F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision15 February 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 February 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Stéphane Burchkalter (France), member

Philippe Diallo (France), member

Joseph Bell (Cameroun), 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 16 July 2015, the Player of Country B, Player A (hereinafter: the player or Claimant) and the Club of Country D, Club C (hereinafter: the club or Respondent) concluded an employment agreement (hereinafter: the contract), valid from 16 July 2015 until 31 May 2017.

2. According to the contract, the player was entitled to receive inter alia the following amounts:

For the 2015/2016 season:

 9 monthly payments of EUR 35,000 each for the months of August, September, October, November and December 2015, as well as February, March, April and May 2016, due on the 30th day of the respective month, the salary for February 2016 being due on 28 February 2016;

 1 monthly payment of EUR 60,000 for the month of January 2016, due on 30 January 2016;

For the 2016/2017 season:

 9 monthly payments of EUR 35,000 each for the months of August, September, October, November and December 2016, as well as February, March, April and May 2017, due on the 30th day of the respective month, the salary for February 2017 being due on 28 February 2017;

 1 monthly payment of EUR 60,000 for the month of January 2017, due on 30 January 2017.

3. On 31 March 2016, the player signed a document, referred to as ‘Positive/negative confirmation letter to inspector’, which holds the following clause: ‘I personally confirm with this letter that Club C still owe me 230.000 (thirty thousand) EUR for the period until 31.12.2015. Also Club has to pay another 200.000 (two hundred thousand) EUR for the period from 31.12.2015 until 31.05.2016. I accept to receive these payments as 230.000 (two hundred thirty thousand) EUR until 30.06.2016’.

4. On 23 January 2017, the player lodged a claim against the club in front of FIFA, requesting that the club has to be ordered to pay him the total amount of EUR 530,000, specified as follows:

- EUR 230,000 as outstanding salaries, related to the 2015/2016 season;

- EUR 300,000 as outstanding salaries, related to the 2016/2017 season.

5. After the claim of the player was sent to the club for reply on 3 February 2017, both parties confirmed to FIFA that on 23 February 2017, they concluded a document referred to as ‘Settlement protocol’ (hereinafter: the settlement agreement), in order to amicably settle the matter at hand. According to paragraph 1 of the settlement agreement, the player was entitled to receive the amount of EUR 530,000 ‘on 31.05.2017 via the collectibles of Club C from the Football Federation of Country D’.

6. Furthermore, the settlement agreement inter alia holds the following clauses: ‘2. […] Mr Player A hereby releases the Club from all its obligations derived from the Employment contract such as but not limited to remuneration, compensation. […] 3. If the club, Club C breaches its obligations set forth in paragraph 1 of this Settlement Protocol, the club undertakes to pay to Mr Player A the corresponding amount plus 1% interest per month from 01.06.2017 till 30.06.2017 and 3% interest per month from 01.07.2017 until the date of effective payment […] 5. Mr Player A hereby states and agrees to withdraw his claim against Club C before FIFA. The Parties have agreed to submit this Settlement Agreement to FIFA and the aforesaid claim would be withdrawn’.

7. On 7 June 2017, the player lodged a new claim against the club in front of FIFA, requesting that the club be ordered to pay him the total amount of EUR 530,000, based on paragraph 1 of the settlement agreement dated 23 February 2017. Furthermore, the player requested the DRC to impose sporting sanctions on the club.

8. According to the player, the club failed to pay him the amount of EUR 530,000 by no later than 31 May 2017. The player explains that on 2 June 2017, he put the club in default for the payment of EUR 530,000, providing a deadline to pay until 6 June 2017, however to no avail.

9. In its reply to the player’s claim dated 7 June 2017, the club explained that based on the settlement agreement dated 23 February 2017, ‘the player’s receivables would be paid directly via the club’s collectibles accrued from the Football Federation of Country D’ and that the player will receive the respective amount ‘when his assignment turn will come in order’.

10. Furthermore, the club argued that the settlement agreement dated 23 February 2017 ‘has an assignment nature and carries the same force as a judicial decision pursuant to Article 35/A of Law No. 1136 of Country D’. As a result the club considers that the claim of the player has to be rejected, as ‘in this aspect and as a general rule of the legal perspective, it is needless to say that an adjudicated issue cannot be re-litigated, i.e. res iudicata’.

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 7 June 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2016 and 2018) 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. Before entering into the substance of the present matter and while exercising its duty to analyse ex officio the admissibility of every claim lodged in front of it, the Chamber noted that the Respondent, as a preliminary remark, alleged the inadmissibility of the Claimant’s claim, claiming that it would have been affected by res iudicata, as the settlement agreement ‘has an assignment nature and carries the same force as a judicial decision pursuant to Article 35/A of Law No. 1136 of Country D’ (cf. point I.10 above).

4. In this respect, the DRC wished to briefly recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already dealt with the same matter by passing a final and binding decision on it. Furthermore, the Chamber underlined that the principle of res iudicata is applicable if, cumulatively and necessarily, the parties to the disputes and the object of the matter in dispute are identical.

5. Bearing in mind the foregoing, the Chamber noted that from the information on file, it does not appear that another deciding body has already dealt with the same matter by passing a final and binding decision. What is more, the reasoning of the club that the settlement agreement has to be considered as a final and binding decision cannot be followed, as none of the parties who signed the settlement agreement, i.e. the player and the club, can be considered as deciding bodies.

6. In light of the above, the Chamber unanimously decided that the general legal principle of res iudicata does not apply to the matter at hand, and that the claim of the player is admissible, since FIFA has competence to deal with the substance of the present matter, which concerns an employment relate dispute with an international dimension.

7. Having concluded that the Claimant’s claim is admissible, the Chamber went on to analyse 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 (editions 2016 and 2018), and considering that the present claim was lodged on 7 June 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

8. Its competence 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.

9. In this respect, the Chamber acknowledged that on 16 July 2015, the parties signed an employment contract valid between 16 July 2015 and 31 May 2017. In accordance with said contract, the player was entitled to receive, inter alia, a monthly salary of EUR 35,000, as well as sign-on fee of EUR 60,000 per season.

10. In continuation, the members of the Chamber noted that the player alleged that at the end of March 2016, the club failed to pay him an amount of EUR 230,000 and that another amount of EUR 200,000 would fall due on 31 May 2016. What is more, the player confirmed towards the club that he would accept to receive an amount of EUR 230,000 on 30 June 2016.

11. Moreover, the members noted that on 23 January 2017, the player lodged a first claim before FIFA, claiming the payment of EUR 530,000, corresponding to EUR 230,000 as outstanding payments for the 2015/2016 and EUR 300,000 as payments due for the 2016/2017 season. After the club was asked for its position to said claim, the player and the club concluded a settlement agreement, on the basis of which the player was entitled to receive the total amount of EUR 530,000 from the club, payable by no later than 31 May 2017.

12. Furthermore, the Chamber took note that on 7 June 2017, the player again reverted to FIFA, explaining that the club failed to pay him the amount of EUR 530,000 on 31 May 2017, even after having been put in default on 2 June 2017 and given a final deadline for payment until 6 June 2017. Consequently, the player requested FIFA to be awarded the payment of EUR 530,000.

13. Equally, the members of the Chamber took note of the reply of the club on the substance of the dispute, which explained that it would pay the amount it owed to the player as soon as it would have received its collectibles form the Football Federation of Country D.

14. Bearing in mind the abovementioned facts, the positions of both parties as well as the principle of burden of proof, as displayed in art. 12 par. 3 of the Procedural Rules, the Chamber went on to analyse whether the Respondent had presented any substantial argument, which would justify the uncontested non-payment of the amount due to the Claimant as per the settlement agreement. In this respect, the Chamber turned its attention to the club’s argument that it would pay the amount the player was entitled to after it had received its collectibles form the Football Federation of Country D. In this respect, the Chamber was of the firm opinion that the fulfilment of a contractual obligation cannot be made dependant on receiving a payment from a third party. What is more, the alleged payment of collectibles from the Football Federation of Country D to the club, and the alleged consequences thereof, is a circumstance, which can by no means be held against the player, who had no influence whatsoever on these processes and bore no responsibility in this regard.

15. In view of all the above and taking into account that the club did not provide any valid reasons why it did not pay the amount of EUR 530,000 to the player as per the settlement agreement undisputedly concluded between the parties, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the club must fulfil its obligations as per the settlement agreement. Consequently, the club is held liable to pay the outstanding amount of EUR 530,000 to the player.

16. Finally, the Chamber concluded its deliberations in the present matter by establishing that the Claimant’s claim was admissible and accepted.

III. Decision of the Dispute Resolution Chamber

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

2. The claim of the Claimant is accepted.

3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 530,000.

4. 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.

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

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