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 15 December 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 December 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (Greece), member

Mario Gallavotti (Italy), 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

between the parties

I. Facts of the case

1. On 5 January 2016, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract valid from 5 January 2016 until 30 June 2018.

2. In accordance with the employment contract, the Claimant is inter alia entitled to receive total remuneration of EUR 3,050,000 plus amenities, as follows:

a. EUR 108,333 per month for a total of EUR 650,000 for the 2015/16 season;

b. EUR 100,000 per month for a total of EUR 1,200,000 for the 2016/17 season;

c. EUR 100,000 per month for a total of EUR 1,200,000 for the 2017/18 season.

3. Article 5(3) of the contract provides “on the condition that the [Claimant] has participated in over 70% of the matches of the Cup E in the then current season, in the event that [the Respondent] becomes the winner (champion) of the Cup E, the player shall be entitled to 100,000 Euros only (one hundred thousand Euro only), provided that the [Claimant] is at such time employed by [the Respondent]” (hereinafter: cup bonus).

4. On 20 July 2016, the Claimant put the Respondent in default of a total of EUR 425,000 pertaining to the monthly salaries of April, May and June 2016 and the cup bonus, setting a ten-day time limit.

5. On 3 August 2016, and subsequently modified on 30 August 2016, the Claimant lodged a claim against the Respondent before FIFA requesting to be paid outstanding remuneration in the total amount of EUR 100,000 relating to the cup bonus. No interest is requested. Furthermore, the Claimant “kindly request FIFA to check with the Football Federation of Country D the games in which the Player participated the Cup E 2015/2016 (sic)”.

6. The Claimant argues that in light of article 5(3) of the contract, considering the allegation that he played in over 70% of matches, he is entitled to the cup bonus amounting to EUR 100,000.

7. In its reply to the claim, the Respondent submitted duplicates of payment orders which each contain the mention “salaries for July 2016”, “salary for the month of August 2016” and “Sal Sep 2016 (sic)” respectively.

8. In his response, the Claimant clarified that he had modified his claim on 30 August 2016 on the basis that all outstanding salaries had been paid, adding that the documentation submitted does not demonstrate any payment relating to the cup bonus.

9. In the Respondent’s duplica, it explains that article 5(3) of the employment contract provides that in case of 70% participation in matches, the Claimant would be entitled to EUR 100,000, indicating that participation is counted in relation to the amount of minutes played. It states, however, that the Claimant had not participated in over 70% of the minutes played by the Respondent and consequently he is not entitled to said bonus. It adds that the records of the Football Federation of Country D would demonstrate that he played in less than 70% of the minutes played by the Respondent in the competition and that the Claimant failed to comply with the principle of “supporting his claim with the official correct and accurate documents and unquestionably acted in bad faith”.

10. The Respondent submitted a further submission containing documentation pertaining to the Claimant’s participation in the relevant competition in response to the claim, only after notification of the closure of investigation in the present matter.

II. Considerations of the Dispute Resolution Chamber

1. First, 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 3 August 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the 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 par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2016 edition) 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 Player of Country B and a Club of 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 (2016 edition), and considering that the present claim was lodged on 3 August 2016, the 2016 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. 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 started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. The Chamber, however, 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.

5. In this regard, the members of the Chamber observed that the Respondent had submitted an additional reply after the notification of the closure of investigation of the matter at hand. As a result, in line with art. 9 par. 4 of the Procedural Rules, as well as the DRC’s constant jurisprudence in this regard, the DRC decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision on the basis of the documents on file that were provided prior to the closure of the investigation phase.

6. Having said this, the Chamber recalled that the parties had signed an employment contract valid from 5 January 2016 until 30 June 2018.

7. Furthermore, the members of the Chamber acknowledged that the employment contract signed between the parties provides in its article 5(3) that “on the condition that the [Claimant] has participated in over 70% of the matches of the Cup E in the then current season, in the event that [the Respondent] becomes the winner (champion) of the Cup E, the [Claimant] shall be entitled to 100,000 Euros only (one hundred thousand Euro only), provided that the [Claimant] is at such time employed by the [Respondent]”.

8. In continuation, the Chamber noted that the Claimant alleged that he had fulfilled the conditions of article 5(3) of the employment contract, and therefore claims to be entitled to EUR 100,000. On the other hand, the Chamber noted that the Respondent was of the firm opinion that the Claimant was not entitled to the sum provided for in article 5(3) of the contract, and consequently rejects the claim lodged against it.

9. In this regard, referring to art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC wished to highlight that the Claimant failed to present any documentary evidence in support of his allegation that he had participated in 70% of matches of the “Cup E”. Consequently, the DRC decided that the Claimant’s allegations in this regard cannot be accepted.

10. Along these lines, and referring to the Claimant’s request for FIFA to contact the Football Federation of Country D in order to “check” in which games the Claimant had played for the Respondent in the relevant competition. The members of the Chamber recalled that it is the responsibility of the parties to submit the relevant substantiating documentation when lodging a claim. What is more, FIFA explicitly informed the Claimant on 18 August 2016 that he should provide “any other documentation you deem useful in support of your position”. In this regard, and solely for the sake of completeness, the Chamber pointed out that the documentation provided in the Respondent’s late submission is also not sufficient to establish the entitlement of the Claimant to the relevant bonus.

11. In light of all of the above, and in particular bearing in mind the fact that the Claimant had failed to substantiate his claim with substantive documentary evidence, the Dispute Resolution Chamber decided that it must reject the claim put forward by the Claimant.

*****

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is rejected.

*****

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

For the Dispute Resolution Chamber:

Marco Villiger

Deputy Secretary General

Encl.: CAS directives