DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 9 febbraio 2017 • Stagione sportiva: 2016/2017

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 9 February 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 February 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Joaquim Evangelista (Portugal), member

Taku Nomiya (Japan), member

Todd Durbin (USA), 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. According to the information in the Transfer Matching System (TMS), on 15 July 2012, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C, (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from 20 July 2012 until 30 July 2015.

2. On 10 July 2014, the Claimant, the Respondent and the Club of Country B, Club E, signed a document titled “Contract” (hereinafter: the transfer agreement).

3. In accordance with the transfer agreement, the Claimant, the Respondent and Club E agreed inter alia upon the following:

“2) THE PERMANENT TRANSFER / TRANSFER FEE / RELEASE

a) Without prejudice to the provisions of clause 2(i) of this CONTRACT, [the Claimant] shall, [the Respondent]’S written request, on or before the 15th of July 2014, fully, unconditionally, finally and perpetually release [the Respondent] from any and all of [the Respondent]’S liabilities and /or obligations arising from or related to any and all contracts (including, without limitation, employment contracts) entered into by and between [the Claimant] and [the Respondent].

(….)

i) [the Respondent] shall pay to the [the Claimant] the total amount of EUR 600,000 as follows:

- EUR 150,000 on or before 30 August 2014;

- EUR 150,000 on or before 30 September 2014;

- EUR 150,000 on or before 30 October 2014;

- EUR 150,000 on or before 30 November 2014.”

4. Moreover, the Claimant signed an undated document titled “RELEASE” (hereinafter: the release), which according to the Respondent, was signed on 10 July 2014. The release established the following:

“Without prejudice to the provisions of clause 2(i) of the contract signed, on 10 July 2014, by and between [the Respondent], Club E, and myself, I, Player A, hereby:

(1) Expressly, irrevocably, fully, unconditionally, finally and perpetually release [the Respondent] from:

a. any and all of [the Respondent]’s liabilities and/or obligations arising from or related to any and all contracts (including, without limitation, employment contracts) entered into by and between [the Respondent] and myself;

b. (…)

c. Any obligations of [the Respondent] towards me;

(2) Irrevocably and perpetually covenant not to sue, and/or bring any other legal action against [the Respondent]…for any and all past, present, and/or future claims, of any nature, whether known or unknown, whether suspected or unsuspected, arising from or related to any and all contracts (including, without limitation, employment contracts) entered into by and between [the Respondent] and myself;

(3) Specifically, expressly and irrevocably agree that this document may be pleaded as an absolute and final bar to any complaint or legal proceeding that may hereafter be prosecuted by me, arising from or related to any and all contracts (including, without limitation, employment contracts) entered into by and between (the club) and myself.

Nothing herein is intended to prejudice [the Respondent]’s rights under the contract signed, on 10 July 2014, by and between [the Respondent], CLUB E, and myself.

…

INTENDING TO BE LEGALLY BOUND

(SIGNATURE)

____________________________

Player A”

5. Allegedly, by correspondence dated 20 March 2015, the Claimant put the Respondent in default of payment, via email and facsimile, of EUR 600,000 setting a 5 days’ time limit to the Respondent in order to remedy the default. Furthermore, allegedly on 6 July 2016, the Claimant put the Respondent in default of payment, via email, of EUR 600,000 setting a 10 days’ time limit to the Respondent in order to remedy the default.

6. On 7 July 2016, the Claimant lodged a claim against the club in front of FIFA asking that the Respondent be ordered to pay to him outstanding remuneration in the amount of EUR 600,000. The Claimant further asks to be awarded interest of 5% p.a. as of 30 August 2014.

7. According to the Claimant, the Respondent has not fulfilled its obligation towards him as agreed in the transfer agreement, namely, the payment of EUR 600,000 in accordance with art. 2 (i) of the transfer agreement.

8. In its reply, the Respondent rejected the player’s claim. First, the club sustained not having received any of the Claimant’s default notices, as according to it, the default notice was sent to the wrong facsimile number and an email “is not approved as an away of communication”. Moreover, the Respondent held in respect to the default notices sent via email, that “the one sent to Mr F it’s as well not received since Mr F is no more working with Club C since 11/11/2015”.

9. Moreover, the Respondent maintained that the parties, in accordance with the principle of Pacta Sunt Servanda, had already settled all the matter between them by means of the release signed by the Claimant (cf. point 4 above).

10. Alternatively, the Respondent requested that in case that the claim is not dismissed, and it is decided that the Claimant is entitled to receive the claimed amounts, the amounts that are in fact prescribed should be deducted.

11. The Claimant submitted his replica, in which he repeated his initial position and request for relief. In this respect, the Claimant sustained that the Respondent “never denies that he owes the sum of EUR 600,000, nor does he ever deny that he has not made any of the payments”.

12. In respect to the default notices, the Claimant held that they were sent to the correct facsimile number and that the email address to which he sent the default notices was used in the past to communicate with the Respondent. Moreover, the player argued that the club is not denying that it received the emails.

13. The Respondent submitted its duplica, where it repeated its position.

II. Considerations of the Dispute Resolution Chamber:

1. First of all, the Dispute Resolution Chamber (hereinafter: DRC or Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 7 July 2016. Consequently, the DRC concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015 and 2017 editions of the Procedural Rules).

2. Subsequently, the Chamber referred to art. 3 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. The competence of the Chamber having been established, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 matter was submitted to FIFA on 7 July 2016, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. In this respect and first of all, the DRC acknowledged that according to the information in the TMS, on 15 July 2012, the Claimant and the Respondent signed the contract, valid as from 20 July 2012 until 30 July 2015.

6. Furthermore, the Chamber observed that, on 10 July 2014, the Claimant, the Respondent and the Club of Country B, Club E, signed the transfer agreement by means of which, inter alia, it was agreed that:

 In accordance with art. 2 par “i” (hereinafter: clause/art. 2(i) of the transfer agreement), the Respondent undertook the obligation to pay the Claimant EUR 600,000, in 4 instalments of EUR 150,000 each, payable on or before 30 August 2014, 30 September 2014, 30 October 2014 and 30 November 2014, respectively;

 In accordance with art. 2 par “a”, the Claimant agreed to release the Respondent from all of its obligations arising from or related to any and all contracts entered into by and between the Claimant and the Respondent. The clause explicitly stipulated that this is agreed without prejudice to what was stipulated in clause 2(i) of the transfer agreement.

7. Equally, the members of the Chamber noted that it was undisputed that on the same day, i.e. on 10 July 2014, the Claimant signed the release, the wording of which can be verified in detail in point I.4 above.

8. In continuation, the Chamber noted that the Claimant, on the one hand, alleged that the Respondent failed to fulfil its obligations towards him as established in art. 2(i) of the transfer agreement amounting to EUR 600,000. The Chamber also took due note that the Claimant sustained having put the club in default on two occasions, namely, on 20 March 2015 and 6 July 2016.

9. The DRC further noted that the Respondent, on the other hand, rejected the claim of the Claimant and referred to the release signed by the player. The DRC took note that the Respondent asserted that by means of the release, the parties have already settled all the matters between them and therefore, there is no overdue amount payable to the Claimant. Moreover, the Respondent held not having received the Claimant’s default notices and maintained that if any amounts are granted to the Claimant, the prescribed amounts should be deducted.

10. In this moment, the members of the Chamber highlighted the contents of art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute.

11. In this respect, the Chamber deemed that, the claim having been lodged on 7 July 2016, and the Claimant’s request for outstanding remuneration falling due at the earliest, on 30 August 2014 in accordance with the transfer agreement, must not be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations, and therefore, the claim is admissible.

12. After analysing the opposed positions of the parties, and since evidently, following its argumentation, the Respondent has not provided any proof of payment of the amount requested by the Claimant, the Chamber concluded that that the underlying issue in the matter at hand is to establish if in fact by means of the release, the Claimant waived his rights to receive the amounts as per the transfer agreement or not.

13. For the sake of completeness, the Chamber wished to point out that it duly observed that the reception of the default notices was contested by the Respondent. In this regard, the DRC recalled the contents of art. 12 par. 3 and par. 6 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and took note that the Claimant held that he sent the corresponding default notices via facsimile, but, did not submit a positive facsimile report that could corroborate his allegation. In respect to the default notices sent via email, the members of the Chamber considered the contrasting allegations between the parties and the evidence provided in this regard, and concluded that it cannot be established with total certainty if these default notices were indeed received by the Respondent. However, the DRC wished to highlight that the reception or lack of it of the default notices sent by the Claimant bears no impact in the underlying issue in the matter at hand.

14. At this point, the members of the DRC deemed it appropriate to recall the wording of the aforementioned release and to emphasize certain parts of it, as follows:

“Without prejudice to the provisions of clause 2(i) of the contract signed, on 10 July 2014, by and between [the Respondent], Club E, and myself, I, Player A, hereby:

(1) Expressly, irrevocably, fully, unconditionally, finally and perpetually release [the Respondent] from:

d. any and all of [the Respondent]’s liabilities and/or obligations arising from or related to any and all contracts (including, without limitation, employment contracts) entered into by and between [the Respondent] and myself;

e. (…)

f. Any obligations of [the Respondent] towards me;

Nothing herein is intended to prejudice [the Respondent]’s rights under the contract signed, on 10 July 2014, by and between [the Respondent], CLUB E, and myself”.

15. Focusing its attention on the underlined parts above, the DRC unanimously deemed that the wording of the release signed by the Claimant on 10 July 2014, is a clear and explicit reservation of the Claimant’s right to claim the amount established in clause 2(i) of the transfer agreement. Consequently, it is clear that the amount established in the transfer agreement must be paid to the Claimant and that the latter by no means waived his right to receive them.

16. Thus, the DRC deemed that the Respondent’s argument in this regard had to be rejected and that the Claimant was entitled to claim from it the payment of any unpaid amounts established in the transfer agreement.

17. In this context, the DRC noted that not only did the Respondent not provide any proof of having paid to the Claimant the amount of EUR 600,000 claimed as outstanding, it also did not even deny having failed to pay the Claimant such amount as per the transfer agreement of 10 July 2014.

18. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 600,000.

19. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payments, as of the day following the day on which the relevant payments fell due, until the date of effective payment.

20. The Dispute Resolution Chamber concluded its deliberations in 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 admissible.

2. The claim of the Claimant is partially accepted.

3. 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 600,000.

4. Within the same deadline, the Respondent has to pay to the Claimant interest as follows:

- 5% p.a. over the amount of EUR 150,000 as from 31 August 2014 until the date of effective payment;

- 5% p.a. over the amount of EUR 150,000 as from 1 October 2014 until the date of effective payment;

- 5% p.a. over the amount of EUR 150,000 as from 31 October 2014 until the date of effective payment;

- 5% p.a. over the amount of EUR 150,000 as from 1 December 2014 until the date of effective payment.

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

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

7. 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).

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

www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives