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 15 February 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 February 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Stéphane Burchkalter (France), member

Philippe Diallo (France), member

Joseph Bell (Cameroun), member

on the claim presented by the player,

Player A, Country B,

as Claimant

against the club,

Club C

(formerly known as ‘‘Former Name of Club C’’),

Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 3 August 2013, the Player of Country B, Player A (hereinafter: the player or Claimant) and the Club of Country D, Club C (hereinafter: the club or Respondent) concluded an employment contract (hereinafter: the contract), valid as from 7 August 2013 until 6 August 2016.

2. According to article 3 of the contract, the player was entitled to receive inter alia a monthly salary of USD 100,000, to be paid ‘at the end of each Gregorian month’, as well as the following amounts as sign-on fees:

- USD 500,000, due on 1 March 2014;

- USD 500,000, due on 1 June 2014;

- USD 500,000, due on 1 March 2015;

- USD 500,000, due on 1 June 2015;

- USD 500,000, due on 1 March 2016;

- USD 500,000, due on 1 June 2016.

3. On 30 May 2016, the player and the club signed a document referred to as ‘Termination Agreement’ (hereinafter: the termination agreement), by means of which the parties mutually agreed upon a termination of the contract as per 30 June 2016.

4. Furthermore, clause 4 of the termination agreement holds the following paragraphs: ‘4. The player declares that he has received all financial dues and salaries until the date of signature of this Agreement. The Player waives the others amount concerning the others seasons provide by the employment agreement. 5. Club C is totally acquitted from any more financial obligations related to the Player in accordance to the contract that was signed between Club C and the Player on the date 05-08-2013’.

5. On 3 February 2017, the player lodged a claim against the club in front of FIFA, requesting that the club be ordered to pay him the total amount of 10,561,936.68 (approximately USD 2,875,180) as outstanding remuneration, ‘due upon execution of the termination agreement’. Furthermore, the player requested 5% interest p.a. on the amount of 10,561,936.68 as from 30 June 2016 until the date of effective payment, as well as a penalty of 10% of the amounts due ‘as compensation for the bad faith and the financial losses brought to the Player due to the continued default’.

6. In his claim, the player explains that ‘as a compensation for signing the termination agreement and releasing Club C from its future financial obligations’, he received a bank check dated 30 June 2016 for the amount of 10,528,452 from the club, ‘to complete the payment of several past amounts due in connection with the employment agreement’. In this respect, the player submitted a picture of said check, holding the player’s and the club’s name and mentioning the total value of 10,528,452.

7. Furthermore, the player explains that the club acknowledged its debt towards the Tax Office of Country B, by means of a letter dated 26 July 2017 submitted by the player and bearing the club’s letterhead and signed by its sports director, with the following holdings: ‘Club C’ declares that the amount of 10,528,452 regards the reminiscent amount of “Player A” employment agreement which finished on 30 May 2016’.

8. Moreover, the player states that on 30 June 2016, he tried to cash the check, but was informed by the bank ‘Bank E’ that the account ‘was frozen and without accounts’ and submitted a copy of said declaration of Bank E dated 2 July 2016.

9. Subsequently, the player explains that he negotiated with the club on an amicable solution, as the club held that due to financial reasons, it could only comply with its entire financial obligations on 15 September 2016 at the earliest. On 2 July 2016, the player and the club agreed upon a solution, whereby the player would receive 5 different bank checks, in the total amount of 10,561,936.68, to be paid as follows:

- 561,936.68 on 20 August 2016;

- 2,765,312.50 on 15 September 2016;

- 367,500 on 15 September 2016;

- 3,192,187.50 on 15 September 2016;

- 3,675,000 on 15 September 2016.

10. Furthermore, the player explains that the difference in the amounts of 10,528,452 and the amount of 10,561,936.68 ‘pertains to an amount previously retained by the club in connection with the player’s former car, which have then already been returned to Club C’.

11. In addition, the player argues that the club informed him a couple of days before 20 August 2016, the day on which the first check would have been due, that he had to wait until 15 September 2016, ‘to present the five checks all together’. The player further explains that on 15 September 2016, when he tried to cash the five checks, he was again informed by the bank that the checks had ‘bounced back’.

12. After having put the club in default on 26 September 2016, proving a 10 days’ deadline to pay the amount of 10,561,936.68, the player holds that he did not receive said payment, however only a couple of ‘promises’ from the club’s financial manager that the club ‘would pay next week’. Only on 16 December 2016, he received an answer in writing from the club, which document was submitted by the player to FIFA, in which the club requested the player to return the checks and to grant a new deadline until 31 January 2017 to pay the amount of “10,528,452”.

13. Moreover, the player again put the club in default on 26 December 2016, granting a new deadline for the club to pay the amount of 10,561,936.68, however to no avail. Also, when the player tried to cash the checks again on 11 January 2017, the checks were again refused by the bank ‘because the signatory was not authorised’.

14. In spite of being invited to do so, the club did not reply to the claim of the player.

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 3 February 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2016 and 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 claim was lodged on 3 February 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. 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.

5. In this respect, the Chamber recalled that the parties had signed an employment contract, valid as from 7 August 2013 until 6 August 2016, on the basis of which the player was entitled to inter alia receive a monthly salary of USD 100,000, as well as a total amount of USD 3,000,000, to be paid in six instalments of USD 500,000, in the period between 1 March 2014 and 1 June 2016.

6. Furthermore, the members of the Chamber duly noted that on 30 May 2016, the parties signed a termination agreement, by means of which it was concluded that the contract would be terminated by mutual consent on 30 June 2016. Furthermore, in said termination agreement, the parties declared that the club had fulfilled all its financial obligations towards the player.

7. In continuation, the members of the Chamber noted that the player lodged a claim against the club, maintaining that the club had also offered to pay him the amount of 10,528,452 as a compensation for signing the termination agreement, payable by means of a check dated 30 June 2016, however that check could not be cashed by him, as the amount was not available on the bank account the check was linked to. Further, the player explains that on 2 July 2016, after he informed the club that he could not cash the check dated 30 June 2016, he was offered 5 new checks with a total value of 10,561,936.68, however also these 5 checks could not be cashed by the player, due to a ‘authorization problem’. Consequently, the player requested to be awarded his outstanding dues in the amount of 10,561,936.68, as well as legal interest and a penalty of 10% of the total amount, as compensation for the bad faith of the club.

8. Subsequently, the DRC observed that the club, in spite of having been invited to do so, had failed to present its reply to the claim of the player. The DRC was of the opinion that the club, by not presenting its position to the claim before the deadline of 2 March 2017, renounced its right of defense and, thus, accepted the allegations of the player.

9. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the player.

10. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute was to determine whether it indeed could be established from the documentation on file, that the club, in addition to the termination of the contract agreed upon in the termination agreement, had also offered the player to pay a financial compensation, by means of one or more checks. Subsequently, according to the members of the Chamber, it needed to be determined to which amount the player is entitled.

11. First of all, the members of the Chamber noted that in accordance with the termination agreement signed between the player and the club on 30 May 2016, the parties agreed that the employment contract between them would be terminated as per 30 June 2016, as well as that there were no outstanding amounts related to the employment contract payable to the player. Moreover, the Chamber noted that the player submitted several documents, based on which the club allegedly confirmed that it was willing to pay him an amount of compensation by means of several checks.

12. In view of the foregoing circumstances, the members of the DRC deemed it vital to outline that according to the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, a party claiming a right on the basis of an alleged fact, shall carry the respective burden of proof.

13. Based on the foregoing principle, the members of the DRC noted that the player and the club did not agree in writing upon the alleged payment of a compensation, such as the termination agreement. On the other hand, the DRC noted that the player substantiated his allegations by submitting several documents, in which the club indeed acknowledged the existence of a debt towards him.

14. First of all, the player submitted a copy of a cheque issued by the club to him, with a value of 10,528,452 and dated 30 June 2016 – i.e. the same date on which the contract was supposed to be considered as terminated and the club’s debts paid – as well as a declaration dated 2 July 2016, by means of which Bank E confirmed that said cheque ‘has been returned unpaid’, ‘due to frozen or blocked account’. What is more, the player also submitted a letter signed and stamped by the club, also holding the club’s letterhead, in which it confirmed to the ‘Tax Office of Country B’ that an amount of 10,528,452 is to be considered as ‘reminiscent amount’ of the employment signed between the club and the player, ‘which finished on 30 May 2016’. In addition, the player submitted a letter from the club dated 16 December 2016, in which the club, in reply to the player’s default letter dated 26 September 2016, confirmed that it was willing to respect its financial obligations, explicitly referring to an amount of 10,528,452, however that due to ‘cash flow problems’, it could only make the payment ‘before or on 31 January 2017’.

15. Based on the aforementioned documents, the members of the Chamber were of the opinion that it could be established that the club, in several documents, confirmed that it still had a debt in the amount of 10,528,452 to the player, in relation to the contract terminated as per 30 May 2016. As such, the members of the Chamber deemed that the player could prove, at the Chamber’s satisfaction, that the club had acknowledged its debt towards him in the total amount of 10,528,452.

16. What is more, the DRC noted that the player’s allegation that the club at a later stage offered him to pay a total amount of 10,561,936.68, by means of 5 different checks in the period between 20 August 2016 and 15 September 2016, was not backed by enough corroborating documentary evidence. From the information on file, it appeared to the members of Chamber that the player only submitted unclear copies of the alleged checks issued to him by the club, as well as that he failed to present any documentary evidence that on 15 September 2016 and 11 January 2017, he tried to cash said checks, to no avail. Moreover, the player failed to submit any documentary evidence on the basis of which it could be concluded that the club confirmed that it owed him an amount of 10,561,936.68. In other words, the DRC deemed that the club could not be obliged to pay an amount of 10,561,936.68 to the player, due to the lack of enough substantial evidence on file for said conclusion.

17. On account of the aforementioned, in particular in view of the considerations under point II./13., II./14., II./15. and II./16. above, the Chamber established that, taking into account the documentation presented by the player in support of his petition, the player had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence. In this respect, the Chamber however deemed it relevant to point out that the player could only prove, to the Chamber’s satisfaction, that the club acknowledged the existence of a debt in the amount of 10,528,452 towards him.

18. Consequently, and considering that based on the documents submitted by the player, it could be established that the club acknowledged its debt towards him in the amount of 10,528,452, the Chamber decided that the club had to be held responsible for the payment of the aforementioned amount to the player.

19. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of 10,528,452 to the player.

20. In accordance with its established jurisprudence and taking into account the request of the player, the Chamber further decided that interest at the rate of 5% p.a. was to be applied over the amount of 10,528,452 as from 30 June 2016, i.e. the end date of the contract.

21. What is more, the Chamber decided that the player has to return the six cheques he received from the club in the period between 30 June 2016 and 15 September 2016.

22. Furthermore, in relation to the player’s request for a penalty of 10% on the requested amount, the Chamber reiterated the legal principle of burden of proof and noted that the player did not submit any evidence that he was entitled to such a penalty, nor that such a penalty was contractually agreed upon between the parties. As a result thereof, the Chamber agreed that such claim is to be rejected, due to a lack of legal basis.

23. In conclusion, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player is rejected.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club C (formerly known as ‘‘Former Name of Club C’’), has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 10,528,452, plus 5% interest p.a. as from 30 June 2016 until the date of effective payment.

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.

6. The Claimant is ordered to return to the Respondent, within 30 days as from the date of notification of this decision, the following cheques:

- the cheque amounting to 10,528,452 and dated 30 June 2016;

- the cheque amounting to 561,936.68 and dated 20 August 2016;

- the cheque amounting to 2,765,312.50 and dated 15 September 2016;

- the cheque amounting to 367,500 and dated 15 September 2016;

- the cheque amounting to 3,192,187.50 and dated 15 September 2016;

- the cheque amounting to 3,675,000 and dated 15 September 2016.

*****

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