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 29 July 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 July 2016,

in the following composition:

Geoff Thompson (England), Chairman

Santiago Nebot (Spain), member

John Bramhall (England), member

Guillermo Saltos Guale (Ecuador), member

Wouter Lambrecht (Belgium), 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 22 July 2014, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2015, in accordance with which the Claimant was supposed to receive 10 monthly salaries of EUR 40,000.

2. On 21 January 2015, the Claimant and the Respondent signed a document titled “Mutual Termination and Release Agreement” (hereinafter: the termination agreement) by means of which the parties mutually terminated the contract and the Respondent undertook the obligation to pay the Claimant the amount of EUR 40,000, on 27 February 2015, by a “promissory note”, corresponding to the “non-paid December 2014 salary”.

3. By correspondence dated 11 November 2015 and 3 December 2015, the Claimant put the Respondent in default of payment of EUR 40,000 setting a 7 days’ time limit and a 10 days’ time limit, respectively, in order to remedy the default.

4. On 2 December 2015, the Claimant lodged a claim against the Respondent in front of FIFA requesting that the Respondent be ordered to pay to him overdue payables in the amount of EUR 40,000, corresponding to the unpaid salary of December 2014 in accordance with the contract.

5. The Claimant further asks to be awarded interest of 5% p.a. as of 31 December 2014 and that the Respondent be ordered to pay “all the costs of the proceedings”.

6. In its reply, the Respondent rejected the Claimant’s claim. In this respect, the Respondent argued that it gave a cheque to the Claimant, dated 29 May 2015, for the amount of “85,680”. However, the Respondent sustained that the cheque could not be cashed on that date.

7. Furthermore, the Respondent sustained that this cheque was endorsed from the Claimant to Mr E, and subsequently endorsed to a third person, Mr F. The Respondent held that as the cheque could not be cashed, a debt execution proceeding was initiated against it in order to obtain payment of the amount.

8. The Respondent concluded that the debt had been paid by means of this debt execution proceeding and therefore, there is no outstanding remuneration to the Claimant.

9. The Claimant submitted his replica, in which he repeated his initial position and request for relief. The Claimant further argued that he never received the cheque or any remuneration in connection with it from the Respondent and questioned why the Respondent would issue a cheque for twice the amount owed and four months after he left the Respondent. Moreover, the Claimant held that the Respondent forged his signature on the cheques regarding the alleged endorsement of it.

10. Furthermore, the Claimant explained that the execution proceeding was initiated by the respective owner of that cheque and that his name had been used to “cheat” the Respondent.

11. Despite being invited by FIFA, the Respondent did not submit its duplica, and despite being requested by FIFA, the Respondent did not present the original of the cheque.

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, the Chamber took note that the present matter was submitted to FIFA on 2 December 2015. 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 DRC 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 DRC would, in principle, be 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. 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 2 December 2015, 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.

5. In this respect and first of all, the DRC acknowledged that, following the conclusion of an employment contract, the Claimant and the Respondent had concluded a termination agreement on 21 January 2015, by means of which the Respondent undertook the obligation to pay EUR 40,000 to the Claimant, on 27 February 2015, by means of a “promissory note”.

6. Subsequently, the Chamber noted that the Claimant contacted FIFA on 2 December 2015 indicating that the Respondent had not fulfilled its obligations as established in the termination agreement, since according to him, the amount remains unpaid. In consequence, the Claimant requested to be paid the alleged outstanding amount of EUR 40,000 plus interest of 5% p.a. as of 31 December 2014 and “all the costs of the proceedings”.

7. The members of the Chamber took note that, for its part, the Respondent rejected the Claimant’s claim, arguing that there is no outstanding remuneration to be paid to the Claimant.

8. It was duly noted by the DRC that in order to support its allegation regarding the fulfilment of its obligations under the terms of the termination agreement, the Respondent first explained that it provided the Claimant with a cheque on 29 May 2015, which could not be cashed. Moreover, it was observed that the Respondent held that this cheque was allegedly endorsed by the Claimant to another person, whom in turn endorsed it to a third person by the name Mr F. It was highlighted by the Chamber that the Respondent failed to give any explanation as to why the cheque could not be cashed in the first place.

9. Subsequently, the members of the DRC noted that the Respondent explained that as the cheque could not be cashed, a debt execution proceeding was started by the person whom the cheque was last endorsed to, i.e. Mr F. In this respect, it was duly observed by the DRC that the Respondent held that the execution proceeding was finalized with the payment of the relevant amount, and that in consequence, there is no outstanding amount to be paid to the Claimant.

10. The DRC observed that, in order to support its allegations, the Respondent enclosed a copy of a document dated 11 February 2016, which stated that “As a result of the debt execution proceeding, undertaken by the claimant Mr F, the debt of Club C to the amount of 116.214.07 was satisfied by the Football Association of country D, a third party. This document shows our case file for debtor to be closed as of 4 January 2016”.

11. Furthermore, the DRC noted that the Claimant denied having ever received the cheque, and further argued that the signature in the copy of the cheque enclosed to the Respondent’s reply to the claim regarding his alleged endorsement is forged.

12. With due consideration to the above, the members of the DRC acknowledged that on one hand, the Respondent sustained that it had already fulfilled its obligations as established in the termination agreement by means of the payment of the debt execution proceeding started against it, in relation with a cheque allegedly endorsed by the Claimant after it could not be cashed, while the Claimant, on the other hand, held not having received the amount established in the termination agreement, and not having received the cheque which was subsequently, allegedly, endorsed by him to another person, sustaining that the signature that appears in the copy submitted by the Respondent, is forged.

13. In view of the foregoing and in view of the opposing positions of the parties, the members of the Chamber felt that first, they had to determine the authenticity of the cheque allegedly provided to the Claimant and allegedly subsequently endorsed by him.

14. Subsequently, in view of the aforementioned dissent between the parties in respect of the basic question as to whether or not the alleged cheque was provided to the Claimant and then subsequently endorsed by him, 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 Respondent to prove the existence of said cheque and the subsequent endorsement by the Claimant of it, as it is the basis of the Respondent’s argumentation in respect to not having any outstanding remuneration towards the Claimant.

15. Having stated the above, the Dispute Resolution Chamber recalled that the Claimant maintained that he never received said as well as that his signature contained on the copy of the cheque remitted by the Respondent was forged. What is more, the Claimant did not provide a copy of the relevant cheque in its original form signed by the hand of the parties despite having been asked to do so.

16. On account of these considerations, the Chamber held that the fact the Respondent had only submitted a copy of the disputed cheque was insufficient to establish the existence of the cheque and its alleged subsequent endorsement by the Claimant.

17. In respect of the foregoing, the members of the Chamber had to conclude that the documents presented by the Respondent did not prove beyond doubt that the Claimant had received and subsequently endorsed the cheque, as sustained by the Respondent.

18. As a consequence, the DRC decided that, since the Respondent had not been able to prove beyond doubt that the alleged cheque was endorsed by the Claimant, there was no possibility for the Chamber to enter into the question whether the payment of the debt execution proceeding in relation with said cheque constitutes an effective proof of payment of the amount established in the termination agreement.

19. At this stage, the DRC, once again, recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

20. According to this, the members of the Chamber noted that the Respondent did not substantiate its defence, as it did not present any conclusive evidence in respect of effective payment of the amount of EUR 40,000 established in the termination agreement that it sustained to have paid.

21. In view of the above, the DRC concluded that the Respondent has not provided evidence of its defence and that, therefore, it could be established that the Respondent had failed to pay to the Claimant the amount as agreed upon between the parties in the termination agreement. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the termination agreement concluded with the Claimant and, consequently, is to be held liable to pay the outstanding amount of EUR 40,000 to the Claimant.

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

23. Finally, 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, outstanding remuneration in the amount of EUR 40,000 plus 5% interest p.a. on said amount as from 28 February 2015 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 the FIFA 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