F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision19 April 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 April 2018,
in the following composition:
Geoff Thompson (England), Chairman
Takuya Yamakazi (Japan), member
Tomislav Kasalo (Croatia), member
Daan de Jong (The Netherlands), member
Abu Nayeem Shohag (Bangladesh), 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 19 August 2016, the player from Country B, Player A (hereinafter: the Claimant) and the club from Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2017.
2. According to art. 3 of the contract, the Claimant was entitled to the total amount of EUR 300,000 for the season 2016/2017, amount payable as follows:
- An advance payment of EUR 100,000, payable in 2 instalments as follows:
EUR 50,000 payable on 9 August 2016;
EUR 50,000 payable on 25 October 2016.
- A salary of EUR 200,000 payable in 10 monthly salaries of EUR 20,000 as from October 2016 until July 2017, each payable “by the 25th of the next month”.
3. Furthermore, the contract established that:
“if in the season 2016/2017 [the Claimant] plays in 25 matches in the first league of Country D and/or more matches in the first eleven starts the player shall be paid an additional amount of EUR 20,000 net within, in this case the payment will be made on August 31, 2017. This contingent is only included in the league cup matches, friendlies, special games etc, not included in the calculation.”
4. On 3 May 2017, the Claimant put the Respondent in default of payment for the total amount of EUR 50,000, corresponding to half of the monthly salary of January 2017 and the monthly salaries of February, March 2017 giving the club a deadline of 10 days to remedy the breach.
5. On 11 September 2017, the Claimant lodged a claim in front of FIFA against the Respondent for outstanding remuneration, requesting the total amount of EUR 150,000, plus 5% p.a. interest as from the respective due dates. This amount was broken down by the Claimant as follows:
- EUR 10,000 corresponding to half of the monthly salary of January 2017;
- EUR 120,000 corresponding to the monthly salaries of February, March, April, May, June and July, all 2017, in the amount of EUR 20,000 each;
- EUR 20,000 corresponding to the participation bonus established in the contract in respect to playing for the Respondent in the “first eleven” in more than 25 matches in the First League of Country D.
6. Furthermore, the Claimant requested an unspecified amount for procedural fees and legal expenses.
7. In his claim, the Claimant acknowledged having received the advance payment of EUR 100,000, albeit with some delays. Furthermore, the Claimant explained that due to the several delays in payments of his salary, he send out a default notice on 3 May 2017, regarding the non-payment of his salaries for January until March 2017.
8. Along this line, the Claimant held that half of his salary for January 2017, as well as his salaries from February 2017 until July 2017 remains unpaid. In addition, he sustained that he is entitled to the additional amount of EUR 20,000, corresponding to the “25 matches in the first league of Country D”, as he participated in 29 matches with the Respondent in the starting lineup, i.e. in the “first eleven”. In this respect, the Claimant provided excerpts from the website soccerway.com in order to support his allegation.
9. In its reply, the Respondent rejected the Claimant’s claim, as it held that, allegedly, the Claimant had committed “severe breaches of contract” and violated internal disciplinary rules. In this regard, the Respondent declared that it had imposed fines on the Claimant after two different incidents. Hereto, the Respondent stated the following: “[the Claimant] made some undisciplinary conducts in the trainings and meetings of the team towards the coach and the teammates” and that it was “also accepted by the [the Claimant] and due to his faults and breaches, he excused”.
10. In this respect, the Respondent explained that, on 24 April 2017, it imposed via Notary Public, a monetary fine on the Claimant of EUR 45,385 and that, on 16 June 2017, it imposed a second fine of EUR 3,061 after the Claimant, allegedly, breached its internal disciplinary regulations. According to the Respondent, the Claimant signed the internal disciplinary Regulations.
11. In consequence, the Respondent requested that EUR 48,446 should be deducted from the total claimed amount.
12. In his replica, the Claimant rejected the Respondent’s argumentation. In this regard, the Claimant explicitly contested the fines imposed on him and the deduction requested by the Respondent, as the Claimant argued that the monetary deduction is not in line with the jurisprudence of FIFA’s Dispute Resolution Chamber. Moreover, the Claimant sustained that that the fines imposed are “groundless, abusive and disproportionate”. In this regard, the Claimant further held that by means of a letter dated 25 April 2017, he rejected all the accusations made against him in the Respondent’s notice of 24 April 2017.
13. Despite being invited to do so, the Respondent did not provide its final comments.
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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 11 September 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 (edition 2018), 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 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 Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the claim was lodged on 11 September 2017, 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 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.
5. First of all, the members of the Chamber acknowledged that the parties entered into an employment contract valid as from 19 August 2016 until 31 May 2017, according to which the Claimant was entitled to the total amount of EUR 300,000 for the 2016-17 season. The DRC duly took note that said amount was supposed to be paid with an advance payment of EUR 100,000 – which the Claimant has confirmed having received – and with 10 monthly salaries as from October 2016 until July 2017 of EUR 20,000 each, which were payable “by the 25th of the next month”.
6. The members of the Chamber observed that in accordance with the terms of the contract, the Claimant was entitled to a bonus in the amount of EUR 20,000, in case he participated in 25 league matches in the starting eleven for the Respondent.
7. In this context, the Chamber took note that the Claimant sustained that despite giving the Respondent the opportunity to remedy alleged unpaid salaries by means of a default notice dated 3 May 2017, the Respondent failed to remit the remuneration he was entitled to, corresponding to half of the monthly salary of January 2017, as well as the full salaries as from February 2017 until July 2017. Moreover, it was duly observed that the Claimant held being entitled to the participation bonus described in point II.6. above, providing supporting documentation in this respect.
8. In continuation, the DRC took note of the Respondent’s reply, in which it held that, allegedly, the Claimant breached its internal disciplinary regulations and that as a consequence of this alleged breach, 2 fines were imposed on the Claimant in the amount of EUR 45,385 and EUR 3,061, respectively. In this regard, it was duly noted by the DRC that the Respondent requested to deduct the amount of EUR 48,446 – amount corresponding to the what was imposed as fines to the Claimant - from any outstanding amounts due to the Claimant.
9. Subsequently, the members of the Chamber recalled that the Claimant, on his replica, contested the allegations put forward by the Respondent, as he deemed that the fines imposed on him to be “groundless, abusive and disproportionate”.
10. In this respect taking into account the claim of the Claimant as well as the reply of the Respondent, the members of the Chamber deemed that the underlying issue in the present case is to determine whether the Respondent could set off his debt towards the Claimant by means of the fines imposed on him.
11. Against such background, the Chamber focused its analysis on the Respondent’s request to set off the fines imposed on the Claimant against his outstanding remuneration, which were imposed on the Claimant in respect to, inter alia, reimbursement of registration fees, late arrivals, unjustified absences and a refusal to travel with the team.
12. At this point, 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 from an alleged fact shall carry the respective burden of proof.
13. In relation to the above-mentioned fines, the DRC noted that the Respondent was unable to provide any type of evidence regarding the Claimant’s due participation in the proceedings leading to the imposition of said fines or of the disciplinary infringements allegedly committed by him, which he disputed individually. Furthermore, at this instance the Chamber noted that the Respondent’s Disciplinary Regulations were not provided.
14. In view of the foregoing, the Chamber deemed that, in the absence of substantial evidence of the player’s participation in such proceedings or of any disciplinary infringement on his part, the Respondent’s line of defence could not be taken into account in order to justify the non-payment of part of the remuneration of the Claimant.
15. In this context, and irrespective of the foregoing consideration, the Chamber was eager to emphasize that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent’s argument in this regard.
16. In continuation and bearing in mind the content of art. 12 par. 3 of the Procedural Rules, the Chamber went on to analyse whether the Respondent had provided any evidence of effective payment of the remuneration requested by the Claimant as outstanding. In this respect, the DRC deemed that the Respondent Claimant bore the burden of proof regarding the fulfilment of all its financial obligations towards the Claimant, as per the contract.
17. In this sense, the DRC noted that the Respondent did not provide documentation in respect to payments of the amounts requested by the Claimant.
18. In continuation, in relation to the bonus payment claimed by the Claimant, and after confirming that the contract provided for said participation bonus, The DRC that found that the Claimant has been able to provide conclusive evidence regarding his entitlement to the bonus.
19. In conclusion of the above mentioned considerations, the Chamber determined that the Respondent must pay to the Claimant and in accordance with the general legal principle of pacta sunt servanda, the total amount of EUR 150,000 as outstanding remuneration, amount which corresponds to the participation bonus claimed, as well as half of the monthly salary of January 2017, and full salaries as from February 2017 until July 2017.
20. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of the day following the respective due dates until the date of effective payment.
21. In addition, as regards the claimed legal costs, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the DRC. Consequently, the Chamber decided to reject the Claimant’s request relating to legal costs.
22. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially 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 150,000 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 26 February 2017 on the amount of EUR 10,000;
b. 5% p.a. as of 26 March 2017 on the amount of EUR 20,000;
c. 5% p.a. as of 26 April 2017 on the amount of EUR 20,000;
d. 5% p.a. as of 26 May 2017 on the amount of EUR 20,000;
e. 5% p.a. as of 26 June 2017 on the amount of EUR 20,000;
f. 5% p.a. as of 26 July 2017 on the amount of EUR 20,000;
g. 5% p.a. as of 26 August 2017 on the amount of EUR 20,000;
h. 5% p.a. as of 1 September 2017 on the amount of EUR 20,000.
3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. is 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.
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
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Integrity Officer
Encl: CAS directives