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 (the Netherlands), member

Takuya Yamazaki (Japan), member

Wouter Lambrecht (Belgium), member

Todd Durbin (USA), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case:

1. On 10 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 the date of signature until 31 May 2016.

2. According to art. 3 of the contract, the Claimant was to be remunerated with a total amount of EUR 245,000 for the 2015/2016 sporting season, payable in ten installments of EUR 24,500 on the 30th day of each month (28th day in February) for a period of ten months, starting in August 2015 until May 2016.

3. In addition, clause 3 of the contract establishes the following: “in case the [Claimant] takes part In [Respondent’s] 20 official matches of the Country D Super League in the first 11 in the 2015/2016 Season, then this Employment Agreement will automatically extend for the 2016/2017 Season under the following conditions…”.

4. Likewise, article 3 par. 8 of the contract reads as follow: “Victory bonus payments will be determined by the [Respondent’s] Board of Directors. In any case [Respondent] has the discretion to set forth the payments and any player receiving a victory bonus payment does not grant the same right to the Player”.

5. Despite the fact that the Claimant fulfilled the condition for automatic extension of the contract, on 20 July 2016 the Claimant and the Respondent agreed on the mutual termination of the contract (hereinafter: the “termination agreement”). According to article 2 of the termination agreement “the [Respondent] will pay the outstanding collectibles of the [Claimant] after deducting the fines imposed by the [Respondent] to the [Claimant]. The [Claimant] hereby expressly agrees the deduction of the fines. The amount provided in paragraph 1 above will be paid through bank transfer, in the [Claimant’s] following bank coordinates…”

6. On 15 December 2016, the Claimant lodged a claim before FIFA against the Respondent and requested the following amounts:

- Outstanding salaries amounting to EUR 25,190 net consisting of:

 Part of the monthly salary for September 2015, amounting to EUR 1,400 net plus 5% interest p.a. as from 30 September 2015, until the effective day of payment;

 Part of the monthly salary for February 2016, amounting to EUR 1,290 net plus 5% interest p.a. as from 28 February 2016, until the effective day of payment;

 Part of the monthly salary for May 2016, amounting to EUR 22,500 net plus 5% interest p.a. as from 30 May 2016, until the effective day of payment.

7. Furthermore, the Claimant requested the imposition of sanctions to the Respondent, for the failure to comply with its financial obligations, in accordance with article 12bis of the Regulations on the Statutes and Transfer of Players (hereinafter: the “Regulations”).

8. In support of his claim, the Claimant referred to article 3 of the contract, according to which the Respondent undertook to pay the Claimant a minimum salary of EUR 245,000 net for the 2015/2016 sporting season, payable in 10 installments. In this line, the Claimant argued that he was never notified of any formal and/or informal sanction and/or penalty that could justify the non-payment of his salaries. Consequently, the Claimant held that all due salaries must be paid in full without any deduction whatsoever.

9. In this respect, the Claimant explained that he notified the Respondent’s default on 14 October 2016, granting a deadline until 26 October 2016 in order for the Respondent to pay outstanding salaries in the amount of EUR 51,690 broken down as follow:

- Part of September’s 2015 salary amounting to EUR 1,400;

- Part of February’s 2016 salary amounting to EUR 1,290;

- April’s 2016 outstanding salary amounting to EUR 24,500;

- May’s 2016 outstanding salary 2016 amounting to 24,500,

10. Finally, the Claimant informed that the Respondent partially fulfilled the Claimant’s request and paid on 26 October 2016 an amount of EUR 26,500 However, the remaining portion, amounting to EUR 25,190, remained unpaid, without any justification by the Respondent.

11. In its reply to the claim lodged by the Claimant, the Respondent argued that it has fulfilled all obligations deriving from the contract including the requested amount of EUR 25,190. According to the Respondent, the Claimant in his claim has acknowledged the payments made by the Respondent for an amount of EUR 219,810. The Respondent explained that, besides these payments, it had further paid seven additional installments for the total amount of 87,409 in the currency of Country D in accordance with the Claimant’s allowances, which according to the club amounts to EUR 26,927. As a result, according to the Respondent, the Claimant received an amount equal to EUR 246,737 (EUR 219,810 plus EUR 26,927). The Respondent argued that since the Claimant’s total remuneration amounts to EUR 245,000, it had fulfilled its contractual obligations. According to the Respondent, the positive difference of EUR 1,737 is derived from the Respondent’s financial department rounding transactions over the currency rates.

12. Finally, the Respondent emphasized that considering the payment dated 14 October 2016 amounting to EUR 26,500, the Respondent has fully covered the Claimant’s allowances.

13. In his replica, the Claimant explained that the amounts specified by the Respondent as salary payments in the currency of Country D, in fact are performance bonus payments paid by the Respondent to the Claimant.

14. Subsequently, the Claimant held that, according to the contract, the salary was to be paid in EUR and no other currency was stipulated. The Claimant referred to paragraph 8 of article 3 of the contract which established that the so-called “victory bonuses payments” could be determined and paid by the Respondent. Therefore, the Claimant was entitled to receive two different types of payments: on the one hand, the salary amounting to EUR 245,000; and on the other hand, bonuses granted by the Respondent. Consequently, the Claimant argued that the alleged paid amount of 87,409 in the currency of Country D cannot be attributed to salary payments.

15. Furthermore, the Claimant argued that the Respondent deliberately forgot to mention four other bonus payments in the currency of Country D. Thus, the Respondent paid the Claimant the total amount of 109,321 in the currency of Country D as bonuses. In this regards, the Claimant stated that the Respondent did not submit these four payment orders, because they clearly named the opponent club, which demonstrates a clear pattern of bonus payments related to successful results in the Respondent’s matches. According to the Claimant, every match in which the Respondent gained 1 or 3 points immediately was followed by the payments of bonuses in the currency of Country D, performed in nearly similar amounts. The Claimant emphasized that if the payments in the currency of Country D could be attributed as salaries, the Respondent would have claimed the total amount of 109,321 in the currency of Country D as salaries.

16. In light of the above, the Claimant stated that the salaries in EUR and the bonuses in the currency of Country D were paid to different bank accounts, which clearly distinguished such bonus payments from salaries. In addition, the payments of salaries in EUR were marked by the Respondent as salaries, whereas the payments in the currency of Country D only as receivables or after the name of the opponent club.

17. In addition, the Claimant pointed out that the salaries had to be paid in the precise amount of EUR 24,500, at the end of each month. Consequently, there is no legal basis or explanation for the Respondent to pay the amount of 87,409 in the currency of Country D as monthly salary in seven different installments that do not correspond to regular salary payments. According to the Claimant, even though these seven payments did not include the name of the opponent, the payments were performed shortly after a successful match of the Respondent. The Claimant highlighted that at the moment of payments in the currency of Country D, the Respondent had no overdue salary payments regarding the Claimant and that neither the contract nor any other agreement with the Respondent provided for advance salary payments.

18. In its duplica, the Respondent highlighted that the seven payments performed in the currency of Country D were made regarding the contractual salaries. In particular, the Respondent argued that all these payments contain the explanation in the language of Country D, which according to the Respondent, means “in regard to his allowances”. Considering this, the Respondent argued that such payments were made on account of the contractual salaries.

19. Finally, and regarding the four payments that mentioned the name of the opponent club, the Respondent stated that these are the only bonus payments paid by the Respondent to the Claimant. According to the Respondent, there is no logical reason that it would pay bonus payments without specifying the names of the clubs. Along with that, the Respondent stressed that at the end of the 2015-2016 season it was relegated to a lower league. Consequently, the Respondent pointed out that it stopped paying bonuses at the middle of the season due to the unsatisfactory sporting results.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 15 December 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) is applicable to the matter at hand (cf. art. 21 of the 2015 and 2017 editions 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 from Country B and a club from 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 matter was submitted to FIFA on 15 December 2016, the 2016 edition of the aforementioned 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 members of the Chamber entered into the substance of the matter, while emphasizing that, although having acknowledged all the above-mentioned facts, 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. Firstly, the DRC acknowledged that, on 10 July 2015, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 31 May 2016. In accordance with the contract, the Claimant was to be remunerated with a total amount of EUR 245,000 for the 2015/2016 sporting season, payable in ten installments of EUR 24,500 on the 30th day of each month (28th day in February) for a period of ten months, starting in August 2015 until May 2016.

6. Furthermore, the Chamber observed that clause 3 of the contract established that in “in case the [Claimant] takes part In [Respondent’s] 20 official matches of the Country D Super League in the first 11 in the 2015/2016 Season, then this Employment Agreement will automatically extend for the 2016/2017 Season under the following conditions…”.

7. In addition to that, the members of the Chamber took note that article 3 par. 8 of the contract stipulated that “victory bonus payments will be determined by the [Respondent’s] Board of Directors. In any case [Respondent] has the discretion to set forth the payments and any player receiving a victory bonus payment does not grant the same right to the Player”.

8. Along with the above, the Chamber brought into account that, despite the fact that the player fulfilled the condition for the automatic extension of the contract, it is undisputed between the parties that on 20 July 2016 they agreed on the mutual termination of the contract.

9. The DRC further observed that, on 15 December 2016, the Claimant lodged a claim against the Respondent before FIFA requesting the payment 2016 in order for the Respondent to pay outstanding salaries in the amount of EUR 25,190 net consisting of:

- Part of the monthly salary for September 2015, amounting to EUR 1,400 net plus 5% interest p.a. as from 30 September 2015, until the effective day of payment;

- Part of the monthly salary for February 2016, amounting to EUR 1,290 net plus 5% interest p.a. as from 28 February 2016, until the effective day of payment;

- Part of the monthly salary for May 2016, amounting to EUR 22,500 net plus 5% interest p.a. as from 30 May 2016, until the effective day of payment.

10. In his claim, the Claimant explained that in accordance with the contract, the Respondent undertook to pay the Claimant a minimum salary of EUR 245,000 net for the 2015/2016 sporting season, payable in 10 installments. The Claimant held that an amount of EUR 25,190 had remained outstanding from his yearly salary of EUR 245,000, without any justification by the club.

11. In continuation, the Dispute Resolution Chamber took note that the Respondent on its part argued that the player has acknowledged the payments made by the Respondent for a total amount of EUR 219,810. The Respondent argued that it had also performed seven payments in the currency of Country D allegedly relating to contractual salaries. According to the Respondent, these payments correspond to EUR 26,927 and as a result, the Claimant received a total amount equal to EUR 246,737 (EUR 219,810 plus EUR 26,927). Consequently, the Respondent explained that it fully covered the Claimant’s remuneration and requested that the claim be rejected.

12. Furthermore, the DRC also observed that according to the Claimant the amounts specified by the Respondent as salary payments in the currency of Country D, in fact are performance bonus payments paid by the Respondent to the Claimant

13. After having carefully examined the parties’ positions, the DRC turned its attention to the contract concluded between the parties. In this regard, the Chamber was eager to emphasise that, the parties had agreed upon payment of the Claimant’s remuneration in Euros. In particular, the contract stipulated that the salary has to be paid in ten instalments of EUR 24,500 at the end of each month and consequently, there is no contractual basis to make payments in the currency of Country D as monthly salaries, meaning that they should not be considered as salary payments. At this point, the DRC concluded that the argumentation of the Respondent cannot be upheld due to the fact that is clear that there is no provision in the contract for any salary payment in any other currency than Euros.

14. Furthermore, the members of the Chamber determined that according to paragraph 8 of article 3 of the contract, the Claimant was also entitled to receive the so-called “victory bonus payments”. Therefore, the Claimant was entitled to receive two different types of payments; on the one hand, the salary amounting to EUR 245,000; and on the other hand, bonus granted at the Respondent’s discretion.

15. In this regard, the members of the Chamber wished to point out that, according to the documentation on file, the payments in the currency of Country D were performed in similar amounts and shortly after a successful result of the Respondent. Consequently, and considering that there is no contractual basis for payments in the currency of Country D as monthly salaries, the Chamber concluded that these payments should be considered as bonus payments and cannot be considered as salary payments.

16. In view of the above, considering that the Respondent could not prove that it had paid the entire salary to the Claimant and in accordance with the principle of pacta sunt servanda, the Chamber unanimously decided to accept the claim lodged by the Claimant, and established that the Respondent has to pay to the Claimant the amount of EUR 25,190 as outstanding remuneration.

17. In continuation and with regard to the Claimant's request for interest, the DRC decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of EUR 25,190 until the date of effective payment as follows:

a) 5% p.a. over the amount of EUR 1,400 as from 1 October 2015 until the date of effective payment;

b) 5% p.a. over the amount of EUR 1,290 as from 1 March 2016 until the date of effective payment;

c) 5% p.a. over the amount of EUR 22,500 as from 31 May 2016 until the date of effective payment.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, 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 EUR 25,190.

3. Within the same deadline, the Respondent has to pay to the Claimant interest as follows:

- 5% p.a. over the amount of EUR 1,400 as from 1 October 2015 until the date of effective payment;

- 5% p.a. over the amount of EUR 1,290 as from 1 March 2016 until the date of effective payment;

- 5% p.a. over the amount of EUR 22,500 as from 31 May 2016 until the date of effective payment.

4. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 2 and 3 are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. 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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives