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

Todd Durbin (USA), 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 27 July 2014, the player of Country B, Player A (hereinafter: the player) and the club of Country D, Club C, according to information of the Football Association of Country D as from 29 August 2017 known as Club C (hereinafter: the club), signed an employment contract, valid as from 21 July 2014 until 30 June 2015 (hereinafter: the contract).

2. According to article 4 of the contract, the player was entitled to receive, inter alia, a monthly salary of USD 37,500, payable as follows:

 USD 18,000 as ‘basic salary’;

 USD 9,500 as a ‘differential allowance’;

 USD 10,000 as a ‘living allowance’.

3. Moreover, article 4 stipulates the following: ‘All remunerations and payments stated in article (4) of this contract will be relating to the percentage of participation of player in league championship as per minutes from the beginning of first match after registration of player till the last official match of season 2014 to 2015’.

4. Article 5 of the contract holds the following clause: ‘The [club] shall undertake to provide an economy class air ticket to the [player], his wife and a number of (1) economy air class tickets for his children when coming to start the work contract (Country B– Country D – Country B)’.

5. Article 6 of the contract contains the following clause: ‘The [club] shall undertake to provide a furnished suitable accommodation to [player]’.

6. According to article 7 of the contract, the player is further entitled to ‘a suitable means of transport (made in Country E) to be handled to the [player] by official receipt from the [club] and the car will be under custody till the expiry or termination of this contract’.

7. Article 7 of the contract further contains the following clauses: ‘[…] The [club] shall provide the [player] with a copy of the Football Association of Country D and Club C Regulations. The [club] shall provide the [player] with suitable environment and training. The [club] shall provide the [player] with trainers and the technical and administrative bodies that assist the player on training and developing his technical and physical skills. The necessary medical treatment for the [player] and his family in governance hospitals (Country D).’

8. Article 12 of the contract inter alia stipulates the following: ‘The two parties shall endeavour to settle their disputes of executing this contract in amicable manner and in case of failure they have to refer the same to the association’s specialized committees or the FIFA, and none of the two parties shall have the right to refer disputes to civil or labour courts or adhere to its laws or that of any other judicial or arbitration bodies. The Disputes Settlement Chamber on Football Association of Country D only shall review the disputes arising between the Club C and the professional player about the interpretation and execution of this contract. […]

The excuses and personal circumstances shall be subject to appreciation of the first party and the Player’s Status and Shifting Committee on the Football Association of Country D only’.

9. Article 13 of the contract inter alia contains the following clauses: ‘[…] When a decision was issued stopping the player from playing because of bad or non-sportive behaviour, getting disciplinary penalty or committing a crime punished by law, the [club] shall have the right to take all legal procedures and to apply and impose all penalties as per the applicable regulations of Club C and the association. The [club] shall have the right to deduct the amounts resulting from such penalties from the player’s salary or allowances for the benefit of the bodies imposing the same. […] The [club] shall have the right to take any decisions and impose penalties against the [player] as per the rules of Club C and especially first time disciplinary regulations when breaching any of the obligations stipulated for in Club C regulations or in this contract or in case he committed one of the breaches stipulated for in the Football Association regulations or the Organizing body of football Leagues of Country D or any of the following breaches without limitation: […] 2. Delay / absence from attending training, camps and matches […] 5. Bad conduct, non-adherence to sportsmanship, indecent dealing with his colleagues or the club administrative and technical bodies or others or any of the match officials or the public’.

10. Article 15 par. 16 of the contract stipulates: ‘In case the player name is not in the official reports of the league games for one month 25% shall be deducted from his monthly salary’.

11. On 22 April 2016, the player lodged a claim before FIFA against the club, claiming the total amount of USD 275,694.37, specified as follows:

Outstanding remuneration in the amount of USD 222,311.73, broken down as follows:

 USD 160,288.92, plus 5% interest p.a. as of 30 June 2015, as outstanding part of monthly salaries the player was entitled to in the period between 21 July 2014 and 30 June 2015. The player explains that in said period, he was entitled to the amount of USD 425,806.45, calculated as follows:

- (EUR 37,500/31 x 11) for the period between 21 July until 31 July 2014, and;

- 11 x EUR 37,500 for the period between August 2014 and June 2015.

The player further acknowledges to have received the amount of 974,664 in the currency of Country D (according to the player USD 265,517.53, cf. point I./16. below);

 USD 27,246.26, plus 5% interest p.a. as of 4 January 2016, as costs related to the club’s obligation to provide him with an accommodation, as per article 6 of the contract cf. point I./17. below);

 USD 9,821.26, plus 5% interest p.a. as of 4 January 2016, as costs related to the club’s obligation to provide him with transportation as per article 7 of the contract (cf. point I./18. below);

 USD 22,691.32, plus 5% interest p.a. as of 4 January 2016, as costs related to the club’s obligation to provide him with a ‘suitable environment and training’, as well as ‘trainers and the technical and administrative bodies that assist the player on training and developing his technical and physical skills’, as per article 7 of the contract;

 USD 2,263.61, plus 5% interest p.a. as of 4 January 2016, as costs related to the club’s obligation to provide him with medical treatment as per article 7 of the contract (cf. point I./19. below).

Additional compensation in the amount of USD 53,382.64, as follows:

 USD 22,691.32 as compensation and interest for ‘non-pecuniary damage’;

 USD 22,691.32 as compensation and interest for ‘career damage’;

 USD 8,000 as ‘legal costs’.

Additionally, the player requests for 5% interest p.a. as from 4 January 2016 on the aforementioned amounts of compensation.

12. In his claim, the player explains that on 1 September 2014, he suffered a muscle injury and that he underwent a radio scan. According to said medical examination, it turned out that the player was injured and needed to recover.

13. After he suffered said injury, the player holds that the club imposed the following sanctions on him, because he had missed several training sessions and/or medical treatments:

- a reduction of his salary for September 2014 with 10% (i.e. USD 3,750), imposed on 8 September 2014;

- a reduction of his salary for September 2014 with 10% (i.e. USD 3,750), imposed on 18 September 2014;

- a reduction of his salary for September 2014 with 15% (i.e. USD 5,625), imposed on 19 September 2014.

14. Further, the player argues that in a match he played against Club F, on an unspecified date, he again suffered an injury. As a result, on 20 September 2014, he again underwent a medical examination, which results showed that the player was again injured and that he needed to take rest. However, according to the player, the club excluded him from the first team and sent him a training program, which he needed to follow in the period between 24 and 30 September 2014.

15. In addition, the player explains that as from September 2014, he never participated in a collective training session anymore, but that until the end date of his contract, 30 June 2015, he went to the club’s stadium to train individually in order to fulfil his contractual obligations. In this respect, the player referred to the following circumstances, that should prove that he was forced to train alone and that the club did not fulfil its contractual obligations towards the player:

- the club did not register the player with the Football League in the Country Din the first half of the 2014/2015 season and as a result, it was not possible for the player to play in official league matches in said period. The player states that the club only registered him on 18 January 2015, in order to be available in the second half of the season;

- he was forbidden to enter the main dressing room and had to change in a separate room;

- he was instructed to train, daily between 6.00 am and 8.00 am and 18.00 pm and 20.00 pm with a youth coach of the club;

- at the end of September 2014, he was forced to return the car the club had provided to him, without receiving a new one (cf. point I./18. below);

- at the end of September 2014, he was forced to leave the hotel room, the club had booked for him and his family. As a result, between 29 September 2014 and 5 June 2015, the player was forced to pay for an accommodation himself, as the club only provided him with a non-suitable accommodation (cf. point I./17. below)

- the club never reimbursed his medical costs and never provided him with adequate medical assistance;

- during the period in which he was forced to train alone, the club systematically imposed fines on him for alleged disciplinary misbehaviour, as a result of which the player did not receive at least 60% of the salaries he was entitled to (cf. from point I./16. below).

16. In relation the claimed salaries, the player explains that in the period between 2 October 2014 and 15 June 2015, he received the total amount of 974,664 in the currency of Country D, as follows:

 75,238 in the currency of Country D paid on 2 October 2014;

 68,813 in the currency of Country D paid on 21 October 2014;

 68,813 in the currency of Country D paid 8 December 2014;

 85,328 in the currency of Country D paid on 28 December 2014;

 71,565 in the currency of Country D paid on 11 January 2015;

 103,218 in the currency of Country D paid on 2 March 2015;

 96,338 in the currency of Country D paid on 28 March 2015;

 133,863 in the currency of Country D paid on 3 April 2015;

 133,863 in the currency of Country D paid on 5 May 2015;

 137,625 in the currency of Country D paid on 15 June 2015.

17. In relation to the accommodation costs, the player explains that he himself had to pay the total amount of 99,948 in the currency of Country D, according to the player corresponding to USD 27,246.26, for accommodation, since the club did not pay him any of the contractually agreed ‘living allowance’).

18. With regard to the amount claimed as costs related to the club’s obligation to provide him with transportation, the player explained that he himself had to pay the total amount of 36,070 in the currency of Country D, corresponding to USD 9,821.26 for car rental, since the club failed to provide him with the contractually agreed ‘suitable means of transport’. Moreover, the player states that the club requested him to pay the amount of 29,000 in the currency of Country D (corresponding to USD 7,896.63), because the car had to be repaired.

19. Regarding the amounts claimed as reimbursement of medical treatment, the player explained that he himself had to pay the total amount of 8,350 in the currency of Country D, corresponding to USD 2,263.61 for medical costs, since the club failed to provide him with the contractually agreed ‘medical treatment’. In this respect, the player provided 7 documents referred to as ‘outpatient cash invoice’, based on which it can be concluded that in the period between 1 September 2014 and 2 February 2015, the player underwent medical examinations in the Hospital located in Country D for the total amount of 8,350.18 in the currency of Country D.

20. With respect to the imposed fines, the player explains that – in addition the fines imposed on him in September 2014 (cf. point I./13. above, in the total amount of USD 13,125) - in the period between 7 October 2014 and 22 April 2015, another 21 fines were unilaterally imposed on him by the club, specified as follows:

- 15 fines for absence or late arrival on training sessions, in the total amount of USD 44,250;

- 6 fines for alleged bad professional behaviour, in the total amount of USD 43,125.

21. The player concludes that the club imposed fines in the amount of USD 100,500 on him, without having a valid reason to do so.

22. In this respect, the player explains that he does not agree with the fines imposed on him, since from the medical report on 20 September 2014, it was clear that he was injured and he needed to rest. Furthermore, the player explains that as from 20 September 2014, the club excluded him from the collective training sessions as well as the dressing room and that he was forced to train alone or with the club’s youth team. Moreover, the player argues that based on the Labour Code of Country B, it is forbidden to make deductions to salaries mentioned in the Collective Bargaining Agreement of Country B or to impose pecuniary sanctions on a player.

23. In addition, the player holds to have put the club in default on 29 October 2014, requesting the club to fulfil its contractual duties, and on 28 November 2014, for the outstanding amount of USD 124,820.12, however to no avail. After the expiry of the contract on 30 June 2015, the player sent two further default letters, dated respectively 12 October 2015 and 4 January 2016, however according to the player also to no avail.

24. In its reply to the claim of the player, first of all the club contests FIFA’s competence to deal with the matter at hand, as based on article 12 of the contract, the case should have been dealt with by the Dispute Resolution Chamber of the Football Association of Country D (hereinafter: ‘the NDRC of Country D’), which deals with cases regarding the interpretation of the contract (cf. point I./8. above). Further, the club states the labour law of Country D shall apply to the contract, and that disputes regarding excuses and circumstances shall be submitted to the ‘Committee of Player’s Status and Transfer in the Football Association of Country D’.

25. The club further refers to article 6. par. b. of the aforementioned regulations, which stipulates: ‘The provisions of International Regulation shall be applied on national disputes and the disputes which one of the parties is foreigner if the foreign party accept the same’.

26. Furthermore, the club asks for the rejection of the claim, as the power of attorney of the player is dated 27 April 2016 and the claim was sent to FIFA already on 22 April 2016.

27. As to the substance, the club mentions that it replied to the player’s default letter dated 29 October 2014 (cf. point I./23. above), by means of a letter dated 30 October 2014, denying the player’s allegations. Moreover, the club states that also on 13 October 2014, 4 November 2014 and 6 March 2015, it replied to the letters the player sent to the club.

28. Furthermore, the club argues that as per article 4 of the contract, the player’s salary was linked to the percentage of matches played by the player and that in case of no performance, the player’s salary could be reduced by 25% (cf. point I./10. above). In view of the fact the player never played in official matches for the club and that the total contractual value amounts to 1,541,408 in the currency of Country D (or USD 420,000), the club had the right to deduct USD 105,000 from the total contractual value.

29. Further, the club states that it actually paid the player the amount of 1,113,389 in the currency of Country D (or USD 303,375) and that it imposed fines in the total amount of 449,108 in the currency of Country D (or USD 122,373) on the player. Subsequently, the club explains that all fines imposed on the player were legal and that based on the Regulations of the Football Association of Country D, it cannot deduct more than 50% of the player’s salary, which it never did while imposing the fines.

30. With respect to the salary for July 2014, the club explains that the player was only entitled to receive his agreed salary as from 21 July 2014, and therefore not for the whole month of July 2014. In this respect, and because the player allegedly left the Country D on 27 July 2014 and only joined the club’s training camp in Country G on 2 August 2014, he is only entitled to his salary for 6 days in July 2014, i.e. 27,525 in the currency of Country D.

31. Based on the foregoing, the club concludes that it has no outstanding debts regarding the salary payments towards the player.

32. Regarding the costs for accommodation, the club explains that it provided the player with temporary residence in a hotel room in the Hotel of Country D, which is located approximately 30 kilometres from the club’s premises. The club further holds that, on 24 August 2015, it arranged a new apartment for the player and his family, also located approximately 30 kilometres from the club’s premises, as well as that on 24 August 2014, it paid the amount of 53,130 in the currency of Country D (or USD 14,476) to the player for ‘leasing a new accommodation to the player and his family’. According to the club, the player could stay in the hotel until his new apartment was ready, however, at the end of September 2014, when the apartment was ready and the club informed the player about the address, he refused to move to the apartment. Further, the club states that on 13 October 2014, it sent a final notice to the player, informing him that he had to move to the new apartment.

33. With respect to the transportation costs as per article 7 of the contract, the club explains that it provided the player with a car made in Country E and that it has no further obligations to pay the player any other costs in this respect. In reply to the rental receipts submitted by the player in this respect, the club states that these are receipts are ‘fabricated, not original, non-attested by the body who rented the car at all’ and/or related to fines, traffic violations or cars the player rented on his own initiative.

34. In relation to the medical costs, the club argues that it is not its responsibility to pay these costs to the player, as it fulfilled all its contractual obligations. In this respect, the club explains that the player underwent medical examinations on 30 and 31 August 2014 in the ‘private Hospital’ located in Country D. Further, the club holds that the player was ‘only alleging an injury’, in order ‘to escape from training’, as a result of which several fines were imposed on him (cf. point I./20. above). In addition, the club held that it ‘deals fairly’, as on 3 November 2014, it gave the player medicines and some days of rest, when the player submitted a sickness certificate. However, according to the club, on 7 November 2014, the player refused to return to the training, despite being fully recovered. Moreover, the club contests the validity of the medical reports submitted by the player (cf. points I./12. and I./14. above). In addition, the club states that despite the player’s allegation that the club forced to train him on 17 and 18 September 2014, from the documents he submitted (cf. point I./12. and I./14. above), it can be seen that the club tried to provide him medical treatment, which he however refused.

35. Furthermore, the club holds that player was excluded from the first team of the club, because of his ‘low physical level’, the fact that ‘he travel outside the State’ and ‘the large number of problems made by him’. In addition, the club argues that as from 24 September 2014 until 12 February 2015, it provided the player with training programs. Also, the club explains that the player played in 13 friendly games of the club. With respect to the player’s allegations that he was not allowed into the premises of the club, the club explains that the player did not provide ‘definition his fingerprint in the device’ in order to register his start of the training, but that he was seen ‘jumping over the wall of the northern side in front of all the players of football School and players of other stages’.

36. Subsequently, the club argues that the player – despite being in the Country D – inter alia used the excuse of having to request a visa in Country H, to miss a couple of training sessions.

37. In conclusion, the club holds that the compensation claimed by the player cannot be granted, as he did not suffer ‘serious damage’. As a result, the club asks for the rejection of the claim of the player.

38. In his replica, the player refers to the fact that article 12 of the contract also refers to FIFA as being the competent body, therefore, the clause not being exclusive. As a result, the player concludes that FIFA is competent to deal with the matter at hand.

39. In addition, the player explains that based on the documents submitted by the club, as well as article 124 of the Regulations of Status and Transfer of Players of the Football Association of Country D, it can be noted that there is no fair representation between clubs and players before the NDRC of Country D, as it not clear who elects the members of the NDRC of Country D representing the players and because of the fact the in the Country D, there does not exist a players’ association affiliated to FIFPro.

40. Furthermore, the player first of all states that it is a fact that there is a valid power of attorney, even more because the player was provided with a deadline until 27 May 2016 by the FIFA Administration to complete his claim, and that the allegations of the club in this respect cannot be upheld.

41. As to the substance, the player explains that there are discrepancies between the amount the club holds to have paid and the amount the player actually received. For instance, the club holds to have paid to him the amount of 1,113,389 in the currency of Country D, but submitted payments receipts only amounting to 1,092,289 in the currency of Country D. In this respect, the player explains that the documents submitted by the club only prove that the club ordered to make payments up to the amount of 1,092,289 in the currency of Country D, however that it cannot be proven that these amounts were effectively paid on the player’s bank account. In addition, the player adds that on top of the amounts explained in his claim (cf. point I./11. above), he also received 4 cash payments of 5,000 in the currency of Country D each, respectively on 27 July, 17 August, 20 August and 26 August 2014.

42. As a result, the player explains that in the period between 27 July 2014 and 15 June 2015, he received the amount of 20,000 in the currency of Country D in cash and the amount of “994,664”in the currency of Country D by bank payments, according to the player corresponding to the total amount of USD 270,793.22. Further, the player reiterates that he was entitled to the total amount of USD 425,806.45 and that fines in the total amount of USD 100,500 were imposed on him. Based on the foregoing, the player states that salaries in the amount of at least USD 54,513.23 (i.e. USD 425,806.45 minus USD 270,793.22 minus USD 100,500) remained outstanding and are not contested by the club.

43. In addition, the player disputes that the fines were validly imposed on him by the club and/or that the club could validly deduct 25% of his receivables, based on the argument that he did not play in official matches of the club (cf. point I./10. above). In this respect, the player holds that the clause in art. 15 par. 16 of the contract is potestative and abusive, and further refers to the Labour Code of Country B, which considers pecuniary sanctions in relation to salary payments prohibited. Further, the player holds that the fines cannot be upheld, since he tried to do everything possible to fulfil his contractual obligation to practice and to train, however the club tried to prevent him from training, by excluding him from the team.

44. Moreover, the player contests having left the Country D in July 2014 as alleged by the club and further points out that he always remained at the disposal of the club. Finally, the player contests the credibility of the declaration of the club’s security guards, as these cannot be impartial. In conclusion, the player holds that the fines in the total amount of USD 100,500 cannot be upheld.

45. Furthermore, the player reiterates his initial claims and arguments, and refers to the following circumstances:

- regarding the club’s obligation to provide him with an apartment, the player holds that only on 13 October 2014, after several requests of the Hotel of Country D to the player that he had to leave, the club provided him with the address details of the new apartment. The player holds that this apartment was not suitable, since it was located in a dangerous location and far away from the training grounds, as well as that it was ‘faible surface’ (free translation in English: low surface);

- in relation to the car the club was obliged to provide to him, the player explains that after his injury, he was forced to return the car he received from the club. Moreover, the player explains that he returned the car in good condition and that, therefore, he cannot be forced to pay for reparations of the car (cf. point I./18. above). Also, the player holds that all the receipts he submitted in this respect are valid and that he was forced to pay the total amount of USD 9,821.62 in order to have a car at his disposal;

- with regard to his claim for damages suffered because the club did not provide him with training or technical assistance, the player explains that he was not allowed to train with a ball, that he also received training from the goalkeeper coach and that the club did not provide him with a professional environment to fulfil his contractual duties. Moreover, the player explains that on 7 October 2014, the club tried to force him to sign a document by means of which 20% of his salary would be deducted, because he allegedly drove too fast, which he refused to do;

- regarding the medical costs, the player holds that although he was injured (cf. points I./12., I./13. and I./14. above), the club did not provide him with medical assistance and tried to force him to train. As a result the player was forced to go to another medical specialist, in order to treat his injury. The player concludes that the receipts he submitted to his claim are detailed specifications of actual costs, and that these costs have to be reimbursed by the club.

46. In its duplica, the club reiterates that the matter at hand should be submitted to the NDRC of Country D and that Labour Law of Country D shall apply. Further, the club explains that the NDRC of Country D meets the ‘standards of law of dispute resolution chamber affiliates to FIFA’.

47. As to the substance, the club explains that it paid the player the amount of 1,113,389 in the currency of Country D, corresponding to USD 303,375, consisting of bank payments in the amount of 1,092,289 in the currency of Country D and cash payments in the amount of 21,100 in the currency of Country D. Furthermore, it claims to have deducted the amount of USD 122,273 from the player’s remuneration, because of ‘disciplinary irregularities’.

48. In addition, the club explains that the player in his calculations forgot to add to the total amount he received from the club the salary of June 2015, paid on 1 July 2015 and amounting to USD 37,500 or 137,625 in the currency of Country D.

49. Moreover, the club explains that on an unspecified date in September 2014, it booked a flight for the player’s wife with a value of USD 1,100, but that the player’s wife did not take said (unspecified) flight. As a result, the club explains that for the month of September 2014, it validly deducted an amount of 1,100 in the currency of Country D from the player’s receivables. In this respect, the club provided a copy of an undated document, singed by the player and confirming that an amount of 1,100 in the currency of Country D would be deducted from his the player’s salary.

50. In conclusion, the club states that the player ‘has completely denied his participation in the first team in official matches’, and that it ‘did not impose any penalty without a violation made by 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 22 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 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, in principle, 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. However, the Chamber acknowledged that the club contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that any dispute arisen between the parties should be submitted to the Dispute Resolution Chamber of the Football Association of Country D (NDRC of Country D).

4. The Chamber equally noted that the player rejected such position and insisted on the fact that FIFA had jurisdiction to deal with the present matter, firstly because article 12 of the contract explicitly mentions that he can bring his case to FIFA and, secondly since the deciding bodies of the NDRC of Country D do not respect the principle of equal representation of players and clubs and cannot provide for fair proceedings.

5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the members of the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. In view of the foregoing, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear arbitration clause.

7. Having said this, the members of the Chamber turned their attention to article 12 of the contract, which stipulates the following: ‘The two parties shall endeavour to settle their disputes of executing this contract in amicable manner and in case of failure they have to refer the same to the association’s specialized committees or the FIFA, and none of the two parties shall have the right to refer disputes to civil or labour courts or adhere to its laws or that of any other judicial or arbitration bodies. The Disputes Settlement Chamber on Football Association of Country D only shall review the disputes arising between the Club C and the professional player about the interpretation and execution of this contract. […] The excuses and personal circumstances shall be subject to appreciation of the first party and the Player’s Status and Shifting Committee on the Football Association of Country D only’.

8. In view of the aforementioned clause, the members of the DRC were of the opinion that article 12 of the employment contract does not make clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations and even provides for the possibility of lodging a contractual dispute in front of FIFA. Therefore, the members of the Chamber deem that said clause can by no means be considered as a clear arbitration clause in favour either of the national deciding bodies, i.e. the Disputes Settlement Chamber on Football Association of Country D or the Player’s Status and Shifting Committee on the Football Association of Country D, and, therefore, cannot be applicable.

9. Having established that the first criterion for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points, which would need to be assessed before concluding to the competence of a national deciding body.

10. In view of the above, the Chamber established that the club’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC 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.

11. Subsequently, 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 22 April 2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

12. 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.

13. In this respect, the Chamber acknowledged that on 21 July 2014, the parties signed an employment contract valid between 21 July 2014 and 30 June 2015. In accordance with said contract, the player was entitled to receive, inter alia, a monthly salary of USD 37,500, divided in an instalment of USD 18,000 as ‘basic salary’, an instalment of USD 9,500 as a ‘differential allowance’ and an instalment of USD 10,000 as a ‘living allowance’.

14. In continuation, the members of the Chamber noted that the player alleged that until 30 June 2015, the day when the contract expired, the club failed to pay him salaries in the amount of USD 160,288.92 out of the total amount of USD 425,806.45 he was entitled to. Also, the player indicated that several amounts related to accommodation allowance, medical expenses and transportation costs had remained unpaid. Moreover, the player holds that the club caused damages to him, as it failed to provide him with professional training, which also caused moral damages. Consequently, the player asked to be awarded with the total amount of USD 275,694.37.

15. Equally, the members of the Chamber took note of the reply of the club, which rejected the player’s allegations and asserted that as per the signed contract, the player was in principle entitled to receive the total amount of USD 420,000. Furthermore, the club alleged that it paid the player the total amount of 1,113,389 in the currency of Country D (or USD 303,375), and referred to various payment receipts submitted in this respect. Moreover, the club pointed out that it validly imposed fines in the total amount of 449,108 in the currency of Country D (or USD 122,373) on the player. In consequence, the club concluded that it fulfilled all its contractual obligations towards the player and asked for the rejection of his claims.

16. With due consideration to the above, the members of the Chamber first of all focused on the question as to which amount the player was entitled to receive under the pertinent contract. The player deems that he is entitled to the amount of USD 425,806.45, whereas the club explains that because the player only joined the club’s training camp in Country G on 2 August 2014, he is only entitled to salary for 6 days in July 2014, i.e. 27,525 in the currency of Country D.

17. In this respect, as the parties agreed upon a monthly salary of USD 37,500 and because the contract was valid between 21 July 2014 and 30 June 2015, without making any further reservations for eventual deductions because the player could - allegedly - not yet render his services as from the start of the contract, the Chamber was of the opinion that the player in principle is entitled to the full salary for this period. As it result, the Chamber concluded that the player is entitled to the pro rata part of salary for 11 days in July 2014, i.e. USD 13,306, as well as 11 monthly salaries of USD 37,500 for the period between August 2015 and June 2015, therefore, to the total amount of USD 425,806.

18. Moreover, the members of the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

19. In this context, the Chamber noted that while the player in his claim alleged to have received from the club USD 265,517.54 (i.e. USD 425,806.45 minus USD 160,288.92), the club in its reply states having paid him the total amount of 1,113,389 in the currency of Country D (or USD 303,375), consisting of 1,092,289 in the currency of Country D as per bank transfer and 21,100 in the currency of Country D as cash payments. In support of its argumentation, the club provided the DRC with a copy of 8 bank documents, stating the transfer of the total amount of 1,092,289 in the currency of Country D from its bank account to that of the player and with 4 documents referred to as “receipt voucher”, all signed by the player, stating that the total amount of 20,000 in the currency of Country D was paid in cash to him.

20. Furthermore, the Chamber noted that, in his replica, the player acknowledged having received the amount of 994,664 in the currency of Country D per bank transfer and 20,000 in the currency of Country D in cash (cf. point I./42 above). He further claims that, the club might have provided evidence that it ordered the transfer of the amount of 1,092,289 in the currency of Country D to his bank account, but that such documentation does not prove the actual receipt of this amount by him (cf. point I./41 above).

21. At this point, the Chamber deemed it appropriate to clarify that, in the present case, the club bore the burden of proving either the payment of the player’s salaries or that it had a valid reason for not having done so. In this respect, the DRC noted that the club indeed provided consistent evidence of the payment of the amount of 1,092,289 in the currency of Country D by bank transfer to the player. The latter, however, claims that such documentation, consisting of bank statements displaying the transfer of the aforementioned amount from the club’s to the player’s bank account, does not prove its actual payment. In this respect, the Chamber deemed that the club duly complied with its burden of proving the payment of the player’s remuneration, to the amount of 1,092,289 in the currency of Country D. In view of such evidence, the player bears the burden of proving that the aforementioned amount was, in spite of the bank confirmation, not credited to his account. In this respect, the DRC deemed that the player was not able to provide any proof of his allegation and consequently overturn the evidence provided by the club. Thus, the Chamber was of the opinion that the club provided consistent evidence that the amount of 1,092,289 in the currency of Country D was paid to the player by bank transfer.

22. In continuation and still bearing in mind the principle of burden of proof, the Chamber also noted that on the one hand the club claims having paid the player the further amount of 21,100 in the currency of Country D in cash. On the other hand, the Chamber noted that the player acknowledged having received the total amount of 20,000 in the currency of Country D in cash and that the “receipt vouchers” provided by the club as evidence amount equally to 20,000 in the currency of Country D. Consequently, the Chamber concluded that it was undisputed by the parties and duly evidenced that an additional amount of 20,000 in the currency of Country D was also paid by the club to the player.

23. Subsequently, the Chamber took note that the club also stated that it was entitled to deduct an amount of 1,100 in the currency of Country D from the player’s remuneration for the month of September 2014, in relation to a flight ticket not used by his wife, which had apparently been purchased by the club for the amount of USD 1,100. In this respect, the club submitted a copy of an undated document, signed by the player and confirming that an amount of 1,100 in the currency of Country D would be deducted from his salary. The Chamber further noted that the player did not contest the deduction of the amount of 1,100 in the currency of Country D from his salary of September 2014. Consequently, the DRC concluded that the club satisfactorily bore the burden of proving that such amount could validly be deducted from the remuneration due to the player.

24. As a result of all the foregoing, the members of the Chamber concluded that the club submitted documentary evidence and therefore could prove that it paid to the player an amount of 1,092,289 in the currency of Country D by bank transfer plus 20,000 in the currency of Country D in cash, totalling 1,112,289 in the currency of Country D, and that it was in fact allowed not to pay him the amount of 1,100 in the currency of Country D, as per the “agreement” reached by the parties in this respect. The Chamber also calculated that the amount of 1,112,289 in the currency of Country D corresponded to approximately USD 302,452.

25. Subsequently, the Chamber focused its attention in the analysis of the fines imposed by the club on the player due to his alleged unprofessional behaviour and the missing of training sessions and/or medical examinations, which the club alleges to be a valid reason not to have paid part of the remuneration due to the player as per the contract. Although the player and the club do not seem to agree on the exact amount which was deducted because of the fines, i.e. the club argues that it deducted USD 122,273 as fines, whereas the player holds that the amount of USD 100,500 was deducted from his receivables, the Chamber decided to take into account the amount of USD 100,500, as based on the documentary evidence on file, it could for sure be established that this amount was deducted from the player’s receivables.

26. Regarding the 18 fines, imposed on the player during the validity of the contract in relation to missed training or missed medical examinations, in the total amount of USD 57,375 (as per point I./13. and I./20. above), the Chamber noticed that from the contents of said fines, it appeared that the club unilaterally imposed these fines on the player, without giving him the chance to appeal said fines.

27. Moreover, the members of the Chamber were of the opinion that the club did not sufficiently substantiate this part of its response to the Chamber’s satisfaction, as it did not present any conclusive documentary evidence, which could corroborate that the player indeed missed several trainings or medical examinations. What is more, the player submitted an extensive overview of documentary evidence, pictures and explanations as to when and how he fulfilled his contractual obligations, basically stating that, after sustaining a severe injury, he was forced to train alone for a period of approximately 10 months. However, regardless of the foregoing remarks, the Chamber emphasised that 18 fines, amounting to the total amount of USD 57,375, which is almost 15% of the total value of the contract, for allegedly missing several training sessions is excessive and disproportionate and cannot be upheld.

28. As to the fine imposed on the player for alleged unprofessional behaviour, the Chamber pointed out that a player cannot be fined for alleged poor performance or bad behaviour, as this a consequence drawn from a purely unilateral and subjective evaluation of the club. Thus, the Chamber emphasised that said circumstances cannot, by any means, be considered as a valid reason to reduce a player’s salary or fine a player. Hence, the Chamber considered that by fining the player based on an alleged bad behaviour, the club acted in an abusive manner.

29. Hence, the Chamber was unanimous in its conclusion that the 18 fines imposed on the player because of alleged missed trainings and medical examinations, in the total amount of USD 57,375, as well as the 6 fines imposed by the club because of alleged bad behaviour, in the total amount of USD 43,125, must be disregarded.

30. Furthermore, and in any case, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to offset outstanding financial obligations towards players.

31. In conclusion, the Chamber determined that the club could not offset its debt towards the player by means of the various fines imposed on him and, thus, the fines in the amount of at least USD 100,500 had to be disregarded.

32. Finally, the Chamber analysed the club’s argument that based on art. 15 par. 16 of the contract, it could validly deduct 25% of the total contractual value, because the player never played in official matches for the club. In relation to this clause, the members of the Chamber first of all noted that the fines imposed by the club, according to the player, amount to USD 100,500 out of a total contractual value of USD 425,806. Such amount adds up to almost 25% of the total contractual value, and therefore, the Chamber deemed it necessary to analyse the contents of article 15 par. 16 of the contract.

33. In view of the foregoing, and regardless of whether the fines could have been imposed on the player in order to reach the 25% of his remuneration as per article 15 par. 16 of the contract, the Chamber wished to point out that the decision of lining-up of a player for a match is normally left fully to the discretion of the club. As such, the player had no influence on the question of whether or not he would be fielded in a specific number of matches in the relevant season.

34. In this context, the members of the Chamber highlighted that, in general, potestative clauses, i.e. clauses that contain obligations the fulfillment of which is conditional upon an event that one party entirely controls, can in general not be applied, since they limit the rights of the other contractual party in an excessive manner and lead to an unjustified disadvantage of the latter towards the other.

35. Along those lines, the members of the Chamber agreed that article 15 par. 16 of the contract cannot be taken into consideration due to its potestative nature.

Indeed, as previously mentioned, the club totally controlled the fielding of the player and, therefore, only the club was in a position to influence the fact whether the player would be entitled to the full value of his contract, or only to 75% of it. Having taken into account the previous considerations, the Chamber decided that the club could not validly deduct 25% of the total value of the contract, and as such, was liable to pay the player the full value of it in the amount of USD 425,806.

36. In view of all the above, the members of the Chamber concluded the club could prove at the Chamber’s satisfaction, that it paid the player the total amount of USD 302,452, whereas the player was entitled to receive the total amount of USD 425,806. Taking into account the fines in the total amount of USD 100,500 had to be disregarded and that the club could not deduct 25% of the total value of the contract as per art. 15 par. 16 of the contract, the Chamber concluded that the player is entitled to receive the amount of USD 123,354 as outstanding salaries from the club.

37. With respect to the claim for reimbursement of medical costs, the Chamber recalled that the player requested that the club be ordered to reimburse the medical expenses he alleges having incurred in the Country D, in the amount of USD 2,263.61. The player presented several receipts of medical treatments in respect to this part of his claim, issued by a hospital in the Country D and in the amount of 8,350.18 in the currency of Country D.

38. In this regard, the Chamber noted that the medical expenses seem to have occurred during the duration of the contract and that these costs occurred in the Country D, the country where the club is located. In this respect, the Chamber took into account that the contract does include a clause – clause 7 –, on the basis of which the club is liable for providing the player necessary medical support.

39. Bearing in mind the principle of burden of proof, the Chamber noted that the player pointed out that the club did not provide him with medical treatment, as a result of which he was forced to pay himself medical expenses in the amount of 8,350.18 in the currency of Country D. Moreover, the player submitted evidence that he incurred medical expenses in a hospital in Country D, whereas the club failed to submit evidence that it indeed provided the player with the necessary medical assistance, as per article 7 of the contract.

40. In view of the foregoing, and in accordance with the principle of pacta sunt servanda, the Chamber decided that the club is liable to reimburse the medical expenses incurred by the player in the amount of 8,350.18 in the currency of Country D. In this regard, the Chamber was eager to emphasise that, in accordance with its well-established jurisprudence in this respect, it cannot grant any outstanding amounts in USD, as the player had only submitted invoices specified in currency of Country D, based on which the Chamber concluded that said expenses were apparently paid in currency of Country D by the player. Furthermore, the contract did not provide for a specification as to in which currency eventual medical expenses would be reimbursed.

41. Turning its attention to the player’s claim for the reimbursement of accommodation costs in the amount of USD 27,246.26, in relation to an alleged failure of the club to provide the player with suitable accommodation, the Chamber noted that it remained undisputed between the parties that the club provided the player with a hotel room in the Hotel of Country D, which was paid for by the club, until 13 October 2014. Furthermore, the members of the Chamber noted that the amount claimed by the player, effectively corresponds to an extended stay in the hotel for the period between 29 October 2014 and 4 June 2015.

42. On the other hand, the Chamber noted that the club, for its part, submitted documentary evidence that it paid for the hotel room in the Hotel of Country D, because the apartment it wanted to provide the player with, was not yet ready. Moreover, the club submitted documents, based on which it can be concluded that as from the end of September 2014, it provided the player with an apartment, which was finished by then, and that on 13 October 2014, it sent the player a final notice, urging him to move to the apartment. For his part, the player confirms that the club provided him with an apartment, however, indicating that said apartment did not meet the minimum requirements.

43. In view of the foregoing, the Chamber noted that the club paid for a hotel until at least 13 October 2014, and that it further fulfilled its contractual obligation as per article 6 of the contract to offer the player accommodation. On the other hand, the members of the Chamber noted that the player did not submit corroborating documentary evidence, that the apartment did not meet certain minimum requirements and that he therefore could validly refuse said apartment. As a result of the foregoing, the Chamber decided to reject the part of the player’s claim related to the reimbursement of accommodation costs.

44. With respect to the amount claimed as transportation costs, the members of the Chamber noted that the player acknowledged to have received a car from the club, but that at the end of September 2014, he was allegedly forced to return said car the club had provided him with. Based on the information on file, the Chamber noted however that the player did not substantiate these allegations and did not submit any documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules). Moreover, in the absence of any monetary value in the contract relating to the car, and considering the fact that it remained uncontested by the parties that the club provided a car to the player, the Chamber had to reject the player’s claim amounting to USD 9,821.26, relating to transportation costs.

45. Moreover, the Chamber focused its attention on the amount of USD 22,691.32, claimed by the player as costs related to the club’s failure to provide him with training, education and development of technical and physical skills, as per article 7 of the contract. In this regard, the Chamber deemed it appropriate to point out that this request, had no legal or regulatory basis. In addition, based on the information on file, the Chamber noted that the player did not submit a specification of the amount of USD 22,691.32, and no monetary value was included in the contract relating to receiving training and education from the club. As the player also failed to submit any evidence that could lead to a specification of the costs allegedly incurred, the Chamber decided to reject this part of the claim.

46. Subsequently, the DRC analysed the request of the player to receive the amount of USD 22,691.32 as compensation and interest for ‘non-pecuniary damage’ and the amount of USD 22,691.32 as compensation and interest for ‘career damage’. In this regard, the Chamber deemed it appropriate to point out that also this request of the player had no legal or regulatory basis. Moreover, the player did not submit any corroborating evidence that demonstrated or quantified any damage allegedly suffered. As a result, the Chamber decided to reject this part of the player’s claim.

47. In addition, as regards the claimed amount of USD 8,000 as ‘legal costs’, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the players request relating to legal expenses.

48. As a result of all the foregoing, the Chamber established that the club, in the 2014/2015 season, had failed to pay to the player the amount of USD 123,354, in relation to salary payments under the contract concluded between the parties on 21 July 2014, as well as the amount of 8,350.18 in the currency of Country D, in relation to the reimbursement of medical expenses.

49. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the club must fulfil its obligations as per the contract concluded with the player and, consequently, is to be held liable to pay the outstanding amounts of USD 123,354 and 8,350.18 in the currency of Country D to the player.

50. In continuation, taking into account the player’s request for interest and the constant practice of the Chamber, the members of the Chamber decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of USD 123,354 as of 30 June 2015 until the date of effective payment, as well as 5% p.a. on the amount of 8,350.18 in the currency of Country D as of 4 January 2016 until the date of effective payment.

51. Finally, the 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 admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club C (formerly known as Club C(Club C)), has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 123,354, plus 5% interest p.a. as from 30 June 2015 until the date of effective payment.

4. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the reimbursement of medical expenses in the amount of 8,350.18 in the currency of Country D, plus 5% interest p.a. as from 4 January 2016 until the date of effective payment.

5. In the event that the aforementioned sums in accordance with the above-mentioned numbers 3. and 4. plus interest are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision

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

7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances 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

Player A, Country B / Club C, Country D 22 / 21

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives