F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 2 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 2 March 2017,

in the following composition:

Geoff Thompson (England), Chairman

Jon Newman (USA), member

Roy Vermeer (Netherlands), member

Mario Gallavotti (Italy), member

Pavel Pivovarov (Russia), 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 21 January 2015, the Player of Country B, Player A (hereinafter: the Claimant or the player) and the Club of Country D, Club C (hereinafter: the Respondent or the club) signed an employment contract (hereinafter: the contract) valid retroactively as from 20 January 2015 until 30 June 2015.

2. According to art. 5, par. 1, lit. a) of the contract, the player was entitled to a salary of 180,000 “gross”, to be paid “in 5 monthly instalments of 36,000 ”.

3. Pursuant to art. 6 of the contract, the above-mentioned amounts were payable “before the 10th of each month for the previous month within every month of the contract term”.

4. According to art. 13 of the contract: “1. In matters not regulated by this contract, the relevant laws, including primarly provisions of the Football Association of Country D should be applied. […]

3. Any dispute arising from this contract, the parties give to the Football Court of Arbitration”.

5. Pursuant to art. 2, par. 1 of the contract, it was the Claimant’s obligation to “a) honourably represent the colors of the Club during all sport events and other meetings in which the Club is represented or participates […]. b) constantly raise the sports level through active and disciplined participation in the training process, both in preparatory period and during sports events […]. h) maintain the reputation and image of the club […], in contacts with the media, fans, athletes and members of the club, using their own image, participate in press conference and other meeting […]”.

6. In accordance with art. 8 par. 3 of the contract, “evasion of regulations by the [player] gives the board of the club right to impose monetary penalties in the amount and on the terms of certain provisions of the relevant rules of the club and the Football Association of Country D. The amount of recovery can be compensated (deducted) from the monthly remuneration or other sums owed to the [player]”.

7. Furthermore, art. 11 of the contract provides that the player “is imposed to penalties on the basis of disciplinary rules of the club in case of violation of the contract regulations by the [player]. [The player] can receive a copy of the Rules upon request”.

8. On 15 July 2015, the Respondent sent a letter to the Claimant, by means of which it notified him that, “due to the putting in force of the disciplinary monetary penalty against [the player] in total amount of 100,000 imposed by the Resolution of the Board of the [club] on 30th June 2015”, the club’s debt “based on the remuneration in the amount of 80,134.92” was deducted and, “thus, amount of 19.865,08 should be paid by the [player] in favor of [the club]”.

9. On 13 October 2015, the Claimant lodged a claim in front of FIFA against the Respondent for outstanding remuneration, requesting the following:

a) 101,000 plus 5% interest as from 20 May 2015;

b) reimbursement of “other expenses incurred by me in this case”;

c) sporting sanctions on the Respondent.

10. In his claim, the Claimant stated that the Respondent paid him 79,000 and “accordingly owes [him] amount of 101,000 ” and affirmed that he sent a payment request to the Respondent on 30 June 2015, but did not receive any payment.

11. In particular, the Claimant emphasised that, only through the above-mentioned letter of 15 July 2015, he was informed of the disciplinary sanction allegedly imposed by the Respondent on 30 June 2015. Furthermore, the Claimant stressed that such sanction was almost equal to three monthly salaries and that he did not make “any actions that would lead to the impositions of any sanction”.

12. On 11 November 2015, the Claimant amended his claim and stated that, according to his bank statements, the amount the Respondent paid him was 58,438. Consequently, the Claimant affirmed that the claimed amount was 121,652.

13. In its reply, the Respondent argued that FIFA had no jurisdiction to the deal with the dispute, as the Football Court of Arbitration at the Football Association of Country D was competent pursuant to art. 13 par. 3 of the contract. In particular, the Respondent emphasized that the Claimant was aware of such competence, as he allegedly file “a letter of claim against the Club C to the Football Court of Arbitration at the Football Association of Country D” on 30 July 2015. Moreover, the Respondent submitted a statement from the Football Association of Country D according to which, by means of the said letter of claim, the Claimant informed the “Football Arbitration Court of the Football Association of Country D [...] of a debt of the club with him to the amount of 101,000”. In accordance with the same statement from the Football Association of Country D, the Claimant’s letter of claim “did not have any legal effect”, as “said player did not pay mandatory fees on time”. In conclusion, according to the Football Association of Country D, the Claimant “did not appeal against the imposed disciplinary penalty”.

14. In addition, the Respondent stressed that the Football Court of Arbitration at the Football Association of Country D “guarantees fair proceedings”, is a jurisdictional independent body of such association and “enjoys full autonomy and independence in the course of the proceedings and adjudication”.

15. In this context, the Respondent provided a copy of the regulations of the Football Association of Country D’s Football Arbitration Court, whereby art. 11 par. 1 stipulates that “the Football Arbitration Court is composed of 21 to 23 arbitrators appointed by the Management Board of the Football Association of Country D”. Moreover, according to art. 13 par. 1 of the same regulations, “the Chairman and the Deputy Chairman of and the Secretary to the Arbitration Court are appointed and dismissed by the Management Board of the Football Association of Country D, from among the arbitrators of the Football Arbitration Court”.

16. As to the merits, the Respondent argued that the remuneration was indicated in the contract as “gross” while the payment acknowledged by the Claimant was to be considered as “net”. Moreover, the Respondent stressed that the Claimant’s claim was “not accurate because the Club paid Player A remuneration of 56,951 net, which is 95,462.93 gross”.

17. In particular, the Respondent alleged that it made the payments to the Claimant “in accordance with the contract, deducting taxes for the Tax Treaty of Country D and other charges (e.g. contributions for compulsory social insurance)”.

18. Furthermore, the Respondent acknowledged that, “according to the Contract, the Club should pay Player A:

1. 20 034,42 net (26 382,55 gross) the rest of Player A’s remuneration for April 2015.

2. 30 366, net (36 000,00 gross) Player A’s total remuneration for May 2015.

3. 30 366, net (36 000,00 gross) Player A’s total remuneration for June 2015”.

From such amounts, the Respondent deducted 332.50 for lessons of language of Country D and 299.00 as a charge, acknowledged by the Claimant, for a not returned item, so that the final “net” amount owed by the Respondent amounted to 80,134.92.

19. Nonetheless, the Respondent explained that, from said acknowledged debt, a disciplinary sanction of 100,000 imposed to the Claimant by the Respondent’s management board on 30 June 2015 was to be deducted.

20. In particular, the Respondent explained that said sanction was imposed on the Claimant because he was allegedly “found guilty” of the following violations of the contract:

a) “declining to be interviewed for the purposes of the official match program (leaflet) distributed on match day against league game against Club E” and “trying to refuse participation in meeting of the club’s players with middle school student and being inactive during this meeting”, in violation of art. 2, par. 1, lit. a) and h) of the contract;

b) “arbitrary interruption and ending of warm-up during the league game match with Club F while the player was instructed the opposite by the coach and other staff members”, in violation of art. 2, par. 1, lit. b) of the contract;

c) “not excused absence at two league matches of club’s second team (on 7th of June and 13th of June 2015) and club’s second team training sessions between these matches while he was instructed by the coaching staff to attend second’s team training sessions and two matches mentioned above”. In this regard, the Respondent stressed that the Claimant “cannot choose which obligations are suitable for him and which are not”.

21. According to the Respondent, the Claimant refused to receive such sanction, which was allegedly “properly delivered” eventually. Moreover, the Respondent continued, as the Claimant did not appeal it, the sanction became final on 15 July 2015.

22. Furthermore, the Respondent emphasised that the deduction of the aforementioned sanction was imposed in accordance with the rules of the Football Association of Country D.

23. In his replica, the Claimant insisted on his previous arguments and underlined that the Respondent neither provided “evidence that the described disciplinary offences actually occurred” nor “the explanations of the severe sanctions imposed“. In particular, the Claimant highlighted that “the alleged disciplinary offences started on April 27 and lasted up to May 28 and June 2, 2015” and during such period he did not receive any warning from the Respondent.

24. Moreover, the Claimant explained that, “before contacting FIFA on 30 July 2015 [he] filed a complaint against [the club] to the Court of Arbitration for Football at the Football Association of Country D. In response, [he] received a notice for the payment of approximately USD 1200 (one thousand two hundred) for considering [his] complaint”.

25. In continuation, the Claimant argued that, as the Respondent allegedly informed him that he had no “possibilities to win the case” before the Court of Arbitration for Football at the Football Association of Country D “also because [he] is not from Country D” and due to the fact he “had not received wages for more than 3 months and due to the difficult financial state”, he “consciously decided to contact FIFA where considering players’ complaints does not require any advanced costs”.

26. Furthermore, the Claimant added that the jurisdiction clause invoked by the Respondent “did not define what is meant by the Court of Arbitration for Football”, neither its location and nor “as operating within the Football Association of Country D”. On account of the above, the Claimant held that such clause did neither constitute a “standard arbitration clause” in accordance with FIFA Regulations, nor a “proper arbitration clause” in accordance with the Rules of the Court of Arbitration for Football at the Football Association of Country D.

27. In its duplica, the Respondent maintained its position and rejected all the further Claimant’s arguments. In particular, the Respondent considered that the jurisdiction clause contained in the contract was valid, binding and clear, as confirmed by the fact that the Claimant filed a complaint before the Football Arbitration Court at the Football Association of Country D before lodging his claim at FIFA.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 13 October 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are 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 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 of Country B and a Club of Country D.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 13 par. 3 of the contract, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the Football Court of Arbitration of the Football Association of Country D.

4. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.

5. Taking into account all the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the 2016 edition of the Regulations on the Status and Transfer of Players, 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. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008, and in particular to art. 3 of said Standard Regulations, which sets the composition requirements of an NDRC.

6. In relation to the above, 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 is competence to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant organ derives from a clear reference in the employment contract.

7. In this context, albeit acknowledging that the relevant clause refers to the competence of the aforementioned body, the members of the Chamber wished to emphasize that the Football Court of Arbitration of the Football Association of Country D does not appear to comply with the requirement of equal representation set out in art. 22 lit. b) of the Regulations on the Status and Transfer of Players and with art. 3 of the FIFA NDRC Standard Regulations. Along these lines the members of the Chamber wished to emphasize that, pursuant to the Football Association of Country D’s Football Arbitration Court Regulations, it appears that not only the Chairman and the Deputy Chairman but also all the arbitrators who compose the aforementioned body’s list are appointed by the management board of the Football Association of Country D, without the players’ representatives having a say on their appointment.

8. In view of the above, the Chamber, in accordance with the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, established that the Respondent’s objection to the competence of FIFA to deal with the present matter had 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.

9. As to the Claimant’s letter addressed to the Football Association of Country D, the members of the Chamber were eager to recall that, according to the statement released by the Football Association of Country D, the Claimant’s claim before the NDRC of the Football Association of Country D had no legal effect as the Claimant “did not pay mandatory fees on time”.

10. 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 2016), and considering that the present claim was lodged on 13 October 2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

11. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber continued acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

12. First, the Chamber noted that the parties entered into an employment contract valid as from 20 January 2015 until 30 June 2015, which entitled the Claimant to a salary of 180,000 “gross”.

13. In continuation, the DRC took note that the Claimant alleged that the Respondent breached the contract as it failed to pay him outstanding salaries in the amount of 121,652.

14. Equally, the Chamber took note of the reply of the Respondent, which first acknowledged that the outstanding salaries amounted to 80,134.92 “net” only, given the deductions operated by the Respondent for 332.50 and 299.00, as for lessons of language of Country D and a charge for a not returned item respectively.

15. In continuation, the members of the Chamber noted that the Respondent also emphasised that, on 30 June 2015, the Claimant was fined with 100,000 for an alleged lack of discipline. In this respect, the members of the Chamber noted that the Respondent affirmed that the Claimant refused to receive the sanction, which was, eventually, “properly delivered” and became final as the Claimant did not appeal it.

16. In this context, the members of the Chamber first recalled the Chamber’s long-standing jurisprudence, according to which 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. Furthermore, the members of the Chamber wished to point out that the amount of the fine imposed on the Claimant by the Respondent represents more than half of the player’s total remuneration and, consequently, must be considered disproportionate. What is more, the members of the Chamber emphasised that the Respondent did not provide any evidence that the alleged fine had been properly notified to the Claimant, let alone that the latter was given the opportunity to defend himself within the context of the alleged disciplinary proceedings. Consequently, the Chamber decided to disregard the alleged fine imposed on the Claimant and to reject the Respondent’s argument in this regard.

17. Furthermore, as to the Respondent’s argument according to which it made the payments to the Claimant “net” after deduction of taxes, the DRC wished to emphasise that, pursuant to art. 12 par. 3 of the Procedural Rules, the evidence submitted by the Respondent neither proved that it incurred any expenses in relation to the payment of taxes nor that the amounts allegedly paid for taxes were correct. On account of the above, the members of the Chamber, consequently, rejected the Respondent’s argument in this regard.

18. In continuation, the Chamber recalled that the Respondent partially acknowledged the outstanding remuneration and that, on the other hand, the Claimant acknowledged a deduction of 299 as a charge for a not returned item.

19. On account of the aforementioned, the DRC concluded that, considering that the Respondent did not invoke any other reason to justify the non-payment of the Claimant’s salaries, it could be established that the Respondent had failed to pay to the Claimant the amount as agreed upon between the parties in the contract. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber concluded that the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, is to be held liable to pay the claimed outstanding salaries after the deduction of the amount acknowledged by the Claimant. Thus, the Respondent shall pay outstanding remuneration to the Claimant in in the amount of 121,353.

20. In addition and with regard to the Claimant's request for interest, the Chamber decided that the Claimant is entitled to 5% interest p.a. on said amount as of 11 November 2015 until the date of effective payment.

21. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant.

III. Decision of the Dispute Resolution Chamber

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 121,353, plus 5% interest p.a. as from 11 November 2015 until the date of effective payment.

4. In the event that the aforementioned amount plus interest 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 Dispute Resolution Chamber of every payment received.

*****

Note relating to the motivated decision (legal remedy):

According to article 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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director