DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 29 marzo 2018 • Stagione sportiva: 2017/2018

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 29 March 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Alexandra Gómez Bruinewoud (Uruguay), 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 arisen between the parties

I. Facts of the case

1. On 2 July 2015, the player of Country B, Player A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as from 1 July 2015 until 30 June 2017.

2. On 31 August 2016, the parties concluded a termination agreement which stipulated inter alia the following:

“2.2 … [the Respondent] accepts to pay to the [Claimant]’s monthly salaries of June, July, August, September, October, November and December 2016 with a total amount of EUR 1,641,666…

2.3 In additions to the compensation mentioned in article 2.2 the [Respondent] also accepted to pay the following amount provided receiving a written confirmation from Club E, Private Company F and Sports Medicine Clinic G accepting their payments/ outstanding to be paid to the [Claimant] as follows:

a) The outstanding of the transfer fee due to Club E on 1st February 2016 with a total amount of EUR 1,250,000 … pursuant to an official letter will be received from to Club E.

b) The remuneration due to the Intermediary pursuant to the official letter will be received from Private Company F with a total amount of EUR 162,450 …

c) A percentage of 50% of the invoices from Sports Medicine Clinic G concerning the sports rehabilitation of the [Claimant] with a maximum amount of EUR 16,335 … pursuant to the official letter will be received from Sports Medicine Clinic G.

2.4 The Parties agree that there are no further open monetary claims of each party under any name whatsoever (including but not limited with, the obligations due before the termination, the obligations to be due after the termination, the compensation for the early termination or any penalties whatsoever), by signing this agreement by both Parties and delivering the cheques.

In this context; [the Respondent] and the [Claimant] accept and undertake to release each other irrevocably for all the obligations set forth in the Professional Contract.

2.5 The amounts stipulated in article 2.2 and / or 2.3 will be paid as follows:

1- 25% upon signing this agreement.

2- 15% on 1st October 2016.

3- 15% on 1st November 2016.

4- 15% on 1st December 2016.

5- 15% on 1st January 2017.

6- 15% on 1st February 2017.

(…)

2.9 The [Claimant] shall deposit an amount of 150,000 in the currency of Country D … to the [Respondent] in anticipation of traffic fines or maintenance expenses of the Car under the use of the [Claimant] and the renewal of his accommodation contract from 6th September until 6th November (two months). The balance of this deposited amount will be returned to the [Claimant] in 60 days of the date of this Agreement.

(…)

3.3 The disputes arising from the present Agreement may be referred by either Party to FIFA … as the competent party for solving any dispute arising from this Agreement and Court of Arbitration for Sports (CAS) as the appeal body.”

3. On 16 February 2017, the Claimant lodged a claim before FIFA against the Respondent and requested the following amounts (total EUR 2,353,603):

 EUR 246,159.90 “regarding the termination payment of 1 October 2016” plus 5% interest p.a. as of 1 October 2016;

 EUR 246,159.90 “regarding the termination payment of 1 November 2016” plus 5% interest p.a. as of 1 November 2016;

 EUR 246,159.90 “regarding the termination payment of 1 December 2016” plus 5% interest p.a. as of 1 December 2016;

 EUR 246,159.90 “regarding the termination payment of 1 January 2017” plus 5% interest p.a. as of 1 January 2017;

 EUR 246,159.90 “regarding the termination payment of 1 February 2017” plus 5% interest p.a. as of 1 February 2017;

 EUR 929,018.50 “regarding the waiver of the second instalment from Club E to the player of 31 August 2016” plus 5% interest p.a. as of 1 September 2016;

 EUR 162,450 “regarding the indebted commission that has been waived to the player on 31 August 2016” plus 5% interest p.a. as of 1 September 2016;

 EUR 16,335 “with regard to the recovery costs of the player, due to the player on 31 August 2016” plus 5% interest p.a. as of 1 September 2016;

 Legal costs of EUR 15,000.

4. According to the Claimant, the Respondent paid him an amount of EUR 731,248 on 11 October 2016 pertaining to the percentage established under article 2.5 (1) of the termination agreement (25% of EUR 1,641,066 = EUR 410,266.50) as well as a part of the amount stipulated under article 2.3 a) of the termination agreement (EUR 320,981.50).

5. The Claimant held that the Respondent has not made any further payments, despite the default notice of 9 January 2017, sent by his legal representative on behalf of “Player A and Mr H”, granting a deadline of 7 days to pay “the outstanding 75%”.

6. In its reply, the Respondent stated that the claim is “not admissible in some parts which results that the whole claim shall be considered as rejected and dismissed”. In particular, the Respondent pointed out that the Claimant is requesting to receive the remuneration of the intermediary which is governed by a specific agreement between the Respondent and the intermediary which establishes the exclusive jurisdiction of the Football Federation of Country D for any disputes about said agreement. Equally, the Respondent argued that FIFA does not have competence to hear the dispute between the Respondent and Sports Medicine Clinic G.

7. In continuation, as to article 2.3 a) of the termination agreement, the Respondent argued that “such outstanding of the transfer fee is not actually a transfer fee but third party ownership of the player’s economic rights and the player and his former club get around FIFA’s regulations and manipulated Club C” and therefore, the Respondent decided not to sign the agreement of 31 August 2016.

8. Furthermore, the Respondent argued having paid the following amounts:

- EUR 767,612 on 11 October 2016, pertaining to “25% upon signing the termination agreement”;

- EUR 460,568 on 30 March 2017, pertaining to “15% which was due on 1st October 2016”.

9. Finally, the Respondent requested 8,000 from the Claimant to cover its legal costs.

10. In his replica, the Claimant reiterated his arguments and maintained that his entire claim is admissible, referring to article 3.3 of the termination agreement and the fact that all amounts claimed by him are stipulated in the termination agreement.

11. As to the alleged payments mentioned by the Respondent (cf. point I.8.), the Claimant stated that “this statement of [the Respondent] cannot be taken seriously”.

12. Finally, the player amended his claim and requested the additional amount of 150,000 in the currency of Country D (equivalent to EUR 36,000 according to the player) based on article 2.9 of the termination agreement, arguing that said amount has never been reimbursed to him.

13. In its duplica, the Respondent reiterated its position.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 16 February 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 DRC referred to art. 3 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in conjunction 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 from Country B and a club from the Country D.

3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 23 March 2018 by means of which the parties were informed of the composition of the Chamber, the member, Member L and the member, Member M, refrained from participating in the deliberations in the case at hand, due to the fact that the Member L has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the Member M 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 on the Status and Transfer of Players.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies arguing that the Claimant is requesting to receive the commission of the intermediary which is governed by a specific agreement between the Respondent and the intermediary which establishes the exclusive jurisdiction of the Football Federation of Country D for any disputes about said agreement. Equally, the Respondent argued that FIFA does not have competence to hear the dispute between the Respondent and Sports Medicine Clinic G.

5. The Claimant, for his part, rejected such position and insisted that FIFA has jurisdiction to deal with the present matter, referring to art. 3.3 of the termination agreement and the fact that all amounts claimed by him are stipulated in the termination agreement.

6. The members of the Chamber then turned their attention to said art. 3.3 of the termination agreement, which reads as follows: “The disputes arising from the present Agreement may be referred by either Party to FIFA … as the competent party for solving any dispute arising from this Agreement and Court of Arbitration for Sports (CAS) as the appeal body.” Hence, the DRC was eager to outline that said clause leaves no room for any other interpretation than that FIFA’s deciding bodies are competent. Equally, said clause is laid down in a termination agreement signed by the parties by means of which they terminated their employment relationship.

7. Furthermore, the members of the DRC highlighted that the termination agreement contains payment obligations, albeit subject to certain conditions, of the Respondent towards the Claimant, but not to any third parties.

8. For this reason, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected.

9. On account of the above, the Dispute Resolution Chamber established that it is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

10. Furthermore, the DRC analysed which edition of the regulations should be applicable as to the substance of the matter. In this respect, the Chamber 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 16 February 2017, the 2016 edition of said Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the present matter as to the substance.

11. 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.

12. In this respect, the DRC acknowledged that, on 2 July 2015, the Claimant and the Respondent signed an employment contract, valid as from 1 July 2015 until 30 June 2017.

13. Subsequently, the members of the DRC observed that the parties concluded a termination agreement, dated 31 August 2016, which includes inter alia the following provisions:

“2.2 … [the Respondent] accepts to pay to the [Claimant]’s monthly salaries of June, July, August, September, October, November and December 2016 with a total amount of EUR 1,641,666…

a) The outstanding of the transfer fee due to Club E on 1st February 2016 with a total amount of EUR 1,250,000 … pursuant to an official letter will be received from to Club E.

b) The remuneration due to the Intermediary pursuant to the official letter will be received from Private Company Fwith a total amount of EUR 162,450 …

In this context; [the Respondent] and the [Claimant] accept and undertake to release each other irrevocably for all the obligations set forth in the Professional Contract.

2.5 The amounts stipulated in article 2.2 and / or 2.3 will be paid as follows:

1- 25% upon signing this agreement.

2- 15% on 1st October 2016.

3- 15% on 1st November 2016.

4- 15% on 1st December 2016.

5- 15% on 1st January 2017.

6- 15% on 1st February 2017.

(…)

14. Entering into the arguments set forth by the parties, the Chamber took note of the Claimant’s claim, according to which the Respondent failed to pay several amounts as stipulated in the termination agreement. In particular, the Chamber observed that the Claimant held that the Respondent only paid him an amount of EUR 731,248 on 11 October 2016 pertaining to the percentage established under article 2.5 (1) of the termination agreement (calculated by the Claimant as 25% of EUR 1,641,066 = EUR 410,266.50) as well as a part of the amount stipulated under article 2.3 a) of the termination agreement (EUR 320,981.50). Consequently, the Claimant argued that the total amount of EUR 2,353,603 remained outstanding.

15. Subsequently, the Chamber noted that the Respondent held that it had not signed the waiver from Club E to the Claimant of 31 August 2016, arguing that this concerned “third party ownership of the player’s economic rights”. Furthermore, the Chamber observed that the Respondent held that it had made several payments to the Claimant, in particular the amount of EUR 767,612 on 11 October 2016 and the amount of EUR 460,568 on 30 March 2017.

16. In continuation, the DRC took note of the Claimant’s replica, in which he reiterated his position and held that the Respondent’s statement as to the alleged payments “cannot be taken seriously”. Furthermore, the DRC noted that the Claimant amended his claim and requested the additional amount of 150,000 in the currency of Country D based on art. 2.9 of the termination agreement.

17. The members of the DRC subsequently took note of the Respondent’s duplica, in which it reiterated its position.

18. Having established the aforementioned and considering the specific events in the present dispute, the DRC deemed that it had to analyse which amount, if any, remained outstanding in accordance with the termination agreement concluded by the parties.

19. In this regard, the members of the Chamber, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, stressed that the Respondent had not submitted any conclusive documentary evidence in support of its allegation that a total amount of EUR 1,228,180 was paid to the Claimant. In particular, the DRC observed that the payment slips provided by the Respondent referred to random amounts without indicating a currency and did not make any reference to the recipient of the payments. Consequently, the DRC concluded that it could not establish that said payments were indeed made to the Claimant.

20. In continuation, the members of the DRC turned their attention to the documentation submitted by the Claimant in support of his claim that the total amount of EUR 2,353,603 remained outstanding.

21. In this regard, as to the payment established in art. 2.2 of the termination agreement, the members of the Chamber took note that the Claimant acknowledged having received the amount of EUR 410,266.50, whereas he is claiming the remaining amount divided in five instalments of EUR 246,159.90 each. The Chamber also noted that the Respondent did not further dispute said amount and did not provide any evidence from which it could be established that the remaining amount was paid to the Claimant. Consequently, the Chamber concluded that the amount of EUR 1,230,799.50 remained outstanding.

22. Furthermore, as to the payment established in art. 2.3 a) of the termination agreement, the members of the Chamber took note that the Claimant submitted an agreement dated 31 August 2016 between himself, the Respondent and Club E. The Chamber noted that said agreement was not signed by the Respondent, which is confirmed by the latter’s statement (cf. I.7. above).

23. However, after having thoroughly analysed the wording of art. 2.3 and 2.3 a) of the termination agreement, the members of the DRC understood that the only condition was the receipt of a written waiver from Club E, for which the Respondent’s signature was not needed. Consequently, the members of the DRC concluded that Club E had validly waived its entitlement to the second instalment of the transfer fee in the amount of EUR 1,250,000 in favour of the Claimant, waiver that was effectively received by the Respondent pursuant to its aforementioned statement. Consequently, the Chamber held that said amount was due to the Claimant.

24. Having established the foregoing, the Chamber turned its attention to the Claimant’s claim for the payment established in art. 2.3 b) of the termination agreement. In this respect, the members of the DRC understood that the only condition for the Claimant to receive such payment was the receipt by the Respondent of a written waiver from the intermediary, Private Company F. In this regard, the members of the Chamber took note that the Claimant submitted a letter dated 31 August 2016 from Private Company F addressed to the Respondent, by means of which the intermediary waived the amount of EUR 162,450 in favour of the Claimant. Consequently, the Chamber held that said amount was due to the Claimant.

25. On the contrary, with reference to the Claimant’s claim for the amount established in art. 2.3 c) of the termination agreement, the members of the DRC observed that the Claimant could not provide a written confirmation from the medical institution, Sports Medicine Clinic G, to the Respondent in which it waived “50% of the invoices”. Consequently, the Chamber decided to reject the Claimant’s claim for the amount of EUR 16,335.

26. Thereafter, the Chamber turned its attention to the Claimant’s additional claim for an amount of 150,000 in the currency of Country D, based on art. 2.9 of the termination agreement and put forward in his replica. In this regard, the members of the Chamber emphasised that said claim remained undisputed by the Respondent. Consequently, the Chamber decided that said amount has to be paid by the Respondent to the Claimant.

27. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as of the day following the day on which said amounts fell due. However, the members of the Chamber noted that the Claimant had not requested interest on the amount of 150,000 in the currency of Country D and, consequently, decided not to apply the interest rate on said amount.

28. Finally, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 2,322,268 as well as interest as follows:

- 5% p.a. on the amount of EUR 246,159.90 as from 2 October 2016 until the date of effective payment;

- 5% p.a. on the amount of EUR 246,159.90 as from 2 November 2016 until the date of effective payment;

- 5% p.a. on the amount of EUR 246,159.90 as from 2 December 2016 until the date of effective payment;

- 5% p.a. on the amount of EUR 246,159.90 as from 2 January 2017 until the date of effective payment;

- 5% p.a. on the amount of EUR 246,159.90 as from 2 February 2017 until the date of effective payment;

- 5% p.a. on the amount of EUR 929,018.50 as from 1 September 2016 until the date of effective payment;

- 5% p.a. on the amount of EUR 162,450 as from 1 September 2016 until the date of effective payment.

4. 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.

5. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 150,000 in the currency of Country D.

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

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

8. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 3. and 5. above are 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

www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives