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 1 February 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 1 February 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Johan van Gaalen (South Africa), member

Stefano La Porta (Italy), 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

arisen between the parties

I. Facts of the case

1. On 2 July 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 valid as from the date of signature “until the end of the season 2017/2018”.

2. According to art. 17 of the employment contract, the Claimant was entitled to a total amount of USD 40,000 for the whole duration of the employment relationship, to be paid as follows: i) USD 3,000 per month for 10 months “at the end of each Gregorian month”; ii) USD 5,000 on 15 August 2017 and iii) USD 5,000 on 15 November 2017.

3. By letter addressed to the Football Association of Country D on 10 July 2018, with request to forward it to the Respondent, the Claimant put the latter in default of payment of USD 40,000, corresponding to the total value of the employment contract, setting a time limit of 10 days in order to remedy the default.

4. On 3 August 2018, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to him overdue payables in the amount of USD 40,000, plus 5% interest p.a. “from the due date of each payment”.

5. More specifically, the Claimant held that he had not received salary payments from the Respondent for the whole duration of the employment contract.

6. In reply to the claim, the Respondent argued that there was “no truth to what was stated in the warning of the lawyer agent of the [Claimant]” and that the Claimant was in possession of a check in the amount of USD 5,000, awarded “as a provider” on 15 November 2017. Furthermore, the Respondent denied having received the default notice and claimed it only received it with the claim.

7. The Respondent added that the Claimant was entitled to USD 6,000 as salaries for March and April 2018. Moreover, with its reply, the Respondent produced an untranslated internal list allegedly referring to the Claimant’s account without further clarifications.

8. For the above-mentioned reasons, the Respondent declared to be “ready to pay” the amount of USD 11,000 to the Claimant, provided that the latter “handed over the check in [his] possession”.

9. In his replica, the Claimant reiterated his requests and denied “the [Respondent]’s allegations regarding that he received payments of his employment Contract”.

10. In its final comments, the Respondent reiterated its position declaring to be willing to pay to the Claimant USD 6,000 as salaries for March and April 2018. Furthermore, the Respondent explained that it made 12 payments towards the Claimant as from 25 July 2017 until 25 April 2018 for a total amount of 23,747.20 in the currency of Country D, claiming that USD 100 correspond to 71 in the currency of Country D. In other words, the Respondent claimed having paid approximately USD 33,494 to the Claimant. At this stage, the Respondent produced a further untranslated internal list of alleged payments.

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 matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 3 August 2018. 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 DRC 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 analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and par. 2 of the said Regulations (edition June 2018) and considering that the present claim was lodged in front of FIFA on 3 August 2018, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the members of 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. In particular, the Chamber 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 Transfer Matching System (TMS).

5. In this respect, the DRC acknowledged that, according to the employment contract signed by the parties on 2 July 2017, the Claimant was entitled to a total amount of USD 40,000 for the whole duration of the employment relationship, to be paid as follows: i) USD 3,000 per month for 10 months “at the end of each Gregorian month”; ii) USD 5,000 on 15 August 2017 and iii) USD 5,000 on 15 November 2017.

6. In addition, the Chamber observed that said employment contract was meant to run as from its date of signature “until the end of the season 2017/2018”. In this respect, the members of the DRC observed that, according to the TMS, the season concerned in Country D ended on 1 May 2018.

7. In continuation, the members of the Chamber observed that, according to the Claimant, the Respondent had failed to remit to him the entirety of the remuneration contractually agreed upon for the whole duration of the employment relationship.

8. Moreover, the members of the Chamber noted that the Respondent, for its part, deemed that the only outstanding entitlements that the Claimant could claim were those relating to his monthly salaries of March and April 2018 for a total amount of USD 6,000, which the Respondent declared it was willing to pay.

9. The DRC further observed that the Respondent maintained that the Claimant was in possession of a cheque of USD 5,000 allegedly remitted to him in November 2017 and that the Respondent was willing to pay to the Claimant said amount, provided that the latter “handed over” the cheque.

10. Moreover, the Chamber pointed out that the Respondent relied on an untranslated internal list of alleged payments, which it had submitted during the course of the proceedings, in order to prove that it had performed its financial obligations towards the Claimant.

11. In respect of the above, bearing in mind art. 12 par. 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 DRC concurred in the conclusion that the Respondent did not provide sufficient evidence corroborating the allegations on the basis of which a. the Claimant was in possession of a USD 5,000 cheque and b. the Respondent had performed payments towards the Claimant for a total amount of 23,747.20 in the currency of Country D.

12. In this context, the DRC deemed it worthwhile to underline that the documentation provided by the Respondent in order to discharge itself from part of its financial obligations towards the Claimant cannot be considered satisfactory evidence by any means. Not only is such list not translated into one of the FIFA official languages, but – from a cursory look at its content – it is impossible to retrieve any indication regarding the alleged payments, i.e. if these payments had been indeed performed in the first place and, even assuming so, towards whom, in which currency and under which causal relationship.

13. 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 the amount of USD 40,000 to the Claimant.

14. In addition, taking into account the Claimant’s claim, the Chamber decided to award the Claimant interest of 5% p.a. as of the day following the day on which the relevant payments fell due in accordance with the employment contract.

15. 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.

16. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

17. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount 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.

18. Finally, the Chamber recalled that the above-mentioned sanction 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 accepted.

2. The Respondent, Club C, has to pay to the Claimant the amount of USD 40,000 plus 5% interest p.a. as follows:

a. on the amount of USD 3,000 as from 1 August 2017 until the date of effective payment;

b. on the amount of USD 3,000 as from 1 September 2017 until the date of effective payment;

c. on the amount of USD 3,000 as from 1 October 2017 until the date of effective payment;

d. on the amount of USD 3,000 as from 1 November 2017 until the date of effective payment;

e. on the amount of USD 3,000 as from 1 December 2017 until the date of effective payment;

f. on the amount of USD 3,000 as from 1 January 2018 until the date of effective payment;

g. on the amount of USD 3,000 as from 1 February 2018 until the date of effective payment;

h. on the amount of USD 3,000 as from 1 March 2018 until the date of effective payment;

i. on the amount of USD 3,000 as from 1 April 2018 until the date of effective payment;

j. on the amount of USD 3,000 as from 1 May 2018 until the date of effective payment;

k. on the amount of USD 5,000 as from 16 August 2017 until the date of effective payment;

l. on the amount of USD 5,000 as from 16 November 2017 until the date of effective payment.

3. 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.

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

5. In the event that the amount due plus interest 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).

6. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

7. In the event that the aforementioned sum plus interest 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 findings of the decision (art. 15 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber):

A request for the grounds of the decision must be received, in writing, by the FIFA general secretariat within 10 days of receipt of notification of the findings of the decision. Failure to do so within the stated deadline will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal Officer