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 7 July 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute 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 (DRC) judge passed in Zurich, Switzerland, on 7 July 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute between the parties I. Facts of the case Facts relating to the preliminary issue of the competence of the DRC: 1. On 22 August 2012, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), entered into an employment contract (hereinafter: the contract) valid as from 22 August 2012 until 31 May 2013. 2. On 1 January 2013, the Claimant and the Respondent signed a document (hereinafter: the termination agreement), by means of which both parties acknowledged the termination of the contract. 3. The Respondent contested the competence of FIFA to deal with the present matter, arguing that there was no need to include a clause referring to the competence of a particular deciding body in order to settle a dispute, as the fact alone that there is “a national independent arbitral tribunal guarantying fair proceedings and equal representation should be considered adequate reason”. 4. The Respondent provided FIFA with documentation in order to prove that the relevant decision-making body of the Football Association of country D meets the minimum procedural standards in order to be considered an independent arbitration tribunal, in particular, in relation to its composition. 5. The Claimant, for his part, insisted that FIFA’s Dispute Resolution Chamber should deal with the present matter. In particular, the Claimant held that the NDRC of the Football Association of country D does not comply with the procedural requirements needed, and that there is no clause, in either the contract or the termination agreement, that expressly refers to a deciding body in country D in case of a dispute. Facts relating to the substance of the matter: 1. On 1 January 2013, the Claimant and the Respondent signed the termination agreement, by means of which both parties acknowledged the termination of the contract and established that the Respondent had to pay the Claimant the amount of EUR 7,000. 2. According to art. 4 of the termination agreement: “[The Respondent] will pay to [the Claimant] the total amount of EUR 7,000 as a compensation of his services. The above amount will be paid by cheques in three instalments as follows: - EUR 2,000 on 30/01/2013 with cheque number 02954357; - EUR 2,000 on 28/02/2013 with cheque number 02954359; - EUR 3,000 on 30/03/2013 with cheque number 02954360”. 3. Moreover, the termination agreement established that: “[The Claimant] states that he has no other claim against [the Respondent], if the amounts provided by paragraph 4 of the present agreement are fully and definitely settled”. 4. In addition, the termination agreement stipulated that: “[The Respondent] has the right to stop and/or deactivate the payments of the cheques in order to pay any costs to the local authorities and/or other services, which will occur and concern the period of staying/employment of [the Claimant] to [the Respondent]…”. 5. On 31 July 2014, the Claimant lodged a claim against the Respondent before FIFA, requesting the payment of the total amount of EUR 7,000, plus interest and legal costs. 6. According to the Claimant, the Respondent has failed to pay the amount due as established in the termination agreement. In this respect, the Claimant submitted a copy of the cheques referenced in the termination agreement and argued that the cheques could not be cashed. 7. In its response to the claim, the Respondent rejected the Claimant’s arguments, stating that it had complied with its obligations under the terms of the termination agreement. In this regard, the Respondent submitted a copy of the same cheques. 8. In his replica, the Claimant repeated his position, arguing that it was the Respondent’s obligation to prove the payment of the mentioned cheques. Furthermore, the Claimant argued that the cheques were not paid and submitted bank statements in reference to said cheques. 9. In its duplica, the Respondent stressed that it paid the whole amount to the Claimant as established, and that it was not its obligation to pay any bank charges or expenses in connection to it. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 31 July 2014. Consequently, the DRC judge concluded that the 2012 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 2012, 2014 and 2015 editions of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 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 DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a player from country B and a club from country D. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that, in principle, he may adjudicate in the present dispute which value does not exceed CHF 100,000. 4. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis that there is “a national independent arbitral tribunal guarantying fair proceedings and equal representation” and that, according to the Respondent, “that should be considered adequate reason”. 5. In this regard, the DRC judge noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 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 the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of 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. In this context, and while analysing whether he was competent to hear the present matter, the DRC judge deemed it of utmost importance to highlight that the present dispute pertains to the execution of a termination agreement. 8. Having said this, the DRC judge turned to the contents of the termination agreement, which is the basis of the present dispute between the Claimant and the Respondent. In this respect, the DRC judge noted that the termination agreement does not include any exclusive arbitration clause or any reference to a national arbitration body in case of a dispute between the parties. 9. Hence, the termination agreement clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the DRC judge deemed that there is no existence of an exclusive arbitration clause in the termination agreement which would preclude the DRC judge from adjudicating on the present dispute. 10. In view of all the above, the DRC judge established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the DRC judge 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. Subsequently, 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 (editions 2012, 2014 and 2015) and considering that the present claim was lodged in front of FIFA on 31 July 2014, the 2012 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. 12. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the substance of the matter at hand. 13. In this respect and first of all, the DRC judge acknowledged that, following the conclusion of an employment contract, the Claimant and the Respondent had concluded a termination agreement on 1 January 20013, by means of which they agreed that the Respondent would pay to the Claimant the amount of EUR 7,000. 14. Moreover, the DRC judge took note that said amount would be paid by means of three cheques, in three instalments, as follows: 1) EUR 2,000 on 30/01/2013 with cheque number 02954357; 2) EUR 2,000 on 28/02/2013 with cheque number 02954359; 3) EUR 3,000 on 30/03/2013 with cheque number 02954360. 15. Subsequently, the DRC judge noted that the Claimant contacted FIFA on 31 July 2014 indicating that the Respondent had not fulfilled its obligations as established in the termination agreement, since he was unable to cash the respective cheques. In this respect, the Claimant enclosed a copy of the above mentioned cheques. In consequence, the Claimant requested to be paid the alleged outstanding amount of EUR 7,000 plus interest and legal costs. 16. The DRC judge took note that, for its part, the Respondent rejected the Claimant’s claim, arguing that it had complied with its obligations under the terms of the termination agreement. 17. The DRC judge observed that to support its allegations, the Respondent enclosed a copy of the cheques mentioned in the termination agreement. 18. Furthermore, the DRC judge noted that the Claimant sustained that the relevant cheques could not be cashed due to “pending to be paid bank charges” in connection with the cheques. In this regard, the Claimant submitted bank statements in connection to these cheques. 19. It was observed by the DRC judge that said bank statements assert that the cheques were returned due to “stale in settlement of our charges and out of pocket expenses amounting to EUR 42”. Moreover, the Claimant argued that the Respondent had the obligation to prove the payment of the cheques. 20. In continuation, the DRC judge took note that the Respondent argued that it was not its obligation to pay any expenses in connection with the cheques and that it had complied fully with its obligation as established in the termination agreement by paying the amount of EUR 7,000 to the Claimant. 21. With due consideration to the above, the DRC judge acknowledged that the Claimant stated not having received the amount established in the termination agreement of EUR 7,000, as the corresponding cheques could not be cashed, whereas the Respondent stated that it had already fulfilled its obligations and paid the corresponding EUR 7,000 to the Claimant as previously established. 22. In this respect, the DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 23. According to this, the DRC judge noted that the Respondent did not substantiate its defence, as it did not present any evidence in respect of the payment of the three cheques in the total amount EUR 7,000 it sustained to have paid, as it only limited itself to provide a copy of the cheques. 24. In view of the above, the DRC judge concluded that the Respondent has not provided evidence of its defence and that, therefore, it could be established that the Respondent had failed to pay to the Claimant the amount as agreed upon between the parties in the agreement dated 1 January 2013. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the termination agreement concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of EUR 7,000 to the Claimant. 25. Equally, the DRC judge decided that the Claimant has to return to the Respondent the three cheques identified with numbers 02954357, 02954359 and 02954360, amounting to EUR 2,000, EUR 2,000 and EUR 3,000, respectively. 26. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 7,000 as of the date on which the claim was lodged, i.e. 31 July 2014, until the date of effective payment. 27. The DRC judge further decided that the Claimant’s claim for legal costs is rejected, in accordance with ar. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the Dispute Resolution Chamber. 28. Finally, the DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of EUR 7,000 plus 5% interest p.a. on said amount as from 31 July 2014 until the date of effective payment. 4. If the aforementioned sum 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 ordered to return to the Respondent within 30 days as from the date of notification of this decision, the three cheques identified with numbers 02954357, 02954359 and 02954360, amounting to EUR 2,000, EUR 2,000 and EUR 3,000, respectively. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the DRC judge: Markus Kattner Acting Secretary General Encl. CAS directives