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), Chairman

Alejandro Marón (Argentina), member Mario Gallavotti (Italy), member

Carlos Puche (Colombia), member

Eirik Monsen (Norway), member

on the matter between the player,

Player A, Country B

as Claimant

and 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 available in the Transfer Matching System (TMS), the Player of Country B, Player A (hereinafter: the Claimant), concluded an undated contract with the Club of Country D, Club C, (hereinafter: the Respondent), valid as from 6 September 2015 until 15 July 2016.

2. According to the contract, the Claimant was entitled to a total remuneration in the amount of USD 80,000, payable as follows:

- USD 32,000, “at the final ratification of the contract”;

- USD 36,000, in monthly instalments in the amount of USD 3,600 each;

- USD 12,000 “at the end of the league”.

3. On 24 May 2016, the Claimant lodged a claim against the Respondent on the grounds that he “did not take all [his] salary of the contract”.

4. In particular, the Claimant attached a document apparently signed by himself, referred to as “Financial Report”, by means of which he stated that “Knowing that the principal amount is ninety-six million (…) equivalent to the time of signing the contract eighty thousand US dollars”, he “has received his salary equivalent to [USD 45,000] and the rest of his salary [USD 35,000]”

5. More specifically, the Claimant stated that he received the following amounts:

Amount

Payment date

USD 23,000

25 September 2015

USD 4,000

1 December 2015

USD 5,000

15 January 2016

USD 9,000

1 April 2016

USD 4,000

15 May 2016

6. Despite being requested to do so, the Respondent failed to provide any comments to the claim lodged by the Claimant.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 24 May 2016. Consequently, 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 edition 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. 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 (editions 2015 and 2016), and considering that the present matter was submitted to FIFA on 24 May 2016, the 2015 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, the Chamber acknowledged that, according to the information contained in TMS, the parties to the dispute had signed an employment contract, valid as from 6 September 2015 until 15 July 2016.

6. Subsequently, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

7. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

8. In continuation, the members of the Chamber acknowledged that, in accordance with the employment contract as available in the TMS, the Respondent was obliged to pay to the Claimant the total amount of USD 80,000 for the whole term of the contract.

9. In this respect, the DRC took into consideration that according to the Claimant, the Respondent only paid him the total amount of USD 45,000, but that the remaining amount of USD 35,000 was still outstanding. Consequently, the Claimant requested to be awarded with the payment of the total amount of USD 35,000.

10. Taking into account the documentation presented by the Claimant in support of his petition and that the Respondent failed to present its position as to the Claim lodged by the Claimant, the DRC concluded that the Claimant had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence.

11. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s pending remuneration in the total amount of USD 35,000.

12. 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 outstanding remuneration in the total amount of USD 35,000.

13. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the Claimant.

III. Decision of the Dispute Resolution Chamber

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

2. 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 USD 35,000.

3. In the event that the aforementioned sum is not paid 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 the FIFA Disciplinary Committee for consideration and a formal decision.

4. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. is to be made and to notify the Dispute Resolution Chamber of every payment received.

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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 (CAS)

Avenue de Beaumont 2

CH-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

Enclosed: CAS directives