F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 9 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 November 2017,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stijn Boeykens (Belgium), member

Tomislav Kasalo (Croatia), member

Mario Gallavotti (Italy), member

Joel Talavera Zárate (Paraguay), member

Daan de Jong (the Netherlands), member

on the claim presented by the player,

Player A, from country A

as Claimant

against the club,

Club X, from country X

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 25 January 2016, the player A, from country A (hereinafter: Claimant) and the club, Club X, from country X (hereinafter: Respondent), signed two different versions of an employment contract, one in English language and one in the country X language, valid as from 1 February 2016 until 30 June 2016.

2. According to art. IV lit. a) of the English contract submitted by the Claimant, the latter was entitled to a monthly salary of EUR 3,300.

3. According to art. IV lit. b) of the English contract, the Claimant was entitled to a bonus payment of EUR 200 “for a start in the League (when the [Claimant] played at least 45 minutes)” and further bonus payments of EUR 300, respectively, “for a scored goal” and “for an assist to scored goal” in the League.

4. According to art. IV lit. d) of the English contract, the Claimant was also entitled to a “flat for the period of duration of this contract”, the value of which would “not be less” than EUR 300 per month.

5. Furthermore, art. IV lit. e) of the English contract stipulates that the Claimant’s remuneration is to be paid “in the country X currency by the actual daily courses of EUR currency at the ... (national bank of country X) to the bank account of the [Claimant] on every 20th day of the month”. Art. IV lit. f) specifies that the monthly remuneration is to be paid the 20th day of the month that follows the month in which the payment is due.

6. In accordance with the country X contract submitted by the Respondent, the Claimant was entitled to a monthly remuneration of 89,000 as well as bonus payments. The country X contract does not include an accommodation allowance entitlement.

7. Following 2 previous default notices of 3 June and 11 July 2016, by email dated 21 September 2016, the Claimant reiterated to the Respondent his request for payment, arguing that, in the meantime, outstanding payments had accrued in the amount of EUR 10,200.

8. On 26 September 2016, the Respondent answered by email stating that, according to its accountant, the Claimant was to receive “125,650/EUR 4,654 (1 EUR = 27)”.

9. On 7 October 2016, the Claimant lodged a claim against the Respondent in front of FIFA, requesting that the Respondent be ordered to pay the total amount of EUR 10,200, consisting of EUR 9,900 as outstanding salaries (EUR 3,300 each month from April to June 2016) and EUR 300 as outstanding payment for accommodation for May 2016.

10. The Claimant further asked to be awarded 5% interest p.a. on each of the aforementioned amounts as from the 20th day of the following month until effective payment and that sanctions be imposed on the Respondent.

11. More specifically, the Claimant argued that for the whole contractual duration he was entitled to receive the total amount of EUR 20,300, consisting of EUR 16,500 as salary payments as from February 2016 until June 2016, EUR 1,200 as payments for accommodation, and EUR 2,600 as bonuses for his performance in relation to art. IV lit. b) of the contract, consisting of EUR 200 for February 2016, EUR 1,200 for March 2016 and EUR 1,200 for April 2016.

12. In this respect, the Claimant explained that, at the time of lodging the claim, out of the above-mentioned sums, the Respondent had paid him only EUR 10,100 in five instalments of different amounts without any specification as regards the contractual entitlements. The Claimant asserted that he had been paid EUR 1,500 on 30 March 2016, EUR 1,500 on 20 April 2016, EUR 3,100 on 6 June 2016, EUR 3,000 on 10 June 2016 and EUR 1,000 on 27 July 2016, which payments he allocated to overdue amounts that had accrued before the date of each payment.

13. Furthermore, the Claimant argued that, by email dated 26 September 2016, the Respondent acknowledged that it owed him some payments, although in the allegedly wrong amount of EUR 4,654.

14. In reply to the claim, the Respondent explained that the binding agreement between the parties was not the English contract submitted by the Claimant, but rather the country X contract submitted by the Respondent, which was signed by the parties on 25 January 2016.

15. With respect to the above, the Respondent argued that the two contracts bear discrepancies, because the Respondent did not employ a full-time professional translator. For this reason, and given that the Respondent wished to employ the Claimant as soon as possible, the English contract provided to him was incomplete and could not reflect in full the provisions of the country X contract.

16. Furthermore, the Respondent pointed out that, according to art. XI.3 of the country X version of the contract, “in case of dispute between the language hereof, the version in country X language prevails” and that, according to art. XI.8 of the country X version of the contract, “in case of a conflict between the individual counterparts hereof, the version filed in the relevant registration section of Football Association of country X [note: the Football Association of country X] is the ruling one”. Therefore, and given that the Respondent had allegedly registered the country X version with its association, the Respondent argued that the country X contract was the binding one.

17. In continuation, the Respondent explained that, according to the country X contract, there is no clause providing for the Claimant’s accommodation and the bonuses are calculated in the following terms:

 “the bonus for the scored goal [is] in the amount of 8,000 – and assistance 8,000 – the bonus payment is subject to the acquisition of points in the match of the highest football league (the League)”;

 “the bonus for every match of the highest football league meaning the acquisition of points and the [Claimant] playing at least 45 minutes, [is] in the amount of 5,000”.

18. The Respondent further argued that the Claimant had matured only one bonus in April 2016 and that, for such bonus, it had paid the Claimant an additional EUR 185 along with his monthly salary.

19. Consequently, the Respondent held that it owed the Claimant the amount of 113,800 only, relating to part of the May 2016 remuneration (38,150) and the June 2016 remuneration (75,650).

20. In his replica, the Claimant first underlined that the Respondent used the version of country X of the contract for the sole purpose of eluding its obligations towards him. The Claimant further explained that the registration of the country X version with the Football Association of country X did not prove that the country X contract was intended to be the binding one, arguing that the registration of contracts is an administrative procedure typically out of the player’s control.

21. More specifically, the Claimant argued that his intention had always been to bind himself to the English version of the contract. In this regard, the Claimant explained that the parties had always intended to have their employment relationship governed by the English version of the contract, given that the entirety of the pre-contractual negotiations, including the exchange of the final draft of the contract, had referred to the English version. In this respect and in order to support his claim, the Claimant submitted an exchange of correspondence between his intermediary and the Respondent during the negotiation phase, in which his intermediary, among other things, had insisted particularly on the inclusion of an accommodation allowance clause in the contract, due to the strong interest of the Claimant on this point.

22. In continuation, the Claimant pointed out that the Respondent had never provided his intermediary, who was in charge of the pre-contractual negotiations, with the country X version of the contract. Furthermore, the Claimant argued that he signed the country X version in addition to the English one as a consequence of the deceiving strategy put in place by the Respondent at the signing stage, when he was told that the two versions were identical.

23. In light of the above-mentioned considerations, the Claimant reiterated the position expressed with his claim and added that the Respondent’s conduct during the entire course of the negotiations had led him to legitimately expect that the only binding version was the one agreed upon, i.e. the English one. Therefore, the Claimant deemed that the Respondent’s subsequent intent to consider the English version as invalid would stand in contrast with the estoppel principle.

24. In its rejoinder, the Respondent insisted that that the binding version was the country X one, since the Football Association of country X requires all players’ contracts to be registered in country X language. The Respondent further argued that not having checked properly what he was signing, was only the Claimant’s fault. Furthermore, the Respondent claimed that it had informed the Claimant several times that the binding version was the country X one.

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 stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 7 October 2016. Consequently, the DRC concluded that 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 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 DRC is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a player and a club.

3. Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2016) and considering that the present claim was lodged in front of FIFA on 7 October 2016, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the members of 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. In this respect, first and foremost, the DRC acknowledged on a preliminary basis that the parties did not agree on which employment contract had to be considered at the basis of the claim, given the existence of two different signed versions of it, one drafted in the English language and one in the language of country X.

6. The members of the Chamber further observed that the two above-mentioned versions contained slightly different provisions regarding the Claimant’s contractual entitlements. In this respect, the DRC pointed out that, while the two versions substantially provided for the same amount concerning the Claimant’s monthly salary, i.e. EUR 3,300, although expressed in country X’s currency in the country X one, they diverged with respect to accommodation and bonus entitlements, with the English version providing for accommodation for “not […] less” than EUR 300 per month and the country X version not including any accommodation allowance and calculating the bonus payments in a different way.

7. In continuation, the DRC noted that the Claimant held that the binding contract was the English version signed by the parties, because their intention had always been to bind themselves to that contract. In order to support his argumentation, the Claimant explained that the entirety of the pre-contractual negotiations between his intermediary and the Respondent, including the exchange of the final draft of the contract, had referred to the English version and, thus, he legitimately expected that the English version would regulate his employment relationship with the Respondent. Furthermore, the Claimant argued that he signed the country X version in addition to the English one, as a consequence of a deceiving strategy put in place by the Respondent at the signing stage, when he was told that the two versions were identical.

8. On the other hand, the members of the Chamber noted that the Respondent, for its part, held, on the basis of articles XI.3 and XI.8 of the country X contract, that the country X version had to be considered the binding contract, given that such contract was the one that the Respondent registered with its association.

9. In respect of the above, the Chamber found no basis to concur with the Respondent’s remarks. Indeed, the DRC considered that art. XI.3 of the country X version of the contract, which reads “in case of dispute between the language hereof, the version in country X language prevails”, only refers to discrepancies in language.

10. In continuation, and with regards to the alleged registration of the country X contract with the Football Association of country X referred to by the Respondent in relation with art. XI.8 of the country X contract, the DRC considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are the sole responsibility of a club and on which a player has no influence.

11. Having said that, the Chamber considered important to bear in mind 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. In this respect, the Chamber took note that the Respondent had not presented documentation which would demonstrate that the version registered with the Football Association of country X was indeed the country X contract. On the other hand, however, the members of the Chamber emphasised that the Claimant demonstrated that the parties had carried out the entirety of their negotiations referring solely to the English version of the contract.

12. In this context, the DRC was also mindful 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). In this respect, the Chamber pointed out that the English contract was in fact the version uploaded on TMS.

13. With all these considerations in mind, the DRC could not uphold the Respondent’s argumentation and agreed that the English version of the contract had to be considered the one legally binding upon the parties and governing the parties’ employment relationship.

14. Having preliminarily established the above, the members of the Chamber shifted their focus on the substance of the matter. In this regard, the DRC noted that the Claimant held that, out of the total EUR 20,300 he was entitled to as salary payments, rent allowance and bonuses, the Respondent had only paid him EUR 10,100.

15. In continuation, the Chamber observed that the Respondent, for its part, acknowledged that it owed the Claimant the amount of 113,800 only and that in support of its position, the Respondent presented an apparent in-house accounting document which indicates payments in the total amount of 268,700, which amount would approximately correspond to the EUR 10,100 that the Claimant acknowledged having received from the Respondent.

16. This being established, the Chamber, recalling once again art. 12 par. 3 of the Procedural Rules, took note that the Claimant had not substantiated his calculation of bonus entitlements in the amount of EUR 2,600 with pertinent documentary evidence. Consequently, the members of the Chamber concluded that, with the exception of 1 bonus payment of EUR 185, which was acknowledged as due by the Respondent, the Claimant’s calculation of his total contractual entitlements could not be fully upheld.

17. In view of the foregoing and the documentation on file, the DRC concluded that the Claimant was contractually entitled to the total amount of EUR 18,185, corresponding to: (i) salaries of EUR 16,500, (ii) accommodation of EUR 1,500 and (iii) bonus payments of EUR 185. Bearing in mind the previous considerations, the Chamber further concurred in the conclusion that the Claimant had received the amount of EUR 10,100 from the Respondent.

18. Therefore, bearing in mind that the relevant employment contract does not stipulate a clear EUR/Country X currency exchange rate as well as that no documentation relating to any such exchange rate was presented, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 8,085 for the period as from April to June 2016.

19. On account of the above, the DRC decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the amount of EUR 8,085 to the Claimant.

20. In addition, taking into account the Claimant’s claim, the Chamber decided to award the Claimant interest of 5% p.a. as of the day following the day on which the relevant payments fell due in accordance with art. IV lit. f) of the relevant employment contract.

21. The Chamber concluded its deliberations in the present matter by rejecting any further claim of the Claimant.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club X, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 8,085 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. on EUR 3,300 as of 21 May 2016;

b. 5% p.a. on EUR 3,600 as of 21 June 2016;

c. 5% p.a. on EUR 1,185 as of 21 July 2016.

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.

*****

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:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives