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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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.

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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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 9 March 2010, 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 from 11 March 2010 until 31 December 2012. 2. In addition, also on 9 March 2010 the parties signed a document named “Annex n°1 to the Labor contract from 9 March 2010” (hereinafter: the annex), according to which the Claimant is entitled to, inter alia, a monthly remuneration of EUR 51,725 “(before deduction of individual income tax), 50% of which the salary composes, and the rest 50% - additional premiums, paying to the Football player upon the condition of the proper performance by the Football player of his obligations under the Contract, i.e., upon the condition, that the Football player doesn’t have any disciplinary punishments”. 3. According to art. 1.6. of the annex “ All payments, indicated in the Contract and Annexes to it, are performed in the currency of country D. In that case, if the due sums are indicated in the foreign currency, the payment is performed in the currency of country D at the rate of the Central Bank of country D on the day of charge in accordance with the active legislation, the Club deducts the individual income tax from the sums, paid to the Football player.” 4. Art. 2.3 further stipulates that “The Football player is aware, that in accordance with the tax legislation of country D, in that case, if during the granting of benefits (renting of the apartment etc), the income in kind appears, The club is obliged to deduct the individual income tax from the Remuneration of the Football player”. 5. On 31 March 2011, the parties signed an “Additional agreement to the Labor contract dd. 9 March 2010)” (hereinafter: the additional agreement), valid as from 1 April 2011, according to which the Respondent undertakes to pay the Claimant, inter alia, a monthly salary of EUR 55,725 “1.3 (…) (before deduction of individual income tax), 50% of which the salary composes, and the rest 50% - additional premiums, paying to the Football player upon the condition of the proper performance by the Football player of his obligations under the Contract, i.e., upon the condition, that the Football player doesn’t have any disciplinary punishments”. 6. On 24 February 2012, the parties concluded a “Cancellation agreement to the Labor Contract dd.09.03.2010)” (hereinafter: the termination agreement), by means of which they agreed the following: a) “2. Due to premature termination of the Labor contract the Club shall pay to the Football player the compensation in amount of his monthly salary multiplied by 4 (four). b) 3. Besides, the Club shall pay to the Football player his salary for February 2012, taking in mind that the Football player has worked during this month. c) 4. Both payments stated in clauses 2 and 3 above shall be paid within 20 days following the day of cancellation”, i.e. 15 March 2012. 7. On 14 March 2014, the Claimant submitted a claim against the Respondent in front of FIFA, requesting the total amount of EUR 278,625 (5 x EUR 55,725, cf. point I.5. above), plus 5% interest p.a. as from 16 March 2012. Equally, the Claimant requested that all costs of the proceedings be borne by the Respondent. 8. In this regard, the Claimant explained that this amount is due to him according to the termination agreement (cf. point I.6. above) but the Respondent failed to pay him any amounts arising from such agreement. 9. In spite of having been granted a 20 days deadline on 19 March 2014 to reply to the claim, the Respondent only reacted to it one day after the closure of the investigation, i.e. on 19 June 2014, stating that it had not received the Claimant’s claim, what was confirmed by the Football Association of country D. 10. In its reply, the Respondent rejected the Claimant’s claim and holds having fulfilled all its contractual obligations. According to the Respondent, as per the termination agreement and the additional agreement, the Claimant’s remuneration was “set in gross amount of EUR 55,725 – 50% of which composed the salary. Thus, the amount of monthly salary was determined in amount of EUR 27,862.50 gross”. Additionally, the Respondent underlines that the term “Remuneration” is a definition explained in clause 1.2 of the annex: “Remuneration is a monthly amount that is composed from salary and additional premiums, payable upon the condition of proper performance by the Player of his contractual duties. Salary composes 50% of the amount of Remuneration.” Therefore, the Claimant was entitled to a total amount of EUR 138,170.14, broken down as follows: a) EUR 96,961.50, allegedly corresponding to the amount of compensation according to clause 2 of the termination agreement, i.e. salary of EUR 27,862.5 x 4 – 13% tax; b) EUR 41,208.64 corresponding to “Remuneration for February 2012 (salary of EUR 27,862.50 + additional premium of 27,862.50): 20 work days in February x 17 days that the Claimant worked in February 2012 – 13% tax)”. 11. The Respondent holds having paid to the Claimant the amount indicated in point I.10. above and provided a bank statement in support of its allegations. In particular, the Respondent provided a payment order dated 14 March 2012 in favour of the Claimant in the amount of 5,445,478, on which under the section Beneficiary is mentioned “Payment to the card account of employee, payment for February 2012”. In addition, the Respondent provided FIFA with an email conversation dated 7 June 2012, in which the Claimant informed the Respondent that “I checked at my bank account, and, until today, I received total of 544547875 (…), after calculation it is easy to see that I still didn’t receive the total amount, as agreed”. In addition, the Claimant states, “I needed to receive 5 salaries in the name of contract cancellation, because I counted the salary of February (Article 3) “. For all the above-mentioned reasons, the Respondent considers that the claim of the Claimant must be rejected. 12. In his replica, the Claimant first contests the admissibility of the Respondent’s position since it has been submitted after the granted deadline. The Claimant further argues that his claim is mainly based on the termination agreement dated 24 February 2012 (cf. point. I.6. above) and refers to an amount of compensation and not a salary. For this reason, since “(…) the salary is just a figure to calculate the amount of the COMPENSATION (…) the compensation cannot be evaluated as a NET or a GROSS amount”. Additionally, the Claimant holds that no deduction shall be made to an amount of compensation which is a net amount and the Respondent is responsible for the additional taxes. 13. Furthermore, the Claimant points out that in view of the documents provided by the Respondent (cf. point I.11. above), it is clear that the payment was related to a previous due amount by the Respondent and that there is no mention that the payment is the amount of compensation stated in accordance with the termination agreement. 14. In its duplica, the Respondent first underlines that it cannot be deprived from its right to be heard because of the failure of its national federation to forward it the claim on time. 15. The Respondent further states that it had the obligation to deduct the tax from the Claimant’s income “irrespective of the Claimant’s residential status as well as irrespective of legal nature of the compensation”, in accordance with the Tax Code of country D. According to the Respondent, the cancelation agreement constitutes an integral part of the contract and thus, by signing the contract, the Claimant agreed and was aware of the applicable tax in accordance with art. 1.6 and 2.3 of the annex. 16. Moreover, the Respondent holds that the Claimant wrongly states in his replica that the payment dated 14 March 2012 was related to another due amount for the reason that the Respondent did not have any other debt in favour of the Claimant and this payment is indeed the compensation due to the Claimant in accordance with the termination agreement. For all these reasons, the Respondent deems that the Claimant’s claim must be rejected. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 March 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B and a club from country D. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 2015), and considering that the present claim was lodged on 14 March 2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. 5. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 6. First and foremost, the Chamber acknowledged that the parties had terminated their employment relation by mutual consent by entering on 24 February 2012 into a termination agreement, the terms of which are detailed in point I. 6. above. 7. In continuation, the members of the Chamber noted that the Claimant contacted FIFA on 14 March 2014 indicating that the Respondent had not fulfilled its obligations as established in the termination agreement, since it had not paid the agreed amounts. Consequently, the Claimant asks that the Respondent be ordered to pay the total amount of EUR 278,625 corresponding to four monthly salaries (cf. point I.6.a. above) plus his salary for February 2012 (cf. point I.6.b. above). 8. In addition, the members of the Chamber noted that the Claimant rejected the admissibility of the Respondent’s answer to the claim since it was submitted after the granted deadline. However the Respondent holds that it never received the claim of the Claimant and moreover, the Football Union of country D confirmed having not forwarded it to its affiliated club. In view of the foregoing, the members of the DRC deemed the answer of the club admissible since it was received within the second deadline granted by FIFA and that a party cannot be deprived of its right to be heard because of an admitted failure of its National Association. As a consequence, the Respondent’s answer must be taken into consideration and a decision shall be taken based on all the elements on file. 9. Subsequently, the DRC noted that, the Respondent, for its part, holds that it has no debts toward the Claimant since the contract stipulates that the Claimant’s remuneration is composed of 50% of his salary and 50% of additional premiums (cf. points I.2. and I.5. above). Moreover the club presented a receipt dated 14 March 2012 for an amount of 5,445,478, approximately EUR 141,400, which was transferred to the player and allegedly represents the total amount due to him. 10. In view of the dissenting viewpoint of the parties with respect to the interpretation of the clauses 2. and 3. of the termination agreement, i.e, the amount of the Claimant’s salary, the Chamber first focussed its attention on said contractual clauses. 11. First of all, the members of the Chamber noted that both clauses 2. and 3. of the termination agreement refer to the Claimant’s monthly salary, as the basis to calculate the amount still due to him after the termination. Therefore the DRC deemed it necessary to analyse the content of the additional agreement of 31 March 2011, which modified the financial terms of the annex of 9 March 2010 (cf. point I.5 above). The DRC noted that according to the additional agreement, the payment of 50% of the Claimant’s remuneration was dependent on “the proper performance of the player’s obligations under the Contract, i.e., upon the condition, that the Football player doesn’t have any disciplinary punishments”. In this respect, the Chamber first noted that such clause allowed the Respondent to withhold 50% of the Claimant’s salary in case of an alleged disciplinary breach, which was deemed already at this point as an excessive amount, independent of the severity of a disciplinary violation eventually committed by the Claimant. Bearing in mind the legal principle of in dubio pro operario and in dubio contra stipulatorem, the members of the DRC deemed that such clause is not acceptable for its potestative nature in favour of the Respondent. In any case, the DRC recalling the content of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis on an alleged fact shall carry the burden of proof”, pointed out that the Respondent did not provide any evidence of any disciplinary breaches committed by the Claimant, and therefore there would be no reason for a reduction of his monthly remuneration. 12. Equally, the Chamber addressed the Respondent’s argument that it had to deduct taxes on the remuneration stipulated in the additional agreement and consequently on the agreed compensation in the termination agreement. In this respect, despite the fact that clause 1.3 refers to “deduction of individual income tax”, the Chamber highlighted that the Respondent did not provide clear evidence of its obligation to deduct tax on the player’s salary or of any effective payments made in this respect. In light of the above, and still bearing in mind the principles of the burden of proof, in dubio pro operario and in dubio contra stipulatorem, the Chamber concluded that this argument of the Respondent must also be rejected. 13. Having established the foregoing, the Chamber was confident to conclude that the wording of the termination agreement, in particular in the definition of the amounts still due to the Claimant, is insufficiently clear and for this reason, it must be interpreted in favour of the Claimant. 14. In view of all the foregoing, the Chamber concluded that the player’s monthly salary corresponds to EUR 55,725, without any deduction, and this amount serves as the basis to calculate the amount still due to the Claimant in accordance with the termination agreement. 15. Subsequently, the Chamber went on to calculate which amount was still due to the Claimant by the Respondent as per the termination agreement. In this respect, and taking into consideration the argumentation detailed in points II.9. to II.13. above, the Chamber concluded that the total amount payable to the Claimant in accordance with the termination agreement is EUR 278,625, i.e. 5 x EUR 55,725. 16. At this point, the Chamber pointed out that in the present case, the Respondent bore the burden of proving the payment of any amounts due to the Claimant. In this respect, the DRC noted that the Respondent in fact provided evidence that it paid the Claimant the amount of 5,445,478 on 14 March 2012, and that the Claimant acknowledged receipt of such amount, alleging however that it corresponded to late payments as per the contract. 17. The Chamber in this regard noted that such payment was made by the Respondent on 14 March 2012, i.e. undoubtedly after the conclusion by the Claimant and the Respondent of the termination agreement, in which they voluntarily stipulated the total amount still due by the Respondent to the Claimant after the termination. Thus the DRC concluded that such payment by the Respondent (corresponding to approximatively EUR 141,400) was related to the termination agreement and, therefore, had to be deducted from the total amount due to the Claimant as per such agreement. 18. On account of the aforementioned considerations, the Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the amount of EUR 137,225 which corresponds to EUR 278,625 minus the payment of EUR 141,400 made by the Respondent on 14 March 2012, in accordance with the termination agreement. 19. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 137,225 as of 16 March 2012, until the date of effective payment. 20. Finally, the DRC decided that the Claimant’s claim pertaining to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s longstanding respective jurisprudence. 21. The DRC concluded its deliberations in the present matter by establishing that any further claim of the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 137,225 plus 5% interest p.a. as from 16 March 2012. 3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl.: CAS directives