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 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

Preliminary issues regarding the competence of the Dispute Resolution Chamber:

1. On 29 November 2012, the Player of Country B, Player A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent), signed an employment contract (hereinafter: contract) valid as from 1 December 2012 until 31 October 2013 in accordance with art. 1 of the contract.

2. Art. 1 of the contract also establishes that “(…) the duration must be of a minimum 1 year and maximum 5 years, while for Player aged 18 years and below the maximum contract duration allowed is 3 years (hereinafter referred as “initial Term”) unless the Initial Term is terminated by a new agreement or in accordance with the provisions of this agreement. Effective date and termination must be stated. If this contract is signed during the second registration, the effective date has to be the date the Contract is signed and expires 30 days after current season’s Country D Cup Final Match and the Contract period must be a minimum of 6 months.”

3. According to art. 8.1 of the contract, the contract “expires and ceases to have any force after the date specified under Clause 1 unless renewed or extended for a further period.”

4. On 18 November 2015, the Claimant lodged a claim in front of FIFA against the Respondent requesting to be awarded the total amount of USD 99,000.

5. The Claimant held that the contract establishes a contractual duration of 1 year and that, therefore, the contract was valid as from 29 November 2012 until 1 December 2013. The player further alleged that the regulations of the Football Association of Country D (hereinafter: Football Association E) establish a minimum contractual duration of 1 year.

6. The Claimant further stated that he had made complaints via the Football Association E in relation to his allegedly outstanding remuneration.

7. Upon FIFA’s request, the Football Association E indicated that, on 12 November 2013, the player lodged a claim against the club in front of its deciding body. In this regard, the Football Association E submitted the following documents:

i. The claim of the Claimant for the amount of 105,203, corresponding to the remaining portion of his salaries due between June 2013 and October 2013. In this claim, the Claimant raised that he was entitled to receive 47,460.74 as monthly salary and that he only received the total amount of 131,259 during said period;

ii. Football Association E’s letter dated 19 February 2014, addressed to the Respondent, requesting the Respondent to provide the Football Association E with its comments pertaining to the player’s claim;

iii. The Respondent’s reply dated 9 March 2014, whereby the Respondent raised that it withheld the amount of 94,174, pending the decision of the Football Association E pertaining to the claim lodged by an agent against the Claimant.

8. The Football Association E further explained that the Claimant’s claim is linked to another proceeding pending in front of the Football Association E, since the former agent of the Claimant lodged a claim against him and the Respondent is withholding part of the Claimant’s salary “for purposes of payment of agent’s fee under the Mediation contract.”

9. In its reply to the claim of the Claimant, the Respondent held that the contract was valid as from 1 December 2012 until 31 October 2013 and that, consequently, the Claimant’s claim is time-barred.

As to the substance of the matter:

10. According to Schedule A of the contract, the Claimant was entitled to receive a monthly salary of USD 15,000, payable on the 7th day of the following month. The contract further specifies that incentive bonus payments are at the full discretion of the Respondent.

11. In his statement of claim submitted in front of FIFA, the Claimant asked to be awarded the total amount of USD 99,000, which was detailed as follows:

i. USD 60,000 corresponding to the reimbursement of an agent commission;

ii. USD 30,000 corresponding to the remaining portion of the “net annual salary” of USD 300,000 allegedly due by the Respondent;

iii. USD 9,000 corresponding to “10% of total interest rate”.

The Claimant further requested that disciplinary sanctions be imposed on the Respondent.

12. In his argumentation, the Claimant held that the amount of USD 30,000 remained outstanding at the end of the contract. In addition, the Claimant maintained that he had to pay his agent, who allegedly introduced him to the Respondent and negotiated the contract, 20% commission in the amount of USD 60,000, which payment, according to the Claimant, was due by the Respondent.

13. In its reply as to the substance of the claim, the Respondent held that the Claimant’s claim must be rejected. In this regard, the Respondent acknowledged the balance of the Claimant’s salary, but held that it validly withheld its payment, in the amount of 94,174, pending the continuation of the claim lodged by the Claimant’s former agent against him, on 10 January 2013, in front of the Players’ Status Committee of the Football Association E. In addition, the Respondent contested the Claimant’s allegation that it had a contractual obligation to pay the claimed agent commission.

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 hand. In this respect, it took note that the present matter was submitted to FIFA on 18 November 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 Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and highlighted that in accordance with art. 24 paras 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, 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 of Country B and a Club of Country D.

3. However, bearing in mind that the employment contract at the basis of the present matter was concluded on 29 November 2012 with a duration ending in 2013 and that the Claimant lodged his claim against the Respondent in front of FIFA on 18 November 2015, the members of the DRC considered that they should examine if the present claim, or any part of it, is barred by the statute of limitations.

4. Indeed, the members of the Chamber referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition 2016), which, in completion to the general procedural terms outlined in the Procedural Rules, establishes that the Dispute Resolution Chamber shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

5. Having said that, the members of the Chamber acknowledged that according to the Claimant, the Respondent failed to remit USD 30,000 out of a total amount of USD 300,000 he allegedly was entitled to as annual remuneration. The Chamber noted that the Claimant had not specified or provided a breakdown of the claimed amount of USD 30,000. However, the Chamber took into account that according to the financial terms of the employment contract, the Claimant was entitled to a monthly salary of USD 15,000, which was payable on the 7th day of the following month.

6. In continuation, the Chamber acknowledged that art. 1 of the employment contract specifies that is is valid as from 1 December 2012 until 31 October 2013 and that according to art. 8.1 of of the contract, it “expires and ceases to have any force after the date specified under Clause 1 unless renewed or extended for a further period.”

7. In view of the clear date of expiry indicated in art. 1 of the employment contract, the Chamber had to reject the Claimant’s argumentation that the contract was to run until 29 November 2013.

8. On account of the above, the members of the Chamber agreed that the last payment owed by the Respondent to the Claimant in accordance with the employment contract fell due on 7 November 2013 at the very latest.

9. In continuation, while recalling that the present claim was submitted to FIFA on 18 November 2015, the Chamber concluded that the full amount claimed by the Claimant as salary had fallen due more than two years prior to the date on which the Claimant lodged his claim in front of FIFA.

10. As a consequence, referring to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, the DRC concluded that the time limit of two years for the Claimant to claim outstanding remuneration on the basis of the employment contract had elapsed at the time he lodged his claim in front of FIFA.

11. Therefore, the Chamber decided that the claim of the Claimant relating to his salary is barred by the statute of limitations.

12. In addition, the Chamber took into account that, on 12 November 2013, the Claimant already lodged the claim relating to the allegedly outstanding salary against the Respondent in front of the deciding body of the Football Association E. In this repect, the Chamber wished to emphasise that it cannot accept that a party who lodged a claim before jurisdictions other than FIFA thereafter seeks to lodge the same claim in front of FIFA. The DRC’s contention is that a party who chooses a certain course of legal remedy may not then decide to change the legal forum of the dispute, as this would jeopardise the credibility of the sporting dispute resolution system.

13. Having established the above, the Chamber turned its attention to the Claimant’s claim relating to reimbursement of an agent commission in the amount of USD 60,000. The members of the Chamber noted that the Claimant had not specified nor presented documentation demonstrating on which date such alleged payment would have been due. However, bearing in mind that the Claimant alleged that he paid USD 60,000 as a commission to his agent who allegedly introduced him to the Respondent and negotiated his contract, the Chamber was satisfied that payment of any such alleged commission would have fallen due prior to the date of expiry of the related employment contract, i.e. 31 October 2013, which is more than two years before the date on which the Claimant lodged his claim in front of FIFA.

14. On account of the above, the Chamber the Chamber decided that the claim of the Claimant is fully barred by the statute of limitations and, consequently, inadmissible.

*****

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is inadmissible.

*****

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

Encl: CAS directives