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 30 September 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 September 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Jon Newman (USA), member

Mario Gallavotti (Italy), member

Taku Nomiya (Japan), 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 5 August 2013, the player from country B, Player A (hereinafter: player or Claimant), and the club from country D, Club C (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract) valid as from 1 August 2013 until 30 June 2016.

2. According to art. 4 of the contract, the club, inter alia, undertook to pay the player an amount equivalent to EUR 600,000 in per season, payable via 12 monthly installments of EUR 50,000 each, as from 1 July 2014 until 30 June 2015 and as from 1 July 2015 until 30 June 2016.

3. According to the same article, the player shall have the benefit of inter alia accommodation and a car.

4. On 12 September 2015, and after several alleged refusals by the club to pay his remuneration, the player lodged a claim against the club before FIFA inter alia in relation with outstanding remuneration.

5. In his claim, the player explained that although he always complied with his obligations, the club stopped paying him his accommodation-related allowance as from the month of December 2014.

6. As a result, the player reported that in August 2015, he was evicted from the apartment the club had provided him with.

7. Additionally, the player asserted that the club stopped paying his monthly remuneration as from the month of April 2015.

8. In continuation, the player explained that, in May 2015, he sustained a knee-injury during a match he played for the club.

9. According to the player, as he was “tormented by the unprofessional attitude of the Medical Staff in country D”, he travelled to country E to follow a medical treatment at his own expense with the club’s written authorisation.

10. In this context, and after several amendments of his claim until in February 2016, the player requested that the club be ordered to pay him the following sums:

 EUR 550,000, based on 11 outstanding monthly salaries, calculated as from the month of April 2015 until and including February 2016;

 EUR 22,500 in relation to 15 unpaid accommodation-related allowances, calculated as from December 2014 until February 2016, each in the alleged amount of EUR 1,500;

 EUR 4,000 as compensation in relation to the car he used to be provided with by the club, but which was reportedly taken away from him by the club in June 2015. In this respect, the player estimates his transportation costs in the amount of EUR 500 per month, calculated as from June 2015 up and until February 2016;

 EUR 10,500 in relation to medical expenses. In this respect, the player held that as he sustained his injury during a match played for the club, the latter should reimburse half of his medical expenses in the total amount of EUR 21,000.

11. The player further asks to be awarded 5% interest p.a. and that sanctions be imposed on the club.

12. In his statement of claim, the player explained that he was still in country E undergoing medical treatment.

13. In spite of having been invited to do so, the club has not responded to the claim.

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 12 September 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 12 September 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 documentation available on file. 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. First and foremost, the DRC acknowledged that by means of the contract signed on 5 August 2013, the Respondent inter alia undertook to pay to the Claimant an amount equivalent to EUR 600,000 per season.

6. Furthermore, the Chamber took due note that pursuant to the contract, the Claimant’s remuneration was to be paid by the Respondent in 12 consecutive monthly instalments of EUR 50,000 each per season, as from 1 July until 30 June.

7. In continuation, the DRC noted that according to the Claimant, the Respondent stopped paying him his accommodation-related allowance as from the month of December 2014 and ceased the payment of his monthly salaries as from the month of April 2015.

8. Additionally, the Chamber took into that, according to the Claimant, he sustained a knee injury in May 2015 while rendering his services to the club during a match and he was authorized by the Respondent to travel to country E in order to receive medical treatment at his own expense.

9. In this regard, the members of the Chamber took note of the document issued by the Respondent on 21 May 2015, in accordance with which the Respondent authorized the Claimant to travel to country E in relation with medical treatment of the injury he sustained during the match referred to by the Claimant in his statement of claim.

10. Said document further reads that the Respondent would neither contribute to the Claimant’s travel expenses nor to medical costs that the Claimant may incur in connection with the medical treatment followed in country E.

11. Consequently, in February 2016, the Claimant asked before FIFA that he be awarded, inter alia, payment of his monthly remuneration as from April 2015 until and including February 2016 as well as reimbursement of his medical expenses. In this context, the Claimant highlighted that he was still in country E undergoing medical treatment.

12. On the other hand, the DRC noted that although the Respondent was invited to present its position on the Claimant’s claim, no answer was received from the Respondent to the claim.

13. In view of the aforementioned, the members of the Chamber deemed that the Respondent had renounced its right to defence and, thus, had accepted the allegations of the Claimant.

14. Furthermore, as a consequence of the aforementioned consideration, the DRC decided that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

15. Reverting to the documentation available on file as well as the Claimant’s claim, the DRC concluded that whereas the parties contractually agreed that the Respondent had to pay salaries in total amount of EUR 550,000 to the Claimant for the period of time comprised between April 2015 and February 2016, it can be established that no remuneration was received by the Claimant from the Respondent during said period of time.

16. In this regard, the DRC recalled that such circumstance, in view of the Respondent not having replied to the claim, has remained uncontested.

17. The Chamber further established on the basis of the documents on file that the Claimant was authorised by the Respondent to be absent in the light of the Claimant’s medical treatment in country E.

18. On account of the above considerations, the DRC concluded that the Respondent had failed to pay the amount of EUR 550,000 to the Claimant without apparent justification.

19. On account of the aforementioned considerations and in accordance with the general legal principle of pacta sunt servanda, the DRC decided that the Respondent is liable to pay to the Claimant outstanding salaries in the amount of EUR 550,000.

20. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of the date on which the claim at hand was last amended, i.e. 18 February 2016, until the date of effective payment.

21. Subsequently, the DRC turned its attention to the Claimant’s additional claims related to accommodation, a vehicle and the reimbursement of costs of his injury-related medical treatment.

22. As to the Claimant’s requests to be awarded EUR 22,500 in connection with unpaid accommodation allowances and EUR 4,000 as compensation for the alleged loss of the benefit of a car, the Chamber deemed relevant to refer to 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.

23. Accordingly, the Chamber was eager to point out that the Claimant had submitted no documentation so as to substantiate the amounts claimed in this respect.

24. In addition, the Chamber pointed out that the relevant contractual conditions relating to accommodation and a vehicle do not include any monetary value.

25. For these reasons, the Chamber decided to reject the Claimant’s claim in the amounts of EUR 22,500 and EUR 4,000 relating to said fringe benefits.

26. Having so found, the members of the Chamber turned their attention to the Claimant’s claim for the reimbursement by the Respondent of half of the amount of the medical expenses he allegedly incurred in country E in relation to the injury he sustained during a match he played with the Respondent.

27. In this regard, the Chamber referred once more to art. 12 par. 3 of the Procedural Rules and stressed that the Claimant had not submitted evidence of the costs he reportedly incurred in connection with this medical treatment.

28. In continuation, and after a careful review of the contract signed by and between the parties, the Chamber found that there was no contractual clause on the basis of which the Respondent was to be held liable for payment of medical costs generated by the treatment, in particular out of country D, of an injury sustained by the Claimant during the execution of his employment contract.

29. What is more, the Chamber deemed important to stress that according to the terms of the written authorisation that the Claimant received from the Respondent to travel to country E for medical purposes, the Respondent inter alia expressly refused being liable for the payment of any expenses related to the Claimant’s medical treatment of his injury in country E.

30. On account of the aforementioned, the members of the Chamber agreed that the Claimant’s claim relating to the reimbursement of medical costs had to be rejected.

31. The DRC concluded his 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 partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 550,000 plus 5% interest p.a. as from 18 February 2016 until the date of effective payment.

3. 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.

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

5. 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.

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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

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