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 9 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 November 2017,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stijn Boeykens (Belgium), member

Tomislav Kasalo (Croatia), member

Mario Gallavotti (Italy), member

Joel Talavera Zárate (Paraguay), member

Daan de Jong (the Netherlands), 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 22 January 2016, the player of Country B, Player A (hereinafter: Claimant) and the club of Country D, Club C (hereinafter: Respondent), signed an employment contract (hereinafter: contract), valid as from the date of signing until 31 May 2020.

2. According to art. 6 lit. A) of the contract, the Claimant was entitled to a total of EUR 350,000 as salary payments for the remainder of the 2015/2016 season, consisting of EUR 70,000 per month as from January 2016 until May 2016. According to the same clause, the Claimant was entitled to a total of EUR 900,000 as salary payments for the 2016/2017 season, consisting of 10 monthly instalments of EUR 90,000 each, from August 2016 to May 2017, to be paid on the last day of each month.

3. According to art. 6 lit. C) of the contract, the Claimant was also entitled to a bonus payment of EUR 150,000 (hereinafter: championship bonus) should the Respondent win the League of Country D in the 2015/2016 season, to be paid on 31 July 2016.

4. On 29 August 2016, the Claimant was loaned to the club of Country E, Club F, for one season, until 30 June 2017.

5. On 31 August 2016, following the apparent conclusion of a loan agreement with Club F, the Claimant and the Respondent signed an “Agreement” (hereinafter: agreement) in order to regulate their financial relationship during the period of the Claimant’s registration on loan with Club F.

6. According to clause 3 of the agreement, the Claimant and the Respondent agreed that “the Employment [contract] signed between the Parties on 22 January 2016 is suspended to be effective from 30 August 2016 until 30 June 2017”.

7. Pursuant to clause 4 of the agreement, “[the Respondent] agrees and accept that […] the [Claimant] is entitled to his championship bonus and this amount is not covered by this Agreement and [the Respondent] shall pay these amounts to the [Claimant] in full”.

8. Furthermore, according to clause 5 of the agreement, “[d]uring the 2016/2017 season the Parties agree and accept that [the Respondent] shall pay the [Claimant] a total salary of net 535,000 EUR. This amount shall be paid to the [Claimant] in 9 equal instalments between September 2016 and May 2017, at the end of each month”.

9. Finally, according to clause 6 of the agreement, “[t]he [Claimant] agrees and accepts that he irrevocably waives his entitlement to his receivables (including but not limited to guaranteed salary (August 2016 included), match appearance fee, attendance fee, individual and team bonuses, house rental fee, etc.) under the Employment [contract] dated 22 January 2016 from [the Respondent] for the term between 30 August 2016 and 30 June 2017 and the payment obligations of [the Respondent] to [the Claimant] until 30 June 2017 pursuant to the Employment [contract] between the parties shall be deemed as cancelled. However, [the Respondent]’s obligations towards the [Claimant] according to clause 4 and 5 shall continue to remain in effect”.

10. On 20 January 017, the Claimant put the Respondent in default of payment of the amount of EUR 328,332, corresponding to EUR 178,332 as alleged outstanding remuneration of September, October and November 2016 and EUR 150,000 as championship bonus.

11. On 31 January 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting that the club be ordered to pay the amount of EUR 328,332, consisting of the aforementioned sums, which claim was amended by the Claimant during the proceedings (cf. points I./15. to I./18. below).

12. In reply to the claim, the Respondent asked that all of the Claimant’s financial requests be rejected. To this end, the Respondent argued that, although it was undisputed that the Claimant was entitled to receive the payment of EUR 150,000 as championship bonus and the payment of the total amount of EUR 178,332 as monthly salaries of September, October and November 2016, the Respondent had paid the Claimant amounts even exceeding the sums requested in his claim.

13. With respect to the above, the Respondent firstly recalled clause 6 of the agreement, pursuant to which the Claimant had waived his entitlement to the salary of August 2016. The Respondent further argued that it had paid the Claimant all his dues by means of 4 payments, namely EUR 90,000 on 31 August 2016, EUR 150,000 as championship bonus on 10 February 2017, EUR 28,888.88 on 19 January 2017 and EUR 118,888.88 on 10 February 2017.

14. Consequently, the Respondent requested that the Claimant’s claim be rejected since it had allegedly fulfilled its obligations with regard to the payment of the championship bonus and it had already paid the Claimant the total amount of EUR 237,777.76 for salaries only, thus even exceeding his request of EUR 178,333.33.

15. In his replica, the Claimant amended his claim and acknowledged that he had received the payments listed by the Respondent, namely EUR 150,000 as championship bonus plus the 3 payments of EUR 90,000, EUR 28,888.88 and EUR 118,888.88. The Claimant argued, though, that the amount of EUR 90,000 should not be allocated to salaries due to him under the agreement, but rather be considered as a payment made under the employment contract of 22 January 2016.

16. More specifically, the Claimant argued that, on 31 August 2016, he had received on his bank account EUR 90,000 from the Respondent as salary payment for August 2016 and that the payment description explicitly indicated “salary payment for [August] 2016”. Therefore, according to the Claimant, this sum of money had to be considered as a payment falling under the contract signed with the Respondent on 22 January 2016 and not under the agreement. The Claimant further explained that, since the payment had already occurred when, on the same day, he signed the agreement, he “didn’t pay attention” to clause 6, according to which he waived his rights to the salary of August 2016. He explained that he did not have any intention to waive his right for the salary of August 2016.

17. As a consequence, the Claimant claimed that the mentioned payment of EUR 90,000 should not be considered as a payment on the basis of the agreement and thus should not be included in the calculation of the outstanding salaries. Therefore, according to the Claimant, the Respondent had only partially fulfilled its obligations as follows: EUR 150,000 as championship bonus, EUR 28,888.88 as partial payment of the salary of October 2016 and EUR 118,888.88 as payment of the salaries of November and December 2016.

18. In light of the above-mentioned considerations, the Claimant concluded that the Respondent still owed him: EUR 59,444 as salary payment of September 2016 and EUR 30,155 as the remainder of the salary payment of October 2016. In addition, the Claimant asked 5% interest p.a. “for each overdue payment” and disciplinary sanctions to be imposed on the Respondent.

19. In its rejoinder, the Respondent insisted that the Claimant’s claim be rejected. To this end, it recalled the content of clause 6 of the agreement and argued that, by signing the agreement, the Claimant had waived his entitlement to the payment of the salary of August 2016. The Respondent further argued that the only reason why the Claimant had received that payment on the date of the signing of the agreement (i.e. 31 August 2016) was that the accounting department responsible for payments had not yet been made aware of the agreement. Consequently, according to the Respondent, the accounting department acted in the belief that the salary entitlement deriving from the contract signed on 22 January 2016 was still in force when it made the payment.

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 stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 31 January 2017. Consequently, the DRC concluded that the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 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 DRC 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 DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and par. 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 31 January 2017, the 2016 edition of the Regulations on the Status and Transfer of Players (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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the DRC acknowledged that, on 22 January 2016, the parties signed an employment contract running until 31 May 2020. Furthermore, the members of the Chamber took note that on the occasion of the loan of the Claimant to Club F for the 2016-17 season, on 31 August 2016, the Claimant and the Respondent signed an agreement, in accordance with which the employment contract between the Claimant and the Respondent dated 22 January 2016 was suspended as from 30 August 2016 until 30 June 2017. In addition, the DRC acknowledged that, in accordance with this agreement, the parties agreed upon a remuneration of EUR 535,000, to be paid by the Respondent to the Claimant in 9 equal monthly instalments, from September 2016 until May 2017. The agreement further stipulates that the Claimant was still entitled to receive the championship bonus of EUR 150,000.

6. The members of the Chamber further noted that, according to clause 6 of the agreement, the Claimant waived his entitlement to remuneration provided for in the contract dated 22 January 2016 for the period running from 30 August 2016 until 30 June 2017, expressly including his salary for August 2016 in such waiver.

7. In continuation, the DRC noted that the Claimant acknowledged having received the payments listed by the Respondent in its reply to the claim, namely EUR 150,000 as championship bonus and EUR 237,777.76 as salary entitlements, including a payment of EUR 90,000 on 31 August 2016. However, according to the Claimant, the amount of EUR 90,000 received on 31 August 2016 should not be considered remuneration due to him under the agreement, but would rather constitute the payment of the August 2016 salary in accordance with the contract signed by the parties on 22 January 2016. Therefore, the Claimant held that the Respondent still owes him EUR 59,444 as salary payment for September 2016 and EUR 30,155 as the remainder of the salary payment for October 2016.

8. Furthermore, the Chamber noted that the Claimant explained that he did not intend to waive his entitlement to the salary of August 2016 and that he had signed the agreement without paying attention to clause 6 contained therein since, on the same day, he had received a payment of EUR 90,000 from the Respondent, assuming that said sum referred to his salary of August 2016, also in consideration of the payment description indicating “salary payment for [August] 2016”.

9. In continuation, the members of the Chamber noted that the Respondent, for its part, asked for the rejection of the Claimant’s claim, arguing that it had fulfilled all its financial obligations towards him. In this respect, the Respondent explained that, by signing the agreement, and thereby agreeing to clause 6 contained therein, the Claimant had waived his entitlement to the payment of the salary of August 2016. The Respondent stressed that the payment of EUR 90,000 on 31 August 2016 and the description of payment referred to by the Claimant was a result of the fact that the accounting department responsible for payments was not yet aware of the contents of the agreement when it remitted such payment to the Claimant.

10. Having said that, first and foremost, the Chamber wished to stress that it has remained undisputed that the Claimant duly received from the Respondent the amount of EUR 150,000 as championship bonus and EUR 237,777.76 as salary entitlements.

11. In continuation, the members of the Chamber observed that clause 6 inserted in the agreement signed by the parties on 31 August 2016 unambiguously stipulates that the Claimant waived his entitlement to the payment of the salary of August 2016 under the employment contract. In addition, and for the sake of completeness, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber deemed that the Claimant had not presented evidence which would demonstrate that the Respondent intended to disregard the waiver provided for in the agreement and pay him the salary of August 2016.

12. In relation to the above, the Chamber deemed it fit to underline that the simple description accompanying the payment of EUR 90,000 could not constitute sufficient proof of an explicit intention of the Respondent to go against the provisions of the agreement. In this respect, the members of the Chamber endorsed the Respondent’s remarks concerning the irrelevance of such description to this end, being plausible that the accounting department responsible for payments was not aware of the agreement which had been signed on the same day as the date of payment.

13. Along those lines, the DRC was eager to emphasise that, regardless of the assumption that the Claimant might have made in relation to the payment of EUR 90,000 on 31 August 2016 from the Respondent, the former signed an agreement on that day while being fully aware of the contents of the clauses contained therein. In this context, the Chamber highlighted that the Claimant’s explanation that he “didn’t pay attention” to clause 6 of the agreement cannot be accepted as a valid argument in support of his position. Consequently, if the Claimant’s intention was not to waive the entitlement to his salary of August 2016 under the employment contract, the Chamber concurred that the Claimant had the option to either not sign the agreement in the first place or to have the entitlement to such salary explicitly included in the agreement.

14. In this regard, the Chamber further highlighted that in accordance with the employment contract dated 22 January 2016, the August 2016 salary fell due on 31 August 2016, whereas in accordance with clause 3 of the agreement, the parties had agreed that the employment contract was effectively suspended as from 30 August 2016.

15. As a result, the Chamber concurred that the Respondent fulfilled its financial obligations towards the Claimant, having remitted to him EUR 150,000 as championship bonus and EUR 237,777.76.

16. On account of the aforementioned considerations, the Chamber could not uphold the Claimant’s argumentation and, consequently, decided to reject his claim in its entirety.

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 (CAS)

Avenue de Beaumont 2

CH-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