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 27 March 2016, the player A, from country B (hereinafter: the Claimant), and the Club C from country D (hereinafter: the Respondent), signed an employment contract valid from 1 April 2016 until 30 September 2016.

2. In accordance with the employment contract, the Claimant was inter alia entitled to receive “a gross monthly salary” of USD 6,500 for the duration of his contract.

3. On 10 September 2016, the parties allegedly signed a “re-contract” which stipulated that the “contract period will be increase 02 months (01 October 2016 to 30 November 2016)” and that “this re-contract is not a guarantee of final contract”.

4. According to the “re-contract”, the Respondent undertakes to pay the Claimant a monthly salary of USD 6,500 and a daily food allowance of USD 9.00. The “re-contract” further stipulates that “salary will be paid by 12th of next month except last month”.

5. Furthermore, the “re-contract” established that “return ticket country D-country B will be given by the club”.

6. On 20 March 2017, the Claimant lodged a claim before FIFA asserting that the Respondent terminated the contract without just cause and asking that he be awarded payment of USD 35,310 composed as follow:

a. Outstanding remuneration due totalling USD 20,310, as follows:

i. USD 19,500 in relation to three monthly salaries of 6,500 to cover unpaid remuneration for the period starting from September 2016 until November 2016;

ii. USD 810.00 in relation to “daily food allowance” for the aforementioned months ([USD 9.00 x30) x3];

b. Compensation for breach of contract without just cause, totaling USD 15,000, “based on the specific elements of the case”.

7. In his statement of claim, the Claimant explained that the Respondent failed to pay entirely his monthly remuneration as from September 2016 until November 2016 (cf. point I.7.a above). He also claims that during the pause in the championship, he was authorised by the Respondent to return home for family reasons but the Respondent failed to provide him with the necessary document for the visa in order for him to return to country D.

8. According to the Claimant, he put the Respondent in default of payment of salaries allegedly owed to him for the months of September, October and November 2016. The Claimant further claims that the Respondent wanted to dismiss him in bad faith.

9. The Respondent submitted its response to the claim lodged by the Claimant only after notification of the closure of the investigation in the present matter.

10. In reply to FIFA’s pertinent request, the Claimant stated that he is currently still unemployed.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 20 March 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2017 edition; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. article 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 (2016 edition), 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 country B player and a country D club.

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 (2016 edition), and considering that the present claim was lodged on 20 March 2017, the 2016 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. The Chamber, however, 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 Chamber recalled that the parties had signed an employment contract valid from 1 April 2016 until 30 September 2016, in accordance with which the Respondent would pay the Claimant a “gross monthly salary” of USD 6,500 for the duration of the contract.

6. The Chamber equally noted that on 10 September 2016, the parties had allegedly signed a “re-contract”, which stipulated that the initial contract would be extended for two additional months and in accordance with which the Respondent would pay the Claimant a monthly salary of USD 6,500 and a daily food allowance of USD 9.00, as detailed in points I.3 and I.4 above.

7. Furthermore, the members of the DRC noted that, on 20 March 2017, the Claimant lodged a claim against the Respondent maintaining that the Respondent had terminated the employment contract without just cause, since the Respondent allegedly failed to pay the entirety of his remuneration due between September 2016 and November 2016. Consequently, the Claimant claims to be owed the remaining outstanding remuneration as well as compensation for breach of contract without just cause on the basis of the “specific elements of the case”.

8. Subsequently, the Chamber observed that the Respondent, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the time limit set by FIFA, i.e. 25 August 2017. In fact, the reply of the Respondent was only received on 25 September 2017, i.e. after the closure of the investigation phase on 14 September 2017. As a result, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account the reply of the Respondent regarding the claim of the Claimant and established that in accordance with the aforementioned provision, it shall take a decision on the present dispute on the basis of the documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.

9. In continuation, the DRC took into consideration that according to the Claimant, the Respondent had failed to pay his remuneration in the total amount of USD 20,310, corresponding to the unpaid salaries of September, October and November 2016 (i.e. 3 x USD 6,500) as well as the daily food allowance for the aforementioned months (i.e. 3 x [30 x USD 9.00]). Furthermore, the Chamber took note that the Claimant also requested the payment of compensation for breach of contract in the amount of USD 15,000.

10. Taking into account the documentation presented by the Claimant in support of his petition, the DRC first established that there was no formal termination of the contract but only the mere allegation of the Claimant that he was authorized to leave the club for personal reasons but could not return to the club. Consequently, the DRC concluded that the contract rather expired on its original end date.

11. For the sake of the completeness of its analysis, the Chamber deemed it appropriate to point out that, in spite of the fact that in the “re-contract” it is stated that “this re-contract is not a guarantee of final contract”, such “re-contract” contains all the essentialia negotii of a valid and binding employment contract and is to be considered as such.

12. On account of the aforementioned considerations, the DRC decided that the Claimant had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence and that the Claimant is only entitled to the remaining outstanding remuneration under the contract and the “re-contract”.

13. In particular, the DRC determined that the Respondent failed to remit the Claimant’s monthly remuneration in the total amount of USD 19,500, corresponding to three monthly salaries as from September 2016 until November 2016, as established in the contract and in the “re-contract”. In addition, the Chamber established that the Respondent failed to pay to the Claimant the amount of USD 549 pertaining to the food allowance for the months of October and November 2016 only (i.e. the duration 61 days x USD 9.00), as such benefit is only provided for in the “re-contract”, valid from 01 October 2016 to 30 November 2016, but not in the contract.

14. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 20,049.

15. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant’s claim and to reject any further claim lodged by the Claimant.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club D, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 20,049.

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

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

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

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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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives