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 8 September 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 September 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Leonardo Grosso (Italy), member

Theodoros Giannikos (Greece), member

Mohamed Mecherara (Algeria), 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 11 June 2012, the player from country B, Player A (hereinafter: Claimant or player), and the club from country D, Club C (hereinafter: Respondent or club), signed an employment contract (hereinafter: contract) valid as from 15 June 2012 until 31 May 2015.

2. According to the contract, the club undertook to pay the player the amount of EUR 1,200,000 per season, payable in 10 instalments of EUR 120,000 between 20 August and 20 May of the respective year.

3. On 30 June 2014, with a subsequent amendment on 24 August 2015, the player lodged a claim with FIFA against the club for outstanding remuneration and requested to be awarded the following monies:

- EUR 121,000 corresponding to unpaid salaries of the 2013/2014 season;

- EUR 780,000 corresponding to unpaid salaries of the 2014/2015 season.

In addition, the player requested to be awarded a “15% fine as loss of suit”.

4. The player held having received the total amount of EUR 1,079,000 during the 2013/2014 season and that, thus, EUR 121,000 remained outstanding.

5. In this regard, the player stated that after having sent default notices in May and June 2014, the club informed him that it imposed two fines on the player and, on this basis, deducted the amounts of EUR 100,000 and EUR 21,000 from his salaries.

6. In its reply to the player’s claim in connection with the 2013/2014 season, the club confirmed having imposed said fines on the player and therefore held having fulfilled all its financial obligations towards the player regarding the season 2013/2014 season.

7. According to the club, the reason for the first fine in the amount of EUR 100,000, imposed on the player on 5 August 2013, was that the player allegedly did not attend a match “although the Coach gave him a position in squad”.

8. In this regard, the club held that the player never protested against the relevant decision.

9. According to the club, the second fine in the amount of EUR 21,000 was imposed on the player on 2 June 2014 due to his low performance.

10. Moreover, the club pointed out that it paid EUR 1,079,000 during the 2013/2014 season and therefore showed good faith.

11. The player, for his part, stated that both fines were “completely ungrounded” and he denied not having protested against the first fine. He further explained that the first fine was delivered in city E during the period of time he was absent.

12. Furthermore, the player denied any wrongdoing and submitted a statement of the coach, which reads as follows: “On 29 July 2013, Player A spontaneously appeared to play a friendly match against Club F and I released him of that match in view of his physical and psychological condition”.

13. Regarding the second fine, the player held that he did not underperform and that a player cannot be fined for low performance.

14. Moreover, the player pointed out that the imposition of a fine shall not be used by clubs to offset outstanding remuneration due to the player.

15. With respect to the 2014/2015 season, the player argued having only received the total amount of EUR 420,000 and that therefore EUR 780,000 remained outstanding.

16. The club, for its part, requested that the claim for outstanding remuneration related to the 2014/2015 season shall be rejected as well.

17. In this respect, the club held having fulfilled its financial obligations for the 2014/2015 season, by having paid the total amount of EUR 1,499,000 to the player “from the beginning of the year 2014 until 28.08.2015”. The club presented various payment documents in its defence.

18. The player acknowledged receipt of a payment in the amount of EUR 180,000 on 28 August 2015, i.e. after he had lodged his claim against the club in front of FIFA.

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 June 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; 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 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 30 June 2014, the 2012 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 DRC acknowledged that, on 11 June 2012, the parties had signed a valid employment contract for the period of 15 June 2012 until 31 May 2015, in accordance with which the Respondent undertook to pay to the Claimant the amount of EUR 1,200,000 per season, payable in 10 instalments of EUR 120,000 between 20 August and 20 May of the respective year.

6. The Chamber noted that according to the Claimant, the Respondent had failed to pay his remuneration in the amount of EUR 121,000 during the 2013/2014 season as well as the amount of EUR 780,000 during the 2014/2015 season. Consequently, the Claimant requested to be awarded inter alia payment of the total amount of EUR 901,000.

7. Subsequently, the DRC observed that the Respondent, in reply to the player’s claim regarding outstanding remuneration for the 2013/2014 season, stated that it imposed a fine in the amount of EUR 100,000 on the Claimant, since he allegedly did not attend a match and another fine in the amount of EUR 21,000 due to the Claimant’s alleged low performance. The Chamber took into account that it remained undisputed that these fines were deducted from the Claimant’s salary.

8. Furthermore, the members of the Chamber noted that the Respondent held having entirely fulfilled its financial obligations towards the Claimant regarding the 2014/2015 season and that it submitted various documents related to payments allegedly made to the Claimant in its defence.

9. Having said this, the DRC acknowledged that it had to address the question as to whether the deductions made by the Respondent from the Claimant’s receivables on the basis of the fines during the 2013/2014 season can be accepted.

10. In this respect, as a general remark, the DRC wished to highlight 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.

11. Having said that, the Chamber firstly 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.

12. Turning its attention to the first fine of EUR 100,000 imposed by the Respondent on the Claimant due to his alleged absence during a match, the Chamber concurred that, apart from the fact that it considered the fine disproportionate, the Respondent had not presented credible evidence with regard to the reasons for the imposition of said fine.

13. Subsequently, the members of the Chamber turned their attention to the fine of EUR 21,000 imposed on the Claimant due to alleged low performance.

14. In this regard, the DRC referred to its jurisprudence in accordance with which a decrease in, or deduction from, payments to a player by a club on the basis of a player’s alleged low performance cannot be accepted, due to the unilateral and arbitrary character of the club’s decision.

15. In addition, the Chamber pointed out that the Respondent had not corroborated the reasons for the imposition of this fine with sufficient documentary evidence.

16. For these reasons, the Chamber decided that both fines totalling EUR 121,000 shall be disregarded and that the Respondent’s arguments in this respect shall be rejected.

17. Subsequently, the DRC turned its attention to the Respondent’s allegation that it fulfilled all of its financial obligations towards the Claimant for the 2014/2015 season and examined the documents provided by the Respondent in its defence.

18. In relation to the documentation provided by Respondent, the Chamber recalled art. 9 par. 1 lit. e) of the Procedural Rules, which stipulates that all documents of relevance to the dispute shall be submitted in the original version as well as translated into one of the official FIFA languages.

19. In this context, the members of the Chamber noted that, although having been asked to do so, the Respondent did not provide translated versions of some of the documents it submitted in the language of country D only. In view of the foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC decided that it could not take into account the documents which were not translated into an official FIFA language.

20. As to the documents presented in an official FIFA language, the Chamber acknowledged that the Respondent did submit corroborating evidence of payments in the total amount of EUR 300,000 to the Claimant relating to the 2014/2015 season.

21. In light of the above, taking into account the total amount due to the Claimant for the 2014/2015 season, i.e. EUR 1,200,000, the DRC considered that the Respondent had not sufficiently substantiated its defence, as it did not present conclusive documentary evidence which could corroborate that it has fully paid the Claimant’s receivables for the 2014/2015 season.

22. Having said that, the Chamber recalled that the Claimant claimed outstanding remuneration related to the season 2014/2015 in the amount of EUR 780,000, having acknowledged receipt of the amount of EUR 420,000 from the Respondent for the 2014/2015 season until he lodged his claim in front of FIFA, and that the Claimant had acknowledged having received a further payment of EUR 180,000 on 28 August 2015.

23. Consequently, in light of the above, the members of the Chamber concluded that the amount of EUR 600,000 remained outstanding in connection with the 2014/2015 season.

24. On account of all of the above, the DRC established that the Respondent had failed to pay to the Claimant the amount of EUR 121,000 corresponding to remuneration related to the 2013/2014 season and the amount of EUR 600,000 related to the 2014/2015 season.

25. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent must pay outstanding remuneration in the total amount of EUR 721,000 to the Claimant.

26. Subsequently, the DRC analysed the request of the Claimant corresponding to “15% fine as loss of suit”. In this regard, the Chamber deemed it appropriate to point out that said request presented by the Claimant had no legal or regulatory basis and, consequently, the DRC rejected this part of the claim.

27. The DRC concluded its deliberations on the present matter by establishing that any further claim lodged by the Claimant 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 the amount of EUR 721,000 within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned sum 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 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 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 article 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