F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), 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 (2015-2016) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), 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 6 July 2011, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as of 22 July 2011 until 31 May 2014. 2. Pursuant to clause III of the contract, the Claimant was entitled to receive the following remuneration: - 2011-12 season: EUR 2,000,000 net payable in ten equal monthly instalments of EUR 200,000 starting from 30 August 2011; - 2012-13 season: EUR 2,100,000 net payable in ten equal monthly instalments of EUR 210,000 starting from 30 August 2012; - 2013-14 season: EUR 2,200,000 net payable in ten equal monthly instalments of EUR 220,000 starting from 30 August 2013. 3. Moreover, clause IV of the contract stipulates that “[b]esides the remuneration established in clause III above, the [Claimant] shall be entitled to a suitable house whose rental shall be paid directly by [the Respondent] (up to €11,000 per month), expenses of the house (electricity, phone, gas etc.) will be paid by the [Claimant]. The [Claimant] shall also be entitled to 4 Business Class return airplane tickets for each season valid for City of Country D-Country B-City of Country D or equivalent destination, as well as an automobile from the club sponsors”. 4. In addition, clause VI lit. a) of the contract, inter alia, states that “[t]he [Claimant] is liable to apply all his efforts and dedication for the term of his Agreement, agreeing on playing in every match he is called for, as well as on showing up at every reasonable place with the aim of being coached (i.e. attending to the pre-season and mid-season training camps on time, being present from the starting date until the end), according to the instructions provided by any official duly authorized by [the Respondent] (…). Failing to comply with these terms, the [Claimant] hereby accepts to pay any amount of penalty fee decided by [the Respondent] board according to Disciplinary Regulations of [the Respondent]”. 5. Clause VI lit. f) of the contract further provides that “the [Claimant] shall sign the standard club seasonal Disciplinary Instructions and Regulations that is required by the Football Association of Country D”. 6. Furthermore, art. IV of the Disciplinary Regulations of the Respondent (hereinafter: the Disciplinary Regulations) titled “acts which require imposition of fines” reads as follows: “a) As of the date of commencement of his relationship with the Club, if a player commits an offence in breach of sportsmanship ethics or sports discipline in his private life, or during matches or training activities, or the player commits any act or delivers any statement which might impair the honor and dignity of the Club (…); (…) f) If the Player is involved in any activities including other sports activities which might prevent his football activities and/or harm his health; (…) h) If the Player treats others brutally whether verbally or physically, or commits quarrels during camps, exercises or games, or commits physical interventions (for example kicking other players deliberately) other than those required under nature of the game, or acts improperly towards rival players, referees, technical staff, teammates, audience or employees; (…) r) If the Player fails to comply with training, match, meeting, travel, camp or treatment times and schedules, and other meeting times or schedules as designated by the Club, or fails to attend, or delays in attending, or leaves any training or match event without prior consent; (…)” 7. Art. V of the Disciplinary Regulations specifies that “[i]ndividuals acting in breach of this Regulation shall suffer the fines specified in the articles herein below”. 8. In continuation, art. VI and VII of the Disciplinary Regulations establish the principles of calculation based on the Claimant’s costs per day. 9. On 17 December 2013, but notified on 20 December 2013, the Respondent imposed on the Claimant a fine of EUR 96,000.03, corresponding to the Claimant’s costs for nine days. In particular, the notice specifies that “[the Claimant] left the club where the match was being played, before the final whistle without getting permission from and informing the team’s technical staff instead of sitting in players’ bench after having been gotten out of the match by the team technical staff for tactical reason on the 58th minute of the Super League’s 14th week, which was played by and between [the Respondent] and Club E on 09/12/2013. This act by you is contrary to the sub-paragraph ‘r’ of the article IV titled ‘Penal Acts’ of the Professional Football Discipline Regulations of our company”. 10. On 23 December 2013, the Respondent imposed on the Claimant a fine of EUR 160,000.05, corresponding to the Claimant’s costs for fifteen days. In particular, the notice states that “[it] has been revealed from the broadcaster’s video footages that you spat at [Respondent’s] spectators and made improper hand gestures during the match of the Super League’s 15th week, which was played by and between [the Respondent] and Club F on 15/12/2013. This act by you is contrary to the paragraph ‘h’ of the article IV titled ‘Penal Acts’ of the Professional Football Discipline Regulations of our company”. 11. On 27 December 2013, the Claimant sent a correspondence to the Respondent, highlighting that he had no knowledge of the content of the “Professional Football Discipline Regulations” and that the sanctions were imposed in violation of his right to be heard. In addition, the Claimant challenges the veracity of the facts alleged by the Respondent in support of the sanctions. 12. On 25 March 2014 the Respondent requested the Claimant to provide his explanations regarding his absence from training as from 20 March until 24 March 2014 within two days. 13. On 26 March 2014, a person called Mr G sent an e-mail to the Respondent informing it that the Claimant would undergo a surgery. In this regard, Mr G stresses that the Doctor of Club H has already informed the Respondent’s doctors of it. 14. On 29 March 2014, the Respondent replied to Mr G insisting that it had not given the authorisation to the Claimant to undergo a surgery and that therefore he should attend the treatment session scheduled on 31 March 2014 at the Respondent’s facilities. 15. On 31 March 2014, the Claimant answered to the Respondent alleging that his treatment was inefficient and that the “unanimous opinion” of the doctors were that he had to undergo a surgery. 16. On the same date, the Respondent replied to the Claimant stressing that there was no reason for him to undergo a surgery and that, therefore, he should resume duties. 17. By means of a correspondence dated 4 April 2014, apparently received on 7 April 2014, the Claimant, after reiterating his previous arguments, informed the Respondent that he went to Country B to see a doctor. In addition, the Claimant enclosed a medical report confirming that he had to undergo a surgery. Therefore, the Claimant sustains that no disciplinary offence can be imputed to him. 18. On 8 April 2014, the Claimant put the Respondent in default of paying his salaries for January, February and March 2014. 19. On 9 April 2014, the Respondent replied to the Claimant’s default notice asserting, inter alia, the “[it] will be taking the necessary steps to prevent any damage on your side and will complete the transfer of the amounts requested in due course”. 20. On 7 April 2014, but notified on 16 April 2014, the Respondent imposed on the Claimant a fine of EUR 202,666.73, corresponding to the Claimant’s costs for nineteen days. In particular, the notice outlines that the Claimant had been absent from training without authorisation or valid justification from 20 March until 27 March 2014 in violation of art. IV lit. r) of the Disciplinary Regulations. 21. On 27 May 2014, but notified on 17 June 2014, the Respondent imposed on the Claimant a fine of EUR 22,000, corresponding to the Claimant’s costs for three days, for having gone out to a night club after a game despite the fact that there was a training session scheduled on the next day at 11.00 am, in violation of art. IV lit. a) of the Disciplinary Regulations. 22. On 13 October 2014, the Claimant lodged a claim in front of FIFA against the Respondent and after amending his initial claim, requested to be awarded with the outstanding amount of EUR 442,227.57 plus 5% interest as of each due date. 23. In his claim, the Claimant challenges the validity of the fines imposed on him, alleging that they lack of factual basis and were imposed in violation of his right to be heard. Regarding the fine imposed on 16 April 2014, the Claimant stresses that he informed the Respondent that he would travel to Country B to see a doctor and that the Respondent authorised him verbally. In any way, the Claimant considers this fine disproportionate. Moreover, the Claimant underlines that the last fine of EUR 22,000 was imposed after the expiry of the contract. 24. In continuation, the Claimant asserts that for the 2013-14 season, the Respondent paid him an amount of EUR 1,757,772.43, broken down as follows: - EUR 115,000 on 19 September 2013; - EUR 105,180 on 19 September 2013 - EUR 325,000 on 4 October 2013; - EUR 54,745.16 on 20 December 2013; - EUR 90,533 on 24 January 2014; - EUR 2,708.18 on 20 February 2014; - EUR 1,064,606.09 on 30 June 2014. 25. In its reply to the Claimant’s claim, the Respondent first asserts that in addition to the payments acknowledged by the Claimant, it made a payment of EUR 217,292 on 18 February 2014. 26. Furthermore, the Respondent points out that it made payments to third parties on behalf of the Claimant in the amount of EUR 52,155.49, which should be deducted from the remuneration due to the Claimant. 27. In addition, the Respondent recalls that it only agreed as per the contract to pay the Claimant’s rent up to EUR 11,000 per month and until the end of the contract, i.e. 31 May 2014. In this regard, the Respondent underlines that on 11 September 2013, the Claimant entered into an agreement for the rent of an apartment, valid until 15 September 2014 and for a rental fee of USD 14,500. The Respondent further emphasises that since it signed the agreement as a guarantor, it had been obliged to pay the rental fees up until September 2014 in spite of only having the obligation to do so until 31 May 2014. Therefore, the Respondent considers that the rental fees paid for June, July, August and September 2014, i.e. USD 58,000, equivalent to EUR 43,697.28 according to the Respondent, should be deducted from the Claimant’s receivables. 28. In continuation, the Respondent sustains that a Version of Country B of the 2013-14 Disciplinary Regulations of the Respondent were notified to and signed by the Claimant. In support of its assertion, the Respondent submitted a copy of the Disciplinary Regulations drafted in the Language of Country B on which the space left for the Claimant’s signature remains blank. 29. The Respondent further explains that already in the past, the Claimant assaulted a girl and received a warning for violation of art. IV lit. a) of Disciplinary Regulations. 30. Regarding the first fine, the Respondent submitted statements made by the head coach and the assistant coach of the team asserting that the Claimant had not been authorised to leave the stadium after his substitution. In addition, the Respondent stresses that it was the Claimant’s second violation of art. IV lit. a) of the Disciplinary Regulations. Moreover, concerning the first and second fine, the Respondent alleges it merely applied art. VI and VII of the Disciplinary Regulations in order to determine the amount and that in any case, they were not executed. 31. As to the third fine, the Respondent explains that it was imposed due to the Claimant’s incapacity to provide valid explanations concerning his absence between 20 and 27 March 2014. In particular, the Respondent points out that it has never authorised the Claimant to leave and to see the doctor of another club and has never been informed about the Claimant’s intention to undergo a surgery. Equally, it emphasises that the medical report submitted by the Claimant does not bear any signature. Regarding the proportionality of the fine, the Respondent stresses that it was the Claimant’s second violation of art. IV lit. r) of the Disciplinary Regulations in the 2013-14 season and that it lasted for six days. As a final comment concerning this third fine, the Respondent outlines that it was only partially executed and that the Claimant did not raise any objections. 32. In continuation, the Respondent alleges that on 20 April 2014, and in spite of the fact that the Respondent was going through a crucial phase of the season and a training session was scheduled on the next day at 11:00 am, the Claimant decided to go out to a night club where he had been involved together with other players into an altercation. In this regard, the Respondent underlines that all the players that were at the night club received a disciplinary sanction. Moreover, the Respondent stresses that said fine was only partially executed. 33. On account of all the above, the Respondent requests FIFA to reject the Claimant’s claim and to order him to bear the costs of the proceedings. 34. In his replica, the Claimant acknowledges the payments made to third parties on his behalf as well as receipt of the payment of EUR 217,292 made on 18 February 2014 by the Respondent. 35. In continuation, the Claimant reiterates his previous argumentation as to the illegality of the fines and rejects the Respondent’s assertion, in particular regarding the prosecution brought against him for assault. 36. Furthermore, the Claimant stresses that the relevant medical report was duly signed. In addition, the Claimant states that the Respondent did not prove having paid the rental fees after 31 May 2014. 37. In light of the foregoing, the Claimant amended his claim and requested to be awarded with the amount of EUR 172,820.08. 38. In its final comments, the Respondent repeats that the Claimant is currently facing a criminal prosecution for assault. 39. In addition, the Respondent outlines that the Courts of City of Country D held the Claimant and the Respondent severally liable to pay the rents for June, July and August 2014. In view thereof, and due to the Claimant’s lack of payment, the Respondent paid an amount of USD 42,500, equivalent to EUR 32,772.96 according to the latter. 40. Finally, the Respondent reiterates its previous argumentation regarding the fines. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC) analysed whether it was competent to deal with the case at hand. In this respect, the DRC took note that the present matter was submitted to FIFA on 13 October 2014. Consequently, the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at stake (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 of Country B and a Club of Country D. 3. 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 (edition 2015), and considering that the present claim was lodged in front of FIFA on 13 October 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 and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case 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. In this respect, the members of the Chamber first acknowledged that the parties had signed an employment contract on 6 July 2011, valid as of 22 July 2011 until 31 May 2014. 5. In continuation, the DRC observed that the Claimant alleges that the Respondent had failed to pay him outstanding remuneration in the amount of EUR 172,820.08. Equally, the Dispute Resolution Chamber took note of the reply of the Respondent, which considers that it does not owe any amount to the Claimant. In this respect, the members of Chamber first noted that Respondent asserts that it was ordered by the Courts of City of Country D to pay EUR 32,772.96, corresponding to the Claimant’s monthly rents for the months of June, July and August 2014, on behalf of the Claimant whereas its obligation to pay for his rents ended in May 2014, i.e. at the end of the contract. Accordingly, the Chamber took note that the Respondent considers that it is entitled to deduct this amount from the Claimant’s dues. In addition, the Chamber observed that the Respondent sustains that the Claimant’s remuneration was reduced by means of several fines imposed on him in accordance with its internal Disciplinary Regulations and due to his misbehaviour. 6. Having stated the above, the Chamber started by considering the first argument put forward by the Respondent. In doing so, the Chamber noted that the Respondent is actually trying to set off the monthly rents that it was ordered to pay on behalf of the Claimant against the Claimant’s outstanding remuneration. In this regard, the members of the Chamber deemed it important to outline that the Respondent was ordered to pay the referred amounts on the basis of a rent contract signed by the Claimant, the Respondent and a third party. In view of the above, and bearing in mind art. 22 lit. b of the Regulations, which stipulates that the Dispute Resolution Chamber is competent to hear employment-related disputes, the Chamber had to conclude that it lacked competence to deal with such a dispute arising out of a rent contract, and which, as such, does not have any employment-related component. Consequently, and without prejudice to the Respondent’s right to claim said amounts before the competent body, the Chamber had no jurisdiction to analyse whether the Respondent had the right to deduct the rents allegedly paid on behalf of the Claimant. 7. In continuation, the Chamber turned its attention to the legal basis of the fines imposed on the Claimant and in particular, the DRC referred to clause VI lit. f of the contract which stipulates that “[the Claimant] shall sign the standard club seasonal Disciplinary Instructions and Regulations that is required by the Football Association of Country D”. At this stage, and after recalling the content of art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber pointed out that the copy of the Disciplinary Regulations submitted by the Respondent, in spite of containing a specific room for it, does not contain the Claimant’s signature. In view of the above, the members of the Chamber concurred that the Respondent failed to satisfactorily carry the burden of proof regarding the Claimant’s knowledge and acceptance of the Disciplinary Regulations on the basis of which the fines were imposed. 8. In view of the above, and in particular considering that the relevant fines rest upon a legal instrument, i.e. the Disciplinary Regulations, which has never fallen within the scope of the contractual relationship, the Chamber concluded that such fines imposed on the Claimant had to be considered invalid and therefore disregarded. 9. On account of the above-mentioned considerations, and in particular considering the ineffectiveness of the Respondent’s arguments as to its alleged right to deduct amounts from the Claimant’s remuneration, the Chamber concluded that the Respondent had failed to pay to the Claimant an amount of EUR 172,820.08. 10. Consequently, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 172,820.08. 11. In addition, taking into consideration the Claimant’s claim and in accordance with its longstanding and well-established jurisprudence, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 172,820.08 as of the date of the claim, i.e. 13 October 2014. 12. 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 partially 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 EUR 172,820.08 plus 5% interest p.a. on said amount as from 13 October 2014 until the date of effective payment. 3. In the event that the abovementioned amount 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. 4. Any further claim lodged by the Claimant is rejected. 5. 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 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 Acting Secretary General Encl. CAS directives