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 July 2016

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 July 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Theo van Seggelen (Netherlands), member

Takuya Yamazaki (Japan), member

Mario Gallavotti (Italy), member

Mohamed Al Saikhan (Saudi Arabia), 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 an unspecified date, 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 20 September 2013 until 30 June 2016 (hereinafter: the contract).

2. According to article 5 of the contract, the player was entitled to inter alia receive:

 a monthly salary in the amount of EUR 3,870, in the period between 20 September

2013 and 30 June 2014;

 a monthly salary in the amount of EUR 4,460 in the period between 1 July 2014

and 30 June 2016.

3. Article 12 of the contract contains the following clause:

‘The present Convention will be governed and interpreted to the Law no. 69/2000, of Physical Education and Sports, to XXX no. 205/2005 and the Football Federation Regulations of Country D. The disputes, resulting from the execution of the present Convention, are to be solved in the following order:

 Amiably.

 By bringing the dispute to the justice institutions of the Football

Federation E and the League F.’

4. According to the player, the club forged a document referred to as ‘contract termination agreement’ and dated 4 November 2013 (hereinafter: the agreement), based on which document the contract between the player and the club would be terminated as per 4 November 2013. Further, said agreement stipulates that the player would waive any ‘financial claims or litigations’ towards the club as per the signing date of the termination agreement.

5. After being allegedly presented the signed document dated 4 November 2013, on 23 December 2013, the player sent in writing a proposal for an amicable settlement to the club, but received no reply.

6. On 26 May 2014, the player lodged a claim before FIFA against the club, claiming payment of the total amount of EUR 137,613, specified as follows:

 7.9 monthly salaries of EUR 3,870 each (related to the period between 20

September 2013 (the start date of the contract) and 30 June 2014), in the total amount of EUR 30,573;

 24 monthly salaries of EUR 4,460 each (related to the period between 1 July 2014

and 30 June 2016), in the total amount of EUR 107,040.

7. In this respect, the player states that the agreement (cf. point 4. above) is invalid, because he never signed said document. According to the player, this follows from the fact that he left City G (Country D) on 4 November 2013 at 10:15 a.m. and that therefore, it was impossible for him to sign the document dated 4 November 2013.

8. Further, the player states that ‘it is absolutely illogical’ that he should have signed an agreement, under which he had no financial claims against the club, because he ‘could not have known if he will have financial claims against the club in advance’. In addition, the player holds that the club fulfilled at least one of its obligations under the contract, i.e. it bought the player a ‘round trip airline ticket’, i.e. on 4 November 2013 from City H, via City J, to City K and on 12 January 2014, from City K, via City J, to City H. The player argues that the club would not have bought him a retour ticket, if the contact was validly terminated on 4 November 2013.

9. Furthermore, the player holds that on 13 November 2013, the club drafted a document with the following clause: ‘Club C agrees that Player A, player under contract with our club, to make training with Club L. Thank you for your willingness to accept training of our player. Best regards, Ms M, Sportive Director’.

10. In its reply, the club first argued that FIFA is not competent to deal with the matter at hand, since any disputes arising from the contract, should be settled by ‘the Football Federation E and League N jurisdictional bodies’ and/or the ‘court with sport jurisdiction of the Football Federation E’. In this respect, the club further specifies that the ‘National Dispute Resolution Chamber in first instance’ and the ‘Football Federation E Appeal Committee’ (hereinafter: the NDRC of Country D) are competent in the matter at hand and holds that the NDRC of Country D fulfils FIFA’s criteria for fair proceedings.

11. Despite being invited to do so, the club did not submit further documents and/or regulations of the NDRC of Country D, nor did it submit its position as to the substance of the matter within the given deadline.

12. Despite being invited to do so, the player did not submit his comments to the club’s submission that the NDRC of Country D is competent to deal with the matter at hand within the given deadline.

13. Furthermore, after the closure of the investigation phase, the club submitted additional correspondence, i.e. a document referred to as ‘extrajudicial criminalist survey report’. In said document, Mr O, allegedly a criminalist expert authorized in ‘document graphical and technical survey’ concludes that the signature on the contract and the signature on the agreement ‘was given by the same person’.

14. The player also submitted additional comments in reply to the club’s correspondence, stating that on 4 November 2013, he travelled from Country D to Country B to renew his visa and reiterating that as a result thereof, it was impossible for him to conclude the agreement with the club. Furthermore, the player argues that the agreement contained ‘gaps’, which could be filled in by the club itself and which could give the club the opportunity to falsify the document.

15. In addition, the player states that he never received a copy of the agreement and that he would never have signed such an agreement. This because ‘it is impossible and illogical that I had no requirements because of the fact that I had the guaranteed financial results and the Club had at that moment official indebtedness to be paid to me, in particular unpaid salary (EUR 3,000)’.

16. Moreover, the player argued that in the period after 4 November 2013, the club gave him recommendations for training and requested a Team of Country B to render support to the player and to train him for a certain period. Further, the player holds that - after he returned to City K - the club informed him that it wanted to obtain a new visa for him, valid as from 1 January 2014.

17. Finally, after the termination of his contract with the club, the player signed the following new contracts, as per the information provided by the player and in TMS:

 on 3 February 2014, with the Club of Country P Club Q, valid as from 3 February 2014 until 30 November 2014, according to which the player was entitled to receive 500 (approximately EUR 143) per month. For the period between 3 February 2014 and 18 September 2014, this corresponds to the total amount of 3,750 (approximately EUR 1,070.49);

 on 19 September 2014, with the Club of Country B Club R, valid as from 19 September 2014 until 1 January 2015, according to which the player was entitled to receive a monthly salary of 150 (approximately EUR 67). For the period between 19 September 2014 and 1 January 2015, this corresponds to the total amount of 510 (approximately EUR 226);

 on 16 February 2015 with the Club of Country S Club T, valid as from 16 February 2015 until 30 June 2016, according to which the player was entitled to receive:

- a monthly salary of 6,250 gross, during the 2014/2015 season;

- a monthly salary of 20,850 gross, during the 2015/2016 season.

For the period between 16 February 2015 and 1 February 2016, this corresponds to the total amount of 173,851 (approximately EUR 41,490). Further, the contract provides for the following: ‘The Contract after the season 2014/2015 if the team Club T will falls from League W: becomes invalid on 30.06.2015’;

 on 1 February 2016 with the Club of Country B Club U, valid as from 1 February 2016 until 31 December 2016, according to which the player was entitled to receive a monthly salary of 2,000 (approximately EUR 747). For the period between 1 February 2016 and 30 June 2016, this corresponds to the total amount of 10,000 (approximately EUR 3,735).

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 26 May 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) 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 of Country B and a Club of Country D.

3. However, the Chamber acknowledged that the club contested the competence of FIFA’s deciding bodies on the basis of the alleged fact that the NDRC of Country D is competent to deal with the matter at hand. The club further holds that the NDRC of Country D meets all the requirements set forth in art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players.

4. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribuna guaranteeing fair proceedings, the members of the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

5. In relation to the above, the members of the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC (or the DRC judge) can settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear and specific reference in the employment contract.

6. While analysing whether it was competent to decide on the matter, the Chamber first referred to art. 12 of the employment contract, on the basis of which the club contested FIFA’s jurisdiction. Said article stipulates that if the parties are not able to find an amicable agreement, the dispute should be submitted to ‘the justice institutions of the Football Federation E and the League F’. The members of the Chamber outlined that the content of art. 12 cannot be considered as a clear and exclusive jurisdiction clause as it is rather vague and does not explicitly refer to one specific national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. In view of the foregoing, the Chamber concluded that its jurisdiction could not be set aside on these grounds as, the jurisdiction of the NDRC of Country D does not derive from a clear reference in the employment contract.

7. Furthermore, the Chamber noted that the club, despite being invited to do so, did not present further documentation in favour of the competence of the NDRC of Country D. As a result, the members of the Chamber deemed that the club also failed to provide substantial evidence that the NDRC of Country D consisted of an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs.

8. As a consequence of the above-mentioned elements (cf. point II.5 to II.7 above), the Chamber concluded that the contract did not contain a clear and specific arbitration clause, supporting the alleged competence of the NDRC of Country D to deal with the present dispute. Furthermore, it could not be concluded that the NDRC of Country D was indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, as the applicable version of the NDRC Regulations was not provided by the club.

9. In continuation, and by establishing FIFA’s competence based on the aforementioned circumstances, 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 (editions 2014, 2015 and 2016), and considering that the present claim was lodged on 26 May 2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

10. 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.

11. In doing so, the members of the Chamber started by acknowledging that, according to the player, he had concluded an employment contract with the club, valid as from 20 September 2013 until 30 June 2016, in accordance with which contract, he was entitled to receive a monthly salary of EUR 3,870 in the period between 20 September 2013 and 30 June 2014, and a monthly salary of EUR 4,460 in the period between 1 July 2014 and 30 June 2016.

12. Furthermore, according to the player, the club had allegedly forged a document dated 4 November 2013, according to which the contract between the parties would be terminated as per 4 November 2013 and under which document, the player would waive any (financial) claims towards the club. The player holds to have not signed said document and, therefore, asked to be awarded compensation for breach of contract by the club in the amount of EUR 137,613.

13. Subsequently, the members of the Chamber observed that the club, for its part, in spite of having been invited to do so, failed to present its response to the claim of the player, as to the substance of the matter at hand, within the relevant time-limit. In fact, the reply of the club as to the substance, mentioned in point I.13 above, was only received after the investigation-phase of the matter had already been concluded. In addition, the members of the Chamber noted that the player submitted unsolicited correspondence, also after the closure of the investigation phase, as mentioned in point I.14 to I.16 above.

14. As a result of the aforementioned circumstances, the Chamber decided not to take into account the unsolicited correspondence of the club, as well as the unsolicited comments of the player, insofar these were submitted after the closure of the investigation and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase by the player and the club.

15. In view of this dissent between the parties in respect of the basic question as to whether or not a termination agreement between the player and the club had been signed, the members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the player to prove that the agreement dated 4 November 2013, was indeed forged by the club. Furthermore, it was the player’s obligation to prove that, if it could be established that the club forged the agreement, as a result thereof, he should be entitled to compensation for breach of contract, because the club had terminated the contract without just cause.

16. Having stated the above, the Dispute Resolution Chamber recalled that the player maintained that he never signed the agreement dated 4 November 2013, as well as that the signature on said document was falsified by the club. Furthermore, the player submitted certain documents (cf. point I.7 to I.9 above), on the basis of which it should – according to the player - be concluded that the club, in the period after 4 November 2013, still considered the contract valid.

17. At this stage, the members of the Chamber considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

18. In continuation the Chamber recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on inter alia the power of attorney, the employment contract as well as on other documents containing the player’s signature, provided by the parties in the context of the present dispute. In this regard, the members of the Chamber pointed out that the original version of the agreement dated 4 November 2013, was provided by the club.

19. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures of the player in the various documents provided in the present affair and the fact that the original version of the termination agreement was provided by the club, the members of the Chamber had no other option but to conclude that, for a layman, the signatures on such documents appear to belong to the same person.

20. In view of the foregoing, the Chamber established that it appears that the player had signed the agreement dated 4 November 2013, according to which document the contract between the parties would be terminated as per 4 November 2013, with the player waiving any ‘financial claims or litigations’ towards the club as per the signing date of the termination agreement.

21. In this context, the Chamber deemed it appropriate to emphasize that a party signing a document of legal importance, 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.

22. In the present case, by means of the agreement dated 4 November 2013, signed by the player and the club, the contract was terminated as per 4 November 2013 and the parties confirmed not having any further financial claims against each other arising from the employment contract.

23. In respect of the foregoing and of the inconclusive documents and argumentation provided by the player, the members of the Chamber had to conclude that player did not prove beyond doubt that the club forged his signature on the document dated 4 November 2013.

24. In view of the all of the above, and based on the documentation currently at its disposal, the Chamber came to the conclusion that, unless proven otherwise by a neutral expertise or a decision of the competent national criminal authority, for the moment, the present claim of the player pertaining compensation for breach of contract has to be rejected, since the document dated 4 November 2013 appears to be signed by the player.

25. All the above led the Dispute Resolution Chamber to conclude that the claim of the player is admissible, but has to be rejected.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant is rejected.

*****

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