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 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, 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 (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 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, 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 an unspecified date, the player from country B, Player A (hereinafter: the Claimant) and the club from country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid as of 15 August 2013 until 30 June 2014. 2. According to the contract, the Claimant was entitled to receive a gross monthly salary of 25,178 payable on the 15th day of the following month. 3. Art. 18.1 of the contract provides that “any disputes regarding the inappropriate fulfilment or non-fulfilment of the obligations assumed by the parties according to the present contract shall be solved amicably. In case such a solution is not possible, the parties have the right to call upon the bodies that have juridical powers of Football Federation of country D/Football Association of country D, according to the provisions of Football Federation of country D’s/Football Association of country D’s Statute and Regulations and, or to address the common law courts in order to get a solution”. 4. On 9 September 2014, the Claimant lodged a claim against the Respondent requesting to be awarded with EUR 17,098, corresponding to outstanding salaries for April, May and June 2014, plus 5% interest p.a. until the date of effective payment as follows: - 5% p.a. as of 30 April 2014 on the amount of EUR 5,653.40; - 5% p.a. as of 31 May 2014 on the amount of EUR 5,721.43; - 5% p.a. as of 30 June 2014 on the amount of EUR 5,723.17. 5. In its response to the claim, the Respondent first contests the competence of FIFA, alleging that the “sports jurisdiction authorities of country D” are competent to deal with the present matter. In support of its assertion, the Respondent refers to art. 25.5 of the 2014 Regulations on the Status and Transfer of Players of the Football Federation of country D (hereinafter: the Regulations of the Football Federation of country D), according to which “the litigations resulting from or in connection to the football activity from country D which involves affiliated clubs and their officials, (…) players, (…) are going to be solved exclusively by Jurisdictional Panels of the Football Federation of country D. These provisions exclude, as regards all litigations arising out of the sports activity, the competence of the courts of law, except for the litigations arising out of the interpretation and performance of civil or labor agreements concluded between the players and clubs (…). In these exceptional cases, the competence belongs, as foreseen in the labor agreement / civil convention, to the jurisdictional panels or the courts of law”. In continuation, the Respondent outlines that art. 26 of the Regulations of the Football Federation of country D provides that “according to Regulations of the Football Federation of country D, depending on the matter, the jurisdiction for dispute resolution goes to the specialized Football Federation of country D/Professional Football League of country D/Football Association of country D committees” and that “the National Dispute Resolution Chamber (NDRC) is competent to settle cases related to: the conclusion, interpretation and execution of contracts between clubs and players, as well as maintaining the contractual stability” (art. 26.2.a). 6. As to the substance, the Respondent first stresses that the Claimant was entitled to receive a total net remuneration of 198,344 as per the contract. The Respondent further explains that on 6 March 2014, its Board of Directors decided to reduce the Claimant’s annual gross salary by 24%, i.e. a reduction of 63,592 or approximately three monthly salaries, as disciplinary sanction due to his misbehaviour towards several of its members. In this respect, the Respondent emphasises that the Claimant was invited to attend the meeting of the Board of Directors but refused to do so. In view of the above, and considering that it paid a net amount of 138,036 to the Claimant, the Respondent concludes that it complied with all its contractual obligations. 7. In his replica, the Claimant first highlights that the Respondent refers to the “sports jurisdiction authorities of country D” rather than to a specific body. Moreover, the Respondent stresses that the FIFA DRC has not yet recognised any arbitration tribunal in country D as complying with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations). 8. Furthermore, the Claimant insists that his monthly salary was of 25,178. In continuation, the Claimant asserts that he was not informed of the disciplinary proceedings opened against him and the decision was never notified to him. In addition, the Claimant outlines the disproportionality of the sanction, i.e. a fine corresponding to three monthly salaries, compared to the alleged misbehaviour, i.e. an insult to a Respondent’s officer. 9. In its final comments, the Respondent reiterates its arguments as to the competence of the “jurisdictional bodies of the Football Federation of country D” to deal with the matter at stake. In particular, the Respondent highlights the content of art. 43.2 of the Football Federation of country D Statutes according to which “the National Dispute Resolution Chamber is an impartial and independent arbitral tribunal, made in conformity with FIFA provisions”. Equally, the Respondent points out that “the committees with jurisdictional attributes are independent in the decision-making process” (art. 23.8 of the Football Federation of country D Statutes) and that “after their appointment, the members of NDRC (…) are independent from those who appointed them, any interference in their activity being prohibited” (art. 26.6.3 of the Regulations of the Football Federation of country D). In this regard, the Respondent stresses that the Court of Arbitration for Sport has confirmed on many occasions the compliance of the Football Federation of country D bodies with the principles set in art. 22 lit. b) of the Regulations. 10. As far as the substance is concerned, the Respondent asserts that the Claimant was entitled to receive a gross monthly salary of 25,178, which is allegedly equivalent to 18,867 net. 11. Finally, the Respondent alleges that the Claimant was informed of the disciplinary proceedings and was formally served the sanction. In this regard, the Respondent explains that on 10 March 2014, the Claimant refused to receive the decision that was notified to him by hand; however, the Respondent sustains that he was informed verbally of its content. Additionally, the Respondent also maintains that on 30 October 2014 and on 17 December 2014, the decision was forwarded via DHL to his adress from country B; however, the Respondent specifies that correspondence could not be delivered to him since he was not found at the aforementioned address. II. Considerations of the DRC judge 1. First 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 9 September 2014. Consequently, the DRC judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. With regard to the competence of the DRC judge to decide on the present matter, 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA to deal with the present case, stating that in accordance with art. 18.1 of the contract, any dispute arisen between the parties should be submitted to the “jurisdictional bodies of the Football Federation of country D”. 4. The DRC judge equally noted that the Claimant rejected such position and insisted that FIFA had jurisdiction to deal with the present matter. 5. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the FIFA Regulations, he 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 DRC judge referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. While analysing whether he was competent to hear the present matter, the DRC judge considered that he should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause. 7. Having said this, the DRC judge turned his attention to art. 18.1 of the contract, which stipulates that “any disputes regarding the inappropriate fulfilment or nonfulfilment of the obligations assumed by the parties according to the present contract shall be solved amicably. In case such a solution is not possible, the parties have the right to call upon the bodies that have juridical powers of Football Federation of country D/Football Association of country D, according to the provisions of Football Federation of country D’s/Football Association of country D’s Statute and Regulations and, or to address the common law courts in order to get a solution”. 8. Hence, the DRC judge outlined that the content of the relevant article is not clear and that said clause does not explicitly refer to the competent national dispute resolution chamber or similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations but it actually refers to several different entities. Therefore, the Claimant was not in a position to know at the moment of signing the contract to which body the potential disputes related to his employment relationship were to be submitted. In this regard, the DRC judge pointed out that this lack of clarity is also reflected in the Respondent’s argumentation since it refers to the alleged competence of the “jurisdictional bodies of the Football Federation of country D” (emphasis added). 9. 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 DRC judge deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body. 10. In view of the above, the DRC judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that he 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. 11. 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. 12. Subsequently, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2015) and considering that the claim in front of FIFA was lodged on 9 September 2014, the 2014 edition of said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance. 13. 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 to acknowledge the facts of the case as well as the documents contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 14. In this respect, the DRC judge acknowledged that the parties had signed an employment contract valid as of 15 August 2013 until 30 June 2014, in accordance with which the player was entitled to receive a gross monthly remuneration of 25,178. 15. In continuation, the DRC judge noted that the Claimant alleged that the Respondent had failed to pay the outstanding amount of EUR 17,098, i.e. 75,534, corresponding to his monthly salaries for April, May and June 2014. 16. Equally, the DRC judge took note of the reply of the Respondent, which asserted that the Claimant was actually entitled to receive a total net remuneration of 198,344. In view of the foregoing, the DRC judge noticed that the Respondent considers having complied with its financial obligations, since it paid the Claimant the net amount of 138,036 and imposed on him a fine of 63,592 due to his misbehaviour. 17. In this respect, 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 on the basis of an alleged fact shall carry the respective burden of proof. 18. Accordingly, the DRC judge noted that the Respondent did not substantiate its defence, as it did not present any evidence in respect of the payment of 138,036 it sustained to have paid. 19. Successively, and regarding the Respondent’s assertion that the Claimant’s gross monthly salary is equivalent to 18,867 net, the DRC judge reminded the parties that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German). Bearing in mind the wording of the aforementioned provision, the DRC judge concluded that the translations of the documentation provided by the Respondent without the original version could not be taken into account. Consequently, the members of the DRC deemed that no substantial evidence was provided by the Respondent in this regard. 20. In continuation, the DRC judge addressed the issue of the fine imposed on the Claimant. In this respect, the DRC judge referred one more time to art. 12 par. 3 of the Procedural Rules and held that the Respondent did not submit any evidence proving that the Claimant had actually behaved unprofessionally. In any case, the DRC judge stressed that should the facts reproached to the Claimant have been proven, quod non, a fine of 63,592, i.e. almost three monthly salaries, would be disproportionate. Finally, the DRC judge deemed it useful to point out that all the documents submitted by the Respondent as proof of the alleged notification of the disciplinary sanction, contain a date subsequent to the date of notification of the Claimant’s claim. 21. In view of the above, the DRC judge concluded that the Respondent has not provided evidence of its defence and that, therefore, it could be established that the Respondent had failed to pay to the Claimant an amount of 75,534 corresponding to the Claimant’s salaries for April, May and June 2014. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of 75,534 to the Claimant. 22. With regards to the claimed interests, the DRC judge, considering that the monthly salaries were to be paid by the 15th day of the following month, decided that the Respondent had to pay default interest at a rate of 5% as follows: a. 5% p.a. as of 16 May 2014 on the amount of 25,178; b. 5% p.a. as of 16 June 2014 on the amount of 25,178; c. 5% p.a. as of 16 July 2014 on the amount of 25,178. 23. Finally, the DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is admissible 2. The claim of the Claimant is partially accepted. 3. 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 75,534 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 16 May 2014 on the amount of 25,178; b. 5% p.a. as of 16 June 2014 on the amount of 25,178; c. 5% p.a. as of 16 July 2014 on the amount of 25,178. 4. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned point 3 is not paid by the Respondent 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 is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the 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 Acting Secretary General Encl. CAS directives