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 (USA), member

Mario Gallavotti (Italy), member

Taku Nomiya (Japan), 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 22 July 2013, the player from country B, Player A (hereinafter: the Claimant), concluded an employment contract (hereinafter: the contract) with the club from country D, Club C (hereinafter: the Respondent), valid as from 17 June 2013 until “the end of the participation of the [Respondent] in the 2013-2014 season”.

2. According to the second clause of the contract, the Claimant was entitled to a monthly salary in the amount of USD 2,900.

3. On 28 December 2015, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause, and requested the payment of the following amounts, plus 5% interest p.a. as from the date on which the payment should have been made:

- USD 14,500, corresponding to outstanding salaries for the period comprised between August 2013 and December 2013 (i.e. 5 Months);

- USD 5,800, corresponding to “compensation for the early breach of the contract” (i.e. two months of salaries, until February 2014).

4. According to the Claimant, the Respondent unilaterally terminated his contract on 27 December 2013 by means of a letter allowing him to join any other club.

5. Moreover, the Claimant stated that the Respondent only provided him with food and housing during the entire duration of the contract. In this regard, the Claimant considered that he would have been the only one entitled to terminate the contract with just cause.

6. In its reply, the Respondent considered that the contract was valid only as from “August 2013”, since it was registered before the Football Federation of country D as from that date.

7. In addition, the Respondent explained that the Claimant terminated the contract on 26 December 2013 via a termination letter due to his father’s illness, and that it simply confirmed said termination on 27 December 2013, in order to allow him to register with any other club. Moreover, the Respondent attached a document referred to as “Finiquito laboral” (hereinafter: termination agreement), dated 27 December 2013, allegedly signed by the Claimant, by means of which the latter acknowledged that the Respondent had no debts towards him.

8. Moreover, in order to justify the payment of the outstanding salaries, the Respondent attached the following cheques, apparently signed by the Claimant:

- Cheque No. 1973, dated 3 October 2013 (i.e. salary of September 2013), for the amount of 24,512.25, equivalent to approx. USD 3,030 as of 3 October 2013;

- Cheque No. 2439, dated 21 November 2013 (i.e. salary of October 2013, for the amount of 24,543.16.25, equivalent to approx. USD 3,040 as of 21 November 2013;

- Cheque No. 2704, dated 20 December 2013 (i.e. salary of November 2013, for the amount of 24,543.16.25, equivalent to approx. USD 3,045 as of 20 December 2013.

9. In his replica, the Claimant stated that he only received “housing and food”. Moreover, the Claimant explained that he did not write the termination letter (cf. point I.7 above) since “he does not speak Spanish” and that, consequently, said document is forged. In this respect, the Claimant considered that the Respondent is trying to confuse the DRC by presenting “legalized copies” of documents that were not signed by him. According to the Claimant, “A certified/authenticated copy is far different from a copy with recognized firm or notarized”.

10. As final comments, the Respondent confirmed its previous arguments and, in particular, insisted that the Claimant terminated the contract on 26 December 2013. Moreover, the Respondent requested the imposition of sporting sanctions against the Claimant for lodging his claim “without grounds and without any credible evidence”.

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 28 December 2015. 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. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2016). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D.

3. However, the Chamber noted in limine that it had to verify if the conditions stipulated in art. 25 par. 5 of the Regulations on the Status and Transfer of

Players (edition 2016) are met in the matter at stake. In particular, the members of the Chamber underlined that said provision is drafted as follows:

“The Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case.”

4. On the basis of the previous considerations, the Chamber observed that, in the matter at stake, the Claimant argues that the Respondent unilaterally terminated his contract on 27 December 2013, while the Claimant lodged his claim before FIFA on 28 December 2015.

5. Within this context, the members of the Chamber observed that more than two years have elapsed between the event which gave rise to the dispute (namely, the alleged termination of the contract by the Respondent on 27 December 2013) and the date of filing of the claim before FIFA (i.e. 28 December 2015). Consequently, the members of the Chamber unanimously agreed that they could not examine the current matter in relation to the alleged unilateral termination of the contract and that, therefore, the claim of the Claimant is inadmissible in this regard.

6. Notwithstanding the above, the Chamber noted that, according to the Claimant, the Respondent failed to pay him his salary of December 2013, for the amount of USD 2,800.

7. In this respect, the Chamber wished to recall that, in accordance with its longstanding jurisprudence and unless otherwise provided, salaries become due at the last day of each month.

8. In view of the above and also in consideration of art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition 2016), the members of the Chamber understood that the Claimant’s salary was due on 31 December 2013 and that, considering that the claim of the Claimant was lodged on 28 December 2015, it was competent to examine the Claimant’s request only in relation to his salary of December 2013.

9. The competence of the Chamber having been established only in relation to the Claimant’s request in relation to his salary of December 2013, 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 (editions 2015 and 2016), and considering that the present matter was submitted to FIFA on 28 December 2015, the 2015 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

10. 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 pertinent assessment of the matter at hand.

11. In particular, the Chamber noted that the parties concluded a contract valid as from 17 June 2013 until “the end of the participation of the [Respondent] in the 2013-2014 season” and that, in this regard, the Claimant argued that the Respondent failed to pay him his salary that became due on 31 December 2013.

12. In this regard, the Chamber took into account the documentation provided by the Respondent and, in particular, the termination agreement, dated 27 December 2013. More specifically, the Chamber observed that, according to said document, which was allegedly signed by the Claimant, the latter acknowledged that the Respondent had no debts towards him.

11. In reference to the documentation provided by the Respondent, the Chamber took note of the Claimant’s objection, according to which the termination letter of 26 December 2013, as submitted by the Respondent, is forged. Moreover, the Chamber took into account the Claimant’s allegation, according to which said documentation is intended to confuse the DRC as it was composed by “legalized copies” of documents that were not signed by the him. Moreover, the DRC took note of the Claimant’s statement, according to which, “A certified/authenticated copy is far different from a copy with recognized firm or notarized”.

13. In relation to said objection, the Chamber unanimously understood, however, that the Claimant did not substantiate his objection with any evidence and, in particular, that the Claimant never specifically denied that he signed the aforementioned termination agreement. Consequently, the DRC determined that, since the Claimant explicitly acknowledged that the Respondent had no debts towards him in the termination agreement, that the part of his claim related to outstanding salaries must also be rejected.

14. The Dispute Resolution Chamber concluded its deliberations in the present matter 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 rejected insofar it is admissible.

*****

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:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives