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 15 December 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 December 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

John Bramhall (England), 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

between the parties

I. Facts of the case

1. On 21 October 2010, the Player A from country B (hereinafter: the player or Claimant) and the Club C from country D (hereinafter: the club or Respondent) signed an employment contract, valid as from 1 January 2011 until 31 December 2015 (hereinafter: the contract), as well as two annexes to said contract (hereinafter: annex 1 and annex 2).

2. According to article 1 of annex 1, the player was entitled to receive, inter alia, a monthly salary of EUR 157,379, due on the 1st day of the following month.

3. Furthermore, annex 1 provided for the following clause: ‘In addition to the payments specified in clause 1 of this Appendix, the Club undertakes […] To cover the cost of six business class plane tickets for the Player per financial year (i.e. 01.07-30.06), flight city E-city F-city E (with maximum 2 transit airports) based on the cost of a ticket of this class purchased in country D, […] The unused compensation balance shall not be paid to the player, nor shall it be carried forward to the following financial year’. In addition, annex 1 further stipulates: ‘On condition that the Player has a valid driving licence […] to place a car – Ford Focus (or car of similar class) equipped hydro at the disposal of the Player […]’.

4. Moreover, annex 2 of the contract inter alia holds: ‘List of actions. […] 6. Late arrival after leave / […] The percentage by which the Player’s salary is reduced in a given month in % […] First instance […] 50’.

5. Article 6.3 of the contract stipulates the following: ‘The Player is liable to damages under the current Legislation of country D for any damages done to the Club by any action or inaction’.

6. On 2 July 2015, the player was transferred to Club G and the contractual relationship between the club and the player was mutually terminated.

7. On 3 December 2015, the player lodged a claim before FIFA against the club, claiming outstanding remuneration in the total amount of EUR 113,320.49, specified as follows:

 EUR 84,203.18 as outstanding salaries related to the period between 1 June 2015 and 2 July 2015, plus 5% interest p.a. on said amount as from the due dates;

 EUR 29,117.31 as reimbursement of the air tickets purchased by the player, plus 5% interest p.a. on said amount as from the due date.

Further, the player requested for procedural costs to be paid by the club, as well as for the reimbursement of his legal fees.

7. In his claim, the player explains that on 24 June 2015, the club informed him that the Club H from country I was interested in the player’s services. On the same day, while being in country B with the club’s authorization, the player informed the club that he was not interested in a transfer to Club H. As a result, on 25 June 2015 the club requested the player to join - as from 26 June 2015 - the pre-season preparation of the club in country J, by referring to ‘applying the disciplinary measures in Appendix 2’, in case the player would not timely join.

8. The player explains that, due to the flight connections, it was impossible for him to travel within 1 day from country B to country J, as well as due to the fact that he had to stay in country B until 3 July 2015, because his wife was recovering from a medical proceeding. After having informed the club about said circumstances on 29 June 2015, the club informed the player on the same day that based on art. 6 of annex 2, it had the right to reduce his salary for June 2015 with the amount of EUR 66,666.

9. In addition, the player holds that on 22 July 2015, the club paid him EUR 57,663.49 as a final salary payment, which is according to the player less than 50% of the salary he was entitled to for the period between 1 June 2015 and 2 July 2015. The player considers this reduction as ‘unjustified and disproportionate’, because he never refused to resume his activities, but was - because of valid reasons - not in a position to do so. Further, the club did not provide him with an airline ticket to travel to country J, where it only played friendly games. As a result thereof, the player holds that the club was not harmed by his absence.

10. Subsequently, the player explains that for the month of June 2015, he was entitled to EUR 133,000 and for the month of July 2015, to EUR 8,666.67. From the total amount of EUR “141,666.67”, the club only paid him EUR 57,663.49, therefore leading – according to the player - to the total outstanding amount of EUR “84,203.19”.

11. Furthermore, the player states that the club failed to reimburse him his flight tickets in the total amount of EUR 29,117.31, although this was explicitly agreed by the club. Finally, the player holds that the club deducted EUR 10,000 from the last salary payment, since he allegedly not returned the car he was provided with. Said circumstance is denied by the player, who holds to have handed over the car keys to the club’s interpreter in “May 2014”.

12. In reply to the player’s claim, the club explains that it started the pre-season training on 22 June 2015 in country J, and that its players from country B were allowed to arrive on 25 June 2015. After not having accepted the player’s explanations on why he could not arrive on time, the club decided to reduce the player’s salary for June 2015 with EUR 66,666, as well as to withdraw EUR 10,000 in relation to the non-returned car and EUR 174 as bank commission. The club further explains that the final salary payment due to the player, amounted to “EUR 134,503”, which after the corresponding deductions (i.e. EUR 76,840) left a residual payment of EUR 57,663.

13. The club further argues that the reason invoked by the player, i.e. a non-urgent medical involvement in a ‘reproduction clinic’ of his wife, is not a reason per se to release the player from his contractual duties. Moreover, the club argues that the fine of EUR 66,666 has to be considered valid, because the player agreed with annex 2 of the contract, as well as because the player was offered the right to be heard and said fine only amounted to 15 days of salary, for an absence of 8 days (24 June 2015 - 2 July 2015).

14. Moreover, the club states that no one from the club received the car keys of the player’s car and that the player refused to inform the club about the whereabouts. The club holds that said circumstance, in combination with article 6.3 of the contract, allowed it to withdraw the amount of EUR 10,000 from the player’s receivables.

15. With respect to the player’s request for reimbursement of the flight tickets, the club argues that the player was ‘manifestly late’ by only requesting reimbursement of the flight tickets on 20 August 2015, that is, after the termination of the contract. As a result, and with reference to the fact that unused compensation cannot be taken to the following financial year, the club maintained that it is not obliged to reimburse the costs for flight tickets.

16. Finally, the club argues to have paid the player the amount of EUR 6,000 on 8 September 2015, as salary for 1 July and 2 July 2015.

17. In his replica, the player reiterates his initial claims and argues that it was impossible for him to join the training camp on 25 June 2015. The player argues that the club gave him permission to stay in country B, because of the medical procedure his wife had to undergo, as well as that complications occurred ‘after the procedure’. Further, the player states that the decision to reduce his salary by EUR 66,666 was taken on 13 July 2015, i.e. more than 10 days after the player was transferred to Club G, which shows the bad faith of the club.

18. In addition, the player states that the correct amount of salary for 1 July and 2 July 2015 amounts to EUR 8,666.67 and denies to have received said amount. With respect to the flight tickets, the player holds that the argument of the club cannot be upheld, since it could not prove that said reimbursement request was made too late. Finally, the player denies that the club contacted him about the return of the car and insists that he returned the keys to the club’s interpreter in May 2014.

19. In its duplica, the club claims that the player should have requested for a longer stay with his wife, after the medical complications occurred. Also, the club questions that the player apparently could not join the club at the end of June 2015, but on the other hand, was in the position to travel to Milan on 2 July 2015, to finish the transfer to Club G. Finally, the club reiterates that it paid the amount of EUR 6,000 to the player on 8 September 2015 and that the burden of proof with respect to the alleged fact that the player has returned the car, is on the player.

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 3 December 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 from country B and a club from 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 3 December 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 first acknowledged that on 21 October 2010, the parties signed an employment contract valid between 1 January 2011 and 31 December 2015, as well as two annexes to said contract. In accordance with said contract and its annexes, the player was entitled to receive, inter alia, a monthly salary of EUR 157,379.

6. In continuation, the members of the Chamber noted that the player alleged that the contract was terminated on 2 July 2015 and that he was transferred to the Club G from country K. Moreover, the player holds that the club failed to pay him his salaries for the period between 1 June 2015 and 2 July 2015 in the amount of EUR 84,203.18, as well as that the club failed to reimburse him several air tickets in the amount of EUR 29,117.31. Consequently, the player asked to be awarded with the payment of EUR 113,320.49.

7. Equally, the members of the Chamber took note of the reply of the club, which asserted that it only had to pay the player for the period between 1 June 2015 and 2 July 2015 the amount of EUR 63,663, by means of two payments made on 22 July 2015 and 8 September 2015. Furthermore, the club argued that it validly imposed a fine of EUR 66,666 on the player because of his non-authorized absence and that it withdrew EUR 10,000 from the last salary payment, because the player failed to return the car he received from the club. Moreover, the Chamber noted that according to the club it deducted the amount of EUR 174 from the last salary payment, because of bank commissions and that it is not obliged to the reimbursement of the flight tickets, because the player’s claim was ‘manifestly late’. In consequence, the club concluded that it settled all its debts towards the player.

8. With the aforementioned considerations in mind, the Chamber turned its attention to the monthly remuneration as agreed upon between the club and the player. As it appears that both the club and the player agree that the monthly salary of EUR 157,379 is a gross amount, and that the net monthly salary of the player is – as per the player’s explanation – amounting to EUR 133,000. As a result, the DRC concluded that the player was entitled to receive in June 2015 the amount of EUR 133,000 and for the period between 1 July 2015 and 2 July 2015 the amount of EUR 8,580.50, i.e. the total amount of EUR 141,580.50.

9. What is more, from the information on file, the members of the Chamber established that the player confirmed having received the amount of EUR 57,663 on 22 July 2015. In addition, the Chamber noted that the club also submitted a payment receipt of a payment in the amount of EUR 6,000, made to the player on 8 September 2015. As a result, the Chamber established that the club managed to prove to have paid to the player, in relation to the period between 1 June 2015 and 2 July 2015, the amount of EUR 63,663.

10. In continuation, the Chamber took due note of the arguments put forward by the club, which explained that it imposed a fine of EUR 66,666 on the player, because of his absence at the training camp in country J. The club held that the player was obliged to arrive on 25 June 2015 in country J.

11. The Chamber noted that, conversely, the player argued that the club gave him permission to stay in country B due to a medical procedure his wife had to undergo, as well as that the club only informed him on 25 June 2015 that he had to join the team’s training camp in country J on 26 June 2015, which was not possible for the player.

12. In this context, the Chamber first of all noted that it appeared that the fine of EUR 66,666 was based upon the contractual clause in article 6 of annex 2 of the contract. In line with said clause, the club could impose a fine of 50% of the player’s monthly salary in case of a ‘late arrival after leave’ and that the club’s confirmation dated 29 June 2015, indicated that the player would indeed be fined because he ‘failed to appear at the training camp until this moment’.

13. On the other hand, the Chamber stressed that the club gave the player only one day to join the teams’ training camp, as he had to arrive on 26 June 2015, and that the contractual fine of 50% could already be imposed on a player after arriving one day late at the club. Further, in this specific case, already on 29 June 2015 the club informed the player that it was entitled to impose the contractual fine, that is, only three days after the player should have arrived at the training camp in country J.

14. Based on the foregoing circumstances, the Chamber emphasised that a fine amounting to the total amount of EUR 66,666 for a late arrival of only a couple of days is, given the specific circumstances in this case, excessive and disproportionate. Furthermore, and in any case, the Chamber wished to point out that the imposition of a fine, 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.

15. In conclusion, the Chamber was unanimous in its conclusion that, in this specific case, the fine in the amount of EUR 66,666, imposed by the club on the player on 29 June 2016, is considered to be excessive and that thus, said fine should be reduced to 0.

16. Turning its attention to the amount of EUR 10,000 the club deducted from the player’s last salary payment, because the player allegedly failed to return the car he received from the club, 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.

17. According to this principle, the members of the Chamber noted that the club did not substantiate its defence, to the Chamber’s satisfaction, that it did not receive the keys of the car, as well as that it should be entitled to deduct the amount of EUR 10,000 from the player’s receivables.

18. In view of the foregoing, the Chamber concluded that the deduction of EUR 10,000 the club made for the alleged non-return of the car, cannot be upheld against the player.

19. With regard to the deduction of the bank commission in the amount of EUR 174 from the player’s last salary payment, the Chamber was of the opinion that the fact that costs were charged for the transfer of the salary could not be held against the player, who had no influence whatsoever on this process. Further, the contract did not provide for a clause regarding the possible deduction of bank commissions. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the club must fulfil its obligations as per the contract, consequently, could not deduct the amount of EUR 174 of the player’s receivables.

20. What is more, as regards the player’s claim pertaining to air tickets in the amount of “EUR 29,117.31” and referring to the relevant terms of annex 1 to the employment contract, the members of the Chamber noted that the contractual provisions do not mention a specific date before which the player should ask for the reimbursement of said flight tickets. As a result, the Chamber established that, by reiterating the general legal principle of pacta sunt servanda and as per the receipts provided by the player, the club must pay to the player the amount of 111,781.37 for five flight tickets city F – city E in the period between January 2014 and November 2014. In this regard, the Chamber was eager to emphasise that, in accordance with its well-established jurisprudence in this respect, it cannot grant the reimbursement of said flight tickets in EUR, as the receipts provided by the player only mention amounts paid in the currency of country B.

21. In view of the foregoing consideration and taking into account that the player had already received the amount of EUR 63,663, consisting of a payment of EUR 57,663 on 22 July 2015 and a payment of EUR 6,000 on 8 September 2015. As a result, the Chamber decided that the player is entitled to the remaining amount of EUR 75,337 for the month of June 2015, the amount of EUR 2,580.50 related to the outstanding salaries for July 2015, and the amount of 111,781.37 as reimbursement of flight tickets.

20. For all the above reasons, the Chamber decided to accept the player´s claim and determined that the club must pay to the player the total amounts of EUR 77,917.50 and 111,781.37 as outstanding remuneration, as well as, taking into account the player’s request, interest of 5% p.a. as follows:

a. 5% p.a. as of 2 July 2015 on the amount of EUR 75,337;

b. 5% p.a. as of 2 August 2015 on the amount of EUR 2,580.50;

c. 5% p.a. as of 3 December 2015 on the amount of 111,781.37.

21. The Dispute Resolution 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, outstanding remuneration in the amount of EUR 77,917.50 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 2 July 2015 on the amount of EUR 75,337;

b. 5% p.a. as of 2 August 2015 on the amount of EUR 2,580.50.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 111,781.37 plus 5% interest p.a. on said amount as from 3 December 2015 until the date of effective payment.

4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2. and 3. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are 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