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 September 2016

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 29 September 2016,

by Theo van Seggelen (Netherlands), DRC judge,

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 25 September 2012, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as of the date of signature until 30 June 2014.

2. According to art. 2 of the contract, the Respondent shall, inter alia, “pay to the [Claimant] his salary and the other remunerations stipulated in this [contract] on the last day of each calendar month”.

3. Pursuant to art. 5 of the contract, the Claimant was entitled to receive an annual salary of USD 1,400,000.

4. In addition, art. 5 of the contract stipulates the following:

“- The [Claimant] shall be entitled to a winning and drawing bonuses as a policy of the [Respondent]

- If the [Claimant] scores 20 goals in the League of country D, Asian Champions League and the Cup he shall receive a bonus of 100,000USD (one hundred thousand USD)”.

5. Art. 12 further states that “[t]he regulations of the Professional Code of the [Claimant], its rules and regulations applicable to its players and/or employees, Football Associations of country D, and the provisions of the labor law of country D shall be applied where there is no specific provision in this contract”.

6. On 17 March 2016, the Claimant put the Respondent in default of paying him a bonus of 250,000 for having won the 2014 cup.

7. On 30 March 2016, the Respondent replied to the Claimant’s default notice, informing him that in accordance with the Respondent’s regulations, he was entitled to a bonus of 100,000 for winning the cup in 2014 and that said amount was paid to him on 17 August 2015.

8. On 16 May 2016, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the amount of 150,000 plus 5% interest per annum.

9. In his claim, the Claimant explains that after winning the cup on 18 May 2014, the Respondent informed him that he would receive a bonus payment of 250,000 due on 31 May 2014 as per art. 2 of the contract. In continuation, the Claimant alleges that the Respondent only proceeded to a partial payment of 100,000 and therefore claims the balance of 150,000. In support of his assertion that a bonus of 250,000 was due, the Claimant presented several e-mails exchanged in October 2014 between members of the Respondent’s administration allegedly recognising said bonus. Furthermore, the Claimant submitted an e-mail allegedly sent to him on 2 October 2014 by the Respondent’s team manager, from the e-mail address XXXX, which reads as follows

“hi (…) I send all the doc for u

Club E match

Club F match

and 5 match for the leage

you will have also next month

cup 250000 like all player”.

10. In its reply to the claim, the Respondent reiterates that in accordance with the its regulations, the bonus for winning the cup amounts to 100,000. In this respect, the Respondent sustains that only its CEO and the members of the board have the power to increase the bonuses, which they did not.

11. In continuation, the Respondent challenges the probative value of the e-mails submitted by the Claimant. Regarding the exchange of e-mails, the Respondent denies their content, stressing that they are not official, not addressed to the Claimant and no track of them can be found in its database. As to the e-mail dated 2 October 2014 allegedly addressed to the Claimant, the Respondent points out that it was sent from an anonymous address which is not related to the Respondent.

12. In view of the above, the Respondent requests FIFA to reject the Claimant’s claim and to order the latter to reimburse its legal costs in the amount of CHF 3,000.

13. In his replica, the Claimant explains that he was provided with the exchange of e-mails by Mr G, the Respondent’s team administrator, whose e-mail address is XXXX. In this regard, the Claimant outlines that when Mr G stated “I send you all the doc for u”, he actually referred to the exchange of e-mails. Furthermore, the Claimant points out that the aforesaid e-mail address was copied in the e-mails exchanged between the members of the Respondent’s administration, which demonstrate his link with the latter.

14. In its final comments, the club reiterates its previous argumentation.

II. Considerations of the DRC judge

1. First, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 16 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 Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D.

3. Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute which value does not exceed CHF 100,000.

4. Furthermore, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, he 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 matter was submitted to FIFA on 16 May 2016, the 2015 edition of said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance.

5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. In this respect, the DRC judge acknowledged that the parties had signed an employment contract valid until 30 June 2014.

6. In continuation, the DRC judge noted that the Claimant asserts that the Respondent had failed to remit him the amount of 150,000, allegedly corresponding to the outstanding part of the bonus for winning the cup.

7. Having said this, the DRC judge observed that in accordance with the internal regulations of the Respondent, the bonus for winning the cup was equivalent to 100,000, amount that the Claimant acknowledged having received on 17 August 2015.

8. In view of the above, the DRC judge emphasised that the burden to prove that he was entitled to receive a higher bonus than the one stipulated in the internal regulations of the Respondent lies with the Claimant. The DRC judge focused therefore his attention on the e-mails, allegedly recognising his right, submitted by the Claimant in support of his assertion. In this regard, the DRC judge first noted that the Respondent formally contests the source as well as the authenticity of said e-mails. Furthermore, the DRC judge observed that the Claimant did not submit any official and reliable evidence which would allow the DRC judge to establish a link between the addresses from which the e-mails were sent, in particular the address XXXX, and the Respondent. Indeed, the copies of the e-mails presented by the Claimant do not appear to be direct print outs of the respective e-mail accounts.

9. As a consequence, the DRC judge after making reference to 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 the evidence shall be considered with free discretion respectively, concluded that the Claimant did not satisfactorily carry the burden of proof regarding his entitlement to an extra amount of 150,000.

10. All the above led the DRC judge to conclude that the claim of the Claimant has to be rejected.

*****

III. Decision of the DRC judge The claim of the Claimant, Player A, is rejected.

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 DRC judge:

Marco Villiger

Deputy Secretary General

Encl. CAS directives