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 June 2017

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 June 2017,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (Netherlands), member

Zola Majavu (South Africa), 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 16 June 2016, the Player of Country B, Player A (hereinafter: the Claimant) concluded an employment contract with the Club of Country D, Club C (hereinafter: the Respondent), valid as from the date of signature until 15 December 2016.

2. According to the “Schedule A” to the contract, the Claimant was entitled to a monthly remuneration of USD 16,000, to be paid by no later than the 7th day of the following month.

3. In addition, and following the “Schedule B” to the contract, the Claimant was entitled to “Return tickets for family”.

4. On 3 March 2017, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to him the outstanding amount of USD 40,398.19, plus 5% interest p.a. as from 7 November 2016, corresponding to his entire salaries of October 2016 and November 2016 (i.e. 16,000*2), a partial salary for December 2016 (i.e. USD 8,000) and the price for “the final part of the trip back to Country B, from City E to City F”, valued in the amount of USD 398.19. In this regard, the Claimant attached two tickets for 27 October 2016 from City E to City G, City F, valued in the amount of BRL 663.02 each.

5. According to the Claimant, on 23 December 2016, he sent a default notice to the Respondent, requesting the payment of the total outstanding amount of USD 40,398.19 by no later than 3 January 2017.

6. Subsequently, and following the Claimant, on 4 January 2017, he sent a new default notice to the Respondent, requesting the payment of the aforementioned outstanding amount by no later than 17 January 2017.

7. Moreover, the Claimant stated that he sent a “Final Warning” to the Respondent on 14 March 2017, requesting the payment of the aforementioned outstanding amount, granting the Respondent a deadline of 10 days for the payment.

8. Within this context, the Claimant explained that the Respondent did not reply to the aforementioned correspondence.

9. Despite being invited to do so, the Respondent failed to reply to the claim within the deadline granted by FIFA, i.e. until 19 May 2017.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed 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 3 March 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 edition 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 2 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. The competence of the Chamber having been established, 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, it 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 3 March 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 Chamber 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.

5. In continuation, the Chamber duly noted that, on 16 June 2016, the Claimant and the Respondent concluded an employment contract, valid as from the date of signature until 15 December 2016.

6. Subsequently, the Chamber observed that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent had outstanding remuneration towards him in the total amount of USD 40,398.19, corresponding to his entire salaries of October 2016 and November 2016 (i.e. 16,000*2), a partial salary for December 2016 (i.e. USD 8,000) and the price for “the final part of the trip back to Country B, from City E to City F”, valued in the amount of USD 398.19.

7. Subsequently, the DRC took into account that the Respondent, for its part, failed to present a substantive response within the deadline granted by FIFA (i.e. 19 May 2017) to the claim of the Claimant, in spite of having been invited to do so.

8. In this way, the DRC determined that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

9. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

10. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to the aforementioned outstanding remuneration with sufficient documentary evidence.

11. On account of the aforementioned considerations, the DRC observed that the contract was valid until 15 December 2016 and that, consequently, it established that the Respondent failed to remit the Claimant’s aforementioned remuneration in the total amount of USD 40,000, corresponding to his entire salaries of October 2016 and November 2016 (i.e. 16,000*2), as well as a partial salary for December 2016 (i.e. USD 8,000).

12. Consequently, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 40,000.

13. In addition, taking into account the Claimant’s request as well as its constant practice, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the aforementioned amount as from the relevant due dates.

14. In continuation, the DRC observed that the Claimant further requested the reimbursement by the Respondent of “the final part of the trip back to Country B, from City E to City F”, valued in the amount of USD 398.19.

15. In this respect, the Chamber noted that, indeed, and following the “Schedule B” to the contract, the Claimant was entitled to “Return tickets for family”.

16. In relation to said clause, the Chamber understood that it shall be interpreted as an entitlement for the Claimant to receive air tickets to return to his home country, i.e. from Country D to Country B.

17. However, the Chamber observed that the request of the Claimant was referred to an internal flight within the Territory of Country B, from City E to City F. Consequently the members of the DRC unanimously agreed that said flight, in principle, is not within the scope of the aforementioned clause.

18. For the sake of completeness, the Chamber also noticed that, according to the Claimant, the aforementioned flight was only the last part of a longer flight from Country D.

19. In this regard, the DRC recalled the basic principle of burden of proof, as established 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.

20. Within this context, the DRC observed that the Claimant failed to provide any evidence in order to support his allegation, according to which the aforementioned flight was only the last part of a longer flight from Country D. Consequently, the DRC decided unanimously to reject the Claimant’s request in this regard.

21. Finally, the Chamber concluded its deliberations by establishing that any further claims lodged by the Claimant 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, has to pay to the Claimant within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of USD 40,000, plus 5% interest p.a. on said amount, payable as follows:

- 5% interest p.a. over the amount of USD 16,000 as from 8 November 2016 until the date of effective payment;

- 5% interest p.a. over the amount of USD 16,000 as from 8 December 2016 until the date of effective payment;

- 5% interest p.a. over the amount of USD 8,000 as from 8 January 2017 until the date of effective payment.

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 FIFA’s 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 2. is to be made and to notify the Dispute Resolution Chamber of every payment received.

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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