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 30 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 June 2017,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (Netherlands), member

Zola Majavu (South Africa), member

on the claim presented by the player,

Player B, from country B

as Claimant

against the club,

Club S, from country S

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 12 September 2013, the Player B, from country B (hereinafter: the Claimant or the player), and the Club S, from country S (hereinafter: the Respondent or the club), signed an employment contract (hereinafter: the contract) valid until “the end of the season 2013-2014”.

2. According to art. 1 of the contract, the Claimant was entitled to an amount of USD 100,000 plus “a monthly salary of 1,500,000 (one million five hundred thousand)”.

3. In accordance with art. 2 of the contract, the amount of USD 100,000 was to be paid as follows:

“A. 50% upon signing of the contract

B. 25% at the start of the second phase

C. 25% at the end of the league”.

4. Pursuant to art. 9 of the contract, “if [the Claimant] does not show up to the daily trainings, an amount of (250,000) thousand shall be deducted from his salary. Also a deduction shall be calculated based on the number of minutes in case of delays”.

5. In accordance with art. 10 of the contract, “if [the Claimant] does not show up to an official match, an amount of (10,000,000) ten million will be deducted. Additionally, the [Respondent] shall have the right to terminate the contract and ask the [Claimant] to refund all the amounts paid by the [Respondent]”.

6. On 8 January 2014, the club’s executive committee passed a decision according to which the Claimant was sanctioned with a fine of USD 10,000 for “unauthorized departure home and missing 10 training sessions and two official matches without duly notifying the club and based on points 9 and 10 of the player’s contract”.

7. On 25 June 2014, the Claimant signed a payment receipt for the amount of USD 25,000, referring to the “final payment of end of country S season 2013-2014 of the player contract”.

8. On 3 January 2015, the Claimant sent a letter to the Respondent, by means of which he stated that the contract provided a salary of “USD 100,000 in addition to the monthly salaries”, acknowledged the payment of USD 65,700 and requested the payment of USD 34,300 to be paid “within two weeks”.

9. On 26 May 2016, the Claimant lodged a claim in front of FIFA, requesting the amount of USD 100,000 plus interests as from the date of the claim, broken down as follows:

a) USD 50,000 for the advanced payment as per art. 2 lit. A. of the contract;

b) USD 25,000 for the payment as per art. 2 lit. B of the contract;

c) USD 25,000 for the payment as per art. 2 lit. C of the contract.

10. In his claim, the Claimant stated that the Respondent did not pay him the remuneration provided in the contract, corresponding to USD 100,000.

11. In particular, the Claimant stated that he sent an e-mail to the Respondent and the Football Association of country S, requesting the payment of the above-mentioned amount on 20 April 2016, but such email was allegedly delivered only to the Football Association of country S and did not reach the Respondent.

12. In its reply, the Respondent stated that it paid the Claimant USD 40,700 “shortly after the contract was signed” and USD 25,000 on 25 June 2014 which, according to the Respondent, corresponded to the third instalment under art. 2 lit. C) of the contract. In this regard, the Respondent argued that such circumstance was corroborated by the letter sent by the Claimant on 3 January 2015. In addition, the Respondent affirmed that it paid him ten monthly salaries for the total amount of 15,000,000, corresponding to USD 12,214.

13. In continuation, the Respondent argued that the player’s claim was time-barred, being the non-payments of the first and second instalment under art. 2 lit. A) and B) of the contract the “event giving rise to the dispute at stake”, and such events allegedly occurred on 12 September 2013 and on 10 January 2014, while the claim was lodged on 26 May 2016.

14. Furthermore, the Respondent argued that, from the amount of USD 34,300 requested by the Claimant on 3 January 2015, the fine, in the amount of USD 10,000, imposed by the Executive Committee of the club on 8 January 2014 was to be deducted. As a consequence thereof, the Respondent considered that “this reduces the balance to USD 24,300”.

15. In continuation, the Respondent affirmed that the country S national tax law was applicable (“Income Tax Law of no. 113 of 1982” – hereinafter: Tax Law). In particular, the Respondent argued that, according to the Tax Law, the player’s income “is taxable at a rate of 15%” (art. 13 Tax Law) and the club itself must deduct it “from payment made to him” and “pay it to the Financial Authority (i.e. the Financial Ministry of country S)” (art. 17 Tax Law). On account of the above, and considering a taxable income of USD 112,214, the Respondent considered that “it must deduct USD 16,832 from the player’s remuneration”.

16. In addition, the Respondent held that “art. 28(4) of the Tax Law mandates the [club] to deduct additional 10% of the amounts due to the player and such amount can only be released to the player when the player obtains a certificate of clearance from income tax and submits it to the [club]”. As a consequence thereof, the Respondent emphasized that “it must deduct and hold USD 11,221, and such amount will only be released to the Player after the latter submits to the [club] certificate of clearance from income tax”. Nonetheless, according to the Respondent, the Claimant did not submit such certificate.

17. Based on the above, the Respondent concluded that it paid the Claimant USD 65,700, imposed a fine of USD 10,000 and deducted USD 16,832 as well as USD 11,221 from the Claimant’s “taxable income”. Therefore, the Respondent stressed that the sum of the above-mentioned amounts equals to USD 103,753 and considered that it “fully discharged its financial obligations towards the player but also overpaid him USD 3,753”.

18. In his replica, submitted on 7 August 2016, the Claimant amended the claimed amount to USD 34,300 plus interest as of the date of the claim. In this regard, the Claimant stated that, on 5 January 2015, the Respondent wrote him a letter by means of which it replied to his letter dated 3 January 2015 and allegedly acknowledged a debt of USD 34,300 towards him.

19. Moreover, the Claimant stressed that neither the contract nor the Respondent’s letter dated 5 January 2015 provided any tax deduction.

20. Furthermore, the Claimant emphasised that the Respondent did not provide any evidence of having performed any payment of taxes on behalf of the Claimant.

21. In its duplica, the Respondent reiterated its previous arguments and considered that, in his replica, the Claimant “challenges the [Respondent’s] authority to deduct taxes and withoholdings”. In this regard, the Respondent argued that the Claimant’s claim pertained to “an income tax matter” and, consequently, pursuant to country S law, “falls under the jurisdiction of the country S Tax Cassation Panel and not under the remit of DRC”. In particular, the Respondent underlined that “there is nothing in this contract that would exclude the remuneration payable to [the Claimant] from income taxes”.

22. Moreover, the Respondent emphasized that the contract did not provide that the Claimant’s remuneration was tax-free or that the Respondent undertook to pay taxes, because such matter is regulated by Tax Law.

23. Furthermore, the Respondent considered that, even if the Respondent did not pay “to the Finance Ministry of country S the taxes it deducted from the [Claimant] per the stipulations of Tax Law, this does not entitle the [Claimant] to these amounts since these amounts are the property of the Republic of country S”.

24. Finally, the Respondent challenged the authenticity of the letter dated 5 January 2015, stressing that, despite 5 January 2015 was just the third working day of the year, the letter reported 873 as chronological number. In particular, the Respondent stated that the club “never issued more than 400 letters in a whole calendar year”.

25. Furthermore, the Respondent averred that the aforementioned letter was bearing a signature different from the club’s Secretary General, whose name “was written incorrectly” on it and submitted a statement from the club’s Secretary General, whereby this latter denied having signed the contested letter.

26. Lastly, the Respondent stressed that, as further proof of its non-authenticity, the Claimant did not submit said letter with its initial claim, but with his replica only.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the 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 26 May 2016. 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country B player and a country S club.

3. 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 26 May 2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. Subsequently, the Dispute Resolution Chamber duly noted that, since the employment contract at the basis of the dispute was concluded on 12 September 2013, and that the Claimant had lodged his claim on 26 May 2016, it should examine if the present claim should be considered as time-barred.

5. In this respect, the DRC referred to art. 25 par. 5 of the Regulations which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

6. In view of the above, the Chamber deemed it fundamental to underline that, in order to determine whether it could hear the present matter, it should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.

7. Along those lines, the members of the Chamber took note that art. 2 of the contract specified that the Respondent had to pay the salary to the Claimant in three instalments: the first on the date of signature of the contract, the second at the start of the second phase and the third at the end of the country S league of season 2013-2014. In particular, the Chamber deemed necessary to recall that the contract was signed on 12 September 2013 and that it was not contested that the second phase of the country S league started on 10 January 2014.

8. In continuation, the members of the Chamber took note that the Claimant, on 25 June 2014, signed a payment receipt which expressly referred to the “final payment of end of the country S season 2013-2014 of the player contract”. Moreover, the DRC also duly noted that the content of such document remained undisputed between the parties. Consequently, the Chamber considered that, in principle, the claim of the Claimant referred to the other instalments provided in art. 2 of the contract, i.e. the first and the second, due on 12 September 2013 and 10 June 2014 respectively.

9. On the other hand, the members of the Chamber also duly noted that, according to the Respondent’s letter submitted by the Claimant with his replica, on 5 January 2015 the club acknowledged a debt of USD 34,300 towards the player. In this regard, the DRC also took note that the Respondent challenged the authenticity of said document.

10. With the above in mind, the members of the Chamber considered that, despite the Claimant indeed amended the claim, the document at the basis of the present dispute was the employment contract concluded on 12 September 2013.

11. In view of the above, the members of the Chamber, consequently, concurred that it was not necessary to enter into the question of the authenticity of the contested document.

12. On account of the aforementioned considerations and, in particular, of the explicit acknowledgement of receipt of the last salary instalment by the Claimant, the DRC decided that the event giving rise to the dispute, and hereby the starting point of the time period of two years set out under art. 25 par. 5 of the Regulations, regarding the first and the second salary instalment occurred on 12 September 2013 and 10 June 2014 respectively.

13. Therefore, the members of the Chamber held that the time period of the two years for the salaries provided by the first and second instalment of the contract had elapsed on 12 September 2015 and 10 January 2016 respectively.

14. As a consequence, recalling that the present claim was submitted to FIFA on 26 May 2016, the Dispute Resolution Chamber concluded that the time limit of two years had elapsed. Therefore, the claim of the Claimant cannot be entertained by the Chamber and, thus, is inadmissible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player B, is inadmissible.

*****

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