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 June 2017

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 June 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Guillermo Saltos Guale (Ecuador), member

Johan van Gaalen (South Africa), member

Joaquim Evangelista (Portugal), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 24 December 2015, the Player of Country B, Player A (hereinafter: the Claimant) concluded an employment contract (hereinafter: the contract) with the Club of Country D, Club C (hereinafter: the Respondent), valid as from 1 January 2016 until 31 December 2016.

2. According to clause 2 of the contract, the Claimant was entitled to a monthly salary in the amount of XXX 200,000.

3. On 16 February 2017, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of a total amount of XXX 900,000, plus 5% interest p.a. as from the due dates, detailed as follows:

- XXX 100,000, corresponding to a part of the Claimant’s salary for the month of August 2016;

- XXX 200,000, corresponding to the Claimant’s salary for the month of September 2016;

- XXX 200,000, corresponding to the Claimant’s salary for the month of October 2016;

- XXX 200,000, corresponding to the Claimant’s salary for the month of November 2016;

- XXX 200,000, corresponding to the Claimant’s salary for the month of December 2016.

4. According to the Claimant, he sent default notices to the Respondent for the unpaid amounts, respectively, on 2 November 2016, 2 January 2017 and 2 February 2017. In this regard, the Claimant stated that the Respondent failed to provide any reply to said notices.

5. In its reply to the claim lodged by the Claimant, the Respondent explained that, “in the beginning of August 2016”, it concluded a mutual termination agreement with the Claimant. In this regard, the Respondent explained that, on 22 August 2016, it drafted a document for the Claimant in order to confirm his status as a free agent, and that the Claimant himself presented this document to his next club when he concluded a new employment contract and that, consequently, he assumed that the contract was mutually terminated in August 2016. Thus, the Respondent considered that, in accordance with the principle of burden of proof, it was up to the Claimant to prove that the employment relationship with the Respondent remained valid after August 2016.

6. Moreover, the Respondent indicated that the Claimant left Country D in August 2016 without any further notice.

7. In addition, the Respondent highlighted that it complied with its financial obligations until the termination of the contract during the month of August 2016.

8. In his replica, the Claimant insisted in his previous arguments, and denied that the contract was mutually terminated in August 2016. In particular, the Claimant considered that the document provided by the Respondent does not prove a mutual termination since it is not signed by him.

9. In addition, the Claimant explained that he left Country D on 21 August 2016 because he was banned from staying in said country by the local authorities. According to the Claimant, said ban was imposed because the Respondent failed to comply with its responsibilities in obtaining a work permit from the local authorities.

10. Moreover, the Claimant explained that, on 2 October 2016, the Respondent’s president sent him a letter, by means of which he apparently offered the Claimant to receive his salaries “missed since [he] had been away and also the remaining part of [his] contract salaries up to December 2016”. In addition, and according to said letter, the Respondent underlined that the Claimant also had to take his own responsibilities as to his own immigration procedures.

11. As final comments, the Respondent confirmed its previous arguments as to the mutual termination of the contract, and insisted that, when concluding a new employment contract, the Claimant presented to the new club the aforementioned document dated 22 August 2016. In this regard, the Respondent considered that the reason why the Claimant never signed said document was simply because he was not in Country D at that moment anymore.

12. As to his work permit, the Respondent considered that, in accordance with the applicable FIFA regulations, a player must cooperate fully in his efforts aiming at obtaining his visa and that, specifically, he had to put himself at its disposal and supply the Respondent with all the necessary information and documents in order to facilitate all relevant tasks.

13. Moreover, the Respondent considered that the letter dated 2 October 2016, allegedly sent by its president, was forged.

14. Despite being invited to do so, the Claimant failed to provide the original copy of the letter dated 2 October 2016.

15. According to the information contained in the TMS, the Claimant concluded a new employment contract with the Club of Country E, Club F, valid as from 8 January 2017 until 7 January 2018. In addition, the document dated 22 August 2016 (cf. point I.5 above) is available in the TMS as “Proof of last contract end date”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 16 February 2017. Consequently, the 2017 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 2017 edition of the Procedural Rules).

2. Subsequently, the Chamber referred to art. 3 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 DRC shall adjudicate on employment-related disputes between a club and a player that have an international dimension between a Player of Country B and a Club of Country D.

3. The competence of the DRC having been established, the Chamber decided thereafter to analyse 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 on the Status and Transfer of Players (edition 2016), and considering that the present matter was submitted to FIFA on 16 February 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand. Equally, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. In this respect, the DRC acknowledged that, on 24 December 2015, the parties to the dispute had signed an employment contract, originally valid as from 1 January 2016 until 31 December 2016, in accordance with which the Respondent would pay the Claimant a monthly salary in the amount of XXX 200,000.

6. Moreover, the DRC observed that the Claimant lodged a claim against the Respondent, requesting the payment of outstanding remuneration for half of his salary of August 2016 (i.e. XXX 100,000), as well as for his entire salaries for the period comprised between September 2016 until December 2016 (i.e. XXX 200,000 per month).

7. Conversely, the DRC took note of the Respondent’s argument, according to which “in the beginning of August 2016”, it concluded a mutual termination agreement with the Claimant. Moreover, the DRC observed that, according to the Respondent, on 22 August 2016, it drafted a document for the Claimant in order to confirm his status as a free agent, and that the Claimant himself presented this document to his next club when he concluded a new employment contract and that, consequently, he assumed that the contract was mutually terminated in August 2016.

8. In view of the dissent between the parties, the DRC understood that the legal issue at stake concerns to determine whether the Claimant was legally entitled to receive the requested outstanding amounts.

9. In this regard, the Chamber observed that, according to the Claimant, he left Country D on 21 August 2016 due to an immigration ban imposed by the local authorities and that, according to the Claimant, it was the Respondent’s responsibility to obtain a work permit from the local authorities.

10. In this respect, the Chamber wished to emphasize that the petition of the Claimant was only related to the payment of certain outstanding remuneration and not to any other issue related to a breach of the contract concluded between the parties, such as the responsibility for obtaining a work permit for the Claimant. Thus, the Chamber insisted that, in accordance with the Claimant’s request, it only had to assess the Claimant’s entitlement to receive the requested outstanding amounts.

11. Within this context, the members of the Chamber highlighted that the Claimant left Country D on 21 August 2016 and that, as a result, and regardless of any other consideration, the Claimant was not in a de facto position to render his services as a professional football player for the Respondent.

12. In addition, with reference to art. 6 par. 3 of Annexe 3 of the Regulations, the members of the DRC noted that the document dated 22 August 2016 was uploaded in the instruction of the player’s next transfer under “proof of last contract end date” by the new club. In this respect, the DRC understood that the player indeed assumed that the contract was terminated as of that date by providing his new club with the aforementioned document.

13. As a result, the members of the Chamber unanimously agreed that, after leaving Country D on 21 August 2016, the Claimant could not expect to be remunerated by the Respondent on the basis of non-performed work and, consequently, his claim for outstanding salaries as from said date, in principle, must be rejected.

14. Notwithstanding the above, the members of the Chamber further observed the Claimant’s allegation, according to which, on 2 October 2016, the Respondent’s president sent him a letter, by means of which he apparently offered him to receive his salaries “missed since [he] had been away and also the remaining part of [his] contract salaries up to December 2016”.

15. In relation to said letter, the members of the Chamber took note of the Respondent’s allegation, according to which said document was forged.

16. In this respect, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones related to the possible forgery of a document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

17. Notwithstanding the above, the members of the DRC understood that it had to be established, beyond doubt, by documentary evidence, that the Respondent indeed agreed to pay the Claimant’s salaries as apparently stated in its alleged letter dated 2 October 2016.

18. In view of the aforementioned, the members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the Claimant to prove the validity of the documentary evidence submitted with his claim.

19. Having stated the above, the Dispute Resolution Chamber observed that, despite being invited to do so, the Claimant was unable to provide the relevant letter in its original form. On account of these considerations, the Chamber held that the fact the Claimant had only submitted a copy of the disputed documents was insufficient, given the circumstances of the case, to establish the authenticity of the letter dated 2 October 2016.

20. In general, the members of the Chamber held that they could not assume that a document with potential legal effects had been concluded or issued by any of the parties simply based on circumstances which are not certain to indicate their authenticity. In addition, the members of the Chamber agreed, in accordance with the longstanding jurisprudence of the Dispute Resolution Chamber, that the Chamber must be very careful with accepting certain documents as evidence when they may imply certain legal consequences.

21. As a consequence, the DRC decided that, since the Claimant had not been able to prove beyond doubt that the Respondent issued the letter dated 2 October 2016, and considering that the Claimant failed to render his services as from 22 August 2016, no outstanding salaries must be awarded as from the date of his departure from Country D and the claim.

III. Decision of the Dispute Resolution Chamber

1. 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 (CAS)

Avenue de Beaumont 2

CH-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

Enclosed: CAS directives