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 2 September 2015, by Philippe Diallo (France), 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 (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 2 September 2015, by Philippe Diallo (France), 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 18 July 2012, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded a “football player’s agreement” (hereinafter: the first contract), valid as of the date of signature until 31 May 2013 or “the date of the last League or Cup match of the Club’s first team, whichever is the later unless [the first contract] shall be terminated by substitution of a revised agreement or as hereinafter provided”. 2. Pursuant to the first contract, the Claimant was entitled to receive the following remuneration and benefits: - EUR 40,000 net payable “in ten equal monthly instalments, with 45 days period of grace, starting from 31 August 2012”; - EUR 600 per month as accommodation allowance; - A car; - Two economy class round air tickets Country D-Country B for him and his wife. 3. Art. 36 of the first contract stipulates that “this agreement is to be governed by Law/or Rules of country D of the Football Association of country D and Football Association of country D’s committees shall have exclusive jurisdiction to adjudicate on any dispute”. 4. On 19 July 2012, the parties concluded another “football player’s agreement” (hereinafter: the second contract), valid as of the date of signature until 31 May 2013 or “the date of the last League or Cup match of the Club’s first team, whichever is the later”. 5. Pursuant to the second contract, the Claimant was entitled to receive a net annual salary of EUR 20,000 payable “in ten equal monthly instalments, with 45 days period of grace, starting from 31 August 2012”. 6. In addition, art. 28 of the second contract provides that “all previous Agreements between the [Respondent] and the [Claimant] are hereby cancelled”. 7. Furthermore, art. 33 of the second contract contains the same stipulation as art. 36 of the first contract (cf. point 3 above). 8. On 25 October 2014, the Claimant lodged a claim in front of FIFA against the Respondent, requesting to be awarded with the amount of EUR 38,519.22, plus 5% interest as of each due date, as outstanding remuneration. 9. In his claim, the Claimant first of all asserts that the Football Association of country D has not yet established an arbitration tribunal complying with art. 22 lit. b) of the Regulations on the Status and Transfer of Players and therefore, the dispute falls under the jurisdiction of the FIFA DRC. 10. In continuation, the Claimant explains that in July 2012, the Respondent insisted on the signature of two contracts: an employment contract, i.e. the first contract, and a supplementary agreement, i.e. the second contract. In this regard, the Claimant stresses that in the 2011-12 season, the parties had already signed two contracts and that the Respondent complied with both contracts. The Claimant further sustains that the Respondent resorted to the signature of two contracts for licensing reasons. Indeed, according to the Claimant, the Respondent only registered the second contract at the Football Association of country D and therefore the Respondent merely had to prove to the Football Association of country D Licensing Administration its compliance with the payment of EUR 20,000 as salary. 11. In view of the above, the Claimant alleges that for the 2012-13 season, both contracts were in force and he was thus entitled to receive an amount of EUR 66,000. In support of his assertions, the Claimant submitted receipts of payments evidencing that for the 2012-13 season, he had received the amount of EUR 28,600, whereas he would only have been entitled to EUR 20,000, should the second contract be the sole in force. In this regard, the Claimant makes the following observations: - He received EUR 13,600 until 6 October 2012, whereas the second contract only provided for a remuneration of EUR 4,000 until that date. According to the Claimant, this amount corresponds to his salaries and housing allowances for August and September 2012 plus EUR 400 as housing allowance for October 2012; - He received EUR 21,600 until 27 December 2012, whereas the second contract only provided for a remuneration of EUR 10,000 until that date. - After 27 December 2012, the Respondent made two other payments of a total of EUR 8,000, whereas it had already paid more than EUR 20,000 as stipulated in the second contract; - On 28 September 2012, the Respondent made a payment of EUR 600 “for rent”, whereas the second contract does not provide for such allowances. 12. In continuation, the Claimant points out that he concluded a tenancy agreement for a monthly rent of EUR 750, of which EUR 600 should have been paid by Respondent in accordance with the first contract. However, the Claimant asserts that since the Respondent failed to pay its part, he had to pay the rents out of his own pocket. 13. Finally, the Claimant claims the reimbursement of the amount of 891.08, i.e. “EUR 1,119.22”, that he incurred to buy flight tickets. 14. In its response to the claim, the Respondent first of all contests the competence of FIFA, alleging that the DRC of the Football Association of country D (hereinafter: the Football Association of country D NDRC) should be the competent body to deal with the matter. In support of its allegation, the Respondent submitted a translated copy of the 2012 edition of the Football Association of country D Regulations on the Status and Transfer of Players (hereinafter: the Football Association of country D Regulations). 15. According to art. 22.1 lit. a) of the Football Association of country D Regulations, the Football Association of country D NDRC is competent to deal with disputes “between clubs and non amateur players regarding the employment and stability in their contractual relationship”. The Football Association of country D Regulations further stipulates that “the [Football Association of country D NDRC] shall consist of five members and more specifically of the Chairman, ViceChairman and of three members” and that “the Chairman, Vice-Chairman and one member of the [Football Association of country D NDRC] shall be elected by the Executive Committee of the Association and two members shall be elected by the Football Player’s Association of country D. The election procedure must be approved by the Football Association of country D” (art. 22.1.1 and 22.1.3). In addition, art. 22.30 specifies that the decision are taken by simple majority with a casting vote for the Chairman in case of equality, and art. 22.35 provides for a possibility to appeal the decisions of the Football Association of country D NDRC before the Court of Appeal of the Football Association of country D “as a last solution”. 16. As to the substance, the Respondent explains that after the signature of the first contract, the parties undertook new negotiations and reached a new agreement, i.e. the second contract, on 19 July 2012. In this regard, the Respondent acknowledges that the negotiations were not conducted exclusively with the Claimant but always in presence of his agent. The Respondent further stresses that the second contract constitutes a new contract, replacing the first contract in accordance with its art. 28, and not a supplementary agreement. The Respondent also specifies that only the second contract was registered at the Football Association of country D. 17. In continuation, the Respondent asserts that the Claimant has never complained about any lack of payment before lodging his claim in October 2014. In this respect, the Respondent declares that it paid an amount of EUR 49,000 to the Claimant for the 2012-13 season, broken down as follows: - EUR 20,000 as salaries; - EUR 9,000 as rent; - EUR 1,119.22 as flight tickets; - EUR 18,880.78 as special bonuses and car rental. Regarding the payments related to the rent, the flight tickets and the car, the Respondent emphasises that although these benefits were not stipulated in the second contract, it decided to provide the Claimant with them. In addition, the Respondent maintains that it paid bonuses to the Claimant at its discretion either as a reward for a good performance or as an incentive for upcoming games. 18. In his final comments, the Claimant reiterates that the Football Association of country D NDRC does not comply with the Regulations, in particular with the criterion of equal representation. 19. The Claimant further repeats that the second contract was presented to him as a supplementary agreement and questions why would he have accepted to renounce to a contract entitling him to a salary of EUR 40,000 plus several benefits in order to conclude a contract only providing for a remuneration of EUR 20,000 with no other benefits. In addition, the Claimant alleges that many other players faced the same issue but, unlike him, waived part of their rights in order to find a settlement agreement with the Respondent. Moreover, the Claimant highlights that the Respondent’s acknowledgement of payments related to rents and flight tickets constitutes a proof of the validity of the first agreement. The Claimant eventually rejects the Respondent’s assertion as to the non-registration of the first contract, stressing that in accordance with the DRC jurisprudence, the validity of a contract cannot be made subject to the fulfillment of administrative formalities. 20. In continuation, the Claimant asserts that the agent that conducted the negotiations had no power to represent him. 21. Furthermore, the Claimant outlines that since the summer 2013, he has been requesting his dues from the Respondent. Regarding these dues, the Claimant, apart from outlining that the payment receipts submitted by the Respondent do not sum up to EUR 49,000, points out that the Respondent, in its reply, acknowledged that he was entitled to EUR 18,880.78 as bonuses. Accordingly, the Claimant amended his claim and requested to be awarded with EUR 57,400. 22. After the closure of the investigation, the Respondent submitted its final comments. Apart from reiterating its previous argumentation, the Respondent points out that Claimant’s situation is different from the one of the other players he referred to in his replica and also outlines that the statement made by the Football Player’s Association of country D should be disregarded since it has the same legal representative as the Claimant. The Respondent also adds that although the second contract does not provide for benefits, the payment of such benefits is provided by the Respondent’s internal regulations, and is, in any case, a matter to be decided by the Board of Directors. Finally, the Respondent submitted cheques and payments receipts evidencing that an amount of EUR 102,900 was paid to the Claimant between 16 September 2011 and 10 May 2013. 23. In his comments as to the late submission of the Respondent, the Claimant first emphasises the incoherence of the Respondent’s position, which insists that his salary for the 2011-12 and 2012-13 seasons amounted to EUR 20,000, but then submitted documents evidencing that an amount of EUR 101,600 was paid to him over those two seasons. The Claimant further outlines that the documentation provided by the Respondent only evidences the payment of EUR 28,600 for the 2012-13 season. 24. In continuation, the Claimant notes that until 5 October 2012, he received EUR 13,000 whereas the second contract would only have entitled him to receive EUR 4,000. In this respect, the Claimant points out that on the other hand, the first contract provided for a remuneration of EUR 13,200 until that date. 25. In addition, the Claimant asserts that the Respondent failed to submit evidence that the benefits were paid in accordance with the internal regulations. 26. Finally, the Claimant maintains that the fact that the Respondent merely sustains that the Claimant’s situation is different from the one of the other players and does not formally deny having resorted with those players to the signature of two contracts, constitutes an implicit recognition of the use of such a practice with its players. II. Considerations of the DRC judge 1. First, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 25 October 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: the 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 an player from country B and a club from country D. 3. However, DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies, outlining that “the Football Association of country D and Football Association of country D’s committees shall have exclusive jurisdiction to adjudicate on any dispute”. 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. In this regard, the DRC judge first pointed out that both the first and second contract contain the exact same jurisdiction clause in favour of “the Football Association of country D and Football Association of country D’s committees”. Therefore, and irrespective of the question of the validity of the aforementioned contracts, the DRC judge proceeded to analyse whether it was competent or not to deal with the matter at hand on the basis of said clause. 6. Taking into account the above, the DRC judge emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, 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 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. 7. Subsequently, the DRC judge referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all documents of relevance to the dispute shall be submitted in the original version as well as translated into one of the official FIFA languages. However, the DRC judge acknowledged that the documents provided by the Respondent were only provided in its translated version. This is, he did not have at his disposal the original version of the relevant documentation and, therefore, the DRC judge could not with certainty establish if the NDRC of country D complies with the standards of an independent arbitration tribunal guaranteeing equal representation and fair proceedings. The DRC judge emphasised that e cannot base his decision on the basis of documentation that is incomplete. 8. Nevertheless, and for the sake of completeness, the DRC judge wished to stress that the Respondent was unable to prove that, in fact, the NDRC of country D meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 9. In this respect, the DRC judge referred to the principle of equal representation of players and clubs and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.” 10. Subsequently, the DRC judge began to analyse the content of the relevant documentation provided by the Respondent. In this context, the DRC judge noted that, according to art. 22.1.1 of the aforementioned Football Association of country D Regulations, the Dispute Resolution Committee of the Football Association of country D, is composed of 5 members, as follows : a Chairman, a Vice-Chairman, one member appointed by the Executive Committee of the Football Association of country D and two members appointed by the Football Player’s Association of country D. 11. In view of the aforementioned and taking into account the pre-requisites for the recognition of the jurisdiction of a Dispute Resolution Chamber at a national level stipulated in art. 22 lit. b) of the FIFA Regulations, the FIFA Circular no. 1010 and the FIFA NDRC Regulations, the DRC judge considered that, in light of the documentation provided by the Respondent, the relevant national deciding body does not appear to be composed of an equal number of players’ and clubs’ representatives, since the representation of the clubs, if any, is not evident. 12. Therefore, the DRC judge concurred that the Respondent was unable to prove that the Dispute Resolution Committee of the Football Association of country D had met the minimum procedural standards for independent arbitration tribunals, as laid down in art. 22 lit. b) of the above-mentioned Regulations, in FIFA Circular no. 1010 as well as in the FIFA NDRC Regulations. 13. 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 has 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. 14. In continuation, 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. 15. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players 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 in front of FIFA on 25 October 2014, the 2014 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. 16. Subsequently, the DRC judge observed that the Respondent and the Claimant submitted correspondence after the investigation-phase of the matter had already been concluded. As a result, the DRC judge decided not to take into account the aforementioned submissions of the Respondent and the Claimant and established that in accordance with art 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase. 17. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned 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 facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 18. In this respect, the DRC judge acknowledged that on 18 July 2012, the Claimant and the Respondent concluded a first contract valid as of the date of signature until 31 May 2013 or “the date of the last League or Cup match of the Club’s first team, whichever is the later unless [the first contract] shall be terminated by substitution of a revised agreement or as hereinafter provided” and according to which the Claimant was entitled to a remuneration of EUR 40,000 plus several benefits such as an accommodation allowance, a car and flight tickets. The DRC judge further noted that on 19 July 2012, i.e. one day later, both parties entered into a second employment contract valid as of the date of signature until 31 May 2013 or “the date of the last League or Cup match of the Club’s first team, whichever is the later”. 19. In continuation, the DRC judge noted that the Claimant is claiming the amount of EUR 57,400 as outstanding remuneration for the 2012-13 season. In particular, the DRC judge observed that the Claimant alleges that both contracts were actually in force, the second contract being only a supplementary agreement to the first contract. The DRC judge further noticed that in support of his assertion, the Claimant puts forward that the Respondent paid him the amount of EUR 28,600, i.e. more than the remuneration provided for in the second contract, during the 2012-13 season. 20. On the other hand, the DRC judge took note of the Respondent’s argument according to which the second contract constitutes a new contract, replacing the first contract in accordance with its art. 28. In light of the foregoing, the DRC judge observed that the Respondent considers that the Claimant’s remuneration for the 2012-13 season has been duly paid. 21. At this stage, the DRC judge deemed of utmost important to emphasise the content of art. 28 of the second contract which stipulates that “all previous Agreements between the [Respondent] and the [Claimant] are hereby cancelled”. The DRC judge further pointed out that said art. 28 echoes back to the first contract which expressly states that it will be valid “unless [it] shall be terminated by substitution of a revised agreement”. 22. In this respect, the DRC judge, referring to the legal principle of interpretatio cessat in claris, held that the aforementioned clauses were clear and did not give room to interpretation. Consequently, and after recalling the longstanding and well-established jurisprudence of the DRC according to which a party signing a document of legal importance without duly analysing its entire content does so on its own responsibility, the DRC judge concluded that the Claimant by signing the second contract agreed on the cancellation of the first contract. 23. In light of the foregoing, and in particular considering the sole enforceability of the second contract, the DRC judge established that the Claimant was, in principle, entitled to receive the amount of EUR 20,000 for the 2012-13 season. 24. Notwithstanding the above, the DRC judge observed that the Respondent, in its reply to the claim, declared having paid an amount of EUR 49,000 to the Claimant for the aforementioned season. This aspect was, in the DRC judge’s opinion, a clear indication that the Respondent had assumed the payment of such amount to the Claimant. In other words, the DRC judge determined that the Respondent acknowledged having undertaken to pay an amount of EUR 49,000 to the Claimant for the 2012-13 season. 25. Having stated the above, 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 and emphasised that the information and documentation on file only evidence that the Respondent paid the Claimant an amount of EUR 28,600 for the 2012-13 season. In view of the above, the DRC judge concluded that the Claimant is entitled to receive an amount of EUR 20,400, corresponding to the difference between the amount that the Respondent had committed to pay, i.e. EUR 49,000, and the amount it actually paid, i.e. EUR 28,600. 26. On account of the aforementioned, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is to be held liable to pay the Claimant the amount of EUR 20,400. 27. With regard to the Claimant’s request for interest, the DRC judge decided that due to the impossibility to determine the exact due date of the outstanding amount, the Claimant is entitled to 5% interest p.a. on said amount as of 25 October 2014 until the date of effective payment. 28. 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 EUR 20,400 plus 5% interest p.a. on said amount as from 25 October 2014 until the date of effective payment. 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 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 DRC judge: Markus Kattner Acting Secretary General Encl. CAS Directives