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 8 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 March 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stefano Sartori (Italy), member

Pavel Pivovarov (Russia), member

Muzammil bin Mohamed (Singapore), 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 between the parties

I. Facts of the case

1. On 10 September 2015, the player of Country B, Player A (hereinafter: the Claimant) signed an employment contract (hereinafter: the Contract) with the club of Country D, Club C (hereinafter: the Respondent) valid from the date of signature until 30 June 2016.

2. The contract provided for payments and amenities due to the Claimant, including:

a. EUR 655 payable at the end of each month, “twelve months per year”, as a “monthly fee”. The Claimant is also entitled to a Christmas bonus equating to one monthly fee, an Easter bonus equating to half a monthly fee, and a “holiday benefit” equating to half a monthly fee, as provided for in clause 4.1 of the contract;

b. EUR 5,200 sign-on fee “after finish the FIFA TMS”, as provided in clause 4.2 of the contract and par. 4.2 “Extra Benefits” of the “Contract Annex”;

c. EUR 20,160 payable in five instalments, as provided for in clause 4.4 of the contract, as follows:

i. EUR 3,900 on 30 November 2015;

ii. EUR 3,800 on 31 December 2015;

iii. EUR 3,000 on 28 February 2016;

iv. EUR 4,000 on 31 March 2016;

v. EUR 5,460 on 30 April 2016;

d. “(U)se of an apartment (excluding utilities, electricity, water supply). If the player does not pay his apartment’s utilities, electricity and water supply, the club is entitled to pay these bills on his behalf and withhold these amounts from due payments to the player”, as provided for in clause 4.3 of the contract;

e. “Pension contributions and social security expenses, as foreseen by the law, promptly and fully paid”, as provided in clause 4.6 of the contract.

3. Clause 4.7 of the contract provided that “the amounts [cf. points 2.a, 2.b, and 2.c above] are paid in full and complete to the bank account of the Player, in conjunction with the provisions of Article 14 par. 3d of Appendix A”.

4. On 1 August 2016, the Claimant put the Respondent in default for a total of EUR 16,260 pertaining to four outstanding instalments due under art. 4.4 of the contract (cf. point I.2.c above). The Claimant gave the Respondent until 11 August 2016 to cure the default.

5. On 4 August 2016, the Respondent replied to the Claimant’s first default notice stating that the “account department” will be closed until 20 August 2016 due to the summer holidays, and consequently, no payment can be made before 11 August 2016. It indicated that the Claimant would be contacted after 20 August 2016.

6. On 5 August 2016, the Claimant put the Respondent in default again, requesting the same amount and keeping the original deadline of 11 August 2016. Another default notice was sent on 29 August 2016, also for the same amount, but no payment deadline was provided.

7. However, on 25 August 2016, the Respondent indicated to the Claimant that there were discrepancies between the amounts claimed and the ones the Respondent considered it owed, and stated that the account director was absent until 31 August 2016. It sought to have a meeting with the Claimant “in the beginning of September” in order to settle the matter.

8. On 12 August 2016, the Claimant lodged a claim against the Respondent before FIFA, requesting to be paid outstanding remuneration in the total amount of EUR 16,260 plus 5% interest as follows:

a. EUR 3,800 “as from 1 January 2016 until the date of effective payment”;

b. EUR 3,000 “as from 1 March 2016 until the date of effective payment”;

c. EUR 4,000 “as from 1 April 2016 until the date of effective payment”;

d. EUR 5,460 “as from 1 June 2016 until the date of effective payment”.

9. The Claimant further requested sanctions to be imposed on the Respondent pursuant to art. 12bis par. 4 RSTP.

10. In its reply of 23 September 2016, the Respondent firstly held that all amounts agreed upon in the contract were agreed as “gross” and not “net”, stating that if amounts are not “stated explicitly as net” they are to be considered as gross.

11. The Respondent further asserted that, in addition to all the monthly fees paid in full to the Claimant, the Respondent paid the Claimant a total of EUR 14,100 net, as follows:

a. EUR 5,200 on 30 September 2015;

b. EUR 200 on 16 October 2015;

c. EUR 1,000 on 20 December 2015;

d. EUR 3,900 on 23 December 2015;

e. EUR 800 on 22 January 2016;

f. EUR 2,000 on 16 February 2016;

g. EUR 1,000 on 7 March 2016.

12. The Respondent further asserted that, in line with clause 4.3 of the contract, it paid EUR 8,478.76 on the Claimant’s behalf as follows:

a. EUR 220 as the “[claimant’s] share of the obligatory contribution to the Union of Country D of Professional Player ”;

b. EUR 531.97 as the “[claimant’s] share for the insurance policy carried by the League of Country D for all players registered for its competition”;

c. EUR 345.09 “for communal expenses for the apartment”;

d. EUR 1,064 for electricity bills;

e. EUR 158.50 for water supply bills;

f. EUR 6,159.20 for “income taxes of the [claimant] in accordance with tax Legislation of Country D”.

13. The Respondent considered that it paid to the Claimant EUR 22,578.76 (cf. points I.11 and I.12), whereas it considered he was entitled to EUR 25,360 in light of clauses 4.2 and 4.4. of the contract. It therefore asserted that it only owed the Claimant EUR 2,781.24 as outstanding remuneration and that he should reimburse EUR 5,000 to the Respondent as legal expenses.

14. On 4 October 2016, the Respondent informed FIFA that it paid the Claimant the amount of EUR 2,781.24.

15. In his replica of 6 October 2016, the Claimant amended his claim and requested that the Respondent pay him the amount of EUR 16,344 net, plus an interest of 5% per year as from 1 July 2016 “until the date of effective payment”.

16. In this context, the Claimant stated that he was contractually entitled to a fixed remuneration of EUR 33,220 (i.e. EUR 7,860 net as basic monthly salaries including the Christmas and Easter bonus, plus EUR 20,160 net as extra salaries, plus EUR 5,200 net as sign-on fee).

17. The Claimant further noted that the Respondent only paid him EUR 14,100. He therefore argued that he was owed EUR 19,120 as outstanding remuneration.

18. However, the Claimant acknowledged receipt of the payment by the Respondent of EUR 2,776 on 6 October 2016, and considered that in light of the total fixed contractual remuneration owed to him in the amount of EUR 33,220, and having received EUR 16,876 from the Respondent, he was entitled to a total of EUR 16,344 as outstanding remuneration.

19. The Claimant held that the contract provides that payments are to be made to the player “in full and complete” (cf. point I.3 above) and indicated that the payment of the sign on fee and the first instalment in line with clause 4.4 of the contract were made “net”. In this regard, the Claimant noted that the Respondent acknowledged having paid the relevant instalments of EUR 5,200 (cf. points I.2.b and I.11.a) and EUR 3,900 (cf. points I.2.c.(i) and I.11.d) as a “net” amount, substantiated by the evidence provided by it.

20. The Claimant further stated that the contract was drafted by the Respondent and in line with the legal principle of in dubio contra stipulatorem, the Respondent was not entitled to make deductions from the remuneration owed to the Claimant for tax purposes. He consequently considered that the Respondent’s payment of EUR 6,159.20 on behalf of the Claimant (cf. point I.12.f) should not be considered and must be rejected as it is unfounded, adding that the Respondent had not fulfilled its burden of proof. The Claimant further noted that the documentation submitted as evidence of the tax deductions bore no official stamp and consisted only of a document seemingly printed out and drawn up by the Respondent.

21. With regard to the Respondent’s argument that it was entitled to deduct sums on the basis of clause 4.3. of the contract (cf. point I.2.d above), the Claimant noted that the evidence submitted should be inadmissible in light of it being “selectively” translated.

22. The Claimant also argued that he was not a member of the Player’s Union of Country D and that he consequently would not have to pay a EUR 220 membership fee (cf. point I.12.a). In any case, the membership fee for the Player’s Union cannot be considered a “utility expense” in the sense of clause 4.3 of the contract.

23. In continuation, the Claimant stated that the payment of insurance (cf. point I.12.b) is not a “utility expense”. Therefore, there is no legal basis for a deduction of EUR 531.97. The Claimant further added that the evidence submitted did not demonstrate that any payment has been made.

24. Regarding the payment of EUR 345.09 “for communal expenses for the apartment” (cf. point I.12.c), the Claimant noted that the document submitted, referring to the rental period March-April 2016, bore no signature and was only partially translated. Moreover, it showed that the payment was made in September 2016, “long after the expiry of the contract and only after the filing of the [Claimant’s] statement of claim with FIFA, when usually the maintenance fee is paid monthly and not with 5-6 months delay”.

25. Concerning the electricity bill (cf. point I.12.d), the Claimant argued that he was only in the relevant apartment during March and April 2016, and that the bill ran for the period 1 March 2016 until 29 June 2016, and paid for in September 2016. Furthermore, the original bill only included a handwritten “Name of Player A”, whereas his full name appeared on the partial translation. Therefore, the Claimant argued that he was not responsible for the payment of this bill.

26. With regard to the water supply bill (cf. point I.12.e), the Claimant held that he was not living in the apartment during the periods concerned. Furthermore, the Respondent had handwritten “Name - Surname of Player A” on the bill, which compromised the Claimant.

27. Lastly, given that the above payments were made in September 2016, i.e. “long after the expiry of the contract”, the Claimant argued that the Respondent was not contractually authorised to make deductions after the expiry of the contract.

28. In reply to the modified claim of the Claimant, the Respondent asserts that the monthly payment due to the Claimant was EUR 570.18 net. It asserts that the net amounts due for Christmas amount to EUR 232.58, for Easter EUR 296.97, and the bonus vacations “paid proportionally to the period of each calendar year being in employment which was EUR 139 for year 2015 and EUR 272.11”. It considers that the total monthly salaries due to the Claimant were EUR 6,092.59 and not EUR 7,860, which is the gross amount.

29. The Respondent further asserted having paid monthly salaries in the total amount of EUR 4,113.22, as follows:

a. EUR 1,140.36 on 13 November 2015;

b. EUR 570.18 on 11 December 2015;

c. EUR 232.58 for the Christmas bonus on 15 December 2015;

d. EUR 162.50 on 25 January 2016;

e. EUR 1,140.36 on 23 March 2016;

f. EUR 867.15 on 20 April 2016.

30. The Respondent stated that in April 2016, the Claimant announced that he would be leaving the club and it consequently stopped paying him.

31. The Respondent thus concluded that the Claimant received a total of EUR 20,994.46 considered to be the monthly salaries in the amount of EUR 4,113.22 (cf. point I.29), EUR 14,100 (cf. point I.11), as well as the acknowledged payment of EUR 2,781.24 (cf. point I.18).

32. In addition, the Respondent stated that it withheld payments to the Claimant for the National Tax Authorities during 2015 in the amount of EUR 2,926 and EUR 492 as solidarity tax contribution in line with national law. A further EUR 2,741.20 was allegedly also withheld for 2016 on the same basis. The Respondent therefore concluded that all taxes were withheld from the payment of each individual salary, and totalled EUR 6,159.20.

33. The Respondent considered that the terms “in full and complete” (cf. point I.3 above) did not indicate in any way that amounts are provided for as “net”. It further claimed that the reference to “Appendix A” is that of the “Players’ Regulations Annex A of the Football Federation of Country D”.

34. The Respondent reiterated that it paid EUR 220 to the Union of Country D of Professional Players on the Claimant’s behalf, and referred to a circular letter of the Union that obliges clubs of Country D to pay EUR 220 per year per player (national and foreign), as well as to a letter by the Union in which it confirms that the Respondent paid this amount for the Claimant.

35. The Respondent further reiterated that it paid the Claimant’s insurance share “for the insurance policy carried by the League of Country D for all players registered for its competition”, but indicated having paid EUR 672.50 (instead of 531.97 in point I.12.b above).

36. The Respondent stated that it paid EUR 5,907.86 (instead of EUR 6,159.20 in points I.12.f and I.32 above) as “income taxes of the player in accordance with tax Legislation of Country D”.

37. The Respondent concluded by stating that the Claimant needs to pay EUR 5,000 to the Respondent corresponding to the Respondent’s legal expenses.

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 12 August 2016. Consequently, the 2015 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 2015, 2017 and 2018 editions 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 shall adjudicate on an employment-related dispute with an international dimension, between a player of Country B and a club of Country D.

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 (editions 2016 and 2018), and considering that the present claim was lodged on 12 August 2016, the 2016 edition of said regulations (hereinafter: 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. The Chamber first acknowledged that the Claimant and the Respondent signed an employment contract on 10 September 2015 valid from said date until 30 June 2016. The Chamber further recognised that, according to the Claimant, outstanding remuneration was still due to the Claimant after the expiry of the employment contract. In this regard, the Chamber took note of the fact that the Claimant originally requested EUR 16,260 in his claim of 12 August 2016 (cf. point I.9), but that he amended his claim on 6 October 2016, requesting EUR 16,344 net in outstanding remuneration from the Respondent (cf. point 16).

6. Conversely, the Respondent argued in its response of 23 September 2016 that it owed the Claimant only EUR 2,781.24, an amount transferred to the Claimant on 4 October 2016, as confirmed by the Claimant (cf. point I.19 above). In this context, the Chamber observed that, after transferring said amount to the Claimant, the Respondent was of the opinion that it did not owe any money at all to the Claimant. Moreover, the Chamber noted that, as per the Respondent, the Claimant’s remuneration as stipulated in the contract are gross amounts, and not net amounts.

7. Bearing in mind the arguments put forth by the Claimant and the Respondent, as well as the content of the employment contract, the DRC deemed that the first issue to be analysed by the Chamber was to determine whether the salaries due to the Claimant as established in the employment contract are net or gross amounts.

8. In this light, the DRC acknowledged that the contract does not indicate whether the amounts due are net or gross. However, the Chamber took note of the fact that the Respondent had paid the Claimant the sign-on fee of EUR 5,200 in full on 30 September 2015 (cf. point I.11). The amount of EUR 5,200 is equal to the amount enshrined in clause 4.2 of the contract and par. 4.2 “Extra Benefits” of the “Contract Annex” (cf. point I.2). The DRC further took into account the payment made by the Respondent to the Claimant of EUR 3,900 on 23 December 2015 (cf. point I.11.d). This amount is equal to the amount that was due on 30 November 2015, according to the contract (cf. point I.2.c.ii). As a result, the DRC concluded that the remuneration amounts established in the employment contract are net amounts.

9. Having established the above, the Chamber then proceeded to determine the amount of outstanding remuneration, if any, still due to the Claimant by the Respondent on the date of the contract expiry (i.e. 30 June 2016), taking into account the payments made by the Respondent during the course of the contract and these proceedings. In this context, and basing itself on the employment contract and the “Contract Annex”, the Chamber thus established that for the entire duration of the contract, a total amount of EUR 33,220 net should have been paid by the Respondent to the Claimant. The DRC thereby agreed with the Claimant, who argued in his replica of 6 October 2016 argued that he was contractually entitled to a fixed remuneration of EUR 33,220 (cf. point I.16).

10. Subsequently, the Chamber subtracted the undisputed amount paid to the Claimant from the amount of EUR 33,220. In this regard, the Chamber noted that both the Claimant and the Respondent asserted that the amount of EUR 14,100 had been paid during the Claimant’s stance at the club (cf. points I.11 and I.17), as well as the amount of EUR 2,776 after the expiry of the contract (cf. point I.18). Consequently, the DRC concluded that it is undisputed that the Claimant received EUR 16,876 from the Respondent, and that the amount of EUR 16,344 (33,220 – 16,876) remained in dispute.

11. As to the remaining amount in dispute, the Chamber observed that the Respondent claimed that it had paid the Claimant a further EUR 4,113.22 in salaries (cf. point I.29), and that it made several payments on behalf of Claimant totalling EUR 8,619.29. This latter amount consisted of alleged payments made on behalf of the Claimant in accordance with clauses 4.3, 4.6 and 4.7 of the contract, including an amount of EUR 6,159.20 the Respondent allegedly withheld as tax from each individual salary (cf. points I.12 and I.32).

12. In this light, and having previously established that the salary due to the Claimant was net (cf. point II.8), the DRC concluded that the amount of EUR 6,159.20 that the Respondent allegedly withheld as tax cannot be considered as a payment made on behalf of the Claimant. Thus, this amount cannot be subtracted from the outstanding salary due to the Claimant.

13. With regard to the other payments that the Responded allegedly made on behalf of the Claimant and bearing in mind the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, the DRC was unanimous in its opinion that the evidence provided by the Respondent lacked accuracy to be considered sufficient. The submitted documents were vague and appeared to indicate that the payments regarding inter alia insurance, apartment, water and electricity expenses were made after the Claimant had launched his claim. Consequently, the Chamber held that these documents could not be considered conclusive evidence. Therefore, the Chamber decided that these alleged payments done by the Respondent on behalf of the Claimant could not be subtracted from the outstanding salary.

14. Finally, as regards the EUR 4,113.22 that the Respondent allegedly paid in salaries to the Claimant, the DRC agreed that the bank receipts submitted by the Respondent stipulating these payments appear to be real and valid. The dates on the receipts showed that the amounts were paid during the period that the Claimant was registered with the Respondent, and clearly stated that the Claimant was the receiver of said transactions. As a consequence, the Chamber concluded that the amount of EUR 4,113.22 paid by the Respondent to the Claimant could be subtracted from the amount in dispute (i.e. EUR 16,344), thereby leaving a final amount of EUR 12,230.78 outstanding to the Claimant.

15. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the Claimant’s claim is partially accepted and that any further claims lodged by the Claimant are 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 12,230.78 plus 5% interest p.a. as from 1 July 2016 until the effective date of payment.

3. In the event that the amount due plus interest to the Claimant in accordance with the above-mentioned point 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.

*****

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