F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 9 May 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 May 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Eirik Monsen (Norway), member

Todd Durbin (USA), member

Pavel Pivovarov (Russia), 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 22 August 2017, the Player of Country B, Player A (hereinafter : the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2019.

2. In accordance with the contract, the Claimant was entitled to the total remuneration of EUR 2,150,000 for the 2 seasons of his employment relationship. Concerning the season 2018/2019, the Claimant was entitled to the total amount of EUR 1,075,000, consisting of:

a. EUR 275,000 as “down payment”, as follows:

 EUR 200,000 until 30 July 2018;

 EUR 75,000 until 30 August 2018;

b. EUR 800,000 to be paid in 10 equal instalments of EUR 80,000 each between August 2018 and May 2019, due on the last day of each month.

3. The contract further provided at art. 3 (a) that “at the end of every season; if the collective team bonus amount remain under EUR 100,000 net after calculations that the [Claimant] entitled receive during season, [the Respondent] will add the difference up to complete the amount for EUR 100,000”.

4. The contract provided that “during the term of the contract, the [Respondent] shall provide to the [Claimant] a suitable car, a house or an apartment (max. EUR 1,500 will be housing allowance for the [Claimant]) […].”

5. On 18 October 2018, the Claimant put the Respondent in default of payment of the total amount of EUR 358,000, corresponding to: (i) the down payment of EUR 275,000 (i.e. EUR 200,000 due on 30 September 2018 and EUR 75,000 due on 30 August 2018); (ii) EUR 80,000 for the month of August 2018 and EUR 3,000 corresponding to two months of housing allowance for August and September 2018. The Claimant deemed that, as of October 2018, out of the amounts relevant for the season 2018/2019, he had only been paid EUR 80,000 as salary of September 2018. With his correspondence, the Claimant did not give any deadline for the Respondent to remedy its default.

6. The Claimant put the Respondent in default a second time on 10 January 2019, requesting the total amount of EUR 784,000 arguing that, besides EUR 80,000 for his salary of September 2018, received on October 2018, he had received no payments from the Respondent.

7. On 27 January 2019, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration and requesting, “for the season 2018/2019”, the total amount of EUR 867,000, corresponding to the following:

a. EUR 275,000 as “down payment”;

b. EUR 480,000 for the monthly salaries of August, October, November, December 2018, January and February 2019;

c. EUR 12,000 as housing allowance of an individual value of EUR 1,500 for the months from July 2018 until February 2019 included;

d. EUR 100,000 in application of art. 3(a) of the contract.

8. In his claim, the Claimant held that, for the season 2018/2019, he had only received the salary of September 2018, for an amount of EUR 80,000. In respect of the bonus request, the Claimant argued that this payment “has to be made at the end of the season depending on the bonus paid by [the Respondent]. As of today February 7th no bonus has been paid by [the Respondent]”.

9. In its reply, the Respondent firstly argued that the claim was “not comprehensible” and held that “apart from the petition submitted to FIFA DRC by the complainant, another petition which he had presented to Club C that has been re-submitted. The demands written on these two petitions are different, thus the complainant should concretize his demands in order to file proper defense of the [Respondent]”. The Respondent requested that the FIFA administration order the Claimant to “clarify his petition”.

10. In addition, the Respondent argued that the Claimant had missed the “beginning-of-the-season camp and the training, to which facts [it] possesses the relevant documentation. However, as the demands of the complainant could not be understood exactly, these documents will be presented after the complainant concretizes his demands”.

11. After the notification of the closure of the investigation to the parties, the Respondent addressed FIFA an unsolicited correspondence, maintaining that the claim “cannot be understood”. With its letter, the Respondent also contested the Claimant’s right to the bonus of EUR 100,000, explaining that the bonus for the season 2017/2018 had been paid and that the bonus for the season 2018/2019 was not due yet. The Respondent further argued that it received from the Bailiff’s office in City E a fine intended for the Respondent for an amount of 4,955.34 which the Respondent would have to pay.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 27 January 2019. Consequently, the DRC concluded that the 2018 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 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 June 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 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 Player (edition June 2018), and considering that the present claim was lodged on 27 January 2019, the June 2018 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. 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. Subsequently, the DRC observed that, after the closure of the investigation phase into the present matter, the Respondent addressed the FIFA administration with an unsolicited correspondence. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as its constant jurisprudence in this regard, the Chamber decided not to take into account the Respondent’s last argumentations contained in the sad correspondence (cf. supra point I.11.).

6. Having said that, the members of the Chamber acknowledged that, on 22 August 2017, the Claimant and the Respondent signed an employment contract pursuant to which the Respondent undertook to pay to the Claimant the total amount of EUR 2,150,000 for the 2 seasons of the employment relationship. More specifically, the members of the DRC observed that, for the sporting season 2018/2019, the Claimant was entitled, inter alia, to the following: (i) EUR 275,000 as “down payment” in two instalments, namely EUR 200,000 on 30 July 2018 and EUR 75,000 on 30 August 2018; (ii) EUR 80,000 as monthly salary, between August 2018 and May 2019 and (iii) EUR 1,500 as “housing allowance”.

7. The Dispute Resolution Chamber further acknowledged that, according to the Claimant, for the season 2018/2019, the Respondent had paid him only his salary of September 2018, i.e. EUR 80,000. Thus, according to his calculations, EUR 867,000 remained outstanding.

8. Furthermore, the Chamber took note that the Respondent, for its part, de facto did not reply to the substance of the claim, apart from alleging that the Claimant had missed trainings and a pre-season camp.

9. Moreover, bearing in mind art. 12 para 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the members of the DRC observed that the Respondent failed to provide any evidence concerning its allegations. More specifically, the Respondent did not provide any documentation concerning the alleged Claimant’s behaviour nor, most importantly, had it provided any proof concerning payments made towards the Claimant.

10. In light of the above, the Chamber highlighted that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the employment contract signed between the parties concerning the season 2018/2019, apart from remitting to the Claimant his salary for September 2018 for EUR 80,000.

11. However, the DRC pointed out that the requested bonus of EUR 100,000 was not yet due at the time the present decision was rendered, since, according to art. 3 (a) of the employment contract, it was payable “at the end of every season”, i.e. not before 31 May 2019.

12. On account of the above considerations, the DRC decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay to the Claimant the total amount of EUR 767,000, consisting of: (i) EUR 275,000 as “down payment”; (ii) EUR 480,000 for the monthly salaries of August, October, November, December 2018, January and February 2019 and (iii) EUR 12,000 as housing allowances for the months between July 2018 and February 2019.

13. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

14. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

15. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

16. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

17. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

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 the amount of EUR 767,000 as outstanding remuneration.

3. The claim of the Claimant regarding the amount in relation to the “collective team bonus” is premature.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due in accordance with point 2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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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 (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:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives