. Moreover, the Respondent / Counter-Claimant stated that the request for the rental payment of the Claimant / Counter-Respondent’s apartment had no legal basis because the monthly rental was paid directly by the Respondent / Counter-Claimant to the owner of the apartment, by means of a separate contract to which the Claimant / Counter-Respondent was not a party. 10. In addition, the Respondent / Counter-Claimant indicated that the Claimant / Counter-Respondent had the following existing debts towards it: - 621,094 corresponding to “parking penalties, parking infringement fines and motorway using penalties” as a result of the use of the car by the Claimant / Counter-Respondent. The Respondent / Counter-Claimant provided a list of alleged fines dated as from 2 June 2009 until 31 August 2012 and explained that it had paid all the fines and penalties regarding the use of the car by the Claimant / Counter-Respondent and that the latter had not reimbursed such expenses, contrary to what the contract established. Furthermore, according to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent only returned the car on 18 September 2012 while the contract had terminated on 30 June 2012. - 1,120,860 corresponding to a loan that the Respondent / Counter-Claimant gave to the Claimant / Counter-Respondent. According to the Respondent / Counter-Claimant, it gave a loan to the Claimant / Counter-Respondent in the amount of 1,064,000 from which the latter had only repaid the sum of 34,381. In the Respondent / Counter-Claimant’s point of view, such loan became fully due at the end of the contract i.e. 30 June 2012, and therefore, the Claimant / Counter-Respondent had to return the principal in the amount of 1,029,519 plus “the related transaction interest rate due till June 30, 2012 corresponding to the central bank prime rate stipulated by the Civil Code (91,347 )”. - 26,820 that the Respondent / Counter-Claimant gave the Claimant / Counter-Respondent “with the obligation of subsequent accounting”. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent did not meet “its accounting obligation since then, and he did not certify the using of the amount in any manner”. 11. In view of the above, the Respondent / Counter-Claimant specified that the total amount due by the Claimant / Counter-Respondent is 1,768,780 while the amount due by the Respondent / Counter-Claimant is 958,693. Consequently, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant / Counter-Respondent, requesting the payment of the amount of 810,087 net. 12. The Respondent / Counter-Claimant added that it had informed the Claimant / Counter-Respondent, in writing, about the above-mentioned debt however, according to the Respondent / Counter-Claimant, he did not pay any sum and he only returned the car. 13. In his reply to the counterclaim, the Claimant / Counter-Respondent firstly declared, regarding his absence between 4 February and 26 March 2012, that the Respondent / Counter-Claimant informed him that it would not extend the contract and that he could negotiate with other clubs and, in this respect, provided a document dated 3 February 2012, where the Respondent / Counter-Claimant declares that the Claimant / Counter-Respondent can negotiate with other clubs and states that it will not ask for any transfer fee for the Claimant / Counter-Respondent. In this context, the latter travelled to country S where he had received some offers. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant authorized him to travel to country S and to take some physical tests during the months of February and March 2012. The Claimant / Counter-Respondent declared that upon his return, the president of the Respondent / Counter-Claimant’s club tried to modify the conditions of his contract but he refused. 14. Moreover, as to the absence during the whole month of June 2012, the Claimant / Counter-Respondent explained that all the players of the Respondent / Counter-Claimant’s club went on holidays on 5 June until 25 June 2012 and that, considering that the contract was set to end on 30 June 2012 together with the fact that the Respondent / Counter-Claimant had not paid his salaries, he believed it was not necessary to return to the Respondent / Counter-Claimant’s club for five days. 15. Furthermore, the Claimant / Counter-Respondent indicated that the Respondent / Counter-Claimant did not provide any evidence proving that it had paid the rent of the apartment directly to the owner and that it did not contest that it had been paying the Claimant / Counter-Respondent a monthly amount of 60,000 as accommodation, as from 1 July 2011 until 30 September 2011. Likewise, the Claimant / Counter-Respondent added that it was him who paid directly to the owner the rent of the apartment during the whole term of the contract and that, in fact, he agreed with the owner to buy the apartment, so he asked the Respondent / Counter-Claimant to continue paying the amount for accommodation although instead of paying a rental to the owner, he began to pay the purchase amount. 16. Moreover, the Claimant / Counter-Respondent fully rejected the Respondent / Counter-Claimant’s allegations regarding the fines and penalties derived from the use of the car. The Claimant / Counter-Respondent stated, on the one hand, that the Respondent / Counter-Claimant included in its list fines of the year 2009, while he only arrived to the Respondent / Counter-Claimant’s club in July 2011. On the other hand, the Claimant / Counter-Respondent declared that the Respondent / Counter-Claimant never informed him about such fines and that FIFA should not consider them, as the Respondent / Counter-Claimant did not provide evidence of their existence or of their payment. 17. Additionally, the Claimant / Counter-Respondent indicated that what the Respondent / Counter-Claimant called a loan of money, was the delayed payment of some of his salaries. The Claimant / Counter-Respondent insisted in the fact that the Respondent / Counter-Claimant had not provided enough evidence proving that it effectively gave him a loan, the reason being that it was not a loan but only the payment of some outstanding salaries. As to the sum of EUR 90 that the Respondent / Counter-Claimant alleged to have given the player, he declared that such amount was used for the visa of entrance to country T for him and one of his team colleagues. 18. The Respondent / Counter-Claimant, in its duplica, repeated all of its previous arguments and allegations and requested the rejection of the Claimant / Counter-Respondent’s claim. II. Considerations of the DRC judge 1. First of all, 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 6 December 2012. Consequently, the 2012 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 (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 2014) he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a player from country B and an club from country D. 3. 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. 4. In continuation, the DRC judge analyzed which edition of the FIFA Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 6 December 2012. The DRC judge concluded that the 2012 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. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 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. 6. In this respect, the DRC judge acknowledged that, on 6 July 2011, the parties had concluded an employment contract valid as from 1 July 2011 until 30 June 2012, in accordance with which the Respondent / Counter-Claimant would pay the Claimant / Counter-Respondent a monthly net remuneration in the amount of 800,000. The DRC further acknowledged that the contract provided for an apartment and a car to be put at the disposal of the Claimant / Counter-Respondent by the Respondent / Counter-Claimant. 7. The DRC judge then turned to the complaint of the Claimant / Counter-Respondent, who maintained that the Respondent / Counter-Claimant had failed to pay him the amount of 3,609,445 corresponding to several unpaid monthly salaries as well as accommodation expenses. 8. In continuation, the DRC judge noted that the Respondent / Counter-Claimant, in its statement of defence, stated that the Claimant / Counter-Respondent had been absent from training sessions without authorization during the period as from 4 February until 26 March 2012 and during the whole month of June 2012 and that, in this respect, he was not entitled to receive salaries for such period. Equally, the DRC judge turned his attention to the Claimant / Counter-Respondent’s allegations in this respect, and noted that the latter maintained that he had the authorization of the Respondent / Counter-Claimant to be absent during the above-mentioned specific period. 9. In this context, the DRC judge recalled the basic principle of the 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. In relation to the foregoing, the DRC judge took note that the Respondent / Counter-Claimant did not provide any conclusive evidence substantiating that the Claimant / Counter-Respondent had been absent without authorization as from 4 February until 26 March 2012. Hence, the DRC judge decided that the argument put forward by the Respondent / Counter-Claimant should be disregarded. Also, the documentation presented by the Claimant / Counter-Respondent evidencing that the Respondent / Counter-Claimant authorized him to leave the country in order to negotiate with other clubs remained uncontested by the Respondent / Counter-Claimant. Therefore, the DRC judge concluded that the Respondent / Counter-Claimant had in fact authorized the departure of the Claimant / Counter-Respondent for the period between 4 February and 26 March 2012. 10. Moreover, the DRC judge turned his attention to the statement of the Claimant / Counter-Respondent that all the players of the team were on holiday leave from 5 until 25 June 2012. In this respect, the DRC judge noted that such allegation had remained uncontested by the Respondent / Counter-Claimant as well. Indeed, the DRC judge stressed that the employment contract was set to terminate on 30 June 2012 and, therefore, there could not be any evident assumption from the Claimant / Counter-Respondent in the sense that he had to return to the training sessions for a short period of time, i.e. 5 days. 11. Furthermore, the DRC judge took note of the additional arguments of the Respondent / Counter-Claimant, which lodged a counter-claim against the Claimant / Respondent requesting the payment of an alleged due amount of 810,087. 12. In this respect, the Respondent / Counter-Claimant requested the reimbursement by the Claimant / Counter-Respondent of the amount of 621,094 allegedly corresponding to fines and sanctions derived from the use of the car by the Claimant / Counter-Respondent. In this context, the DRC judge firstly considered that it could not be established from the documentation presented by the Respondent / Counter-Claimant that the Claimant / Counter-Respondent indeed was responsible for the alleged traffic infringements or that the former had indeed paid the fines on behalf of the latter. What is more, the DRC judge wished to highlight that the list provided by the Respondent / Counter-Claimant makes reference to fines and sanctions imposed on dates prior to the arrival of the Claimant / Counter-Respondent to the Respondent / Counter-Claimant’s club. Therefore, the DRC judge determined that the petition of the Respondent / Counter-Respondent in this regard, could not be upheld. 13. Additionally, the DRC judge noted that the Respondent / Counter-Claimant sustained that it gave a loan to the Claimant / Counter-Respondent who, apparently did not repay it in full and, thus, the Respondent / Counter-Claimant considered that it had the right to claim the due amount of 1,120,860 from the Claimant / Counter-Respondent. In this regard, the DRC judge, whilst referring once more to the basic principle of the burden of proof, determined that the Respondent / Counter-Claimant had not provided evidence showing that it had loaned a certain amount to the Claimant / Counter-Respondent with the implicit obligation of the latter to return it. Thus, the DRC judge decided that the request of the Respondent / Counter-Claimant with regard to the reimbursement of a loan payment should be rejected. 14. Equally, the DRC judge took note that the Respondent / Counter-Claimant argued that the amount of EUR 90 given to the Claimant / Counter-Respondent should as well be reimbursed by the latter, as he had not justified the use of such amount. In this respect, the DRC judge noted that the Claimant / Counter-Respondent submitted documentation providing for a payment of EUR 90 on his behalf and on behalf of one of his team-mates for the concept of visa payment in country T. To this end, the DRC judge acknowledged that the Respondent / Counter-Claimant did not contest the justification of the use of the aforementioned amount by the Claimant / Counter-Respondent. Therefore, the DRC judge decided that the Respondent / Counter-Claimant’s request for reimbursement of the amount of 26,820 should be disregarded. 15. Furthermore, the DRC judge turned to the statement of the Respondent / Counter-Claimant regarding the payment of the accommodation expenses directly to the owner of the relevant apartment. In this regard, the DRC judge noted that the employment contract provided for an apartment to be put at the disposal of the Claimant / Counter-Respondent, without specifying under which circumstances. Then, the DRC judge turned his attention to the undisputed fact that the Respondent / Counter-Claimant had been paying the monthly amount of 60,000 to the Claimant / Counter-Respondent as accommodation expenses, for the period as from July until September 2011. In this context, the DRC judge, once more referring to art. 12 par. 3 of the Procedural Rules, considered that it could not be established from the documentation presented by the Respondent / Counter-Claimant that it had duly paid the monthly expenses for the accommodation of the Claimant / Counter-Respondent directly to the owner of the apartment. 16. Bearing in mind the foregoing, the DRC judge established that the Respondent / Counter-Claimant did not comply in full with its financial obligations and that, therefore, the Claimant / Counter-Respondent was entitled to certain outstanding amounts. In calculating the outstanding amounts owed to the Claimant / Counter-Respondent, the DRC judge took into consideration the following points: (i) the Claimant / Counter-Respondent was entitled to 4,000,000 as remuneration for the period as from February until June 2012; (ii) it was uncontested that the monthly amount for accommodation expenses was 60,000 and that the Respondent / Counter-Claimant failed to remit such expenses to the Claimant / Counter-Respondent for the period as from October 2011 until June 2012 in the total amount of 540,000; (iii) the Claimant / Counter-Respondent acknowledged to have received from the Respondent / Counter-Claimant the amount of 130,555 while the contract was in force and a further amount of 800,000 once the contract had already expired. 17. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent / Counter-Claimant is liable to pay to the Claimant / Counter-Claimant the total amount of 3,609,445. 18. Moreover, taking into account the Claimant / Counter-Respondent’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent interest of 5% p.a. on the amount of 3,609,445 as from each due date until the date of effective payment. In this respect, the DRC judge underlined that the fine of EUR 250 per day did not have any legal basis in the employment contract. 19. In addition, as regards the claimed legal expenses, the DRC judge referred to art. 18 par. 4 of the Procedural Rules as well as to the long-standing and well-established jurisprudence of the Dispute Resolution Chamber, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC judge decided to reject the Claimant / Counter-Respondent’s request relating to legal expenses. 20. In relation to the sporting sanctions, the DRC judge stressed that the imposition of sporting sanctions can only be considered in cases invoking a breach of contract, as stipulated in art. 17 of the Regulations. 21. Subsequently and in view of the above-mentioned considerations, the DRC judge determined that the counter-claim lodged by the Respondent / Counter-Claimant should be fully rejected. 22. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant / Counter-Respondent are rejected. III. Decision of the DRC judge 1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted. 2. The counter-claim of the Respondent / Counter-Claimant, Club C, is rejected. 3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, the amount of 3,609,445 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 11 April 2012 on the amount of 800,000; b. 5% p.a. as of 11 May 2012 on the amount of 800,000; c. 5% p.a. as of 11 June 2012 on the amount of 800,000; d. 5% p.a. as of 11 July 2012 on the amount of 800,000; e. 5% p.a. as of 1 January 2012 on the amount of 49,445; f. 5% p.a. as of 1 February 2012 on the amount of 60,000; g. 5% p.a. as of 1 March 2012 on the amount of 60,000; h. 5% p.a. as of 1 April 2012 on the amount of 60,000; i. 5% p.a. as of 1 May 2012 on the amount of 60,000; j. 5% p.a. as of 1 June 2012 on the amount of 60,000; k. 5% p.a. as of 1 July 2012 on the amount of 60,000. 4. If the aforementioned sum plus interest is not paid 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. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant 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