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 18 May 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 18 May 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Takuya Yamazaki (Japan), member

Mohamed Al Saikhan (Saudi Arabia), 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 29 August 2014, the Player of Country B, Player A (hereinafter: the Claimant or the Player) and the Club of Country D, Club C (hereinafter: the Respondent or the Club) entered into an agreement (hereinafter: “services contract”) valid as from 1 September 2014 until 12 June 2016.

2. According to the services contract, the Claimant committed to perform “activities aimed at promotion and popularization of football of Region E”, such as, inter alia, “playing for a football team of Region E”.

3. Pursuant to art. 5 of the services contract, the Claimant was entitled to a remuneration of EUR 195,000 for the period from 1 September 2014 until 30 June 2015 and of EUR 172,000 for the period from 1 July 2015 until 12 June 2016, payable as follows:

a) EUR 15,000 as “monthly advance payment (…) on the terms agreed upon by the parties”;

b) EUR 45,000 as “additional one-time advance payment”, within 30 September 2014.

4. Art. 5.3 of the services contract provided that “the payments shall be made in Currency F in accordance with the rate of the Central Bank of Country D on the last day of the month for which the advance payment is made”.

5. On 1 September 2014, the Claimant and the Respondent entered into an employment contract (hereinafter: the labour contract) valid as from 1 September 2014 until 12 June 2016.

6. According to art. 6.1 of the labour contract, the Claimant was entitled to a monthly salary of EUR 5,000. Additionally, in accordance with art. 6.3 of the labour contract, “bonus payments (also for the results achieved) can be paid to the Player in accordance with the applicable Regulation adopted at the Club”.

7. Moreover, according to art. 2.1 of appendix 1 of the labour contract, the Claimant was also entitled to EUR 5,000 for each month, as “additional monthly fee”.

8. In continuation, art. 5 of appendix 1 of the labour contract provided that:

“5.1 upon the end of each calendar year […] the club shall compensate to the player the expenses related to renting of the apartment or a hotel room in Region E for the period from March till December of each year of the contract validity in the amount not exceeding EUR 400 per month against the provision by the player of the documents confirming the expenses born to the accounting office of the Club. […]

5.3 the Club shall reimburse to the Player the cost of return plane tickets (economy class) from the Club’s headquarters to Country B, five times per each year of the contract validity period against provision of all the tickets and boarding passes to the accounting office of the club. The compensation is made within 10 days after the accounting office is provided with the travel documents”.

9. Furthermore, art. 5.4 of appendix 1 of the labour contract states that “in relation to the signing of the [Labour Contract] the Club shall make a payment to the player (a sign-on fee), equal to EUR 30,000 not later than 30 September 2014”.

10. In accordance with art. 6.4 of the labour contract, “payments of the monthly salaries, additional allowances, other remunerations shall be paid not later than on the 20th day of the month following the month when these payments were imputed”.

11. Pursuant to art. 6.5 of the labour contract, “all the payments to the Player under the present contract, Appendices to the present contract and local acts of the Club shall be made in Currency F. The Parties have agreed that the regular payments in Currency F shall be made on the basis of the foreign currency (US dollars, euro, etc.) rate fixed by the local Club act (order) and equal to the corresponding currency rate of the Central Bank of Country D on the last day of the month for which the calculation is made.

Bonuses and incentives and other payments of irregular nature may be paid in accordance with the rate of the Central Bank of Country D set for date on which the payment is made”.

12. On 14 February 2015, the Claimant sent an e-mail to the Respondent requesting the payment of outstanding remuneration. In particular, the Claimant acknowledged receipt of some payments in Currency F from the Respondent but he stressed that, inter alia, in accordance with the applicable currency exchange rate, such payments were incomplete.

13. On 3 March 2015, the Respondent replied to the Claimant, emphasising that “exchange rate fluctuations cannot be qualified as a contract violation, but rather a force majeure circumstance”.

14. The Claimant sent further payment requests to the club on 3 April 2015, 16 July 2015 and 21 August 2015, which were denied by the Respondent through its reply on 4 September 2015.

15. On 5 February 2016, the Claimant sent a further payment request, which the Respondent replied to on the same date, confirming its previous position.

16. On 22 March 2016, the Claimant sent a further letter to the Respondent, by means of which he set 15 April 2016 as final deadline for reaching an amicable settlement of the matter.

17. On 7 May 2016, the Claimant sent his final letter to the Respondent, reiterating his request for an amicable settlement.

18. On 11 July 2016, the Claimant lodged a claim in front of FIFA against the Respondent for outstanding amounts, requesting the payment of the following plus interest “from the decline day of each payment”, calculated as follows:

a) EUR 398.30 as remainder of the sign-on fee under art. 5.4 appendix 1 of the labour contract;

b) EUR 493.24 as remainder of the additional payment under art. 5.2 of the services agreement;

c) EUR 21,738.04 as remainder of the Claimant’s monthly fees for the period between September 2014 and May 2016;

d) EUR 7,200 as reimbursement of accommodation costs under art. 5.1 of the appendix 1 of the labour contract for the season 2014-2015 and the season 2015-2016;

e) EUR 2,619.03 as reimbursement of flight tickets in accordance with art. 5.3 of the appendix 1 of the labour contract.

19. In his claim, the Claimant stated that, according to the applicable currency exchange rates, the amounts paid by the club in Currency F did not cover the amounts contractually agreed. Moreover, the Claimant argued that the Respondent did not reimburse him the relevant accommodation costs and the flight costs.

20. On 27 July 2016, the Claimant amended his claim requesting, in addition to the dues already claimed, the following amounts:

a) EUR 10,000 as “monthly fee of June 2016”;

b) EUR 27,920.68 as “bonus 2016 (game premiums)” for six matches.

21. In accordance with the amended claim, the Claimant requested the total amount of EUR 70.369,29 plus interest “from the average date (3-10-15) till 27-07-2016”, calculated in EUR 6,052.72, and further interest from 27 July 2016 until the date of effective payment.

22. In its reply, the Respondent contested the Claimant’s request, arguing that the Claimant incorrectly converted in Euros the payments made by the club in Currency F.

23. In particular, the Respondent recalled that, pursuant to the contracts executed by the parties, the “regular payments” are made on the basis of the rate of the Central Bank of Country D on the last day of the month for which the calculation is made “(but not the day of receipt of the amounts by the Player)”.

24. Equally, the Respondent also argued that, “for irregular payments”, the rate of conversion to be taken into account is the one set for the date on which the payment is made.

25. On account of the above, the Respondent rejected the Claimant’s calculations of the advance payments and submitted copy of the payment orders made to the Claimant. It acknowledged, however, a debt of EUR 10,974.81 towards him for the monthly salaries.

26. Moreover, the Respondent argued that part of the Claimant’s request as to the reimbursement of accommodation costs in a hotel was to be rejected, as the Claimant allegedly provided the Respondent with false documents in this regard. As to the remaining part of the Claimant’s request for reimbursement of accommodation costs, the Respondent held that they were unfair, as it had already reimbursed such costs, including them in the payment of the monthly salaries. In this respect, the Respondent asserted having reimbursed to the Claimant the accommodation costs related to the renting of an apartment from April to November 2015. Moreover, according to the Respondent, it provided the Claimant with “a comfortable hotel” for the period between November 2014 and March 2015. In view of the aforementioned, the Respondent considered that it did not owe the Claimant any amount for this concept.

27. Regarding the flight tickets, the Respondent alleged having reimbursed them together with the salary payments of July, September and October 2015 via a bank transfer.

28. In his replica, the Claimant did not contest the payment orders provided by the Respondent and maintained his previous arguments. He emphasised that, as to the advance payments, the exchange rate to be considered was not that of the date on which such payments were actually performed, but, rather, that of the date on which they had to be made according to the contracts. As a consequence thereof, and because the Respondent made all the payments with delay, the Claimant considered that a remainder of EUR 892.24 was still due by the Respondent for said advance payments.

29. Moreover, the Claimant acknowledged receipt of the last monthly salary of June 2016, but he stressed that, according to the applicable exchange rate, the Respondent still has to pay him the amount of EUR 557.16.

30. Regarding the reimbursement of accommodation costs, the Claimant maintained his previous request and emphasised that the Respondent did not submit any document supporting its position according to which he had allegedly provided false documents. In this regard, the Claimant stated that “in accordance of the art. 5.1 appendix these compensation of EUR 400,00 per month are due”.

31. As to the flight tickets, the Claimant submitted copies of them, insisted having provided them to the Respondent on 11 March 2015 and stated that if the Respondent “pretends that this amounts were included in the payments (...) there’s no discussion about the fact that this amounts are justified and due”.

32. Furthermore, the Claimant alleged that the requested bonuses were established by the Board of the Directors of the Club during the meeting held on 20 April 2016. In particular, the Board of the Directors of the Club decided that “if, on the basis of the Football Championship of Country D among the teams of the Premier League clubs of 2015-2016 season, the Team of Club C will receive the right to participate in the Football Championship of Country D of 2016-2017 season without participation in the transitional matches – a bonus for players will be established but no more than double of aggregate amount of premiums for the results achieved by the team in official matches of the Football Championship of Country D of 2015-2016 season, starting with the match of Club G – Club C (04/04/2016). In this case, in determining the amount of such bonus, the individual bonus increase for the particular player for the results obtained by the team during officials leagues football matches of 2015-2016 is not considered”.

33. On account of the above, the Claimant acknowledged that the Respondent paid him bonuses for six matches played between 4 April 2016 and 15 May 2016, but he affirmed that, according to the applicable exchange rate, a remainder of EUR 14,561.98 was still due.

34. In view of the above, the Claimant finally requested the payment of EUR 52.324,53, plus interest from “the decline day” of each payment, broken down as follows:

a) EUR 829,24 for the advanced payments;

b) EUR 22,357.50 for the monthly fees;

c) EUR 7,200 as reimbursement of the accommodation costs;

d) EUR 2,619.03 as reimbursement of the flight tickets;

e) EUR 14,561.98 for the match bonuses;

f) EUR 4.756,78 for “compensation assistance counsel (10% outstanding amount)”.

35. In its duplica, the Respondent insisted on its previous arguments and, in particular, affirmed that it “reimbursed all the accommodation expenses confirmed by the player”, under the condition that the documents provided by the Claimant were “completed properly”. In this regard, the Respondent stressed that, on two different occasions, the Claimant provided the Respondent with two different hotel invoices for the same accommodation period and alleged that it informed the Claimant that, due to such discrepancies, such invoices could not be reimbursed.

36. Furthermore, as to the match bonuses, the Respondent argued that it decided to pay the players a bonus “not exceeding the double of aggregate amount of bonuses assigned to the professional football player for the results achieved by the team”. Consequently, the Respondent alleged that the Claimant incorrectly interpreted the decision of the Board of the Directors as he “doubled the amount of the bonus due to him for the results, achieved by the team” and, therefore, no further bonuses were owed to him.

37. Finally, the Respondent reiterated its previous arguments and declared that it was ready to pay the Claimant the amount of EUR 10,974.81.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the 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 11 July 2016. 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 and 2 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. In continuation, 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 11 July 2016, the 2016 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 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. First, the Chamber noted that the employment relationship between the Claimant and the Respondent was governed by two different contracts, both valid for the period between 1 September 2014 and 12 June 2016: the services contract and the labour contract.

6. In this context, the members of the Chamber noted that:

a) according to the services contract, the Claimant was entitled to an advanced payment of EUR 45,000 and to a monthly salary of EUR 15,000;

b) according to the labour contract, the Claimant was entitled to an advance payment of EUR 30,000, to a monthly salary of EUR 10,000 and to bonus payments in accordance with the Club’s regulations;

c) all the payments provided in the services contract and in the labour contract must be made in Currency F.

7. In continuation, the members of the Chamber took note that, in his claim, the Claimant argued that the amounts paid by the Respondent in Currency F did not cover the amounts contractually agreed in euros. In particular, he claimed that, pursuant to the applicable exchange rate, the conversion from euros to Currency F resulted in outstanding salaries due.

8. Furthermore, the DRC noted that the Claimant also requested the reimbursement of accommodation costs and flight tickets and the payment of some match bonuses.

9. Equally, the DRC took note of the position of the Respondent, which rejected the Claimant’s requests and contested the exchange rate he applied, as well as his calculations. Nonetheless, the Respondent acknowledged a debt of EUR 10.974,81 towards the Claimant for outstanding salaries.

10. In view of the aforementioned dissent positions of the parties and in respect of the question as to whether or not the amounts paid by the Respondent in Currency F corresponded to the amounts contractually agreed in euros, the members of the Chamber firstly referred to 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 application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the Claimant to prove that the amounts paid by the Respondent in Currency F did not cover the amounts contractually agreed in euros.

11. Having stated the above, the members of the Chamber concurred that the Claimant did not substantiate his allegations, as it did not present any evidence in respect of the exchange rate which the Respondent allegedly had to apply to the amounts contractually agreed. In particular, the Claimant did not provide the Chamber with any evidence which could corroborate that the exchange rate applied by the Claimant was, in fact, correct.

12. On account of the aforementioned considerations, the DRC concluded that, since the Claimant had not been able to prove that the amount paid by the Respondent did not correspond to the amount contractually agreed, the Respondent had to pay the Claimant only the salaries which it acknowledged were outstanding. As a consequence, the members of the Chamber concurred that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations and, consequently, is to be held liable to pay the outstanding salaries in the amount of EUR 10.974,81 to the Claimant.

13. Equally, as to the reimbursement of the accommodation costs, the members of the Chamber recalled that, pursuant to art. 5.1 of appendix 1 of the labour contract, the player was entitled to such reimbursement under a specific condition, i.e. the presentation to the Respondent of the documents confirming the born expenses. However, the evidence submitted by the Claimant did not prove, pursuant to art. 12 par. 3 of the Procedural Rules, that he met the specific condition set out in the aforementioned clause of the labour contract and, thus, that he was entitled to the reimbursement. On account of the above, the members of the Chamber, consequently, concluded that no reimbursement was due to the player for this concept and, thus, rejected this part of the Claimant’s claim.

14. Furthermore, as to the claim for outstanding match bonuses, taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had not fully substantiated his claim with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no supporting documentation relating to the Claimant’s claim pertaining to outstanding match bonuses. Consequently, the DRC decided to reject also this part of the Claimant’s claim. What is more, the members of the Chamber recalled that, even in presence of said supporting documentation, the Claimant did not present any evidence in respect of the exchange rate which the Respondent allegedly had to apply to the amounts corresponding to the match bonuses.

15. In continuation, as to the Claimant’s request for the reimbursement of flight tickets, the DRC acknowledged that the Claimant requested a reimbursement of EUR 2,619, whereas the Respondent stated that it had already paid such amount.

16. In this respect, the members of the Chamber, recalling again the basic principle of burden of proof under art. 12 par. 3 of the Procedural Rules, and based on the evidence submitted by the parties, on one hand noted that the Claimant incurred in the expense of EUR 2,619 for the flight tickets and, on the other hand, they noted that the Respondent did not substantiate its defense, as, notably, it did not provide any supporting documentation indicating the reimbursement of such flight tickets.

17. In view of the above, the DRC concluded that it could be established that the Respondent had failed to reimburse to the Claimant the flight tickets as contractually agreed and, and in accordance with the general legal principle of pacta sunt servanda, the Respondent, consequently, is to be held liable to reimburse the amount of EUR 2,619 to the Claimant.

18. 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 total outstanding amount due by the Respondent, i.e. EUR 13,593, as of the date on which the claim was lodged, i.e. 11 July 2016, until the date of effective payment.

19. 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 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 13,593 plus 5% interest p.a. as from 11 July 2016 until the date of effective payment.

3. In the event that the aforementioned sum plus interest is not paid by the Respondent 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.

*****

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).

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