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 July 2016

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 15 July 2016,

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

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), signed an employment contract valid from 22 August 2012 until 31 May 2013 (hereinafter: the contract).

2. In accordance with the contract, the Claimant was inter alia entitled to receive the following amounts and amenities:

a. EUR 55,000 on the date of signature;

b. EUR 50,000 payable in ten equal instalments of EUR 5,000 on the 30th of each month between August 2012 and May 2013 (excepting February, which is due on the 28th);

c. EUR 588 per match if the Claimant is in the starting line-up, 75% of the amount “if he joins the match later”, and 50% of the amount if “he takes part in the first 18 players squad”.

d. One round trip from country D to country B.

3. On 9 December 2013, the Claimant lodged a claim in front of FIFA against the Respondent asking that he be paid EUR 37,023 as outstanding remuneration plus 5% interest p.a. from the relevant due dates, as follows:

i. EUR 5,000 payable on 30 December 2012;

ii. EUR 5,000 payable on 30 January 2013;

iii. EUR 5,000 payable on 28 February 2013;

iv. EUR 5,000 payable on 30 March 2013;

v. EUR 5,000 payable on 30 April 2013;

vi. EUR 5,000 payable on 30 May 2013;

vii. EUR 7,023 relating to match bonuses;

viii. CHF 1,000 for legal fees as well as the imposition of sporting sanctions.

4. The Claimant claims that he was not paid his monthly salary from December 2012. He also claims that he played in 24 matches, was a used substitute in one game and was named on the team-sheet on five occasions, meaning that according to him, he was entitled to EUR 16,023 as match bonuses and EUR 7,023 of this sum remains outstanding.

5. In reply to the claim, the Respondent stated that it had paid the Claimant everything that he was owed. It further states that the Claimant is claiming more than deserved because he would only be entitled to all the match bonuses if he had played in all the matches throughout the season.

6. In relation to the Respondent’s assertion that it had paid all amounts due, it submitted the following receipts in substantiation:

a. 9 August 2012 in the amount of EUR 55,000 “for his contract”;

b. 27 August 2012 in the amount of 44,870 / EUR 20,000, no reason mentioned;

c. 13 September 2012 in the amount of 4,000 for “cash payment for premium Club E”;

d. 21 September 2012 in the amount of 1,500 for “cash payment for premium Club F”;

e. 5 October 2012 in the amount of EUR 5,000 for “monthly payment”;

f. 19 October 2012 in the amount of 1,400 for “cash payment for winning premium Club G”;

g. 16 November 2012 in the amount of 1,500 for “cash payment for premium of Club H”;

h. 18 January 2013 in the amount of EUR 9,000 for “for his credit”;

i. 1 February 2013 in the amount of 500 for “cash payment for winning premium Club I”;

j. 5 February 2013 in the amount of EUR 12,500 for “for his credit”;

k. 8 February 2013 in the amount of 400 for “cash payment for winning premium Club F”;

l. 22 February 2013 in the amount of 1,000 for “cash payment for winning premium Club J and Club F”;

m. 22 March 2013 in the amount of EUR 4,680 for “for his credit”;

n. 29 March 2013 in the amount of 2,000 for “cash payment for winning premium of Club K”;

o. 5 April 2013 in the amount of 300 for “cash payment for winning premium Club H”;

p. 26 April 2013 in the amount of EUR 8,500 for “for his credit”;

q. 13 May 2013 in the amount of 5,000 for “cash payment for winning premium Club I”;

r. 14 May 2013 in the amount of 5,000 for “cash payment for winning premium Club I”.

7. On 20 June 2014, the FIFA administration informed the Respondent that the payment receipts enclosed to its reply to the claim were illegible and therefore requested from the Respondent that it submits complete and legible copies via courier by 3 July 2014 at the latest. As no response was received from the Respondent, on 21 July 2014, the FIFA administration submitted a second request for complete and legible copies of the Respondent’s annexes. The Respondent did not provide any answer.

8. The Claimant replied to the submission of the Respondent by stating that a certain number of documents provided do not pertain to contractual receivables owed to the Claimant, i.e. that they do not correspond to monthly salaries or per match bonuses. In particular, the Claimant notes that the payments were made for “premium of the match” and not for salary payments.

9. The Claimant particularly contested that the payments of 13 September 2012, 21 September 2012, 19 October 2012, 16 November 2012, 1 February 2013, 8 February 2013, 22 February 2013, 29 March 2013, 5 April 2013, 13 May 2013 and 14 May 2013 should be considered as salary payments.

10. The Claimant states that the payment of EUR 55,000 is an extra-contractual fee which was agreed by the parties. He states that considering that the contract was signed on 22 August 2012 and that the receipt clearly indicates the date as being 9 August 2012, this payment should not be taken into account in the calculation of the outstanding remuneration owed to him.

11. Furthermore, the Claimant asserts that the document submitted dated 27 August 2012 (cf. point I.6.b above) is not a bank receipt, but is a document which shows a foreign exchange transaction which does not contain the name of the Claimant nor his bank account number. It should therefore not be considered. The Claimant also claims that the payment of 26 April 2013 (cf. point I.6.p above) was never made and that the receipt is illegible.

12. In spite of having been invited to do so, the Respondent did not provide any final comments to the replica of the Claimant.

II. Considerations of the DRC judge

1. First, the DRC judge analysed whether he was competent to deal with the present matter. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 9 December 2013. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2016 edition; hereinafter: the Regulations), he is competent to decide on the present litigation, which concerns an employment-related dispute of an international dimension between a player from country B and a club from country D.

3. Furthermore, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations (2016 edition), and considering that the present matter was submitted to FIFA on 9 December 2013, the 2012 edition of said Regulations is applicable to the present matter as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. The DRC judge, however, 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 matter at hand.

5. In this respect, the DRC judge acknowledged that the parties had signed an employment contract on 22 August 2012, in accordance with which the Claimant was entitled, inter alia, to receive the amount of EUR 105,000 as salary remuneration for the duration of the contract. The DRC judge also noted that the contract provided that the Claimant would receive EUR 588 per match if he is in the starting line-up, 75% of said amount “if he joins the match later” and 50% of said amount if “he takes part in the first 18 players squad”.

6. In continuation, the DRC judge noted that the Claimant alleged that the Respondent had failed to pay the outstanding amount of EUR 30,000 established by the parties in the employment contract, which should have been paid between December 2012 and 30 May 2013 as monthly salaries, in addition to match bonuses in the total amount of EUR 7,023. Consequently, the Claimant asked to be awarded with the payment of the total amount of EUR 37,023, plus 5% interest p.a. In addition, the Claimant requested that the Respondent should bear the legal costs of the procedure amounting to CHF 1,000.

7. Equally, the DRC judge took note of the reply of the Respondent, which asserted that it had already paid the Claimant the total amount owed to him, adding that the Claimant was requesting more than he should be entitled to in light of the fact he did not play in every game during the season.

8. In this respect, the DRC judge recalled the basic principle of burden of proof 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. In this context, the DRC judge first wished to stress that the documentary evidence presented by the Respondent is only partially legible. Moreover, the DRC judge noted that the FIFA administration duly informed the Respondent of the existence of such a defect contained in the documentation and had, on two occasions, granted the Respondent the opportunity to cure the relevant defect. Nevertheless, the DRC judge observed that the Respondent never replied to the FIFA administration, nor did it ever submit complete and legible copies of the annexes enclosed to its reply to the claim.

9. Consequently, the DRC judge considered that the partially illegible documentation provided by the Respondent is not sufficient, on its own, to demonstrate that all payments allegedly made by the Respondent, had indeed been made. In particular, the DRC judge established that the alleged payment receipt of 27 August 2012 does not appear to relate to a payment made to the Claimant.

10. With the above in mind, the DRC judge took note that according to the employment contract the Claimant would be entitled to total salaries of EUR 105,000. In continuation, the DRC judge acknowledged that the Claimant contested that the payment on 9 August 2012 should be considered a contractual payment as it fell outside the term of validity of the employment contract. Nevertheless, it was evident that this payment is related to the sign-on fee provided for in the contract. What is more, the DRC judge pointed out that the Claimant did not deny having received this amount. The DRC judge additionally noted that the Claimant had not contested the receipts demonstrating the payments made in euros on 5 October 2012, 18 January 2013, 5 February 2013 and 22 March 2013, cumulatively totalling EUR 31,180. Moreover, with regard to the alleged payment of 26 April 2013 for the amount of EUR 8,500, in spite of having been contested by the Claimant, the DRC judge was of the opinion that the receipt presented by the Claimant is sufficient to demonstrate the payment contained therein. In particular, the DRC judge highlighted that the receipt is exactly the same as those that had remained uncontested by the Claimant. Consequently, the DRC judge determined that the Claimant had received from the Respondent EUR 94,680.

11. Subsequently, the DRC judge, in consideration of the documentation submitted, took due note that the payments made in the currency of country D amounting to approximately EUR 6,053 clearly pertain to match bonuses, and not to extra-contractual payments as the Respondent asserted. Consequently, the DRC judge deemed that these payments should be taken into consideration.

12. In light of the terms of the employment contract and the documentation submitted during the course of the investigation, the DRC judge acknowledged that the Claimant had demonstrated having played in twenty-four matches (for a value of EUR 14,112) and in one substitute appearance (for a value of EUR 441) and had therefore demonstrated being entitled to match bonuses totalling EUR 14,553. Furthermore, taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had not fully substantiated his claim with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules to determine that any other bonuses were due to him.

13. In the context of the aforementioned considerations and the arguments and documentation submitted by each of the parties, the DRC judge concluded that for the duration of the execution of the contract, the Claimant was entitled to a total amount of EUR 119,533, but had only received a total of EUR 100,733.

14. In view of the above, and in consideration of the claim lodged before FIFA, the DRC judge concluded that it could be established that the Respondent had failed to pay to the Claimant the totality of the amount agreed upon between the parties. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the employment contract concluded with the Claimant and is to be held liable to pay the outstanding amount of EUR 18,820 to the Claimant.

15. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award interest at a rate of 5% p.a. to the Claimant on the amount of EUR 18,820 as follows:

a) 5% p.a. as of 31 December 2012 on the amount of EUR 5,000;

b) 5% p.a. as of 31 January 2013 on the amount of EUR 5,000;

c) 5% p.a. as of 1 March 2013 on the amount of EUR 5,000;

d) 5% p.a. as of 1 April 2013 on the amount of EUR 3,820.

16. 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.

17. 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 partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 18,820, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 31 December 2012 on the amount of EUR 5,000;

b. 5% p.a. as of 31 January 2013 on the amount of EUR 5,000;

c. 5% p.a. as of 1 March 2013 on the amount of EUR 5,000;

d. 5% p.a. as of 1 April 2013 on the amount of EUR 3,820.

3. In the event that 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.

4. Any further claims lodged by the Claimant are rejected.

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 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

For the DRC judge:

Marco Villiger

Deputy Secretary General

Encl. CAS directives