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 24 November 2016

Decision of the Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 24 November 2016,

by Philippe Diallo (France), DRC judge,

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 26 August 2014, the Player of Country B, Player A (hereinafter: the Claimant) concluded an employment contract (hereinafter: the first contract) with the Club of Country D, Club C (hereinafter: the Respondent), valid as from the date of signature until 31 December 2014.

2. According to clause 5.1. of the first contract, the Claimant was entitled to a monthly salary in the amount of USD 7,000, to be paid “in local currency at the Exchange rate of the National Bank of Country D” (i.e. USD 28,000 in total).

3. In addition, the first contract stipulated that the Claimant was entitled to “Paid bonuses depending on the result and the importance of the match, rank opponent’s personal contribution in a particular match in the amount 300 US Dollars”.

4. Moreover, the contract included the following clauses:

4.1.1. The [Respondent] shall have the rights:

(…)

4.1.2 to demand from the [Claimant] to perform the work duties timely and personally as well as to comply with the terms of this Contract and the current labor regulation;

4.1.3. In case the level of professional skills due to the systematic violation of the sport mode, skip training sessions and games without a valid reason to change the wage

4.1.4 In case the failing [Claimant] of its obligations and not fulfilling expectations hereunder [Respondent] has the right to revise the terms of this Contract or abandon existing commitments and to terminate the contract without paying any compensation.”

5. Subsequently, the Claimant and the Respondent concluded an employment contract (hereinafter: the second contract), valid as from 2 January 2015 until 30 November 2015.

6. According to clause 5.1. of the second contract, the Claimant was entitled to a monthly salary in the amount of USD 7,000, to be paid “in local currency at the Exchange rate of the National Bank of Country D” (i.e. USD 77,000 in total).

7. In addition, the second contract included the same bonuses (cf. point I. 3 above) and the same clauses 4.1.1 to 4.1.4 of the first contract (cf. point I. 4 above).

8. On 30 May 2016, the Claimant lodged a claim against the Respondent, and requested the payment of the total amount of USD 22,000, detailed as follows:

- USD 7,000, corresponding to the salary of December 2014 (i.e. in connection with the first contract);

- USD 14,000, corresponding to the salaries of October and November 2015 (i.e. in connection with the second contract);

- USD 1,000, corresponding to a bonus for the Respondent’s classification for the Cup E.

9. In addition, the Claimant requested the imposition of sporting sanctions against the Respondent.

10. In particular, the Claimant explained that, on 15 October 2015, he sent a default notice via email to the Respondent, by means of which he requested the payment of his salary due on December 2014, as well as “two months of salaries” and “bonuses”.

11. In this regard, the Claimant attached a correspondence allegedly sent by the Respondent on 15 October 2015 in reply thereto, by means of which the latter “confirmed its debts” and stated that they would be settled. According to the same correspondence, the Respondent decided to reduce the Claimant’s salary in view that his “professional performance has decreased to critical levels”.

12. Subsequently, the Claimant stated that he sent a final default notice to the Respondent on 10 March 2016, by means of which he requested the payment of the total amount of USD 22,000, and that failure to do so would entitle him to lodge a claim before FIFA.

13. In its reply to the claim, the Respondent rejected the Claimant’s arguments and argued that the latter did not fulfill his responsibilities, which consist in reaching a certain result. In this regard, the Respondent stated that, according to clause 4 of the contract, it was entitled to change the Claimant’s remuneration in view of his alleged low professionalism.

14. In reference to the claimed bonus, the Respondent was of the opinion that said amount was of a discretionary nature in accordance with clause 5.1. of the contract (cf. point I. 6 above) and that, in any case, it already paid the amount of USD 3,000 as bonuses during the period of validity of the contracts.

15. In his replica, the Claimant considered that the Respondent failed to substantiate his alleged low professionalism and that, under any circumstance, the Respondent was not entitled to unilaterally change the stipulations agreed upon in the contract.

16. In reference to the claimed bonus, the Claimant considered that the Respondent already acknowledged said debt by means of its correspondence dated 15 October 2015 (cf. point I.10 above).

17. Moreover, the Claimant underlined that the Respondent failed to provide any evidence for the payment of the amount of USD 3,000 as bonuses (cf. point I.14 above).

18. As final comments, the Respondent confirmed its previous arguments.

II. Considerations of the DRC judge

1. First of all, the DRC judge analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 30 May 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 2015 edition of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 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) he is competent to deal with the matter at stake, which concerns an employment-related disputes between a club and a player with an international dimension between a Player of Country B and a Club of Country D.

3. The competence of the DRC judge having been established, he 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 (editions 2015 and 2016), and considering that the present matter was submitted to FIFA on 30 May 2016, the 2015 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 DRC judge 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 judge 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, on 26 August 2014, the Claimant concluded an employment contract (i.e. the first contract) with the Respondent, valid as from the date of signature until 31 December 2014, according to which he was entitled to a monthly salary in the amount of USD 7,000. Moreover, the DRC judge also acknowledged that, the Claimant and the Respondent concluded an employment contract (i.e. the second contract), valid as from 2 January 2015 until 30 November 2015. The DRC judge also took note that according to clause 5.1. of the second contract, the Claimant was entitled to a monthly salary in the amount of USD 7,000.

6. Moreover, the DRC judge took into consideration that according to the Claimant, the Respondent had failed to pay his remuneration in the total amount of USD 21,000, corresponding to unpaid salaries, respectively due in December 2014 (USD 7,000 in connection with the first contract), as well as in October 2015 and November 2015 (i.e. USD 14,000 in connection with the second contract).

7. In relation to the claimed outstanding salaries, the DRC judge took note of the Respondent’s argument, according to which it had no overdue payables towards the Claimant since it was entitled to deduct, in accordance with art. 4 of the contract, said amounts in view of the alleged “low professionalism” of the Claimant.

8. In this respect, the DRC judge wished to highlight that the Respondent failed to support with any reliable evidence the alleged “low professionalism” of the Claimant. More importantly, and regardless of the existence or not of said circumstance, the aforementioned deductions, which were imposed for alleged “low professionalism” are manifestly excessive and disproportionate and cannot be upheld. In particular, the DRC judge highlighted that the total amount of said deductions corresponds to at least two months of the Claimant’s monthly salary with the Respondent. Hence, the DRC judge concluded that the deductions imposed on the Claimant by the Respondent must be disregarded.

9. Furthermore, and in any case, the DRC judge wished to point out that the deduction of salary, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players.

10. In conclusion, the DRC judge determined that the Respondent could not set off its debt towards the Claimant by means of the various fines and deductions imposed on him and that thus, the amount of USD 21,000 is due to the Claimant. Moreover, the DRC judge highlighted that the Respondent never proved that said debt was settled.

11. Moreover, the DRC judge observed that the Claimant also requested the payment of the amount USD 1,000, corresponding to a bonus for the Respondent’s alleged classification for the Cup E.

12. In this respect, the DRC judge recalled the basic principle of burden of proof, as 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.

13. In this regard, the DRC judge observed that the Claimant failed to provide any supporting evidence in order to prove that the conditions that may entitle him to receive said bonus were met. Consequently, the DRC judge decided to reject the Claimant’s request as to the aforementioned bonus.

14. The DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the Claimant are 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 USD 21,000.

3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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 under point 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. 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 DRC judge:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives