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 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 June 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Guillermo Saltos Guale (Ecuador), member

Johan van Gaalen (South Africa), member

Joaquim Evangelista (Portugal), 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 30 January 2015, the Club of Country E, Club F, the Club of Country D, Club C (hereinafter: the Respondent) and the Player of Country B, Player A (hereinafter: the Claimant), concluded an agreement (hereinafter: the loan agreement) for the loan of the Claimant from Club F to the Respondent from 30 January 2015 until 25 July 2015.

2. Art. 4 of the loan agreement stipulates that “[the Respondent] will sign an official employment contract with the [Claimant] for the period from 30th January 2015 until 25th July 2015”.

3. On 30 January 2015, the Claimant and the Respondent entered into an employment contract (hereinafter: the contract), valid as from 30 January 2015 until 25 July 2015.

4. The contract provides for match bonuses up to EUR 250 per match as well as competition bonuses and free accommodation.

5. On 19 February 2015, the Claimant and the Respondent concluded an “addendum”, by means of which they agreed that as from 1 March 2015, the Claimant’s basic monthly fee would amount to EUR 620. In addition, the addendum specifies that as from 1 March 2015, the Claimant will have to bear his accommodation costs.

6. On 25 May 2016, the Claimant put the Respondent in default of payment of the amount of EUR 30,000 granting three days to remedy the default.

7. On 13 September 2016, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the amount of EUR 30,000, plus 5% interest as from 26 July 2015. In addition, the Claimant requests FIFA to order the Respondent to bear the procedural costs.

8. In his claim, the Claimant explains that the Respondent committed to pay him a total remuneration of EUR 30,000 during the loan period. In support of his assertion, the Claimant submitted a letter (hereinafter: the offer) dated 30 January 2015 and addressed to Club G, by means of which the Respondent, through Player H, expressed its intention to transfer him on loan. In particular, the Claimant emphasises that, in the letter, the Respondent undertakes to cover the “[s]alary total amount: 30.000 Eur”. Moreover, the Claimant points out that Club F and Club G have the same owners, which is the reason why the letter was addressed to Club G.

9. In its reply to the claim, the Respondent challenges the authenticity of the offer dated 30 January 2015. In this respect, the Respondent alleges that it made the offer to loan the Claimant on 10 January 2015. The Respondent further argues that should it be considered valid, the offer dated 30 January 2015 would not have binding effect.

10. Furthermore, the Respondent points out that by means of art. 4 of the loan agreement, the Claimant and itself agreed to sign “an official employment contract”, what they did by signing the contract on 30 January 2015. In this regard, the Respondent insists that it was initially agreed that the Claimant would only receive free accommodation and bonuses. Nevertheless, the Respondent explains that at a later stage, the parties agreed to cancel the provision regarding the free accommodation and to establish a monthly salary of EUR 620 instead.

11. In his replica, the Claimant explains that when signing the contract in Language of Country D, the Respondent ensured him that the latter provided for a remuneration of EUR 30,000. In this regard, the Claimant stresses that he relied on the Respondent’s good faith since he does not comprehend the Language of Country D. In support of his assertion, the Claimant submitted a statement of his agent.

12. Upon FIFA’s request, the Claimant states that he does not have the original copy of the offer dated 30 January 2015

13. In its duplica, the Respondent reiterates that the offer dated 30 January 2015 is a forgery. In addition, the Respondent points out that the Claimant has never requested to be provided with a translation of the employment contract. Finally, the Respondent emphasises that numerals in Language of Country D and Language of Country B are identical.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 13 September 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 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 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 13 September 2016, the 2016 version 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 members of the Chamber acknowledged that on 30 January 2015, Club F, the Respondent and the Claimant concluded an agreement for the loan of the Claimant until 25 July 2015. Equally, the Chamber took note that on the same date, the Claimant and the Respondent concluded an employment contract valid as from 30 January 2015 until 25 July 2015, which was at a later stage amended by means of an addendum.

6. In continuation, the Chamber observed that according to the Claimant, the Respondent committed to pay him a total amount of EUR 30,000 as remuneration during the loan period. In this regard, the Chamber noted that the Claimant asserts that the Claimant ensured him that such remuneration was established in the contract.

7. The DRC further took due note of the fact that the Respondent, on its part, had categorically denied that a remuneration of EUR 30,000 was agreed upon, stressing on the financial terms set out in the contract and in the addendum.

8. Having stated the above, the Chamber first analysed the content of the contract and of the addendum, in particular the financial terms contained therein. In this regard, the Chamber observed that that neither of the above-mentioned documents provides for a remuneration of EUR 30,000. Indeed, the contract merely establishes bonuses and free accommodation, whereas the addendum amended the contract, setting out a monthly fee of EUR 620 instead of the free accommodation. At this stage, reverting to the Claimant’s alleged lack of comprehension of Language of Country D, the Chamber deemed it fit to emphasise that a party signing a document of legal importance without knowledge of its precise content, as a general rule, does so on its own responsibility.

9. In view of the above and considering the content of 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 members of the DRC pointed out that it was for to the Claimant to prove that, by means of a separate agreement from the contract and the addendum, the Respondent would have undertaken to pay him a remuneration of EUR 30,000.

10. In this regard, the DRC took note that the Claimant presented a copy of an offer dated 30 January 2015, by means of which the Respondent would have allegedly undertaken to pay him EUR 30,000 as remuneration.

11. The Chamber however outlined that the Respondent maintains that his signature contained on the copy of the offer remitted by the Claimant is forged. What is more, the Claimant expressly admitted being unable to provide the relevant offer in its original form.

12. At this stage, the DRC 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.

13. On account of these considerations, the Chamber held that the fact the Claimant had only submitted a copy of the disputed document was insufficient to take into consideration its content and to establish that the Claimant was entitled to a remuneration of EUR 30,000 on its basis. In any case, the DRC stressed that the offer can by no means amend the actual content of the employment contract concluded between the parties.

14. In light of the foregoing, and in absence of any other evidence, the members of the Chamber came to the conclusion that the Claimant had failed to satisfactorily carry the burden of proof regarding his alleged entitlement to a remuneration of EUR 30,000.

15. All the above led the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, 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:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives