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

Wouter Lambrecht (Belgium), member

Todd Durbin (USA), member

Theo van Seggelen (Netherlands), member

Takuya Yamazaki (Japan), 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 1 June 2015, the Player of Country B, Player A (hereinafter: the player) and the Club of Country D, Club C (hereinafter: the club), concluded an employment contract valid as from the date of signature until 30 June 2016.

2. Pursuant to the contract, the player was entitled to receive a monthly remuneration of USD 5,500.

3. On 2 May 2016, the player and the club concluded a new employment contract (hereinafter: the contract), valid as from 1 June 2016 until 31 December 2016.

4. In accordance with art. 1.1.1 of the new contract, the player was entitled to receive a monthly remuneration of USD 7,500. Furthermore, the contract stipulates that “[t]he signing fee shall be paid 1 of new salary in 1.1.1, within 30 June, 2016”.

5. On 1 August 2016, the player requested the club to pay him the amount of USD 60,000 within 48 hours, alleging that the club had unilaterally terminated the contract on 5 July 2016.

6. On 14 October 2016, the player lodged a claim in front of FIFA, requesting the amount of USD 37,500 plus interest as follows:

- USD 7,500, plus 5% interest as from 30 June 2016, corresponding to the sign-on fee;

- USD 7,500, plus 5% interest as from 8 July 2016 “corresponding to the month of June as consequence of the agreement between the Club and the Player to mutually terminate the contract”;

- USD 7,500, plus 5% interest as from 1 August 2016 corresponding to the month of July as consequence of the agreement between the Club and the Player to mutually terminate the contract;

- USD 7,500, plus 5% interest as from 1 September 2016 corresponding to the month of August as consequence of the agreement between the Club and the Player to mutually terminate the contract;

- USD 7,500, plus 5% interest as from 1 September 2016 corresponding to the month of September as consequence of the agreement between the Club and the Player to mutually terminate the contract.

7. Furthermore, the player requested FIFA to order the club to pay him the amount of CHF 5,000 in order to cover his legal costs.

8. In his claim, the player explains that a few days after the signing of the new contract on 2 May 2016, the club informed him that it was no longer interested in his services. As a consequence, the player argues that the club’s president, President E, offered to pay him 4 monthly salaries, on 8 July 2016, 1 August 2016, 1 September 2016 and 3 October 2016 respectively, in order to mutually terminate the contractual relationship. In support of his assertion, the player submitted two e-mails allegedly sent to him on 30 June 2016 and 5 July 2016, from the e-mail address XXX@gmail.com. In this regard, the emails read in their relevant part as follows:

“Dear Player A, (…) We agree that I will pay you 4 months salary and will put money in your account (…) each month until finish”.

“Dear Player A, Regarding to our agreement on the terminated contract, we agree that four months salary payment shall be paid monthly. I will put he monthly salary from June to September 2016, into your account as follows:

June, will be put on, July,8,2016

July, will be put on August,1st,2016

August, will be put on September, 1st, 2016

September, will be put on October, 3rd, 2016”.

9. In its reply to the claim, the club explains that shortly after the signature of the contract on 2 May 2016, the player established concrete contacts with other clubs and eventually entered into an agreement with Club F, i.e. a first division club. In view of the above, the club alleges that the parties agreed that the signature of the new contract was a “misunderstanding” and that consequently the contractual relationship would therefore be terminated on 30 June 2016 by expiry of the term established in the first contract. In this respect, the club submitted a letter allegedly addressed to the player on 30 May 2016, by means of which it released the latter as from 1 June 2016 while committing to pay his salary for June 2016. In this regard, the club insists that the player’s remuneration for May and June 2016 was paid in accordance with the first contract.

10. In continuation, the club points out that the communication between the parties has always been carried out through official letters and not via e-mails. In this regard, the club disputes the authenticity of the e-mails presented by the player in support of his assertion, questioning the reliability of gmail addresses and emphasising that the president’s e-mail address is XXX.

11. In his replica, the player rejects the club’s allegation regarding the “misunderstanding” and the mutual wish to terminate the contractual relationship. In this respect, the player presented several e-mails allegedly exchanged between the club’s president, XXX@gmail.com, and the club’s coach, XXX@icould.com, expressing their interest in renewing his contract. Moreover, the player denies having received the letter allegedly sent by the club on 30 May 2016.

12. In continuation, the player argues that it entered into an agreement with Club F after agreeing on the amicable termination with the club.

13. Furthermore, the player stresses that the contract does not provide for an official way of communication and insists that the e-mail address XXX@gmail.com belongs to the club’s president.

14. In its final comments, the club reiterates its previous argumentation regarding the circumstances surrounding the termination of the contractual relationship and the lack of authenticity of the e-mails submitted by the player.

II. Considerations of the Dispute Resolution Chamber

1. In a first instance, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 14 October 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the 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 (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. 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 in front of FIFA on 14 October 2016, the 2016 edition of said 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 DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 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 continuation, the Chamber noted that the Claimant asserts that the Respondent had failed to remit him the amount of USD 37,500, amount that it allegedly committed to pay him in exchange for the termination of the contractual relationship. In this respect, the Chamber wished to point out that the Claimant explicitly acknowledges that there was a mutual termination of the contract and is basing his claim for outstanding remuneration on the e-mails dated 30 June 2016 and 5 July 2016.

6. In view of the above, the Chamber emphasised that the burden to prove that he was entitled to receive the claimed amount lies with the Claimant. The DRC focused therefore its attention on the e-mails, allegedly recognising his right, submitted by the Claimant in support of his assertion. In this regard, the Chamber first noted that the Respondent formally contests the source as well as the authenticity of said e-mails.

7. Furthermore, the members of the Chamber observed that the Claimant did not submit any official and reliable evidence that would allow them to establish a link between the address from which the e-mails were sent, in particular the address XXX@gmail.com, and the Respondent. Indeed, the DRC underlined that as sole evidence of the source of the e-mail address XXX@gmail.com, the Claimant submitted several e-mails exchanged with XXX@icould.com, i.e. an e-mail address that cannot be linked to the Respondent either.

8. In continuation, the Chamber outlined that the information contained in the Transfer Matching System (TMS), in particular the e-mail address of the Respondent’s TMS manager, i.e. XXX, appears to confirm the Respondent’s statement that the domain name used for its official emails is XXX.

9. As a consequence, the Chamber after making reference to art. 12 par. 3 and par. 6 of the Procedural rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and the evidence shall be considered with free discretion respectively, concluded that the Claimant did not satisfactorily carry the burden of proof regarding his entitlement of an amount of USD 37,500.

10. In view of all the above, and in particular considering its legal basis, the DRC decided to reject the claim of the Claimant

*****

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 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