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 September 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 September 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Jon Newman (United States of America), member

Mario Gallavotti (Italy), member

Taku Nomiya (Japan), 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 1 June 2013, 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) (hereinafter jointly referred to as the parties) concluded an employment contract valid as of the date of its signature until 30 May 2015.

2. According to the contract, the Claimant was entitled to receive from the Respondent the total amount of USD 480,000 payable in 24 equal monthly instalments of USD 20,000, i.e. USD 240,000 per season.

3. Moreover, clause 4.3 and 4.4 of the contract provided that the Claimant was entitled to extra bonuses of USD 20,000 “for group of UEFA” and of USD 30,000 “for group of League E”.

4. On 4 February 2016, the Claimant lodged a claim against the Respondent in front of FIFA requesting outstanding salaries in the total amount of USD 80,000 as per the months of February, March, April and May 2015 as well as 5% interest as of the due dates. The Claimant also requested the “costs related to this arbitration procedure”.

5. In its reply to the claim, the Respondent argued that, “after revising the payment status”, its only debt towards the Claimant is of USD 21,000. In this respect, the Respondent enclosed a payment schedule containing the following payments:

For the season 2013/2014 Date of payment Amount

16 August 2013

USD 3,000

20 August 2013

USD 21,200

29 August 2013

USD 3,000

8 September 2013

USD 4,000

1 October 2013

USD 20,800

18 October 2013

USD 5,000

28 October 2013

USD 20,800

21 November 2013

USD 16,000

28 November 2013

USD 20,800

31 January 2014

USD 41,600

19 March 2014

USD 41,600

30 April 2014

USD 20,800

15 May 2014

USD 31,600

21 May 2014

USD 20,800

Total amount

USD 271,000

For the season 2014/2015 Date of payment Amount

27 July 2014

USD 10,000

15 August 2014

USD 10,000

25 August 2014

USD 20,000

15 October 2014

USD 20,000

18 November 2014

USD 8,000

25 November 2014

USD 20,000

26 December 2014

USD 20,000

6 March 2015

USD 60,000

30 April 2015

USD 20,000

Total amount

USD 188,000

6. In his replica, the Claimant rejected the position of the Respondent and stressed that some of the payments made by the latter are not related to his salaries but to “rewards for achieved sports results”. In this respect, the Claimant referred to the payments made for the season 2013/2014 and stressed that the Respondent “mislead the court attempting to present that they, in the season 2013/2014, paid their obligations in advance (…) which is not true”.

7. Along those lines, the Claimant highlighted that the only payments which refer to his salary are the ones made on 25 August 2014, 15 October 2014, 25 November 2014, 26 December 2014, 6 March 2015 and 30 April 2015 in the total amount of USD 160,000.

8. Finally, in view of the payment schedule presented by the Respondent, the Claimant amended his claim by asking as outstanding his salary of June 2014 plus 5% interest as of its due date instead of his salary of February 2015.

9. In its rejoinder, the Respondent argued that “any payment made in excess during the first season of contract can be legitimately allocated by the club to the subsequent season” and that such payments were made in advance at the explicit request of the Claimant.

10. Moreover, the Respondent denied having paid any bonuses to the Claimant as “there is no such thing in the contract” save from those contained in clauses 4.3. and 4.4 of the contract. In this respect, the Respondent stressed that the conditions for the payment of such bonuses were not met. As a consequence, the Respondent stressed that, any and all payments are allocated to the Claimant’s salary. In this regard, the Respondent alleged that the Claimant failed to present any evidence which could prove that the payments highlighted in the table are related to “rewards for achieved sports results”.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 4 February 2016. Consequently, the 2015 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 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 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 edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber 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 claim was lodged on 4 February 2016, the 2015 edition of the aforementioned 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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.

5. First of all, the members of the Chamber acknowledged that on 1 June 2013, the parties entered into an employment contract valid until 30 May 2015 according to which the Claimant was entitled to the total amount of USD 480,000 payable in 24 monthly instalments of USD 20,000.

6. Having established the above, the members of the Chamber focused their attention on the claim of the Claimant who argues that the Respondent has an outstanding amount towards him of USD 80,000 corresponding to his salaries of June 2014 as well as March, April and May 2015.

7. The Chamber further noted that, conversely, the Respondent, while enclosing a partially translated payment schedule, rejected the Claimant’s claim and argued that its only debt towards the Claimant amounts to USD 21,000.

8. Subsequently, the DRC observed that the Claimant denied the argumentation of the Respondent holding that not all the payments provided in the payment table referred to his salaries. In particular, the Claimant maintained that the only payments related to his salaries are the ones dated 25 August 2014, 15 October 2014, 25 November 2014, 26 December 2014, 6 March 2015 and 30 April 2015 whilst all the others refer to “rewards for achieved sports results”.

9. With the aforementioned considerations in mind, the Chamber proceeded to analyse the payment schedule provided by the Respondent and, in this respect, it first wished to stress that the Claimant is not disputing having received all the amounts provided therein but rather disputes the nature of said payments.

10. Having said that, the Chamber found it imperative to emphasise that the version of the payment schedule presented by the Respondent in Language F was only partially translated. Indeed, the members of the DRC considered that the quite limited translation of the relevant schedule does not allow the Chamber to perform a proper analysis of said document. In this respect, the members of the DRC wished to recall the content of art. 9 par. 1 lit. e) of the Regulations which provides that documents submitted within the framework of a dispute in front of FIFA’s deciding bodies shall be provided in its original version and, if applicable, translated into one of the official FIFA languages.

11. Consequently, the members of the Chamber considered that any lack of clarity as to the nature of the payments contained in the payment schedule should be interpreted against the Respondent.

12. With the above in mind, the Chamber proceeded to analyse the payment schedule to the extent possible and noted that the latter document is clearly divided in several tables each with its own title. In this respect, the Chamber took note that several payments considered by the Respondent as salary payments are detailed in a table which title reads “Olke çempionati ve UEFA turnilerinde verilen mükafat” (hereinafter; the award table). At this point, the DRC stressed once again that the translation provided by the Respondent of the payment schedule is very limited and does not contain the translations of all the titles of the different tables, in particular, the Respondent did not provide a translation of the table with the aforementioned title. Nevertheless, the Chamber noted that, from a prima facie translation, the said title appears to refer to certain “awards” won in “UEFA tournaments”. Indeed, from the payment schedule it would seem that all the payments contained in the award table do not relate to the Claimant’s salaries but rather to certain awards related to certain UEFA tournaments.

13. In view of the above and with the DRC’s reasoning explained in par. II/11. ut supra in mind, the members of the Chamber were of the unanimous opinion that the payments contained in the award table will not be taken into account when determining the amount due to the Claimant as outstanding remuneration.

14. Having so found, the DRC focused on the rest of the payments contained in the payment schedule and observed that these amount to USD 408,000. Taking into account that the Claimant was entitled to the total amount of USD 480,000, the Chamber determined that the Claimant’s outstanding remuneration amounts to USD 72,000.

15. On account of the above, and while referring to the principle of pacta sunt servanda, the Chamber decided that the Respondent must pay to the Claimant outstanding remuneration in the amount of USD 72,000.

16. In addition, taking into consideration the player’s claim as well as the Chamber’s jurisprudence, the members of the DRC decided to award interest on said amounts at the rate of 5% p.a. as of the respective due dates.

17. Furthermore, as regards the claimed “costs related to this arbitration procedure”, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject this part of the Claimant’s claim.

18. Finally, the Chamber concluded its deliberations by establishing that any other requests from the parties are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 72,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. on the amount of USD 12,000 as of 1 July 2014;

b. 5% p.a. on the amount of USD 20,000 as of 1 April 2015;

c. 5% p.a. on the amount of USD 20,000 as of 1 May 2015;

d. 5% p.a. on the amount of USD 20,000 as of 1 June 2015.

3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. 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.

4. Any further claim lodged by the Claimant is 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 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:

Marco Villiger

Deputy Secretary General

Encl. CAS Directives