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 11 April 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 11 April 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay), member

Stefano Sartori (Italy), member

Daan de Jong (the Netherlands), 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

arisen between the parties

I. Facts of the case

1. On 31 August 2014, 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 its date of signature until 31 May 2016.

2. According to art. 1 of the contract, the Claimant was entitled to a monthly salary of EUR 4,000 for the “first year of the contract” and of EUR 4,500 “for the second year”. Moreover, in accordance with art. 5 of the contract, the Claimant was also entitled to a sign-on fee of EUR 5,000 and to EUR 5,000 “in December”.

3. Art. 5 of the contract stipulates that “in case the player will have other offers from another team inside and outside the country, the amount profited by his departure is not less than 300.000 (three hundred thousand euro) euro and [the player] have profit 60% of this amount and [the club] 40% of this amount for the January transfer period 2015 and for the transfer period summer 2015 after European cups this agreement will be 50% for both parties, the clause will be negotiable”.

4. Pursuant to the last clause of the contract, “disagreements will be solved by good understanding, or else the competence for this will be of FSHF, UEFA/FIFA and TAS”.

5. According to the player, on 3 December 2015 the Respondent and the club of Country E Club F (hereinafter: Club F) entered into an agreement for his transfer, with effect as of 1 January 2016. Pursuant to art. 2 of said agreement, Club F committed to pay the Respondent a transfer compensation of EUR 350,000 within 15 July 2016.

6. On 3 January 2017, the player lodged a claim against the club in front of FIFA, requesting the following:

a) EUR 210,000, plus 5 % interest p.a. as of 15 July 2016, corresponding to the remuneration provided under art. 5 of the contract;

b) EUR 10,000 as contribution to the player’s legal fees and costs.

7. In his claim, the player argued that, pursuant to art. 5 of the contract, he was entitled to EUR 210,000, corresponding to 60% of the compensation allegedly received by the club for his transfer to Club F (i.e. EUR 350,000).

8. Moreover, the Claimant affirmed that, despite the Respondent allegedly promised to pay him the aforementioned amount, he did not receive the relevant payment.

9. In its reply, the club entirely rejected the player’s arguments and first affirmed that, on 31 August 2015, the player and the club concluded a new employment contract (hereinafter: the new contract), valid as from its date of signature until 30 June 2017, which replaced the contract concluded on 31 August 2014.

10. According to art. 6 par. 1 of the new contract, the player was entitled to a monthly salary of EUR 7,000.

11. Art. 10, par. 1 of the new contract provides that “the rights for the transferring of the Player’s Card to any third party, throughout the duration of this contract, will be owned in the scale of 100% (one hundred percent) by the Club”.

12. Pursuant to art. 14, par. 2 of the new contract, “all disputes concerning the interpretation and implementation of this contract, the first will be subject of an attempt for an amicable solution. Otherwise, competent to resolve their dispute will be only the National Dispute Resolution Chamber of the Football Association of Country D”.

13. Art. 15, par. 1 of the new contract stipulates that the same “supersedes all previous agreements between the parties, verbal or written”.

14. On the basis of the content of art. 14 par. 2 of the new contract, the Respondent contested FIFA’s jurisdiction and argued that the National Dispute Resolution Chamber of the Football Association of Country D (hereinafter: the NDRC) was exclusively competent to deal with the dispute. In particular, the club referred to art. 2 and 12 of the regulations of the NDRC, pursuant to which such body is competent solely for disputes between club affiliated to the Football Association of Country D (hereinafter: Football Association of Country D) and players registered with such clubs.

15. As to the merits, the Respondent maintained that the parties entered into a new employment relationship on 31 August 2015 by signing the new contract, which rendered null and void the former contract dated 31 August 2014. In this context, the club also argued that, pursuant to art. 10 par. 1 of the new contract, the player “had no economic right over his player’s card” at the moment of his transfer to Club F on 3 December 2015.

16. Furthermore, the Respondent affirmed that, on 25 December 2015, the player and the club signed a “joint-statement” (hereinafter: the joint statement) whereby they acknowledged they had signed the new contract on 31 August 2015 and that the club had concluded an agreement for the transfer of the player “to a third party” to take place in January 2016. Moreover, they declared that:

“I. The player has no financial or legal pretenses regarding any obligations carried out from the club towards him;

II. The player will not proceed in front of any judicial body, whether domestic or international, as the circumstance might induct, for the payment of any remuneration by the club;

III. The club is entitled to receive the compensations for the training of the player and any transfer fee relative to the economic rights over the player’s card” (note: joint-statement on file).

17. Consequently, the Respondent held that it did not have any financial obligation towards the player, as confirmed by the content of the alleged joint statement.

18. In his replica, the Claimant reiterated his initial requests and denied having signed the new contract and the joint-statement. Moreover, he affirmed that his signature on both the aforementioned documents was forged.

19. In addition, the club refuted the competence of the NDRC to deal with the dispute, arguing that such body was, in any case, competent exclusively for domestic disputes.

20. In its duplica, the Respondent insisted on its previous arguments and reaffirmed that the player had signed the new contract and the joint-statement.

21. In this context, the Respondent also reiterated that only the NDRC was competent to deal with the dispute and maintained that such body was impartial, it guaranteed fair proceedings and it was composed by the representatives of the clubs and players elected in equal number, as sanctioned by the NDRC regulations. Moreover, the club maintained that the NDRC was competent regardless of the registration of the player with a club affiliated to the Football Association of Country D being “current or past”.

22. Furthermore, the club argued that art. 5 of the contract was applicable only in case the transfer of the player would occur either during the transfer window of January 2015 (allegedly between 1 and 31 January 2015) or during the transfer window of the summer 2015 (allegedly between 22 June and 7 September 2015). Consequently, as the agreement for the transfer of the player was executed on 3 December 2015, the club argued that the claim of the player had no contractual basis.

23. According to the information available on the Transfer Matching System (TMS), on 1 December 2015 the Respondent and Club F concluded an agreement for the transfer of the player, providing a transfer compensation of EUR 900,000 payable in two instalments on EUR 450,000 each on 15 January and 15 July 2016 respectively. Furthermore, according to such agreement, the club was entitled to the following additional transfer compensation:

- EUR 50,000, payable on 15 January 2017, if Club F “qualifies for the group stages of the UEFA Europa League of the season 2016-2017“;

- “a sell on fee of 10% of the net surplus value realized by [Club F] on the occasion of the future permanent transfer” of the player. This is 10% of the transfer compensation received by Club F on the occasion of the future permanent transfer of the player over and the above the amount of EUR 900,000.

24. Upon FIFA Administration’s invitation to the Claimant and the Respondent to provide their comments on the above-mentioned TMS information, the player amended his claim by formulating the following final request:

a) “at least” EUR 708,000, allegedly corresponding to 60% of the total transfer compensation received by the club, plus 5% interest p.a. on such amount as form 15 July 2016;

b) EUR 20,000 as contribution to the player’s legal fees and costs;

c) Sporting sanctions on the club.

25. In particular, the Claimant argued that the club received a total transfer compensation of “at least” EUR 1,180,000, composed of the following items:

a) EUR 900,000 as transfer compensation set out in the transfer agreement dated 1 December 2015;

b) EUR 50,000 for the bonus payable in case of the Club F’s qualification to the UEFA Europa League group stage of season 2016-2017;

c) EUR 230,000 for the sell on fee provided in the transfer agreement dated 1 December 2015 (cf. point 23 above), based on an alleged transfer compensation of EUR 3,200,000 received by the club Club F for the transfer of the player to the Club G in July 2018.

In this respect, according to the information available in the TMS, the player was transferred from Club F to Club G in July 2018 against a fixed transfer compensation of EUR 3,200,000.

26. In reply to the final requests of the Claimant, the Respondent reiterated its previous argumentations.

27. Despite having being requested to do so by the FIFA Administration, the Respondent did not provide the original version of both the contested documents, namely the new contract and the joint statement.

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 hand. In this respect, it took note that the present matter was submitted to FIFA on 3 January 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 would, in principle, be 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. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 14 par. 2 of the new contract allegedly signed on 31 August 2015, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the National Dispute Resolution Chamber of the Football Association of Country D.

4. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent and affirmed that his signature on the new contract allegedly signed on 31 August 2015 was forged.

5. Taking into account all the above, in particular that the Respondent challenged FIFA’s jurisdiction on the basis of a clause (i.e. art. 14 par. 2) contained in the new contract, the validity of which was contested by the Claimant, the Chamber deemed first necessary to assess whether or not such new employment contract had been concluded between the player and the club. In so doing, the members of the Chamber firstly referred to 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. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the Respondent to prove the conclusion of the new employment contract with the Claimant.

6. Having stated the above, the Dispute Resolution Chamber recalled that the Claimant affirmed that it did not sign the new contract dated 31 August 2015 and maintained that the copy of such new contract remitted by the Respondent was forged.

7. What is more, the members of the Chamber stressed that the Respondent, despite having been invited by the FIFA administration to do so, was unable to provide an original specimen of the disputed contract, namely the new contract of 31 August 2015.

8. At this stage, the Dispute Resolution Chamber considered appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

9. In continuation, the DRC recalled that, according to art. 12 par. 6 of the Procedural Rules, all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the copy of the alleged new contract submitted by the Respondent.

10. On account of these considerations, the Chamber held that, in accordance with its long-standing jurisprudence, the fact that the Claimant had only submitted a copy of the disputed contract was, per se, insufficient to establish that the Claimant and the Respondent had concluded the new contract on 31 August 2015.

11. Therefore, on account of all the aforementioned considerations, the Dispute Resolution Chamber decided that, since the Respondent had not been able to prove that the new contract, containing the clause on the basis of which it challenged FIFA’s jurisdiction, had not been validly concluded between itself and the Claimant, there was no possibility for the Chamber to enter into the question whether or not the aforementioned clause was applicable to present dispute.

12. In view of the above, the Chamber, in accordance with the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

13. 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 3 January 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

14. 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 continued 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).

15. First, the Chamber noted that the parties, on 31 August 2014, entered into an employment contract valid as of the date of signature until 31 May 2016,.

16. In this context, the members of the Chamber took note that art. 5 of the contract stipulated that “in case the player will have other offers from another team inside and outside the country, the amount profited by his departure is not less than 300.000 (three hundred thousand euro) euro and [the player] have profit 60% of this amount and [the club] 40% of this amount for the January transfer period 2015 and for the transfer period summer 2015 after European cups this agreement will be 50% for both parties, the clause will be negotiable”.

17. Moreover, the DRC acknowledged that it remained undisputed that, on 3 December 2015 the Respondent and Club F signed an agreement for the transfer of the player to Club F as of 1 January 2016 providing a transfer compensation of EUR 350,000 payable within 15 July 2016.

18. Furthermore, pursuant to the information available on the TMS, the Respondent and Club F, on 1 December 2015, had also concluded another transfer agreement for the transfer of the same player, providing the transfer compensation detailed above (cf. point I.23) in favour of Club F.

19. After having acknowledged the foregoing, the DRC took note that the Claimant argued that the Respondent received a transfer compensation of EUR 1,180,000 for the transfer of the player to Club F, as per the transfer agreement dated 1 December 2015. As a consequence thereof, the player claimed 60% of the aforementioned amount, on the basis of art. 5 of the contract, and thus requested the payment of “at least” EUR 708,000. In this context, the members of the Chamber also acknowledged that the Claimant requested the payment of EUR 20,000 as contribution to the player’s legal fees and costs.

20. Equally, the DRC took note of the Respondent’s position. In this respect, the Respondent alleged that, on 25 December 2015, the player and the club signed a joint-statement whereby, inter alia, the Claimant apparently declared that he had “no financial or legal pretenses regarding any obligations carried out from the club towards him”. On account of the content of such joint-statement, the Respondent concluded that the player’s claim should be rejected.

21. Furthermore, the members of the Chamber duly noted that, according to the Respondent, art. 5 of the contract was applicable only in case of transfer of the player during the transfer window of January 2015 (namely between 1 and 31 January 2015) or that of summer 2015 (between 22 June and 7 September 2015). As such, the Respondent argued that, as the transfer of the player to Club F did not occur before 3 December 2015, the Claimant’s request lacked of contractual bases.

22. Finally, the DRC took note that the Claimant rejected the Respondent’s argumentations and, in particular, denied having signed the joint-statement on 25 December 2015. What is more, the Claimant maintained that his signature on said document was forged.

23. In view of the aforementioned dissenting positions of the parties in respect of the question as to whether the Claimant had signed the joint-statement with the Respondent on 25 December 2015, the members of the Chamber again referred to art. 12 par. 3 of the Procedural Rules and concurred on the fact that it was up to the Respondent to demonstrate that the Claimant had signed the join-statement and, consequently, he had renounced to his pretensions towards the club.

24. Having stated the above, the members of the Chamber stressed that the Respondent, despite having been invited by the FIFA administration to do so, also in this case was unable to provide an original specimen of the disputed document, namely the joint-statement of 25 December 2015.

25. With the above in mind and having recalled that FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or documents, the Chamber confirmed that, in accordance with its long-standing jurisprudence, the fact that the Claimant had only submitted a copy of the joint-statement was, per se, insufficient to establish that the Claimant had signed such document.

26. Therefore, on account of all the aforementioned considerations, the DRC had no other option than to conclude that the joint-statement could not be taken in consideration and proceeded to examine the further argumentations of the parties. In so doing, the members of the Chamber went to analyse art. 5 of the contract and concurred on the fact that, in view of the diverging positions of the parties, the main issue of the dispute consisted in assessing whether said clause was applicable to the case at stake.

27. With the above in mind, the members of the Chamber wished to recall that, by means of the transfer agreements dated respectively 1 and 3 December 2015, the player was transferred from the Respondent to Club F as of the month January 2016. Moreover, the DRC wished to emphasise that such circumstances remained undisputed by both parties.

28. In continuation, the members of the Chamber analysed art. 5 of the contract and came to the unanimous conclusion that said clause provides two concurrent conditions for its application:

a) that the player is transferred to another club for not less than EUR 300,000;

b) that the transfer under lit. a) occurs either during “January transfer period 2015” or during “the transfer period summer 2015”.

29. Having stated the above, the DRC had no other option than to conclude that, as the transfer of the player from the Respondent to Club F occurred in January 2016, the basic condition for the application of art. 5 of the contract under point II.28 lit. b) above was not met. Consequently, being such clause not applicable to the player’s transfer from the Respondent to Club F, the members of the Chamber decided that the player’s claim in this respect shall be rejected.

30. Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

31. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant is rejected.

*****

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 & Compliance Officer

Encl.: CAS directives