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 4 October 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 4 October 2018,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Abu Nayeem Shohag (Bangladesh), member

Alexandra Gómez Bruinewoud (Uruguay), member

Stijn Boeykens (Belgium), 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 20 July 2015, the 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) concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2018.

2. According to art. 6 of the contract, the Claimant was entitled to the following salary:

a) EUR 1,768,000 for season 2015/2016;

b) EUR 1,600,00 for season 2016/2017, payable in 10 instalments of EUR 160,000 each on the last day of each month as from 31 August 2016 until 31 May 2017;

c) EUR 1,768,000 for season 2017/2018.

3. Art. 5 lit. i) of the contract stipulates that “the Player agrees to sign and comply with all applicable the Club regulations, policies and procedures, including but not limited to, the Integral Disciplinary Regulations which may be altered by the Club at any time. The Player hereby agrees that in case of a breach by the Player of his obligations set forth herein and in the Internal Disciplinary Regulations, the Club shall be entitled to fine the Player penal sum as declared and calculated by the Club’s disciplinary regulations, and that the Player shall pay this penal sum to the Club upon the receipt of the Club’s written request, and that the Club shall be entitled to set off and compensate for this sum from or out of the receivables the Player may have with the Club. […]

The Player also agrees and accepts that he will show utmost care and importance to act in compliance with the Internal Disciplinary Regulations of the Club. In particular, the Player agrees and accepts that he will refrain from making any statements against the Club, his teammates or other personnel of the Club before the media or other public channels and he will show professional behaviour to the Club his teammates or other personnel of the Club. In case of failure of the Player to comply with these rules, included but not limited to, making public statements against the Club, teammates and personnel or involving in fights with these actors or making improper gestures or behaviours the Club will have the right to issue a penalty against the Player in his first offense and terminate the [contract] in case of the second offense, provided that the Club always have to acquire the defence of the Player in written form before each sanction.

4. Art. VI para. 1, lit. a) of the club’s Internal Disciplinary Regulations (hereinafter: the club’s Regulations) stipulates that “upon commencement of the players’ employment with the Club, [the player] shall refrain any acts against the sportsmanship and ethics, any behaviours and statements, either in press or in audio-visual media, including virtual media, in his personal life, during a game or in trainings; bringing the Club, board, technical staff, personnel, teammates and the whole Club family into disrepute or acting in contradiction with the values of the Club”.

5. Art. IX of the club’s Regulations provides the fines applicable by the Respondent in case of infringement of art. VI para. 1, lit. a) of the club’s regulations. In particular, “ i. minimum a “Warning” or in case of aggravating circumstances up to a fine equal to an amount approved by the Management, but no more than the cost of the player for 10 days for the first time the said offence is committed”.

6. Art. VIII of the club’s Regulations set out the “principles of determination of fines”, stipulating that “the fines to be imposed on a player shall be calculated in consideration of the cost of player for the Club.

Cost of the player: the transfer fee include all kind of rights […] including other rights measurable in terms of money which are committed by the Club to the player […].

Furthermore, if the player has been transferred from another club, then the transfer fee having been paid to that club shall be added to the total transfer fee committed by the Club to the player in proportional to the term of contract.

Daily cost of the player: The daily cost of the player is calculated dividing his annual cost into 300”.

7. On 30 March 2017, the Respondent notified the Claimant a decision of its Board of Directors, dated 22 March 2017 (hereinafter: the Board’s decision), by means of which it imposed a fine of EUR 140,000 on him for disciplinary reasons. In particular, pursuant to the decision, the fine “will be deducted from the next progress payment to be made to the Player” and the Claimant was given “the right to object the decision within 5 days following its notification”.

8. According to the Respondent’s decision, the Claimant was fined in accordance with the club’s “Professional Football Discipline Regulation” in reason of the following alleged player’s acts:

a) on 16 January 2017, after he was substituted during the match against the Club E, “he threw his gloves down on the pitch as reaction for his substitution, while he was passed by Coach F, the Coach of Club C in such manner as his act will be recorded by the broadcasting entity”;

b) on 4 March 2017, after he was substituted during the match against the Club G, “he reacted his substitution and did not go to the substitute box”;

c) on 12 March 2017, during the match against the Club H, “although he was under penalty and non-accredited, he entered Club C’s changing room and tunnel area at the end of the match and when the company officials asked him to leave that area, he insisted on remaining there by using impolite and belittling words and upon entry of this act by the observer of the match in his report, he was referred to and penalized by Professional Football Disciplinary Board of the Football Federation of Country D”.

9. According to the Board’s decision, the Claimant was sanctioned with a fine of EUR 70,000 for the facts under lit. a) and b) above and of EUR 70,000 for the facts under lit. c), due to the alleged violation of art. VI para. 1 lit. a) of the club’s Regulations. Furthermore, the same decision indicates that “although the [club] requested the Player to defend himself in writing for each of his acts by delivering a letter to him in person on 28.02.2017, he did not submit any written defense for his acts until 29.02.2017, which was the deadline for the written defense. He was also requested to defend himself in writing for each of his acts on 04.03.2017 and 12.03.2017 and he failed to submit any written defense for his acts to our [club]”.

10. On 5 April 2017, the Claimant sent a letter to the Respondent, by means of which it contested the content of the Board’s decision and requested the club to review it and to cancel the fine.

11. On 5 June 2017, the Claimant sent a further letter to the Respondent, reiterating his previous request, requesting the latter to comply with it by 7 June 2017.

12. On 21 August 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the cancellation of the fine and the payment of the corresponding amount of EUR 140,000, as part of the monthly salary due on 31 May 2017.

13. In his claim, the Claimant maintained that the Respondent breached the contract by imposing the fine on 22 March 2017, which he integrally contested. In particular, as to the facts depicted in the decision, he maintained that:

a) during the match on 16 January 2017, he did not have any reaction towards the club’s coach after his substitution (cf. point 8, lit. a) above);

b) as to the match of 4 March 2017, he had no obligation to remain in the substitute box after his substitution (cf. point 8, lit. b) above);

c) as to the facts of the match of 12 March 2017, he was sanctioned by the Professional Football Disciplinary Committee of the Football Federation of Country D on 16 March, with a fine of 5,000 in the currency of Country D and he breached neither the contract nor the club’s regulations.

14. Moreover, the Claimant affirmed that the Respondent did not provide him with the club’s disciplinary regulations for season 2016/2017 translated in the language of Country B and he was not given the opportunity to defend himself before the issuance of the fine. In particular, he averred that he did not receive any evidence supporting the allegations against him and he was neither given a chance to request a hearing nor to appeal the Board’s decision.

15. In its reply, the Respondent affirmed that the Claimant’s behaviour damaged the image and reputation of the club and constituted a violation of the club’s Internal Disciplinary Regulations, namely of art. VI para. 1, lit. a) (cf. point 8).

16. In view of the above, the Respondent affirmed that it initiated disciplinary proceedings against the Claimant and requested him to provide his defence. More specifically, the Respondent alleged that such request was delivered to the Claimant by hand on 28 February 2017 (for the facts of the match of 16 January 2017) and on 15 March 2017 (for the facts of the matches of 4 and 12 March 2017). Nonetheless, in both cases the Claimant allegedly “rejected to sign the defence requests”.

17. Moreover, the Respondent alleged that, despite the Claimant was informed of the club’s disciplinary proceedings, he neither submitted his defence nor requested a hearing.

18. Furthermore, the Respondent affirmed that it provided the Claimant with copy of the club’s Internal Disciplinary Regulations when he signed the contract. In this context, the Respondent submitted a document, dated 17 August 2015 and allegedly signed by the player, whereby he acknowledged receipt of the Regulations on Disciplinary Offences and Fines of the club for season 2015/2016.

19. Finally, the Respondent maintained that the fine was not disproportionate, being “lower than 10% of his yearly guaranteed salary” and that it was compliant with the club’s Internal Disciplinary Regulations. In this regard, the Respondent argued that, pursuant to art. VIII and IX of said regulations, it was entitled to impose a sanction up to “not more the cost of the player for 10 days” for each offense and alleged that the daily cost of the player for the club was calculated in EUR 7,040.

20. In his replica, the Claimant insisted on his previous arguments and affirmed that the club’s regulations of season 2015/2016 (i.e. the season when he signed the contract) could not be valid for season 2016/2017 and pointed out that, for the latter season, he did not receive copy of the club’s Internal Disciplinary Regulations. In particular, the Claimant denied having signed the document submitted by the Respondent, whereby he allegedly acknowledged receipt of the club’s regulations for season 2015/2016.

21. In its duplica, the Respondent reiterated its previous arguments and alleged that the club’s regulations for season 2016/2017 were delivered to the Claimant by hand by the club’s officials and that the Respondent had no obligation to acquire the player’s signature as receipt of such delivery.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 21 August 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 of Country B and a club of Country D.

3. In continuation, 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 (edition 2018), and considering that the present claim was lodged on 21 August 2017, 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. First, the Chamber noted that the parties entered into an employment contract valid as of 20 July 2015 until 31 May 2018, which inter alia entitled the Claimant, for season 2016/2017, to a monthly salary of EUR 160,000.

6. Moreover, the DRC acknowledged that, on 30 March 2017, the Respondent notified the Claimant its Board’s decision dated 22 March 2017, by means of which it imposed a fine of EUR 140,000 on him.

7. In this context, the members of the Chamber took note that the Claimant contested the Board’s decision in its entirety and requested the payment of the amount of EUR 140,000, corresponding to part of the monthly salary due on 31 May 2017. In particular, the Claimant averred that he was not given the opportunity to defend himself within the context of the club’s disciplinary proceedings and he was neither given a chance to request a hearing nor to appeal the Board’s decision.

8. Moreover, the DRC noted that the Claimant challenged the facts which the Respondent put forth, which were at the basis of the Board’s decision, and averred that, in any event, such facts were not of a disciplinary relevance.

9. Equally, the members of the Chamber took note of the Respondent’s position, which affirmed that it requested the Claimant to provide his defence before its Board rendered the disciplinary decision. However, according to the Respondent, despite it allegedly delivered its request to him by hand, the Claimant refused to sign it.

10. In this respect, taking into account the aforementioned dissent positions of the parties, the Chamber considered that the main issue to be addressed was whether the Respondent had valid reasons to not pay the Claimant the amount of EUR 140,000.

11. In so doing, the members of the Chamber firstly referred to the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

12. In application of the aforementioned principle, the members of the DRC were eager to emphasise that it was up to the Respondent to prove that it provided the Claimant with the chance to present his defence within the context of the club’s disciplinary proceedings, before the Board’s decision was rendered.

13. Nevertheless, the Chamber pointed out that the Respondent did not provide any evidence, but just its own allegations, that its alleged request to the Claimant to provide his defence had been notified to the latter, let alone that he was given the opportunity to present his defence in the alleged disciplinary proceedings or to appeal the Board’s decision. Consequently, the members of the Chamber came to the unanimous conclusion that the Respondent did not prove to the Chamber’s satisfaction that it gave the Claimant the possibility to defend himself within the context of the club’s disciplinary proceedings.

14. Furthermore, the Chamber recalled its long-standing jurisprudence, according to which, in principle, the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a mean to set off outstanding financial obligations towards players.

15. On account of the aforementioned considerations, the Chamber decided to disregard the fine imposed on the Claimant by means of the Board’s decision and, thus, to reject the Respondent’s arguments in this regard.

16. Therefore, the Chamber determined that the Respondent could not set-off its debt towards the Claimant by means of the fine imposed on him and that, thus, the Respondent shall pay the amount of EUR 140,000 to the Claimant.

17. Finally, as the Respondent did not invoke any other reason in order to justify the non-payment of the remuneration requested by the Claimant, the members of the Chamber concluded their deliberations by accepting the claim of the player.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is 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 140,000.

3. In the event that the aforementioned amount is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. 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 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 Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Integrity Officer

Encl.: CAS directives