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 13 October 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 October 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Wouter Lambrecht (Belgium), 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 21 August 2014, the Player of Country B Player A (hereinafter: the player or Claimant) and the Club of Country D Club C (hereinafter: the club or Respondent) signed an employment contract, valid as from 21 August 2014 until 31 May 2017 (hereinafter: the contract).

2. According to the contract, the player was entitled to receive, inter alia, the total amount of EUR 1,200,000, payable as follows:

 during the 2014/2015 season, in the period between August 2014 and May 2015, 10 monthly salaries of EUR 40,000, due on the 30th day of each month;

 during the 2015/2016 season, in the period between August 2015 and May 2016, 10 monthly salaries of EUR 40,000, due on the 30th day of each month;

 during the 2016/2017 season, in the period between August 2016 and May 2017, 10 monthly salaries of EUR 40,000, due on the 30th day of each month.

3. Article 3 of the contract, referred to as ‘Special Provisions’, provides inter alia for the following: ‘The Player will receive victory bonuses on the same level as his teammates’.

4. On 30 July 2015, the player lodged a claim before FIFA against the club, claiming outstanding remuneration, requesting the total amount of EUR 200,000, as follows, consisting of 5 monthly salaries of EUR 40,000 each, related to the period between January 2015 until May 2015, due on the 30th day of the respective month.

5. In his claim, the player explains that the club failed to pay him the salaries for the months January, February, March, April and May 2015, in the total amount of EUR 200,000. The player holds to have put the club in default on 29 June 2015 for said outstanding amount.

6. In its reply, the club holds to have paid the player in the period between August 2014 and May 2015, in which it had to pay the player the total amount of EUR 400,000, only the amount of EUR 308,930. The club specifies said amount as follows:

Amount

Date

Conversion

13,500

5 September 2014

(EUR 4,744)

EUR 20,000

2 October 2014

(EUR 20,000)

13,500

20 October 2014

(EUR 4,706)

1,500

23 October 2014

(EUR 526)

7,500

31 October 2014

(EUR 2,684)

EUR 17,000

6 November 2014

(EUR 17,000)

EUR 20,000

20 November 2014

(EUR 20,000)

EUR 40,000

12 December 2014

(EUR 40,000)

EUR 15,000

26 December 2014

(EUR 15,000)

30,000

21 January 2015

(EUR 11,061)

20,000

29 January 2015

(EUR 7,432)

25,000

13 February 2015

(EUR 8,854)

EUR 50,000

6 March 2015

(EUR 50,000)

7,000

16 March 2015

(EUR 2,523)

EUR 86,500

30 March 2015

(EUR 86,500)

20,000

1 April 2015

(EUR 7,118)

25,000

24 April 2015

(EUR 8,558)

EUR 3,600

28 May 2015

(EUR 3,600)

Total

EUR 310,306

7. As a result, the club holds that it owes the player only the amount EUR 91,070 (that is, EUR 400,000 as total contractual value -/- EUR 308,930 as amount paid, with conversions made by the club) and states that it will pay this amount ‘as soon as possible’.

8. In his replica, the player holds that the club mixes up (a) the salaries it had to pay to him and which were payable in EUR, and (b) the match bonuses he was entitled to and which were - according to the player - payable in Currency E. In this respect, the player submitted two declarations of former players of the club, which confirm that the payments of the salaries took place in EUR and that the payment of the match bonuses took place in Currency E.

9. Furthermore, the player argued that the club falsified the payment receipts dated 6 November (in the amount of EUR 17,000), 20 November (in the amount of EUR 20,000) and 26 December 2014 (in the amount of EUR 15,000), by adding the word ‘Euros’ after he signed these documents.

10. The player explains that he indeed signed these three receipts, but that at the moment of signing, the word ‘Euros’ was not mentioned. In this respect, the player provided a copy of the payment receipt dated 26 December 2014 he claims to have signed, with payment number 000174. On said document, the word ‘Euros’ is not added, contrary to the payment receipt with payment number 000174 the club submitted, which contains the word ‘Euros’. As a result, the player concludes that the total amount of these payment receipts is not EUR 52,000 related to salary payments, but 52,000 (approximately EUR 18,372), related to match bonuses.

11. In addition, the player argued that on 22 January 2015, he sent a WhatsApp message to the club’s president, stating that he had only received EUR 60,000 as salary payments and that all other amounts paid to him were ‘team victory bonuses’.

12. Furthermore, the player explained and explicitly confirmed that in the period between August 2014 and May 2015, he received the following payments, in the total amount of EUR 200,000:

 an amount of EUR 20,000 on “10.02.2014”;

 an amount of EUR 40,000 on 12 December 2014,

 an amount of EUR 50,000 on 6 March 2015;

 an amount of EUR 86,400 on 30 March 2015 and;

 an amount of EUR 3,600 on 28 May 2015.

13. In its duplica, the club argues that the salaries the player was contractually entitled to, were sometimes paid in Currency E. Furthermore, the club stated that the declarations of the two former players of the club cannot be considered as objective, because one of the players ‘is engaged in a lawsuit against the Club’.

14. Furthermore, the club does not deny having ‘added the word of Euro’ to said payment receipts, however that it did only so for reasons of ‘legal adding due to the accounting department’s transaction’. Moreover, the club stresses that the ‘money transfer made to the player’ on 26 December 2014, was ’15.000 Euros in fact’.

15. In conclusion, the club states that on 22 January 2015 not ‘4 monthly salaries’, but only ‘(less than) 3 monthly salaries’ were outstanding and that ‘the progress payment by the date of 22 January 2015 is 250.000 Euros’, as well as that ‘The Club paid 135.730 Euro taking it out of monthly salaries’.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 30 July 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are 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 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. Furthermore, the Chamber analysed which regulations 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 claim was lodged on 30 July 2015, the 2015 edition of said regulations (hereinafter: 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, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In this respect, the Chamber acknowledged that on 21 August 2014, the parties signed an employment contract valid between 21 August 2014 and 31 May 2017. In accordance with said contract, the player was entitled to receive, inter alia, the total amount of EUR 400,000, payable in 10 monthly instalments of EUR 40,000 in the period between August 2014 and May 2015.

6. In continuation, the members of the Chamber noted that the player alleged that until 29 July 2015, the club had only paid him in relation to the 2014/2015 season, the amount of EUR 200,000 and therefore, failed to pay him the remaining salaries in the amount of EUR 200,000. Consequently, the player asked to be awarded with the payment of EUR 200,000.

7. Equally, the members of the Chamber took note of the reply of the club, which asserted that it had already paid the player, by means of 18 separate payments made to the player in the period between 5 September 2014 and 28 May 2015, the total amount of EUR 308,930. In this respect, the club submitted various payment receipts of said payments. In consequence, the club concluded that the amount due to the player, related to the period between August 2014 and May 2015, would only be EUR 91,070.

8. With due consideration to the above, the members of the Chamber further took into account that the player did not contest that the club made 18 different payments to him in the period between 5 September 2014 and 28 May 2015, but that he only contested the nature and the currency of said payments.

9. First of all, the members of the Chamber 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.

10. In this context, the Chamber noted that the player – in relation to the 18 payments the club alleges to have made to him between August 2014 and May 2015 – explicitly confirms that to have received the following payments, up to a total amount of EUR 200,000:

- a payment of EUR 20,000 on 2 October 2014;

- a payment of EUR 40,000 on 12 December 2014;

- a payment of EUR 50,000 on 6 March 2015;

- a payment of EUR 86,400 on 30 March 2015 and;

- a payment of EUR 3,600 on 28 May 2015.

11. In this respect, the Chamber wished to point out that the club states that on 30 March 2015, it paid the player the amount of EUR 86,500, however that it only provided a payment receipt for a payment of EUR 86,400. Taking into consideration art. 12 par. 3 of the Procedural Rules, the members of the Chamber decided that said payment receipt could only prove that the club paid the player EUR 86,400. As a result, and based on the payment receipts submitted by the club and the remarks of the player in this respect, the Chamber concluded that the club with abovementioned 5 payments, paid the total amount of EUR 200,000 to the player.

12. In addition, the members of the Chamber turned their attention to the 10 payments made by the club to the player in Currency E, in the period between August 2014 and May 2015. As to the player’s argument that these payments were related to match bonuses and not to salary payments, the Chamber noted that the player did not substantiate his defence, as he did not present any evidence in support of his position that these payments were not related to salary payments.

13. Consequently, the DRC considered that the player had not sufficiently substantiated this part of his claim as to the Chamber’s satisfaction, as he did not present any conclusive documentary evidence, which could corroborate that the aforementioned payments were only related to match bonuses, and therefore could not be considered as salary payments. As a result, the members of the Chamber were of the opinion that the 10 payment receipts for the above-mentioned payments, up to the total amount of 163,000 equal according to the club to EUR 56,830, are to be regarded as salary payments. Moreover, the Chamber noted that the player did not challenge the conversion of the currency.

14. Subsequently, the members of the Chamber took note of the player’s argument, that the payments made on 6 November 2014, 20 November 2014 and 26 December 2014, were not made in EUR as the club states, but in Currency E. As a result thereof, the player argues that these payments only amounted to 52,000, and not to EUR 52,000 as argued by the club.

15. Along those lines, the members of the Chamber turned their attention to the player’s argument, that the aforementioned payment receipts he signed after receiving a payment from the club, did not mention any currency, but that the payments were made in Currency E and not in EUR. What is more, the Chamber also noted that the club explained that, after the player signed the relevant payments receipts, it added the word ‘Euro’ for reasons of ‘accountancy’, because no other currency was indicated on the signed payment receipts.

16. In this respect, the Chamber deemed it fit to emphasise that a party signing a document of legal importance, such as a payment receipt, which is not duly specified, as a general rule, does so on its own responsibility and is consequently liable to bear the possible legal consequences arising from the execution of such document.

17. Consequently, the Chamber concluded that the argument of the player that the payments made on 6 November, 20 November and 26 December 2014 were made in Currency E and not in EUR, could not be upheld. As a result, the Chamber established that these payment receipts amount to EUR 52,000.

18. In view of all the above, the members of the Chamber concluded the club could prove at the Chamber’s satisfaction, that it paid the player the total amount EUR 308,830.

19. As a result thereof, the Chamber established that the club, in the 2014/2015 season, had failed to pay to the player the amount of EUR 91,170, in relation to salary payments under the contract concluded between the parties on 21 August 2014.

20. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the club must fulfil its obligations as per the contract concluded with the player and, consequently, is to be held liable to pay the outstanding amount of EUR 91,170 to the player.

21. Finally, the Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player is 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 this decision, the amount of EUR 91,170.

3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent 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 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 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

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