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 19 April 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 19 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Takuya Yamazaki (Japan), member

Tomislav Kasalo (Croatia), member

Daan de Jong (The Netherlands), member

Abu Nayeem Shohag (Bangladesh), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 1 August 2014, the player of Country B, Player A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from the date of signature until 21 May 2016.

2. According to the contract’s schedule, the Claimant was entitled to receive inter alia the following amounts:

 USD 450,000 as “signing-on fee” for the 2014/2015 season, payable on 1 August 2014;

 USD 450,000 as “signing-on fee” for the 2015/2016 season, payable on 1 August 2015;

 USD 105,000 as “monthly salary” for the 2014/2015 season to be paid from 1 August 2014 until 31 May 2015;

 USD 105,000 as “monthly salary” for the 2015/2016 season to be paid from 1 August 2015 until 31 May 2016;

 USD 1,500 as bonus for “winning each official game”.

3. On 24 August 2016 the parties signed a document labelled “Mutual Agreement” (hereinafter: the mutual agreement), by means of which the Claimant and the Respondent “agreed to terminate the contract had been signed between then dated 1/8/2014”. This termination agreement also establishes inter alia that:

- “the second party [the Claimant] has no entitle to claim any amount after the date of this agreement”;

- “this agreement is consider as financial disclaimer for the both parties”.

4. On 3 October 2017, the Claimant lodged a claim before FIFA against the Respondent and requested the amount of USD 534,000, consisting of:

 USD 525,000 corresponding to his outstanding salaries from January 2016 to May 2016 (five installments of USD 105,000 each);

 USD 9,000 for bonuses as the club “obtained six wins in the Professional League of Country D” (USD1,500 for each win).

5. The Claimant additionally asked to be awarded EUR 35,600 as interest of 5% p.a., corresponding to the “interest in default from 1 June 2016 until 30 September 2017” over the amount of USD 534,000 as well as 5% interest p.a. on the same amount, as from 1 October 2017 until the date of effective payment.

6. Moreover, the Claimant requested the imposition of sporting sanctions on the Respondent.

7. In support of his claim, the Claimant argued that the Respondent failed to pay his salaries from January 2016 until May 2016. In this respect, the Claimant explained that on 31 May 2016 the Respondent acknowledged a debt of USD 521,970 by means of a document dated 31 May 2016 in which the Respondent committed “to pay this amount before the date 1/11/2016”. As the Respondent did not proceed with the payment, the Claimant explained that he sent two default notices to the Respondent on 13 June 2017 and 20 September 2017, which remained unanswered by the Respondent.

8. In its reply to the claim lodged by the Claimant, the Respondent argued that the Claimant’s claim should be rejected as it “has no legal basis”. In particular, the Respondent explained that by means of the mutual agreement the parties “finally settle and end their employment relationship without any obligations on both parties”. Moreover, the Respondent stated that said document is a “financial disclaimer for both parties” and that “the [Claimant] is not entitled to claim any financial amount” after that date of the mutual agreement.

9. The Claimant submitted his replica, reiterating his arguments and confirming his position with regards to his statement of claim. In addition, the Claimant argued that the termination agreement presented by the Respondent is “bizarre” and that he did not “waive any past and due salaries”.

10. In this regard, the Claimant presented an affidavit in which he explained the circumstances under which the termination agreement was signed. According to the Claimant, he signed a new contract with the club of Country D, Club E, when the contract with the Respondent expired. Within this context, the Claimant stated that the Respondent’s senior accountant F, approached him and “deceived him into signing the mutual agreement stating it would be a standard document required to allow his transfer / registration with Club E”. In these circumstances, the Claimant explained that he signed, under extreme duress, the document “expecting it to be exactly what he was told”. The Claimant also pointed out that the Respondent acted in bad faith as he was, additionally, not assisted by his representative and because at that time he did not speak English.

11. In support of these allegations, the Claimant submitted a “WhatsApp” conversation between his alleged manager and Respondent’s senior accountant F which demonstrate that he never understood that “the mutual agreement was a waiver / release from the payment obligations of [the Respondent]”.

12. Notwithstanding the above, the Claimant held that according to the wording of the mutual agreement he is not entitled to claim any amount after the date of said agreement. Consequently, he is indeed entitled to claim the outstanding amounts before the date of the mutual agreement, i.e. his outstanding salaries from January 2016 until May 2016, and that “there is no specific provision in such document by which he waived his past and due salaries and/or released the [Respondent] from its debt confession”. According to the Claimant, if the intention of the parties was to sign a waiver, then the “mutual agreement should clearly provide the termination / invalidity / waiver to the confession of debt issued by [the Respondent] in 31 May 2016”.

13. Moreover, the Claimant pointed out that the submission of the mutual agreement by the Respondent is an attempt to avoid the payment of the Claimant’s salaries, which were confessed by the Respondent on 31 May 2016. In this respect, the Claimant argued that it does not make sense to waive the amount confessed by the Respondent (EUR 521,970) in exchange for nothing. According to the Claimant, “he simply trusted a [Respondent] official and signed a document which was supposedly necessary to allow his enrollment with Club E”.

14. The Respondent submitted its duplica reiterating its arguments and confirming its position with regards to the claim.

15. Furthermore, the Respondent argued that the Claimant speaks and understands English as he had been training in a foreign club for two years and, therefore, “perfectly understood what he agreed upon signing“ the mutual agreement. In this regard, the Respondent referred to the legal principle of pacta sunt servanda and stressed that said document has the Claimant’s signature and fingerprint and, therefore, should be considered valid and binding between the parties.

16. In addition, the Respondent referred to the jurisprudence of FIFA’s Dispute Resolution Chamber and explained that any party signing a legal document should assume its possible legal consequences, “no matter whether the contract at stake was drafted in a language known by said party or not”.

17. Furthermore, the Respondent recalled that, through the mutual agreement, the Claimant waived all previous and future financial claims “without further liabilities on both parties”. In this regard, the Respondent pointed out that the Claimant never contested the validity of the mutual agreement “until his last letter to FIFA, i.e. almost 18 months after the mutual agreement entered into force”.

18. Finally, the Respondent referred to the “Whatsapp” conversation provided by the Claimant and stated that according to the DRC’s jurisprudence such evidence should not be taken into account as “its reliability is always questioned”.

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, it took note that the present matter was submitted to FIFA on 3 October 2017. Consequently, the 2017 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 2017 and 2018 editions 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 2018), the Dispute Resolution Chamber is 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. 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 (editions 2016 and 2018), and considering that the present matter was submitted to FIFA on 3 October 2017, the 2016 edition of the aforementioned regulations (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, while emphasizing that, although having acknowledged all the above-mentioned facts, 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. Firstly, the DRC acknowledged that, on 1 August 2014, the Claimant and the Respondent, signed an employment contract valid as from the date of signature until 21 May 2016. According to the contract’s schedule, the Claimant was entitled to receive inter alia the following amounts:

 USD 450,000 as “signing-on fee” for the 2014/2015 season, payable on 1 August 2014;

 USD 450,000 as “signing-on fee” for the 2015/2016 season, payable on 1 August 2015;

 USD 105,000 as “monthly salary” for the 2014/2015 season to be paid from 1 August 2014 until 31 May 2015;

 USD 105,000 as “monthly salary” for the 2015/2016 season to be paid from 1 August 2015 until 31 May 2016;

 USD 1,500 as bonus for “winning each official game”.

6. Equally, the Dispute Resolution Chamber observed that on 24 August 2016 the parties signed a document labelled “Mutual Agreement” , by means of which the Claimant and the Respondent “agreed to terminate the contract had been signed between then dated 1/8/2014”.

7. The members of the Chamber took note that the mutual agreement also establishes inter alia that “the second party [the Claimant] has no entitle to claim any amount after the date of this agreement” and that “this agreement is consider as financial disclaimer for the both parties”.

8. In continuation, the DRC acknowledged that on 3 October 2017 the Claimant lodged a claim against the Respondent and requested the amount of USD 534,000, consisting of:

 USD 525,000 corresponding to his outstanding salaries from January 2016 to May 2016 (five installments of USD 105,000 each);

 USD 9,000 for bonuses as the club “obtained six wins in the Professional League of Country D” (USD1,500 for each win).

9. Further, the Chamber took note that the Claimant argued that the Respondent acknowledged a debt of USD 521,970 by means of a document dated 31 May 2016 in which the Respondent committed “to pay this amount before the date 1/11/2016”.

10. In addition, the members of the Chamber observed that the Claimant held that the Respondent coerced him to sign the mutual agreement and also that he signed it under the belief that it was required to allow his transfer and registration with his new club. Moreover, the DRC noted that the Claimant stated that the Respondent acted in bad faith when he signed the mutual agreement as he was not assisted by his representative and because at that time he did not speak English.

11. Having said this, the DRC turned its attention to the arguments of the Respondent and took note that the Respondent argued that the Claimant’s claim has no legal basis as the parties finally settled their employment relationship by means of the mutual agreement dated 24 August 2016, document that bears the signature and fingerprint of the Claimant.

12. After having carefully examined the parties’ positions, the DRC highlighted that that the Claimant did not contest that it had in fact signed the relevant mutual agreement. In this regard, the members of the Chamber took into account that the wording of said document is clear as it established that it is a “financial disclaimer for the both parties” and that “the [Claimant] has no entitle to claim any amount after the date of this agreement”.

13. Regarding the argument of the Claimant that the mutual agreement was drafted in a language (English) that he did not understand, the Dispute Resolution Chamber referred to its well-established jurisprudence and was eager to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility, and consequently, is liable to bear the possible legal consequences arising from the execution of such document.

14. Moreover, the members of the DRC 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 establish that the Claimant failed to present relevant evidence in support of his allegation that he had been forced, by the Respondent, into signing the mutual agreement. Consequently, the DRC held that the Claimant’s allegations in this regard cannot be accepted.

15. In view of all of the above, the Dispute Resolution Chamber decided that the mutual agreement must be considered as valid and binding between the parties and, therefore, it must reject the claim put forward by the Claimant.

III. Decision of the Dispute Resolution Chamber

1. 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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives