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

Wouter Lambrecht (Belgium), member

Todd Durbin (USA), member

Takuya Yamazaki (Japan), 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 30 July 2014, 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 2015.

2. On the same date, 30 July 2014, the Claimant and the Respondent signed a document called “Football Player’s Contract Schedule” (hereinafter: the “schedule”). According to this document, the Claimant was to be remunerated with a total amount of EUR 750,000 payable in ten installments.

3. In addition, clause “c” of the schedule, which regulated bonuses, established in its first hyphen that “if the [Claimant] scored ten goals and making ten assist for score goals he takes one hundred thousand Euro”. In addition, the second hyphen of clause “c” of the schedule, established that “if the [Claimant] played 90% of league matches takes reward hundred thousand Euro”.

4. On 4 January 2017, the Claimant lodged a claim before FIFA against the Respondent and requested the following amounts:

- Outstanding amount of EUR 200,000 net, plus 5% interest p.a. as from 1 June 2015, until the date of actual and complete payment, consisting of:

 A EUR 100,000 bonus for having scored more than ten goals in the 2014-2015 season.

 A EUR 100,000 bonus for having played in more than 90% of the league matches in the 2014-2015 season.

5. Furthermore, the Claimant also requested that the Respondent reimburse the legal costs and bear all procedural costs incurred by him.

6. In support of his claim, the Claimant indicated that he met the requirements of the first hyphen of clause “c” of the schedule, as he scored eleven goals in the 2014-2015 season. Furthermore, the Claimant also argued that he played in all league matches of the 2014-2015 season fulfilling the requirements of the second hyphen of clause “c” of the schedule. In support of his allegations, the Claimant added a chart with his statistics for the 2014-2015 season.

7. In this respect, the Claimant held that the Respondent did not pay the two bonus payments of EUR 100,000 each. In this line, the Claimant explained that he tried to notify the Respondent via fax on 5 March 2016 and requested the payment of EUR 200,000, granting a deadline until 14 March 2016 for the payment of the outstanding amount. Additionally, the Claimant informed that he requested the Football Association of Country D to forward said letter to the Respondent as he did not possess an accurate fax number.

8. Finally, the Claimant pointed out that he acted in good faith, respecting the terms of the agreement with the Respondent and “conceding a reasonable time to settle the entire debt which had been pending for over ten months by the date the notifications were sent”.

9. In its reply to the claim lodged by the Claimant, the Respondent argued that FIFA’s Dispute Resolution Chamber (hereinafter: the DRC) is not competent to deal with the Claimant’s claim and consequently it should be considered inadmissible. According to the Respondent, the claim is expressly and exclusively addressed against Club C, which is not affiliated to the Football Association of Country D and not a member of a league recognized by the Football Association of Country D and certainly cannot be considered as a club in accordance with the relevant FIFA regulations.

10. Moreover, the Respondent pointed out that the Club C Company, an affiliated member of the Football Association of Country D, and Club C are two independent entities. In this regard, the Respondent stressed that this aspect is confirmed by the relevant “Commercial Registration Certificate” issued by the competent authority of Country D, i.e. the Ministry of Business and Trade. According to the Respondent, “said commercial registration certificate clearly reveals that (i) Club C is the owner of the Club C Company which in said registration certificate is identified as Club C Company, (ii) both aforesaid entities are separate legal entities and that (iii) the activities of Club C Company, inter alia, are the investment and participation in football conducted by the Football Association of Country D, the continental football confederation and FIFA”.

11. Furthermore, the Respondent pointed out that after the end of the 2014/2015 season, the Claimant left Country D and joined the Club F from country E, as of August 2015. In this context, the Respondent explained that the Claimant never requested any alleged bonus from the Respondent before joining Club F. Rather, “it was not until 5 March 2016 – i.e. 9 months following the end of the 2014-2015 sporting season – when the [Claimant] sent a letter to Club C requesting the bonus payment amounting to EUR 200,000”. In this context, the Respondent stressed “that the [Claimant] expressly and exclusively addressed to Club C, i.e. the party to the Employment Contract” and that the “has never addressed Club C Company, i.e. the Club, for any alleged bonuses…”.

12. In the alternative, in case the DRC deems it is competent to hear the Claimant’s claim, the Respondent argued that the Claimant received all his financial entitlements and is not entitled to receive the bonuses that he demands in his claim.

13. In this regard, and taking into consideration a chart added by the Claimant in his claim, the Respondent stated that the Claimant played 1,960.1 minutes during the 2014/2015 season corresponding to 77,7% of the minutes to be played. In addition to that, in his match participation the Claimant scored 11 goals and made 5 assists. In light of this, the Respondent held that the Claimant did not fulfil the requirements established in the first two hyphens of clause “c” of the schedule.

14. In particular, the Respondent argued that the Claimant did not fulfil the two cumulative conditions of the first hyphen of clause “c” of the schedule. According to the Respondent, the mentioned wording clearly requires that the Claimant scores at least 10 goals and makes 10 assists in the same season. Should the Claimant have been entitled to a bonus, by either scoring 10 goals or making 10 assists, the parties would have chosen another wording than included in the schedule. In this regard, the Respondent emphasized that the Claimant scored 11 goals and made 5 assists according to the information provided by the Claimant himself in his statement of claim.

15. In addition, the Respondent stated that the Claimant did not fulfil the requirement established in the second hyphen of clause “c” of the schedule. The Respondent emphasized, that this criteria should not merely be related to the number of matches in which the Claimant participates but rather to the minutes of his participation during the 2014/2015 season. In light of this, the EUR 100,000 reward should only be provided if the Claimant would have participated in 90% of the minutes of the Country D Super League matches played by the Respondent in the 2014/2015 season. According to the Respondent, referring to the documentation provided by the Claimant in his claim, he participated in 1960.1 minutes out of a total of 2340 minutes of the 2014/2015 season. Therefore, the Claimant’s match participation corresponds to 77,7% of the available minutes to be played.

16. Finally, the Respondent stressed that the Claimant’s request for reimbursement of legal expenses should be rejected. Consequently, he is to bear all costs related to the proceedings in this matter.

17. In his replica, the Claimant explained that the DRC has competence to deal with the dispute, taking into account that “this dispute is between a registered player and affiliated club, and has international dimension”. In this regard, the Claimant stated that the parties of the contract are Player A and Club C “which is defined as the club in the contract and also mentioned as affiliated to the Football Association of Country D according to the first page of the contract”. According to the Claimant, the “Ex Injuria Sua Hemo habere Debt” rule is applicable in this situation, meaning “no person ought to take advantage from his own wrong”.

18. In continuation, the Claimant held that, regarding the two cumulative conditions of the first hyphen of the clause “c” of the schedule, it is necessary to consider that the Claimant scored 11 goals and made 5 assists, meaning that 16 out of 43 total goals were contributed by the Claimant, having the biggest goal contribution in the club. Along with the foregoing, the Claimant also considered that scoring 10 goals and making 10 assists was an unrealistic target. Therefore, the targets of the first hyphen of clause “c” of the schedule should be considered separately.

19. Regarding the second hyphen of paragraph “c” of the schedule, the Claimant repeated that he played in all 26 games of the Country D Super League in the 2014/15 season.

20. The Respondent submitted its duplica, reiterating its arguments and confirming its position with regards to the claim. In addition, the Respondent argued that the Claimant did not amend his claim in his final submission and “expressly decided to not direct it against the Club C Company”. Moreover, the Respondent pointed out that in his replica the Claimant failed to provide any evidence that the Respondent is affiliated to the Football Association of Country D, also objecting that the Claimant would have been ensured that Club C was a member of the Football Association of Country D at the time of the employment contract’s conclusion.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analyzed 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 4 January 2017. Consequently, 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 2017 editions of the Procedural Rules).

2. Subsequently, the DRC noted that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations on the Status and Transfer of Players (edition 2016), the Dispute Resolution Chamber would, in principle, be 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. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies. In particular, the Chamber turned its attention to the argument brought up by the Respondent, according to which the Claimant’s claim should be deemed as inadmissible, since it was directed against Club C but that only the Club C Company is an affiliated member of the Football Association of Country D.

4. In this regard, the Chamber examined the documentation provided by the parties. In particular, the members of the DRC examined the copy of the relevant employment contract concluded between the parties, and noticed that said documentation in its first paragraph clearly stipulates that Club C is defined as the club and is also mentioned as being affiliated to the Football Association of Country D.

5. In addition, according to the information contained in Transfer Matching System (hereinafter; TMS), Club C is duly affiliated to the Football Association of Country D. In this respect, the DRC recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

6. Consequently, the members of the Chamber unanimously agreed that both legal entities, Club C and Club C Company, are only different legal forms of the same football club. Therefore, the DRC unanimously agreed to reject the Respondent’s argument in relation to the competence, and confirmed that FIFA has jurisdiction over the club and that the claim is admissible.

7. The competence having been established, the Chamber decided thereafter 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 (edition 2016), and considering that the present matter was submitted to FIFA on 4 January 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

8. Having established the foregoing, and entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasized 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 DRC acknowledged that, on 30 July 2014, the parties concluded an employment contract valid as from the date of signature until 31 May 2015.

10. Furthermore, the DRC took note that on the same date, 30 July 2014, the Claimant and the Respondent signed a document called “Football Player’s Contract Schedule” (hereinafter: the schedule). Clause “c” of the schedule, which regulated bonuses, established in its first hyphen that “if the [Claimant] scored ten goals and making ten assist for score goals he takes one hundred thousand Euro”. In addition, the second hyphen of the schedule’s clause “c”, established that “if the [Claimant] played 90% of league matches takes reward hundred thousand Euro”.

11. In continuation, the Chamber noted that, on 4 January 2017, the Claimant lodged a claim against the Respondent requesting an outstanding amount of EUR 200,000 plus 5% interest p.a. as from 1 June 2015 until the effective date of payment.

12. In support of his claim, the Chamber observed that the Claimant indicated that he met the requirements of the first and second hyphen of clause “c” of the schedule and, consequently, that he would be entitled to receive two bonus payments of EUR 100,000 each. In particular, the Claimant held that he scored more than ten goals in the 2014-2015 season and that he also played more than 90% of the league matches in the 2014-2015 season.

13. In continuation, the members of the Chamber took note that the Respondent on its part argued that the Claimant received all his financial entitlements and is not entitled to receive the bonuses that he demands in his claim. In particular, the Respondent stated that the Claimant did not fulfil the cumulative conditions established in the first hyphen of the schedule’s clause “c” relating to goals and assists as he scored eleven goals but only made five assists for goals. In addition, the Chamber noted that the Respondent held that the Claimant did not meet the requirements established in the second hyphen of clause “c” of the schedule related to matches to be played, as the Claimant’s participation in the 2014-2015 season corresponds to 77,7% of the available minutes to be played.

14. In this context, and after having carefully examined the parties’ positions, the Chamber noted that first it had to examine whether the Claimant is entitled to receive or not the EUR 100,000 established in the first hyphen of clause “c” of the schedule. In this respect, and according to the documentation submitted to the file, the Chamber observed that the Claimant scored 11 goals but only made 5 assist during the 2014-2015 season. Therefore, the Chamber concluded that the Claimant did not fulfil the cumulative conditions established in the first hyphen of clause “c” of the schedule and therefore is not entitled to receive the first bonus of EUR 100,000. In this respect, the members of the Chamber pointed out that the wording of the clause is clear and requires that the Claimant scored ten goals and made ten assists.

15. Furthermore, and with regards to the Claimant’s claim relating to the EUR 100,000 bonus established in the second hyphen of clause “c” of the schedule, the DRC pointed out that the wording of this clause is clear and therefore the payment of such bonus is linked to matches to be played. Therefore, the Chamber decided to reject the argumentation of the Respondent that the clause should be interpreted as referring to minutes.

16. Moreover, the DRC, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, established that the Claimant submitted evidence in this respect to prove that he participated in all the 26 matches of the Country D Super League in the 2014/2015 season. Consequently, the Chamber decided that the Claimant is entitled to receive the EUR 100,000 bonus established in the second hyphen of clause “c” of the schedule.

17. In view of the above-mentioned considerations, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is to be held liable to pay the Claimant the total amount of EUR 100,000.

18. In addition, and taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 100,000 as from 1 June 2015, until the effective date of payment.

19. Furthermore, as regards the claimed legal expenses and procedural costs, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to the long-standing and well-established jurisprudence of the DRC, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC decided to reject the Claimant’s request relating to legal expenses.

20. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the parties.

III. Decision of the Dispute Resolution Chamber

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

2. The claim of the Claimant is partially 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 outstanding amount of EUR 100,000 plus 5% p.a as from 1 June 2015 until the effective date of payment.

4. In the event that the aforementioned sum plus interest is not paid 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. Any further claim lodged by the Claimant is rejected.

6. 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 (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

Enclosed: CAS directives