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 3 November 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 3 November 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Alejandro Marón (Argentina), member

Mario Gallavotti (Italy), member

Carlos Puche (Colombia), member

Eirik Monsen (Norway), member

on the claim presented by the player,

Player A, country B,

as Claimant/Counter-Respondent

against the club,

Club C, country D

as Respondent/Counter-Claimant

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 18 January 2013, the player from country B, Player A (hereinafter: player or Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter: club or Respondent/Counter-Claimant), signed an employment contract (hereinafter: contract) valid until 30 June 2015.

2. Based on art. 3 par. f) of the contract, the player inter alia undertook “to conduct himself in public and in private in such a way as to not harm the image of the club, the Football Association of country D and football in general (…).”

3. According to art. 5 par. b) of the contract, “if the Player violated any of the obligations to which he is subject under this Contract, the Club may impose a fine up to (currency/amount) 8.000 Euros (max. one basic monthly salary).”

4. According to the schedule annexed to the contract, the club inter alia undertook to pay the player EUR 8,500,000 in 24 monthly salaries, as follows:

 EUR 350,000 per month as from 1 July 2013 until 30 May 2015;

 EUR 450,000 for the last salary of June 2015.

5. The schedule also stipulates that the club will provide the player with a furnished house free of charge and that the club shall pay for the electricity and water bills.

6. On 27 January 2015, the parties mutually agreed to terminate the contract and signed a settlement agreement (hereinafter: agreement).

7. According to paragraph (b) of the agreement, “the Club sponsored the issuance of the necessary work visa by the immigration and labour authorities of country D and consequently become jointly and severally liable for the player during the term of the Employment Contract.”

8. According to paragraph (c) of the agreement, it is stipulated that “According to the country D’s laws, by the termination of an employment contract any football player must fulfils with the necessary prerequisites in order to obtain his “Clearance Certificate” before the Football Association of country D, National Olympic Committee of country D and country D’s professional players Committee.”

9. Art. 1.1. of the agreement stipulates that “the parties hereby ratify their relationship is terminated in relation to the Employment Contract granting each other a full, general and irrevocable release of any and all obligations arising under the Employment Contract.”

10. According to art. 2.1. and art. 2.2. of the agreement, the club undertook to pay a total amount of EUR 700,000 to the player within three days following the “conclusion” of the “Clearance Certificate as set out in clause 3” and that should said amount not be paid “for whatsoever reason, the present contract shall be void and null.”

11. According to art. 3.1. of the agreement, “the Club herein undertakes to provide the necessary efforts in order to obtain on behalf of the Player the “Clearance Certificate” issued by the Football Association of country D, National Olympic Committee of country D and country D’s professional players Committee, as well as any other entitled authority of the State of country D.”

12. According to art. 3.3. of the agreement, the parties agreed that “If necessary, the Player herein agrees the Club may deduct money from the salaries indicated in (…) clause 2.1 above for the reasons that fall into the following categories: (b) costs of repairing house and/or furniture; (d) costs of repairing the car provided by the Club; and (e) balance remaining of bill(s), invoice(s) or cheque(s) due to third parties.”

13. On 13 February 2015, the club informed the player that in order to obtain his clearance certificate, he had to pay a car-related bill, to hand over his and his wife’s passports for the cancellation of their visas and to meet the country D’s traffic authority to “clear” “4 black points” the player had on his record.

14. On 16 February 2015, the player informed the club that all the aforementioned requirements were complied with and requested the club to inform him whether his payment would be processed within the following 72 hours. The player concluded his email by asserting that he had already left country D to look for a new club.

15. On 19 February 2015, the club informed the player that he still had to finalise the cancelation of his residence visa with the country D’s immigration authorities for his clearance certificate to be issued and that pending the completion of this formality, the club would withhold the relevant payment. The club inter alia added that in view of the aforementioned, art. 2.2. of the agreement was to be seen as “from now on also canceled”.

16. On 20 February 2015, the player replied to the club that it would receive a copy of his passport showing the visa cancellation stamp by 24 February 2015 at the latest and would thus be able to finalise the visa cancellation procedure and to complete its payment in the following days.

17. In this respect, the player submitted a copy of his passport, bearing a stamp “cancelled” on 22 February 2015 on the visa page, and a copy of his wife’s passport, bearing the same stamp on its visa page.

18. On 26 February 2015, the player requested the club to confirm that all administrative formalities were completed and that the payment had or was about to be proceeded with.

19. On 9 March 2015, the player wrote to the club and asserted that although he complied with the club’s instructions in a timely manner, the club had not paid. On account of the above, the player put the club in default of payment of EUR 700,000 granting it eight days to pay.

20. On 14 April 2015, the player lodged a claim against the club in front of FIFA for outstanding remuneration in the total amount of EUR 1,421,201 based on the contract (EUR 721,201) and the agreement (EUR 700,000). The player further requested that (i) 5% interest p.a. be applied on both aforementioned amounts, calculated as from 27 January 2015 and 25 February 2015, respectively, (ii) that the club be ordered to pay him the two aforesaid amounts within eight days following the passing of the relevant decision and that (iii) in case of non-payment of the amount of EUR 700,000, the club shall be restricted from transferring any new player, either nationally or internationally, until the payment is effected.

21. With respect to his claim relating to outstanding salaries based on the contract, the player argued that when the agreement was signed, the club had not paid him EUR 61,931 for the month of October 2014, EUR 4,431 for the month of November 2014, EUR 350,000 for the month of December 2014 and EUR 304,839 for the period between 1 January and 27 January 2015, totalling EUR 721,201. In this respect, the player submitted copies of his bank account statements for the period of time between 20 July 2014 and 17 February 2015.

22. In continuation, the player stressed that after the club undertook to pay him EUR 700,000 within three days following the issuance of his “Clearance Certificate” and agreed to deal with the relevant formalities too, the club failed to pay said amount, although he had complied with all of the club’s instructions.

23. In this respect, the player submitted documentation showing that he paid 2,550 on 14 February 2015 in relation to the car he was provided with, that the visas on his and his wife’s passports were cancelled and that his “Professional Athlete Clearance Form” was stamped by all the relevant entities, such formality being reportedly mandatory to obtain one’s clearance certificate.

24. On account of the above, the player concluded that the club should have paid him the amount of EUR 700,000 on 25 February 2015.

25. The club, for its part, rejected the player’s claim and lodged a counterclaim against him.

26. The club asserted that during the process to obtain the player’s clearance certificate, the player’s landlord informed the club, on 16 March 2015, that two cheques issued by the player to pay for the repairs of his apartment had been rejected by the bank on 9 March 2015 due to a lack of deposit. In this respect, the club submitted copies of the relevant letter, of two cheques dated 9 February 2015 and of documents issued by a bank on 10 March 2015.

27. Therefore, since the club was contractually jointly and severally liable for the player’s obligations, the player’s landlord held the club liable for payment of the amount corresponding to the player’s cheques, i.e. 18,269 plus a contractual penalty of 135,000, and referred to possible criminal proceedings against the club.

28. In this respect, the club stressed that when it replied to the player on 19 February 2015, it was not yet aware of the aforementioned circumstances.

29. In continuation, the club insisted that it informed the player on 19 February 2015 that he still had to complete the “immigration data” requested by the country D’s authorities for the issuance of the clearance certificate, but that “the player left the country without fulfil with such information and until the problem involving the cheques issued with no balance such problem will be pending.”

30. On account of the aforementioned, the club deemed that the player acted in bad faith towards his landlord and breached his obligation to tell the truth before the Dispute Resolution Chamber. Also, the club deemed that as the player did not comply with his own obligations, thus preventing the issuance of the clearance certificate, he has no legal basis to receive the payment of EUR 700,000 from the club and it is entitled to withhold the payment.

31. Furthermore, the club requested that the player be ordered to reimburse the amounts of 18,269 and 135,000, which it reportedly paid to the player’s landlord, plus 5% interest on said amounts calculated as from 9 February 2015 and 16 March 2015, respectively.

32. Moreover, the club deemed that based on art. “2” par. f) of the contract and Swiss law, the player shall be liable to pay compensation to the club for having damaged its reputation as the club may have to present a statement of defence before the local criminal court for the first time in its history.

33. What is more, the club referred to a fight the player had with an opponent during a match and which it deemed also caused harm to the club’s image.

34. According to the club, based on art. “2” par. f) in combination with art. 5 par. b) of the contract, the player’s repeated damages to the club’s image shall lead him to be ordered to pay compensation to the club in the amount of EUR 350,000, i.e. an amount equivalent to the player’s monthly remuneration at the time of the signature of the agreement.

35. In his reply to the club’s counterclaim, the player stated that as he was occupied with formalities in country D and with his new club in country E and as he was waiting for the club’s payment of EUR 700,000, the player admitted that he did not check whether there was enough money on his bank account to pay the amount of 18,269.

36. In this respect, the player stressed that it is the club’s faulty absence of payment of his receivables that created the problem at hand.

37. Also, the player pointed out that the club never informed him that his cheques had been rejected and added that should he have known, he would have resolved the situation. If the amount of the cheques was indeed paid by the club, the player agreed that it be deducted from the amount of EUR 700,000.

38. With regard to the amount of 135,000, the player stressed that the club did not prove that it paid said amount either and further referred to the schedule, pursuant to which it is the club’s obligation to pay for the player’s rent. Accordingly, the player deemed that it is the club that is liable to pay the amount of 135,000.

39. The player further rejected the club’s claim for damages asserting that he already served a suspension and was imposed a fine in connection with the fight referred to by the club.

40. Additionally, the player stressed that the club used the player’s image on multiple occasions after said incident and submitted documentation in this respect.

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 14 April 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 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 14 April 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 DRC 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 context, the Chamber acknowledged that after having signed an employment contract on 18 January 2013, the Claimant/Counter-Respondent and the Respondent/Counter-Claimant signed the agreement, dated 27 January 2015, by means of which they mutually agreed, inter alia, to terminate their contractual relationship.

6. In continuation, the DRC noted that the Claimant/Counter-Respondent inter alia claims that the Respondent/Counter-Claimant shall be held liable to pay him salaries in the amount of EUR 721,201 on the basis of the contract, which the club failed to pay during the execution of the contract, as well as the amount of EUR 700,000 on the basis of the agreement.

7. The DRC noted that the Respondent/Counter-Claimant, on the other hand, rejected the claim and held inter alia that besides the fact that the Claimant/Counter-Respondent failed to meet the conditions triggering the obligation to pay him the amount of EUR 700,000 on the basis of the agreement, the player’s actions caused it damages, on the basis of which the Respondent/Counter-Claimant lodged a counterclaim against the player.

8. Against such background, the DRC proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

9. In this context, the Chamber firstly proceeded to examine the agreement-related aspects of the present dispute.

10. In this respect, the DRC wished to recall that according to art. 2.1 and art. 2.2 of the agreement, the parties agreed that should the payment of EUR 700,000 not be effected by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent within three days following the issuance of the player’s clearance certificate for whatsoever reason, the agreement shall be null and void.

11. In continuation, the Chamber also stressed that pursuant to art. 3.1 of the agreement, the Respondent/Counter-Claimant undertook “to provide the necessary efforts in order to obtain on behalf of the Player the “Clearance Certificate” issued by the Football Association of country D, National Olympic Committee of country D and country D’s professional players Committee, as well as any other entitled authority of the State of country D.”

12. However, the Chamber noted that whilst the Claimant/Counter-Respondent argued that he always complied with the instructions he received from the Respondent/Counter-Claimant so as to complete the formalities required for the issuance of the clearance certificate at stake, the Respondent/Counter-Claimant contended that the Claimant/Counter-Respondent did not comply with all the applicable requirements for the issuance of said document.

13. In this respect, the Chamber noted that according to the Respondent/Counter-Claimant, the Claimant/Counter-Respondent did not comply with “immigration data” formalities apparently related to the cancellation of his residence visa in accordance with its correspondence addressed to the Claimant/Counter-Respondent dated 19 February 2015.

14. However, the Chamber took note that based on the evidence on file, in particular the two copies of the cancelled residence visas submitted by the Claimant/Counter-Respondent (cf. points I./16. to I./18. above), and in the absence of arguments from the Respondent/Counter-Claimant in this respect before this deciding body apart from referring to and reiterating the contents of its letter dated 19 February 2015, it could be established that the visa cancellation-related formalities at stake had been duly completed by the Claimant/Counter-Respondent, for himself and his wife.

15. In this context, the members of the Chamber noted from the exchange of correspondence between the parties in February 2015 that the Claimant/Counter-Respondent provided the Respondent/Counter-Claimant with the documents that were requested by the latter in the context of the clearance certificate and that he had asked the Respondent/Counter-Claimant on 26 February 2015 to confirm that all administrative formalities were completed.

16. Having received no reply to such request, on 9 March 2015, the Claimant/Counter-Respondent asked the Respondent/Counter-Claimant in writing to pay the EUR 700,000 within 8 days, which correspondence also remained unanswered.

17. Having so found, the Chamber turned its attention to the Respondent/Counter-Claimant’s other argument, which is related to two cheques issued by the Claimant/Counter-Respondent to pay for repairs of his apartment and which, undisputedly, could not be cashed by the player’s landlord due to a lack of funds. According to the Respondent/Counter-Claimant, as a result of this situation, the player’s landlord held the club liable for the financial obligations of the Claimant/Counter-Respondent towards his landlord in the amounts of 18,269 and 135,000 on the basis of paragraph (b) of the agreement.

18. In this respect, the Chamber particularly noted that, according to the Respondent/Counter-Claimant, this circumstance, which it was made aware of on 16 March 2015, did not permit the completion of the formalities that conditioned the issuance of the player’s clearance certificate.

19. In this respect, the Chamber was of the firm belief that, should the aforementioned amounts relating to repairs of the player’s apartment have indeed been paid by the Respondent/Counter-Claimant as alleged in its counterclaim, this alleged other condition invoked by the Respondent/Counter-Claimant with respect to the completion of the formalities that conditioned the issuance of the player’s clearance certificate would have been fulfilled. In this context and on a side note, the Chamber observed that according to art. 3.3 of the agreement, “costs of repairing house and/or furniture” were deductible from the amount of EUR 700,000 and considered that, thus, a payment made by the Respondent/Counter-Claimant for repairs of the player’s apartment in lieu of the Claimant/Counter-Respondent would, in fact, have been deductible from the EUR 700,000 on the basis of the relevant clause of the agreement, as acknowledged by the Claimant/Counter-Respondent.

20. What is more, the Chamber reasoned that based on the wording of art. 3.1. of the agreement, in accordance with which the club agreed “to provide the necessary efforts in order to obtain on behalf of the player the Clearance Certificate …” (emphasis added), it is to be considered that, if not more, the club had at least undertaken the obligation to inform the Claimant/Counter-Respondent about the fact that his cheques had been rejected due to a lack of deposit.

21. However, the Chamber noticed from the documentation on file that although the Respondent/Counter-Claimant stated that the player’s landlord informed it of the uncovered cheques on 16 March 2015, it could not be established that said information was transmitted by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent.

22. By acting this way, the members of the DRC agreed that the Respondent/Counter-Claimant was responsible for the non-fulfilment of the alleged condition relating to the costs of repair of the player’s apartment, which, as alleged by the Respondent/Counter-Claimant in its defence, needed to be fulfilled in order for the player’s clearance certificate to be issued.

23. On the basis of all of the aforementioned, the members of the Chamber concluded that the arguments put forward by the Respondent/Counter-Claimant could not be upheld.

24. Consistently with the above, the Chamber found that since the Claimant/Counter-Respondent complied with the instructions he received from the Respondent/Counter-Claimant in view of the issuance of his clearance certificate and since the Respondent/Counter-Claimant had not paid the amount of EUR 700,000 to the Claimant/Counter-Respondent on the basis of the agreement, the Chamber deemed that based on its art. 2.2, the agreement signed by the parties was to be considered null and void.

25. Consequently, the Chamber decided to reject the Claimant/Counter-Respondent’s claim relating to the amount of EUR 700,000 on the basis of the agreement.

26. In continuation, the Chamber reverted to the Claimant/Counter-Respondent’s claim for outstanding remuneration on the basis of the contract relating to a period of time up to the date of signature of the agreement and took into account that the Respondent/Counter-Claimant had not submitted any comments in relation thereto. Consequently, the members of the Chamber decided to accept the Claimant/Counter-Respondent’s claim for outstanding remuneration on the basis of the contract in the amount of EUR 721,201.

27. Having established the above, the Chamber turned its attention to the counterclaim of the Respondent/Counter-Claimant, who asked that the Claimant/Counter-Respondent be ordered to reimburse the amounts of 18,269 and 135,000, which it reportedly paid to the Claimant/Counter-Respondent’s landlord.

28. In this regard, the Chamber took into account that the Claimant/Counter-Respondent, for his part, agreed that the amounts of the uncovered cheques, if indeed paid by the Respondent/Counter-Claimant, be deducted from his receivables.

29. Bearing in mind art. 12 par. 3 of the Procedural Rules, the Chamber found that in the absence of any evidence on file that the Respondent/Counter-Claimant had indeed paid either of the aforementioned two amounts to the player’s landlord, the Respondent/Counter-Claimant’s claim for the reimbursement by the Claimant/Counter-Respondent of the aforementioned amounts, plus interest, had to be rejected without further analysis.

30. On account of all the above, the Chamber decided to partially accept the claim of the Claimant/Counter-Respondent and that the Respondent/Counter-Claimant must pay the amount of EUR 721,201 to the Claimant/Counter-Respondent.

31. In addition, taking into consideration the Claimant/Counter-Respondent’s claim, the Chamber decided to award interest at the rate of 5% p.a. on the amount of 721,201, as of 27 January 2015.

32. Having so found, the Chamber turned its attention to the additional counterclaim of the Respondent/Counter-Claimant relating to compensation for damages allegedly incurred to its reputation in the amount of EUR 350,000.

33. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Respondent/Counter-Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered.

34. On account of the above, the DRC decided to reject the Respondent/Counter-Claimant’s claim against the Claimant/Counter-Respondent relating to compensation for alleged damages to its reputation.

35. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant/Counter-Respondent as well as the counterclaim of the Respondent/Counter-Claimant are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.

2. The claim of the Respondent/Counter-Claimant, Club C, is rejected.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, the amount of EUR 721,201 plus 5% interest p.a. as from 27 January 2015 until the date of effective payment.

4. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant/Counter-Respondent is rejected.

6. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant 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