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 26 November 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 26 November 2018,

by Jon Newman (USA), DRC judge,

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 in connection with overdue payables

I. Facts of the case

1. On 27 January 2016, Player of Country B, Player A (hereinafter: the Claimant or the player) and the Club of Country D, Club C (hereinafter: the Respondent or the club) signed an employment contract valid as from its date of signature until 31 May 2017.

2. On 11 January 2017, the Claimant and the Respondent signed a termination agreement (hereinafter: the termination agreement), by means of which the parties agreed to mutually terminate the contract.

3. Furthermore, in accordance with the termination agreement, the Respondent undertook inter alia the obligation to pay to the Claimant, ”as a termination fee”, the amount of EUR 175,000, as follows:

 EUR 35,000 on 31 January 2017;

 EUR 35,000 on 28 February 2017;

 EUR 35,000 on 31 March 2017;

 EUR 35,000 on 30 April 2017;

 EUR 35,000 on 31 May 2017.

4. By correspondence dated 17 July 2018, the Claimant put the Respondent in default of payment of EUR 25,000 setting a 10 days’ time limit in order to remedy the default.

5. On 31 July 2018, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay him overdue payables in the amount of EUR 25,000, corresponding to the partially outstanding last instalment due on 31 May 2017, in accordance with the termination agreement. In this respect, the Claimant held that he did not receive the complete amount established in the termination agreement (EUR 175,000), as he only received EUR 150,000 from the Respondent.

6. The Claimant further asks to be awarded interest of 5 % p.a. as from “the due date of last salary of 31.05.2017”.

7. In reply to the claim, the Respondent maintained that in accordance with the tax legislation of Country D “the tax duties in the amount of 15.6% shall be deducted from the payments which are indicated in the Mutual Termination Agreement”, and that as a consequence, the claim of the Claimant shall be rejected. In this regard, the Respondent enclosed documentation regarding the previous payments to the Claimant in relation with the termination agreement.

8. In his replica, the Claimant rejected the Respondent’s argumentation and insisted in his claim. In this respect, the Claimant maintained that the Respondent has to pay “net” amounts in accordance with the termination agreement. In this regard, the Claimant argued that the Respondent previously paid EUR 150,000 net to him in relation with the termination agreement.

9. In its duplica, the Respondent insisted in its argumentation, in particular, that the amount of 15.6% “shall be deducted from the payments” in accordance with Tax Legislation of Country D, explaining that these deductions apply in accordance with “provisional article 72 of the article 4.1. of Country D’s Revenue Administration’s Income Tax general Communique”. In this context, the Respondent enclosed a page in which the referred article is transcribed in Language of Country D and English.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 31 July 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018) he 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 DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the present claim was lodged on 31 July 2018, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 27 January 2016 until 31 May 2017.

6. Moreover, the DRC judge duly took note that on 11 January 2017, the Claimant and the Respondent agreed to mutually terminate the contract by means of the termination agreement signed between the parties. Furthermore, the DRC judge observed that in accordance with the termination agreement, the Respondent undertook inter alia the obligation to pay to the Claimant, ”as a termination fee”, the amount of EUR 175,000, which would be payable in several instalments of EUR 35,000 each, due on 31 January 2017, 28 February 2017, 31 March 2017, 30 April 2017and 31 May 2017, respectively.

7. The DRC judge recalled that, on 31 July 2018, the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the total amount of EUR 25,000, corresponding to the partially outstanding last instalment of the termination agreement due on 31 May 2017.

8. Against such background, the DRC judge duly observed that according to the Claimant, he did not receive the complete amount established in the termination agreement (EUR 175,000), as he only received EUR 150,000 from the Respondent.

9. In this context, the DRC judge took particular note of the fact that, on 17 July 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 10 days’ time limit in order to remedy the default.

10. Consequently, the DRC judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

11. Subsequently, the DRC judge took into account that the Respondent, for its part, rejected the Claimant’s claim. In this context, the DRC judge overserved that the Respondent held that in accordance with the tax legislation of Country D “the tax duties in the amount of 15.6% shall be deducted from the payments which are indicated in the Mutual Termination Agreement”, explaining that these deductions apply in accordance with “provisional article 72 of the article 4.1. of Country D’s Revenue Administration’s Income Tax general Communique”. In this regard, the DRC judge took note that the Respondent provided documentation regarding the previous payments to the Claimant relation with the termination agreement, as well as a page in which the referred article is transcribed in Language of Country D and English in order to support its argumentation.

12. Having said that, the DRC judge observed that the Claimant insisted in his claim, rejecting the Respondent’s argumentation in regards to the tax deductions that allegedly have to be applied to his receivables.

13. In reference to the termination agreement, the DRC judge drew his attention to the fact that the termination agreement neither contained a contractual clause in the termination agreement regarding any applicable deductions, nor stipulated if the amount of EUR 175,000 is “net” or “gross”.

14. Having established the aforementioned, The DRC judge took into account the position of the Respondent, which maintained that the relevant tax deductions have to be applied to the amounts established in the termination agreement. In this context, the DRC judge recalled the contents of art. 12 par. 3 and par. 6 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

15. In this regard, the DRC judge took note that the Respondent, in order to support its argumentation, provided the copy of “provisional article 72 of the article 4.1. of Country D’s Revenue Administration’s Income Tax general Communique”. Along this line, the DRC judge considered important to highlight that said article and its relevant free translation was enclosed in a page which bears the letterhead of its legal representative and that the Respondent has not provided a copy of the complete laws in which the alleged applicable deductions would be stipulated. As such, the DRC judge concluded that the Respondent did not provide sufficiently credible evidence of the applicability of any such deductions.

16. Furthermore, the DRC judge duly took note that the Respondent did not provide conclusive evidence of tax payments made to the relevant authority in relation to the amounts paid in accordance with the termination agreement. On the contrary, after evaluating the documentation provided by the Respondent in support of its argumentation, the DRC judge was of the opinion that the Respondent paid in full, without any deductions, the previous instalments of the termination agreement.

17. In this regard, the DRC judge considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant in full.

18. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 25,000 corresponding to corresponding to the partially outstanding last instalment of the termination agreement due on 31 May 2017.

19. In addition, the DRC judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

20. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 25,000.

21. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 25,000, as of the day following the day on which the relevant amount fell due, i.e. 1 June 2017, until the date of effective payment.

22. In continuation, taking into account the consideration under number II./19. above, the DRC judge referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

23. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the DRC judge highlighted that, on 25 September 2018, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and with the Respondent having responded to the relevant claim, as a result of which a warning had been imposed on the Respondent by the DRC.

24. Moreover, the DRC judge referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty.

25. Bearing in mind that the Respondent has replied to the claim of the Claimant as well as the considerations under numbers II./23. and II./24. above, the DRC judge decided to impose a reprimand on the Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.

III. Decision of the DRC judge

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, overdue payables in the amount of EUR 25,000, plus interest at the rate of 5% p.a. as from 1 June 2017 until the date of effective payment.

3. In the event that the amount due to the Claimant 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 request filed 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 DRC judge of every payment received.

6. A reprimand is imposed on the Respondent.

*****

Note relating to the motivated decision (legal remedy):

According to article 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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives