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 17 August 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 August 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Pavel Pivovarov (Russia), member

on the claim presented by the player,

Player A, Country A,

as Claimant

against the club,

Club N, Country N,

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 19 January 2016, the country A player, Player A (hereinafter: the Claimant) signed an employment contract with the country N club, Club N (hereinafter: the Respondent) valid “for the period of 2016 season”.

2. The contract inter alia provides for the monthly payment of USD 15,000 which “shall be paid at the end of each month”. Furthermore, the contract provides that should the Claimant score ten goals during 2016, he will be entitled to a bonus of USD 12,000.

3. The contract also provides for the payment of four “round-trip air ticket between country N and [the Claimant’s] designated destination”.

4. On 8 December 2016, the Claimant lodged a claim against the Respondent before FIFA requesting to be paid a total of USD 54,000 as outstanding remuneration, as follows:

a. USD 7,500 pertaining to half the month of October 2016;

b. USD 15,000 pertaining to the month of November 2016;

c. USD 15,000 pertaining to the month of December 2016;

d. USD 12,000 pertaining to bonuses due for scoring ten goals;

e. USD 4,500 as flight tickets.

5. The Claimant claims that the Respondent ceased to pay him from 14 October 2016 on the basis that this was when the Premier league finished. The Claimant’s understanding, however, is that the contract was not due to finish until 31 December 2016.

6. The Claimant claims to have scored ten goals during 2016, indicating that he scored nine goals in the Premier League and one goal in the League Cup 2nd round on 8 June 2016 against Club X, but has not been paid the relevant bonus. The Claimant claims that the Respondent verbally acknowledged the goals, the flight tickets as well as a “refund of tax” which equated to USD 3,400.

7. The Claimant further claims to be owed USD 4,500 as flight tickets.

8. In spite of having been invited to do so, the Respondent did not reply to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or the 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 8 December 2016. Consequently, the Rule Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the 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 par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2016 edition) it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country N club.

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 2 of the Regulations on the Status and Transfer of Players (2016) edition, and considering that the present claim was lodged on 8 December 2016, the 2016 edition of said regulations (hereinafter: the Regulations) is applicable to the matter as to the substance. In particular, the Chamber recalled 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).

4. The competence of the Chamber and applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. The Chamber, however, 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 continuation, the Dispute Resolution Chamber acknowledged that the parties to the dispute had signed a valid employment contract on 19 January 2016, the duration of which was set to last “for the period of 2016 season” which provided for the payment of USD 15,000 per month to the Claimant, payable at the end of each month. Furthermore, the DRC took due note that should the Claimant score ten goals during 2016, he will be entitled to a further bonus of USD 12,000. Finally, the DRC also noted that the player was entitled to four “round-trip air ticket between country N and [the Claimant’s] designated destination”.

6. Furthermore, the Chamber observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of USD 54,000, pertaining to outstanding salaries allegedly due until 31 December 2016, the aforementioned bonus and flight tickets. In particular, the Claimant indicated that the Respondent had only paid him USD 7,500 for October 2016 and had ceased to pay him from 14 October 2016 on the basis that this was when the Premier League had allegedly finished.

7. Subsequently, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the members of the Chamber were of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant. In addition, the DRC reminded the parties of the content of 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 burden of proof”.

9. In continuation, the DRC acknowledged that in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the total monthly amount of USD 15,000 for the duration of the contract. In this regard, the Chamber acknowledged that the contract was valid “for the period of the 2016 season”. Consequently, and in line with art. 6 par. 3 of Annexe 3 of the Regulations, the members of the Chamber took due note that according to the information contained on the Transfer Matching System, the 2016 season in country N began on 27 February 2016 and was set to end on 30 October 2016.

10. The members of the Chamber, referring to art. 12 par. 3 of the Procedural Rules, also noted that the Claimant claims that the contract’s end date was 31 December 2016, but provided no evidence thereof. Therefore, the members of the Chamber unanimously decided to reject the portion of claim of the Claimant pertaining to the payment of salaries for November and December 2016, as the contract concluded between the parties expired on 30 October 2016, according to the information contained on TMS and in the contract combined.

11. Notwithstanding the foregoing, the Chamber noted that the Claimant claims only having received half of the salary due for the month of October 2016, i.e. USD 7,500 of USD 15,000.

12. Consequently, and in view of the lack of reply on the side of the Respondent, the members of the Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 7,500, corresponding to half of his monthly salary for the month of October 2016.

13. In continuation, the Chamber took note of the Claimant’s claim relating to the goal scoring bonus which had allegedly fallen due. In this regard, the members of the Chamber 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.

14. In this regard, the DRC noted that the Claimant did not substantiate his allegation in this regard, since he did not present any evidence demonstrating that he had scored the required ten goals during the 2016 season.

15. In view of the above, the Chamber concluded that the Claimant had not provided evidence of this allegation and consequently rejected this portion of the Claimant’s claim.

16. Equally, with regard to the Claimant’s claim pertaining to flight tickets, the Chamber noted that the contract does not mention a specific amount to be paid to the Claimant in this regard and that the Claimant did not provide any evidence that the amount of USD 4,500 was indeed spent by him on flight tickets and would have to be reimbursed by the club. Notwithstanding the foregoing, the DRC, codirecting the Chamber’s established jurisprudence as well as the content of the contract (cf. point I.3 above), decided that the Respondent must pay to the Claimant the amount of CHF 700 for a round trip flight ticket between country N and country Y for the 2016 season, on the basis of the information provided by FIFA Travel.

17. Finally, 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 N, has to pay to the Claimant the amount of USD 7,500, within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned sum indicated in point 2. above is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The Respondent is ordered to pay to the Claimant the amount of CHF 700 as flight tickets within 30 days from the notification of this decision.

5. In the event that the aforementioned sum indicated in point 4. above is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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

7. 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

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

Encl. CAS directives