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 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, C, from R, represented by xxxxxx as Claimant against the club, Z, from P, represented by xxxx 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 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, C, from R, represented by xxxxxx as Claimant against the club, Z, from P, represented by xxxx as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 2 January 2015, the player from R, C (hereinafter: the Claimant) and the club from P, Z (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as of the date of signature until 30 June 2015. 2. Art. 2 of the contract provides that “the [Claimant]’s obligations include in particular : 2) to actively participate in the training process and sporting competition”. 3. Pursuant to art. 7 of the contract, the Claimant was entitled to receive, inter alia, the following remuneration: - EUR 15,000 net payable in six monthly instalments of EUR 2,500; - EUR 830 net “per official game if Played more than 46 minutes”. 4. Furthermore, article 9 of the contract stipulates the following: “1. The Parties hereby agree that a gross breach of the [Claimant]’s obligations by the [Claimant] is deemed by them to be in particular any breach of the provision of section 2 subsection 2, subsection 3 of this contract, and persistent and constant breach of other provisions of this Contract, despite admonitions from the [Respondent]. […] 3. For any breach of the [Claimant]’s obligations, the [Respondent] may, notwithstanding of the application stipulated in section 9subsection 4, demand that the [Claimant] pay a contractual penalty in the sum of xxx 12,500 GROSS (say: xxx twelve thousand five hundred gross) for each such breach. The penalty shall be deducted from the basic wage and the match bonus that the [Claimant] will be eligible for, and if the amount of the penalty exceeds the above wages and bonuses the [Respondent] shall seek its payment though legal action. 4. If the [Respondent] makes an application stipulated in section 9 subsection 4, the [Respondent] may lower the amount of the basic wage and match bonuses up to 50% or suspend the payment of basic wage and match bonuses until the matter is resolved by a final decision of a competent authority of the Football Association of P. If the matter is resolved to the benefit of the [Claimant], The [Respondent] shall pay the withheld amount of basic wage and match bonuses”. 5. In addition, art. 12 of the contract reads as follows: “1. Any disputes that may arise between the Parties as a result of this Contract, in particular relating to the validity, existence or termination of the Contract, with the exception of subsection 3, shall be resolved by competent authorities of the FAP: the Dispute Resolution Chamber; and in second instance the Association Football Tribunal, acting pursuant to separate provisions. 2. Any material disputes that may arise as a result of this Contract shall be resolved by FIFA and TAS”. 6. On 6 August 2015, the Claimant put the Respondent in default of paying him the amount of EUR 7,490 within ten days. 7. On 7 October 2015, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the following: - EUR 5,000, plus 5% interest as of the due dates, as outstanding salaries for May and June 2015; - EUR 2,490, plus 5% interest as of the due dates as outstanding match bonuses; - “impose a sanction to the [Respondent] for delaying a due payment for more than 30 days”. 8. In his claim, the Claimant explains that in accordance with art. 12 par. 2 of the contract, FIFA is competent to deal with the matter at hand. 9. In continuation, the Claimant alleges that the Respondent failed to pay him three match bonuses for having played more than 46 minutes in the following games: - Match against C on 19 May 2015; - Match against B on 30 May 2015; - Match against R on 5 June 2015. 10. In its reply to the claim, the Respondent challenges FIFA’s competence on the grounds of art. 12 par. 1 of the contract. According to the Respondent, the “Football Arbitration Court” of the FAP (hereinafter: the “PNDRC”) should be the only authority with competence to hear about the case. 11. In this regard, and after being invited by FIFA to provide further information on the issue of competence, the Respondent provided additional documentation regarding the statutes of the PNDRC. In this respect, the Respondent attached a full copy in P language of the “Current Rules of the Court of Arbitration Football Association approved […] under Resolution No. II/25 of 12 December 2012”. In particular, the Respondent insists on the content of art. 4, 6, 7 and 9 of the abovementioned rules, which allegedly grant competence to the PNDRC to deal with the dispute at hand. 12. As to the substance, the Respondent acknowledges that a total amount of EUR 7,490 should have been paid to the Claimant for the months of May and June 2015, but denies having overdue payables towards him. In support of its assertion, the Respondent alleges that a series of fines were imposed on the Claimant in the total amount of xxx 67,500 (approx. EUR 15,000) due to several unjustified absences in accordance with art. 2 and 9 of the contract. In particular, the Respondent identifies the following fines: - Fine of XXX 12,500 gross “for unjustified absence from the organizational meeting and appointed by the team coach on 09/06/2015”; - Fine of XXX 12,500 gross “for unjustified absence from the organizational meeting and appointed by the team coach on 22/06/2015”; - Fine of XXX 12,500 gross “as unauthorized absence during test on 23/06/2015”; - Fine of XXX 5,000 gross “as unauthorized absence during training on 24/06/2015”; - Fine of XXX 5,000 gross “as unauthorized absence during training on 25/06/2015”; - Fine of XXX 5,000 gross “as unauthorized absence during training on 26/06/2015”; - Fine of XXX 5,000 gross “as unauthorized absence during training on 27/06/2015”; - Fine of XXX 5,000 gross “as unauthorized absence during training on 29/06/2015”; - Fine of XXX 5,000 gross “as unauthorized absence during training on 30/06/2015”. 13. In this context, the Respondent presented correspondence dated 10 and 11 August 2015 written in P language, by means of which it would have allegedly informed the Claimant that it had proceeded to the deduction of the fines from his dues and requested him to pay the amount of XXX 32,526.88. 14. In this respect, the Respondent stresses that the Claimant was aware of the training programme, which was displayed in the changing room. 15. In his replica, the Claimant reiterates that FIFA is competent to deal with the matter, insisting on the lack of independence of the PNDRC. Furthermore, the Claimant points out that the Respondent failed to submit a translation of the regulations into a FIFA official language. 16. In continuation, the Claimant alleges that he never received the letters imposing fines on him submitted by the Respondent. Moreover, the Claimant points out that the correspondence dated 10 and 11 August 2015 were drafted in P language, a language that he does not understand. 17. Regarding the fines, the Claimant outlines that his right to be heard was not complied with and that they were not confirmed by an independent body. In addition, the Claimant sustains that, his contract expiring on 30 June 2015, the Respondent did not invite him for further sporting activities after the last match of the 2014-15 season played on 5 June 2015. In support of his assertion, the Claimant presented the statements of two players of the team. Finally, the Claimant argues that the imposition of fines for his absence in June violates his right to an annual leave. 18. In its final comments, the Respondent refers to art. 12 par. 1 of the contract and reiterates that the PNDRC is the competent body to hear disputes concerning the practice of football such as the dispute at stake. Moreover, the Respondent points out that in a former correspondence, the Claimant acknowledged the jurisdiction of the PNDRC. 19. As to the substance, the Respondent asserts that all notices were addressed to the Claimant in P and in English. The Respondent further sustains that the “[imposed penalties] are liquidated damages, not disciplinary penalties” and that therefore “the disciplinary proceedings as such should must not be mentioned”. 20. Finally, the Respondent argues that the Claimant had the obligation to participate in all its activities until the expiry of his contract on 30 June 2015. In this respect, the Respondent states that the vacation schedule was displayed in the changing room since May and clearly indicated that a meeting with the coach was to be held on 6 June 2015. The Respondent then highlights that fines for unjustified absences were also imposed on other players making their respective statement unreliable. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 7 October 2015. Consequently, the 2015 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. 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a player from R and a club from P regarding an outstanding amount based on the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA to deal with the present case, stating that in accordance with art. 12 par. 1 of the contract, any dispute arisen between the parties should be submitted to the “Football Arbitration Court” of the FAP. 5. The Chamber equally noted that the Claimant rejected such position and insisted that FIFA had jurisdiction to deal with the present matter. 6. Taking into account the above, the DRC emphasised that, in accordance with art. 22 lit. b) of the FIFA 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 DRC referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC 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. While analysing whether it was competent to hear the present matter, the DRC considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause. 8. Having said this, the members of the Chamber turned their attention to art. 12 of the contract, which reads as follows: “1. Any disputes that may arise between the Parties as a result of this Contract, in particular relating to the validity, existence or termination of the Contract, with the exception of subsection 3, shall be resolved by competent authorities of the Football association of P: the Dispute Resolution Chamber; and in second instance the Association Football Tribunal, acting pursuant to separate provisions. 2. Any material disputes that may arise as a result of this Contract shall be resolved by FIFA and TAS”. 9. In view of the aforementioned clause, the members of the DRC were of the opinion that art. 12 of the employment contract does not make clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations and even provides for the possibility of lodging a contractual dispute in front of FIFA. Therefore, the members of the Chamber deem that said clause can by no means be considered as a clear arbitration clause in favour either of the national deciding bodies, and, therefore, cannot be applicable. 10. In addition, and for the sake of completeness, the Chamber 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 Chamber acknowledged that the documents provided by the Respondent were not entirely translated. This is, the members of the Chamber did not have at their disposal a comprehensive version of the relevant documentation and, therefore, the Chamber could not with certainty establish if the relevant dispute resolution bodies of the FAP comply with the standards of an independent arbitration tribunal guaranteeing equal representation and fair proceedings. The members of the Chamber emphasised that they cannot base their decision on the basis of documentation that is incomplete and from which it is not possible to infer if the relevant dispute resolution bodies of the FAP comply with the aforementioned requirements. 11. In view of the above, the DRC established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that it 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. 12. Subsequently, the DRC 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, the DRC confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2016) and considering that the claim in front of FIFA was lodged on 7 October 2015, the 2015 edition of said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance. 13. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as 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 matter at hand. 14. In this respect, the Chamber acknowledged that the parties to the dispute had signed a valid employment contract on 2 January 2015, which expired on 30 June 2015, in accordance with which the Respondent would pay the Claimant a monthly salary in the amount of EUR 2,500 as well a bonus “per official game […]” in the sum of EUR 830. 15. Moreover, the DRC took into consideration that according to the Claimant, the Respondent had failed to pay his remuneration in the total amount of EUR 7,490, corresponding to unpaid salaries for the months of May and June 2015 as well as three match bonuses. 16. In this regard, the Chamber took note of the argument of the Respondent, which acknowledged that the aforesaid amounts fell due but alleged that it had no overdue payables towards the Claimant since, pursuant to art. 9 of the contract, it was entitled to impose a series of fines to the Claimant, for a total amount of XXX 67,500. 17. Consequently, the Chamber analysed the fines imposed on the Claimant due to his alleged absences from a meeting and training sessions. 18. In this respect, the Chamber wished to highlight that, regardless of the existence or not of said absences, the aforementioned fines, for the total amount of XXX 67,500 (equivalent to approx. EUR 15,000), which were imposed for allegedly missing without authorisation a meeting and a few training sessions is manifestly excessive and disproportionate and cannot be upheld. In particular, the members of the Chamber highlighted that the total amount of said fines is equivalent to the Claimant’s annual salary with the Respondent. Hence, the Chamber was unanimous in its conclusion that the fines imposed on the Claimant by the Respondent must be disregarded. 19. Furthermore, and in any case, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. 20. In conclusion, the Chamber determined that the Respondent could not set-off its debt towards the Claimant by means of the various fines imposed on him and that thus, the amount of EUR 7,490 is due to the Claimant. Moreover, the Chamber highlighted that the Respondent never proved that said debt was settled. 21. 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 EUR 7,490 to the Claimant. 22. With regards to the claimed interests, the DRC decided that the Respondent had to pay default interest at a rate of 5% as follows: a. 5% p.a. as of 20 May 2015 on the amount of EUR 830; b. 5% p.a. as of 31 May 2015 on the amount of EUR 830; c. 5% p.a. as of 1 June 2015 on the amount of EUR 2,500; d. 5% p.a. as of 6 June 2015 on the amount of EUR 830; e. 5% p.a. as of 1 July 2015 on the amount of EUR 2,500. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant is admissible. 2. The claim of the Claimant is accepted. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 7,490 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 20 May 2015 on the amount of EUR 830; b. 5% p.a. as of 31 May 2015 on the amount of EUR 830; c. 5% p.a. as of 1 June 2015 on the amount of EUR 2,500; d. 5% p.a. as of 6 June 2015 on the amount of EUR 830; e. 5% p.a. as of 1 July 2015 on the amount of EUR 2,500; 4. In the event that the abovementioned amount plus interest is not paid 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. 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. 58 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 Marco Villiger Deputy Secretary General Encl. CAS directives