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(DRC) judge passed in Zurich, Switzerland, on 7 July 2015, by Theo van Seggelen (Netherlands), DRC judge, on the matter between the player, Player A, Country B, as Claimant/Counter-Respondent the club, Club C, Country D as Respondent/Counter-Claimant and the club, Club E, Country B as Intervening Party regarding an employment-related dispute 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(DRC) judge passed in Zurich, Switzerland, on 7 July 2015, by Theo van Seggelen (Netherlands), DRC judge, on the matter between the player, Player A, Country B, as Claimant/Counter-Respondent the club, Club C, Country D as Respondent/Counter-Claimant and the club, Club E, Country B as Intervening Party regarding an employment-related dispute between the parties I. Facts of the case 1. On 23 October 2011, the Player of Country B, Player A (hereinafter: the player), and the Club of Country D, Club C (hereinafter: the club or Club C), signed two employment contracts, related to futsal. 2. The first contract is valid as from 16 October 2011 until 15 March 2012 and provides inter alia for the following payments: - USD 15,000 minus a deduction of 5% of taxes; - USD 8,000 as his last salary with his former club. 3. In addition, art. 4 of the clause “Payment”, stipulated that “[…]Club C had paid a gross amount of 53,000 USD […] to player’s former club [Club E] for releasing the player. This amount is for player’s two season contract: season 2011-2012 and season 2012-2013”. 4. The second contract is valid from 2 July 2012 until 20 March 2013 and provides inter alia for the following benefits: - USD 18,000 minus a deduction of 5% of taxes. This amount can increase up to USD 20,000, depending on the player’s performance; - one round-trip air ticket Country B <> Country D for the player and his wife. 5. Furthermore, the clause “Payment” of the second contract stipulates the following: “2) Player’s salary will be paid to him in three parts: 30% after signing off the contract, 40% after 6 months and 30% after finishing the club’s indoor and outdoor competitions. 3) The paying day will start after passing the medical test”. 6. Finally, art. 6 of the clause “The club commitments” stipulates that: “At the beginning of new sport season, the club will pay the amount of 8,000 USD as the agent’s commission fee for the player’s contract of second year”. 7. On 6 August 2012, the player unilaterally terminated the second contract in writing, alleging that the club failed to pay him the 30% due “upon signature of the contract”, to provide him with return tickets to Country D and to inform him of the start date of the season. In his termination letter, the player further stated that “the club must immediately accept my transfer to another club within 48 hours, since I am without work and without receiving any amount from the month of April 2012.The [club] should also promote the deposit of 48,600 USD, equivalent to 30% of the contract value, in my favour, as determined in the contract”. 8. On 14 December 2012, the player lodged a claim in front of FIFA against the club for breach of contract, requesting the payment of the total amount of USD 89,100, broken down as follows: - USD 48,600 corresponding to “30% of the entire amount of the second contract”; - USD 40,500 considering the contractual violations of the club. 9. In his arguments, the player claims that both contracts were signed by the parties on the same day, in spite of their different durations. As per the player, the first contract was executed by both parties without problems. However, he claims that the 30% of the value of the second contract, due upon signature on 23 October 2011 (cf. point I.5. above), were never paid by the club. 10. The player explains that, during his 4-month holidays between the two contracts, he was contacted by a club in Country B, interested in his services. Such Club of Country B allegedly requested the player’s International Transfer Certificate (ITC) via the Transfer Matching System (TMS), but the Club of Country D rejected the proposal for his transfer. Consequently, the player allegedly contacted the club in order to be informed of the start date of the new season and to request that the club provide him and his wife with return air tickets to Country D. In view of the club’s alleged denial to provide the player with return tickets and of his lack of financial means to purchase his own ticket, the player considered the contract terminated on 6 August 2012 (cf. point I.7. above). 11. In the meantime, the player states to have been informed by friends in Country D that the club had not registered him to participate in the 2012/2013 championship. 12. Equally, the player encloses to his claim a copy of his e-mail to the club dated 14 July 2012 – without a translation into a FIFA language – as well as of the club’s answer to it, on the same date, according to which “Your contract started on 2 July 2012 and today is 14. I sent you an e-mail and you have two options: 1) pay the fine and receive your ITC, 2) purchase your ticket and return to Country D and we will pay you in Country D”. 13. Furthermore, the player claims that his ITC to Country B was eventually issued by the Football Federation of Country D, but the amount requested in his termination letter has not yet been paid and, due to the club’s attitude, his career and his financial situation were damaged. 14. In reply to the player’s claim, the club stated that, at the end of the first season, the player requested the cancellation of the contract, alleging his father was ill, and offered the club the payment of the amount of USD 25,000 as a “fine”. In this regard, the club provided an e-mail of the player dated 16 May 2012, in which he states: “I need an answer asap. I told you that I have 25,000 USD to pay to Club C for my exit. I have an ill father and I don’t want something bad happen in Country B and I hope Club C accept the money that I have because really it’s the only thing that I have and I don’t have more to pay. Think with love about this request”. 15. In this respect, the club claims that it strongly counted on the player’s services and that it had already paid the agent fee of USD 8,000 provided for in the second contract for his next season with the club (cf. point I.6. above). Furthermore, the club sent the player a letter dated 2 August 2012, by means of which it referred to an alleged e-mail of the player dated 31 May 2012 – a copy of which was not provided – and “agreed with your request asking for ITC by paying a net amount of 30,000 USD to this club” within one month. On 16 September 2012, the club contacted the Football Federation of Country B with regard to the player, informing it that, after the issuance of the ITC the player failed to pay the club the amount of USD 25,000 as a “fine” allegedly agreed by the parties. 16. Finally, the club claims that the second contract was only valid after the player passed the medical exams, which he did not undergo for the season 2012/2013. Thus, the club requests FIFA to “help this club regain its rights” and later on indicated that “the amount in dispute reduced to 30,000 USD […]”. 17. In his replica, the player rejected the argumentation of the club and maintained that the player never agreed to pay it an exit fee of USD 30,000 and that the club did not provide any proof of such an agreement. Furthermore, the player denies having sent the club an e-mail on 31 May 2012 (cf. point I.15. above). In addition, the player points out that, should he not have had the intention to comply with the second contract, he would not have requested the club the payment of his due remuneration and the flight tickets to return to Country D by means of his letter dated 6 August 2012 (cf. point I.7. above). 18. Furthermore, the player claims that his alleged e-mail dated 16 May 2012 presented by the club (cf. point I.14. above) is a counterfeit and points out that it was sent from the Address F to Address G, which cannot be identified as the player and the club. 19. The player also maintains that, in accordance with art. 2 of the clause “Payment” of the second contract (cf. point I.5. above) the percentage of 30% is due upon signature of the contract and that, as he had been playing with the club in the previous season, he had consequently passed the medical exam mentioned in art. 3 of the same clause. Based on all the foregoing, the player insists on his claims and rejects any requests made by the club. 20. In its final comments dated 21 September 2014, the club states that “It’s notable that Club C hasn’t had any futsal teams for three seasons and it’s been about one year and half that this club hasn’t’ had any sponsor and has stopped most of its sport activities in Country D”. 21. In spite of having been invited to do so, the intervening party, Club E, did not provide its comments on the substance of the present affair. In its comments, Club E maintains that it does not sign any type of contracts with its players and that it only signed a “license agreement of image rights” with the player, which expired in December 2013. 22. The player informed FIFA that, in August 2012, he concluded a new contract with Club E (cf. points I.3. and I.21. above), valid until December 2013, according to which he was entitled to 13,600. 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 14 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) are applicable to the matter at hand (cf. article 21 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 and par. 2 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 2015) he 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, with the involvement of a Club of Country B. 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 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 14 December 2012, the 2012 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. His competence 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 context, the DRC judge first acknowledged that it was undisputed by the parties that, on 23 October 2011, they had signed two contracts, the first one valid as from 16 October 2011 until 15 March 2012, and the second one valid as from 2 July 2012 until 20 March 2013. 6. In addition, the DRC judge noted that the parties did not dispute that the first contract was executed in its entirety and that the second agreement was considered as unilaterally terminated by the player, in writing, on 6 August 2012. 7. Further to that, the DRC judge noted that, on the one hand, the player claims that, after the end of the first contract, while he was on holidays in Country B, he received an employment offer from a Club of Country B, in view of which he contacted Club C. According to the player, Club C rejected his transfer to Country B. The player further claims to have contacted the club in that regard on 14 July 2012, to which Club C replied on the same day, stating that the second contract was already in force since 2 July 2012 and giving him two options: either to pay a fine and receive his ITC or to purchase his own ticket and return to Country D. In view of the foregoing and of the fact that the amount of USD 48,600 – corresponding to 30% of the value of the second contract, due upon its signature – had allegedly remained unpaid by the club, the player, however, terminated the contract in writing on 6 August 2012. 8. On the other hand, the DRC judge noted that Club C claimed that the second contract was already in force, since it had already paid the relevant agent fee of USD 8,000 (cf. point I.6. above). In spite of having authorised the issuance of his ITC to Country B, Club C had not yet received from the player the fine in the amount of USD 25,000, allegedly due for the unilateral early termination of their contract. In addition, the club deems that the second contract was not valid, as the player had not undergone the medical exams for the 2012/2013 season (cf. point I.5. above). Finally, Club C requests FIFA to “help this club regain its rights” and lodged a counterclaim against the player in the amount of USD 30,000. 9. The intervening party, Club E, limited its comments to a brief explanation of its contractual relationship with the player, as detailed in point I.21. above. 10. In view of the foregoing, the DRC judge deemed that the underlying issue in this dispute, considering the claim of the player, the counterclaim of Club C and the allegations of both parties, was to determine whether the contract had in fact been unilaterally terminated by the player on 6 August 2012 and, if so, whether the latter had had a just cause to do so. 11. Before entering the analysis of the justice of the termination of the contract, the DRC judge deemed it appropriate to refer to the club’s allegations regarding the alleged invalidity of the second contract. In this respect, the DRC judge pointed out that the club, while claiming that the second contract entered into force after the payment of the relevant agent fee, deems that such contract was invalid, as the player had not undergone his medical examination for the 2012/2013 season. In this respect, the DRC judge deemed it appropriate to remind the parties of the Chamber’s well-established jurisprudence, as well as of the wording of art. 18 par. 4 of the Regulations, which clearly stipulates that: “The validity of a contract may not be made subject to a successful medical exanimation and/or the grant of a work permit”. Bearing in mind the foregoing, as well as the undisputed fact that the second contract was voluntarily concluded by the player and Club C, the DRC judge concluded that the second contract was valid and, thus, not conditioned to the passing of a medical examination. 12. Having established the aforementioned, the DRC judge proceeded to the analysis of the arguments and the corresponding documentation provided by the parties. At this point and for the sake of good order, 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 from an alleged fact shall carry the respective burden of proof. 13. In this respect, the DRC judge first noted that both parties have failed to provide substantial evidence of most of their allegations, the veracity of which was disputed by the counterparty. In particular, the DRC judge noted that no irrefutable proof was provided of the actual existence of player’s e-mails of 14 July 2012 (cf. point I.12. above), 16 May 2012 (cf. points I.14. and I.18. above) and 31 May 2012 (cf. point I.15. above), or of the development of the negotiations regarding the player’s transfer to Country B (cf. points I.10., I.13. and I.15. in fine above). 14. From the information on file, which was substantially evidenced or remained undisputed by the parties, the DRC judge could conclude the following: while on holidays, between the end of the first and the start of the second contract, the player received an offer from a club in Country B, for which he demonstrated interest. On 6 August 2012, while still in Country B, the player terminated the contract with Club C in writing, alleging that he was not provided an air ticket to return to Country D, not informed of the new season’s start date and not paid the amount of USD 48,600. The club, from its side, does not contest having failed to pay the player the amount of USD 48,600 or not having provided him with a return ticket. It also confirmed to agree to the player’s early release from his contractual obligations, as long as a fine were paid to it. 15. In this context, the DRC judge first noted that from the player’s own argumentation, it is clear that his original intention was to accept the employment offer of the Club of Country B, which he eventually communicated to Club C. Apparently not having obtained the club’s immediate authorisation, the player sent Club C the letter of 6 August 2012, by means of which he, while terminating their employment relationship and requesting the club’s immediate acceptance of his transfer to Country B, mentions for the first time – in accordance with the documentation on file – the existence of an outstanding amount of USD 48,600, as well as the club’s failure to provide him with return flight tickets and to the inform him of the start date of the 2012/2013 season. With regard to this last point, the DRC judge was eager to point out that the start date of the second contract was clearly stipulated therein – i.e. 2 July 2012 – and equally pointed out by the club in its e-mail of 14 July 2014 (cf. point I.12. above), the receipt of which remained uncontested by the player. 16. Notwithstanding the foregoing, the DRC judge also noted from the club’s allegations that it does not contest that the amount of USD 48,600 in fact remained unpaid and that the player was indeed not provided with a return flight ticket in order to resume his activities with the club in Country D on 2 July 2012. The second contract clearly provides that it is the club’s responsibility to provide the player with a flight ticket. 17. In view of all the foregoing considerations, the DRC judge was satisfied in his conclusion that neither the player was interested in continuing to render his services to Club C, nor was the latter genuinely interested in keeping the player’s services. Thus, the DRC judge was lead to conclude that none of the parties was in fact interested in maintaining their contractual relationship and that termination of the contract should rather be considered as the result of a tacit, mutual consent of the parties. 18. In spite of the aforementioned, the DRC judge was eager to emphasize that he must still verify whether any amounts contractually agreed upon by the parties have remained outstanding at the moment the player terminated the contract. In this respect, the DRC judge first referred the parties to the considerations made in point II.11. above, pertaining to the validity of the second contract. In continuation, the DRC judge noted that the second contract bears the date of 23 October 2011. Furthermore, he referred to point I.5. above and noted that, according to the wording of the second contract, 30% of its value was payable to the player “after signing off the contract”. Moreover, the DRC judge noted that, as per the second contract, the player was entitled to a monthly salary of USD 18,000 (cf. point I.4. above) for a duration of approximately 9 months. Finally, the DRC judge noted that the club does not dispute the non-payment of the amount requested or the calculation made by the player. 19. Thus, taking into consideration the player’s claim as well as the reasons previously exposed, the DRC judge concluded that, in accordance with the general legal principle of pacta sunt servanda, the club must fulfill its obligations as per the second employment contract concluded with the player and, consequently, is to be held liable to pay outstanding remuneration to him in the total amount of USD 48,600, corresponding to 30% of the value of the second contract, payable on the date of its signature, i.e. 23 October 2011. 20. In addition, the DRC judge concluded that the player’s claim for the amount of USD 40,500 for the “contractual violations of the club” must be rejected, due to the reasons expressed in point II.17. above. 21. The DRC judge concluded his deliberations in the present matter by establishing that the claim of the player is partially accepted and that the counterclaim of the club is rejected. III. Decision of the DRC judge 1. The claim of the Claimant/Counter-Respondent, Player A, is partially accepted. 2. The Respondent/Counter-Claimant, Club C, is ordered to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 48,600. 3. If the aforementioned amount is not paid within the above-mentioned time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further claim lodged by the Claimant/Counter-Claimant is rejected. 5. The counterclaim of the Respondent/Counter-Claimant 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: Markus Kattner Deputy Secretary General Encl. CAS directives