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 13 August 2015, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Mario Gallavotti (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 partie

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 13 August 2015, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Mario Gallavotti (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 1 July 2012, 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 the date of its signature until 30 June 2013. 2. According to the contract, the Claimant was entitled to receive from the Respondent inter alia as follows: a. EUR 15,000 on 15 July 2012; b. EUR 7,000 as monthly salary “for August 2012 – May 2013” payable “on the 9th of the next month”; c. “Game bonus according to Internal Regulations of the club”. 3. Moreover, the contract provided the following: “In case that the team, at the end of the competitive season 2012-2013 shall be placed on a position that allows it to participate in Europa League, the player shall receive EUR 15,000 if he played 22 games as a titular in that championship edition and EUR 15,000 in case that the team is qualified in Europe League”. 4. In addition, clause VII of the contract stipulated the following: “The parties undertake not to refer to any law court for the settlement of the litigations until after finishing all the methods of the court of jurisdiction of Football Federation of country D, LPF (…) The litigation arising from the execution of the present agreement shall be settled following the procedural order: a) Amiable way; b) by bringing the litigation before the court of jurisdiction of Football Federation of country D, LPF”. 5. According to the Claimant, on 17 May 2013, the Respondent and the “captains of the team” entered into a “Acta Adicional” (hereinafter; the bonus agreement) whereby it was agreed that, in case the team qualifies to the Europa League at the end of the season 2012/2013, the Respondent would pay all the team’s players a bonus of EUR 1,000 per point earned, payable 50% “during the championship” and 50% at the “end of the championship”. 6. On 10 October 2014, the Claimant lodged a claim against the Respondent in front of FIFA requesting the total amount of EUR 74,000 comprised of the following: a. EUR 7,000 as outstanding salary of April 2013; b. EUR 7,000 as outstanding salary of May 2013; c. EUR 15,000 as “bonus for finishing the club in a place that allowed it to participate in the Europa League”; d. EUR 15,000 as “bonus for qualifying to the Europa League”; e. EUR 30,000 as “50% bonus per each point earned (EUR 1,000 x 60 points)”. 7. In particular, the Claimant explained that in the season 2012/2013, the Respondent finished 4th in the championship of country D, which allowed it to participate in the play-off rounds of the Europa League 2013/2014, where it was defeated by the club, Club E, failing thereby to qualify to the group stage. Moreover, the Claimant stressed that during the season 2012/2013, out of 34 matches, he participated in 26. 8. In addition, the Claimant stressed that the Respondent failed to pay him his salaries of April and May 2013 as well as 50% of the bonus payable by the end of the season in accordance with the bonus agreement. 9. On account of the above, the Claimant stressed that the Respondent must pay him the claimed amounts. 10. In its reply to the claim, the Respondent firstly questioned the competence of FIFA to adjudicate on the present matter. According to the Respondent, in view of clause VII of the contract “there is no legal argument that can lead to an interpretation according to which the FIFA jurisdictional bodies would have competence in solving the present litigation”. In this respect, the Respondent sustained that “within the Football Federation of country D (…) and the Professional Football League (…) are functioning independent jurisdictional commissions that, according to the regulations, have fully and exclusive competence to hear any dispute or litigation arising between the clubs in country D and the player under contract with them”. 11. Having been requested by FIFA to provide documentary evidence that there exists an independent arbitration tribunal on national level, the Respondent enclosed partial copies of the “Statute of the Football Federation of country D” and of the “Rules on Football Players’ Statute and Transfer” (editions 2011). 12. As to the substance of the matter, the Respondent firstly stressed that “apart from the contract signed on 1 July 2012 (…) no other agreement was signed [between the parties]. The allegations according to which there was another agreement that entitled the player to receive a bonus of EUR 1,000 for each point won by the team in the 2012-2013 internal championship are untrue. We are not aware of the existence of such agreement…”. The Respondent further argued that “should the player insist on the existence of such agreement, he is obliged to prove its existence and contents, by presenting the original in front of the Chamber and, of course, to our club, in order for us to be able to present our point of view”. 13. Moreover, the Respondent asserted that it had paid to the Claimant all his salaries, including April and May 2013 as well as the bonus of EUR 15,000 for the team having finished the 2012/2013 championship of country D in a position which allowed it to participate in the Europa League. In this respect, the Respondent provided the following payment breakdown along with the respective payment receipts: Date Doc. No. Amount 06.08.2012 M.O. 614bis EUR 10,000 11.09.2012 M.O. 660 EUR 900 24.09.2012 M.O. 720 EUR 7,000 06.11.2012 M.O. 828 EUR 8,700 09.11.2012 M.O. 78 EUR 2,850 23.11.2012 M.O. 109 EUR 4,800 29.11.2012 M.O. 147 EUR 2,350 06.12.2012 M.O. 865 EUR 7,000 07.12.2012 M.O. 885 EUR 7,000 14.12.2012 M.O. 915 EUR 3,800 25.01.2013 M.O. 32 EUR 7,000 28.01.2013 M.O. 67 EUR 7,000 19.02.2013 P. order EUR 500 05.03.2013 M.O. 87 EUR 7,000 29.03.2013 M.O. 193 EUR 1,850 16.04.2013 M.O. 104 EUR 3,600 29.04.2013 M.O. 140 EUR 1,900 20.05.2013 M.O. 173 EUR 7,000 21.05.2013 M.O. 198 EUR 7,000 14.10.2013 M.O. 99 EUR 2,750 TOTAL EUR 100,000 14. As to the bonus for qualifying to the Europa League, the Respondent highlighted that “the player himself asserts the team was eliminated in the play-offs”. Therefore, according to the Respondent, the condition in order for the Claimant to be entitled to said bonus was not met. 15. In his replica and as to the alleged lack of competence of FIFA’s DRC to entertain his claim, the Claimant argued that the Respondent’s position must be rejected in view of two reasons, i) clause VII of the contract does not refer to a specific national body but merely to the “court of jurisdiction of Football Federation of country D, LPF” and ii) in any case, from the documentation enclosed by the Respondent, it can be noted that the Dispute Resolution Bodies of the Football Federation of country D and of the Professional Football League of country D do not comply with the requirements established neither in art. 22 b) of the Regulations on the Status and Transfer of Players nor in the FIFA circulars 1010 and 1129. 16. As to the bonus agreement, the Claimant argued that the contract provided that he would be entitled to “Game bonus according to Internal Regulations of the club”. In this respect, the Claimant asserted that the bonus of EUR 1,000 per each point earned was, initially, only verbally agreed, however, thereafter the bonus agreement was signed. 17. Furthermore, the Claimant stressed that he does not have an original copy of the bonus agreement since it was concluded by the captains of the team. Nevertheless, the Claimant argued that from the documentation provided by the Respondent, it can be noted that it made payments related to said document, in particular, the following: Date Amount 29.11.2012 “EUR 500” 06.11.2012 “EUR 3,700”. In this respect, the Claimant stressed that the remaining EUR 5,000 corresponded to “the outstanding amount of the payment due on 15 July 2012” (cf. point 13, table row 4) 09.11.2012 EUR 2,850 23.11.2012 EUR 4,800 29.11.2012 EUR 2,350 14.12.2012 EUR 3,800 19.02.2013 EUR 500 29.03.2013 EUR 1,850 16.04.2013 EUR 3,600 29.04.2013 EUR 1,900 14.10.2013 EUR 2,750 Total EUR 28,600 18. In this respect, the Claimant sustained that the above-mentioned amounts sum up “EUR 29,000” corresponding to 50% of the agreed bonuses. According to the Claimant, in view of the fact that the Respondent finished the championship with 60 points, the remaining 50% is outstanding, i.e. “EUR 31,000”. 19. On account of the above, the Claimant stressed that whereas he should have received in the 2012/2013 season the amount of “EUR 160,000”, the Respondent only proved payments for the amount of EUR 100,000. Therefore, the Claimant amended his claim as follows: a. EUR 14,000 as outstanding salaries of April and May 2013; b. EUR 31,000 as bonuses in accordance with the bonus agreement; c. EUR 15,000 “as bonus for finishing the club in a place that allowed it to participate in the Europa League”. 20. Despite having been asked to do so, the Respondent did not provide any further comments. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or the DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 10 October 2014. Consequently, the 2014 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter; Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an player from country B and a club from country D. 3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that any dispute arisen between the parties should be submitted to the deciding bodies of the Football Federation of country D and of the Professional Football League of country D. 4. The Chamber equally noted that the Claimant rejected such position and insisted on the fact that FIFA had jurisdiction to deal with the present matter, firstly because clause VII of the contract does not refer to a specific national body but merely to the “court of jurisdiction of Football Federation of country D, LPF” and secondly since the deciding bodies of the Football Federation of country D and the Professional Football League of country D allegedly do not respect the principle of equal representation of players and clubs and cannot provide for fair proceedings. 5. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the Regulations, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber 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. Along these lines, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal derives from a clear and exclusive arbitration clause in the employment contract. 7. Having said this, the members of the Chamber turned their attention to clause VII of the contract, which stipulates that “The parties undertake not to refer to any law court for the settlement of the litigations until after finishing all the methods of the court of jurisdiction of Football Federation of country D, LPF (…) The litigation arising from the execution of the present agreement shall be settled following the procedural order: a) Amiable way; b) by bringing the litigation before the court of jurisdiction of Football Federation of country D, LPF”. In this respect, the members of the DRC observed that said clause does not make a clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the Regulations, but merely refers to the “court of jurisdiction of Football Federation of country D, LPF”. 8. Consequently, the Chamber was of the unanimous opinion that clause VII of the contract can by no means be considered as a clear and exclusive arbitration clause in favour of any national-deciding body. In this regard, the Chamber pointed out that this lack of clarity is also reflected in the Respondent’s argumentation since it refers to the alleged competence of the deciding bodies of both the Football Federation of country D and Professional Football League of country D, without further precision. 9. Having established that the first criterion for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points which would need to be assessed before accepting the competence of a national-deciding body. 10. In view of all the above, the DRC concluded that, in line with its constant jurisprudence, in particular in view of the absence of a clear and exclusive arbitration clause in the contract, the Respondent's objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 11. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 10 October 2014, the 2014 edition of said regulations (hereinafter; the Regulations) is applicable to the matter at hand as to the substance. 12. The competence of the Chamber and the applicable regulations having been established and entering into the substance of the matter, the Chamber continued its acknowledgment of the above-mentioned facts as well as of 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 substance of the matter at hand. 13. First of all, the Chamber acknowledged that on 1 July 2012, the parties concluded an employment contract valid until 30 June 2013 whereby the Respondent undertook to pay to the Claimant inter alia EUR 15,000 on 15 July 2012, EUR 7,000 as monthly salary payable as of August 2012 until May 2013 as well as “Game bonus according to Internal Regulations of the club”. 14. Equally, the Chamber took note that the contract stipulated the following payments to be made to the Claimant: a. EUR 15,000 in case the Respondent finishes the 2012/2013 championship of country D in a position which allows it to participate in the Europa League and; b. EUR 15,000 in case the Respondent qualifies to the Europa League. 15. Furthermore, the Chamber took note that, according to the Claimant, on 17 May 2013, the Respondent and the “captains of the team” entered into a bonus agreement whereby it was agreed that, in case the team would qualify to the Europa League at the end of the 2012/2013 season, the Respondent would pay to the team’s players the amount of EUR 1,000 per point earned, payable 50% “during the competition” and 50% “at the end of the competition”. The Chamber further noted that the Claimant argued that such bonus payments were initially only verbally agreed however, as the Respondent always delayed the relevant payment, the bonus agreement had to be signed. 16. Having said this, the Chamber focused its attention on the claim of the Claimant who, after amending his initial claim, requested EUR 14,000 as outstanding salaries of April and May 2013, EUR 31,000 in accordance with the bonus agreement as well as EUR 15,000 since the Respondent finished the 2012/2013 championship of country D in a position which allowed it to participate in the Europa League. 17. With the aforementioned considerations in mind, the DRC wished to refer, in the first place, to the bonus agreement. In this respect, it observed that, whereas the Respondent disputed its existence, the Claimant insisted that the bonus payments contained therein were initially verbally agreed and that thereafter the bonus agreement was signed. 18. At this point, the DRC deemed it appropriate to remind the parties of the legal 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. In casu, this means that the Claimant bears the burden of demonstrating the existence of the bonus agreement. Also, the DRC wished to point out that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signatures or documents, and that such affairs fall into the jurisdiction of the competent national criminal authorities. Finally, the Chamber stressed that all documentation remitted shall be considered with free discretion. 19. Along these lines, the members of the Chamber emphasised that the Claimant expressly admitted being unable to provide the relevant agreement in its original form. Therefore, the Chamber held that the fact that the Claimant had only submitted a copy of the disputed bonus agreement was insufficient to establish its existence. 20. Nevertheless, the Chamber duly noted that in order to prove his allegations concerning the existence of the bonus agreement, the Claimant argued that the Respondent made several payments in accordance with said document, in particular, the payments described in point I./17. ut supra. 21. In this respect, the Chamber considered that the mere allegation that the relevant payments were made based on the bonus agreement is insufficient in order to proof its existence. Even more, taking into consideration the amounts of the payments as well as the date on which they were made, which do not appear to be consistent with the manner in which the bonuses were supposed to be paid. Therefore, the Chamber was of the unanimous opinion that the evidence and arguments presented by the Claimant were insufficient in order to prove with certainty that the bonus agreement was, in fact, concluded and executed. 22. In view of all the foregoing considerations, the members of the Chamber unanimously decided not to take into account the bonus agreement and to reject thus the claim of the Claimant based on said document. 23. Having established the above and in relation to the remaining part of the Claimant’s claim, the members of the Chamber proceeded to first establish the total amount to which the Claimant was entitled according to the employment contract. In this respect, the DRC observed that the Claimant was entitled to the total amount of EUR 100,000 comprised of EUR 15,000 payable on 15 July 2012, EUR 70,000 as salaries as well as EUR 15,000 as bonus for the Respondent having finished in a position which allowed it to participate in the Europa League. 24. With the above in mind, the members of the Chamber noted that the Respondent submitted payment receipts for the total amount of EUR 100,000. What is more, the Claimant expressly acknowledged having received from the Respondent EUR 100,000. 25. On account of all the aforementioned considerations, the Chamber came to the unanimous conclusion that the Respondent had effectively paid to the Claimant all the amounts to which he was entitled in accordance with the contract and decided thus to reject the claim of the Claimant in its entirety. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A is admissible. 2. The claim of the Claimant is rejected. ***** Note relating to the motivated decision (legal remedy): According to article 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