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 31 August 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 31 August 2017,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Wouter Lambrecht (Belgium), 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 between the parties

I. Facts of the case

1. On 7 August 2015, the Player of Country B, Player A (hereinafter: player or Claimant) entered into an employment contract with the Club of Country D, Club C (hereinafter: club or Respondent) valid as from 7 August 2015 until 31 May 2016.

2. In accordance with the employment contract, the club undertook to pay the player the total amount of EUR 100,000 for the 2015/2016 season, payable in ten equal monthly instalments of USD 10,000 between August 2015 and May 2016, due on the 10th day of the following month.

3. Additionally, according to the contract, the player was entitled to two “round-trip tickets to the Player’ Home-town” during the 2015/2016 season.

4. On 23 February 2016, the player sent a default notice to the club by means of which he requested payment in the amount of EUR 36,140 within 7 days.

5. On 26 February 2016, the club replied to the default notice pointing out that there are no outstanding payments.

6. On 3 March 2016, the player terminated the contract due to the club’s alleged failure to comply with its financial obligations.

7. On 12 April 2016, the player lodged a claim in front of FIFA against the club, claiming that the latter is to be held liable for the early termination of the contract. Consequently, he requested to be awarded payment of the following monies:

- EUR 36,140 corresponding to outstanding salaries plus interest as from the respective due dates;

- EUR 40,000 as compensation corresponding to the residual value of the contract plus interest as of 3 March 2016;

- EUR 864.98 as compensation corresponding to the value of two round trips from Country D to Country B;

- EUR 60,000 as indemnity according to Swiss Law corresponding to the value of six monthly salaries plus interest as of 3 March 2016;

- EUR 4,000 as legal fees.

8. In particular, the player held that the amount of EUR 36,140 remained outstanding at the moment of his termination.

9. Furthermore, the player argued not having received any payment after putting the club in default on 23 February 2016 and that he therefore had just cause to terminate the contract on 3 March 2016.

10. In line with the above, the player pointed out that he is entitled to compensation corresponding to the remaining value of the contract.

11. In addition, the player held being entitled to the value of two round trips from Country D to Country B since he terminated the contract with just cause.

12. In its reply, the club rejected the player’s claim and maintained having fulfilled its financial duties arising from the contract.

13. In this regard, the club held having remitted the following payments to the player:

- EUR 25,000 on 3 August 2015;

- EUR 5,000 on 21 September 2015;

- EUR 5,000 on 13 October 2015;

- EUR 5,000 on 19 October 2015;

- EUR 10,000 on 26 November 2015;

- EUR 10,000 on 23 December 2015;

- EUR 5,000 on 27 January 2016;

- 6,390 on 11 February 2016;

- 2,750 on 19 February 2016;

- 1,000 on 19 February 2016.

14. The club argued having paid the player a total amount of EUR 64,707.62 up to the player’s termination, even though he was only entitled to EUR 60,000 pursuant to the contract.

15. In this context, the club stated that the player terminated the contract without just cause.

16. In his replica, the player reiterated his position and held that the first payment, dated 3 August 2015, was a sign-on fee and not a salary payment arising from the contract. In this context, the player pointed out that the contract was only signed on 7 August 2015.

17. According to the player, such payment was not mentioned in the contract, so that the club would be able to avoid paying taxes.

18. Along those lines, the player argued that the remark on the receipt, in Language of Country D means “transfer payment” or “sign on fee” in English. Consequently, the player stressed that the aforementioned payment was an extra-contractual payment not linked to the contract.

19. Moreover, the player brought forward that the payments remitted in Currency of Country D are not salary payments, but bonuses not mentioned in the contract. In this context, he held that no payments in Currency of Country D were agreed upon in the contract.

20. In its duplica, the club reiterated its position and argued that the correct translation would be “down payment”, which indicates, “a part of the full price paid at the time of the purchase or delivery with the balance to be paid later”.

21. The club further argued that the first payment was an “advance payment” paid in cash, since the player could not yet open a bank account in Country D. Further, the club denied having tried to avoid taxes. In particular, the club alleged that said payment was resulting of the contract and that an official receipt was issued.

22. Furthermore, the club sustained that the above-mentioned “advance payment” was related to the contract since there was no previous agreement between the parties.

23. Regarding the payments in Currency of Country D, the club stated that the player expressly requested payment in Currency of Country D and that if said payments were related to bonus payments this would have been mentioned on the receipts.

24. Finally, the player informed FIFA that he remained unemployed during the relevant period.

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 12 April 2016. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: 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 combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016) 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. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 25 Augsut 2017 by means of which the parties were informed of the composition of the Chamber, the member Todd Durbin (USA) and the member Takuya Yamazaki (Japan) refrained from participating in the deliberations in the case at hand, due to the fact that the member Todd Durbin (USA) abstained due to certain personal circumstances and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Takuya Yamazaki (Japan) refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. 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 (edition 2016), and considering that the present claim was lodged on 12 April 2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

5. The competence of the Chamber and the applicable regulations having been established, 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.

6. In this respect, the Chamber recalled that, on 7 August 2015, the parties had signed an employment contract valid as from 7 August 2015 until 31 May 2016.

7. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he terminated the contract with just cause due to the Respondent’s failure to comply with its financial obligations arising from the contract.

8. In this regard, the Chamber took note that the Claimant asks to be awarded the alleged outstanding remuneration, compensation for breach of the employment contract as well as an additional indemnity and reimbursement of his legal fees.

9. Moreover, the members of the DRC acknowledged that the Respondent rejected such argumentation and pointed out that no remuneration remained unpaid at the moment of termination (cf. point I.13 above). Along those lines, the Respondent held that said payments were related to the contract, since no other agreement exists. Regarding the payment dated 3 August 2015, the club explained having remitted an “advance payment” to the player, since he had not yet opened a Bank Account in Country D.

10. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the Claimant had just cause to terminate the employment contract on 3 March 2016 and to decide on the consequences thereof.

11. In this context, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing 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.

12. In continuation, the DRC took note, that before terminating the contract on 3 March 2016, the Claimant had sent a default notice to the Respondent on 23 February 2016 requesting payment of EUR 36,140, corresponding to alleged outstanding remuneration. The Chamber further established, that the Respondent had answered said default notice via email on 26 February 2016, explaining that no remuneration was due.

13. From the documentation on file, the members of the DRC established that the Respondent had remitted various payments to the Claimant (cf. point I.13.). What is more, the DRC took note that the Claimant did not deny having received said payments, but limited to argue that the payment of EUR 25,000 remitted to him on 3 August 2015 was not related to his salaries but rather constituted a “sign on fee” which was not mentioned in the contract.

14. Furthermore, the Chamber took note of the Claimant’s argumentation that the payments remitted to him in Currency of Country D were no salary payments, but bonus payments, which were not mentioned in the contract either.

15. In view of the above, the DRC analysed the content of the contract and took note that no “sign-on fee” or bonus payments were agreed upon.

16. Furthermore, the Chamber took note that the player did not deny having received the above-mentioned payments (cf. point I.13.). Recalling that the player bears the burden of proof to establish that said payments are extra-contractual, and since the player did not submit any evidence in this regard, the DRC could not relate said payments to anything else but the contract. In other words, in the Chamber’s view, the player has not sufficiently explained the reasons and circumstances under which the alleged “sign-on fee” and bonus fees were agreed, if at all.

17. Consequently, the members of the Chamber did not have any other option than to conclude that all the payments made to the player were salary payments provided in the contract and decided to take into account the payments in question (cf. point I.13.). In this regard, the DRC established that since the Claimant was entitled to EUR 60,000 up to the termination on 3 March 2016, no remuneration remained outstanding. Therefore, the Claimant had terminated the employment contract without just cause on 3 March 2016.

18. On account of the above, the Chamber decided to reject the player’s claim in its entirety.

III. Decision of the Dispute Resolution Chamber

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

*****

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