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 3 October 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 3 October 2018,

by Philippe Diallo (France), 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

arisen between the parties

I. Facts of the case

1. On 20 July 2015, 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 1 August 2015 until 31 May 2016.

2. According to art. 6 of the employment contract, the Claimant was entitled, inter alia, to a total remuneration of 349,260 in the currency of Country D, in ten equal monthly instalments of 34,926 in the currency of Country D each.

3. According to the same provision, said amounts were “gross payments from which the [Respondent] shall deduct income Tax and National Insurance as set down by law”.

4. According to art. 4 of the employment contract, “the [Respondent] undertakes […] 1) to insure the [Claimant] at its expense, beginning from the day this Agreement begins and until the day its validity ends, including during the official season following the end of the period of this Agreement, against personal accidents causing death and/or disability and/or loss of the [Claimant]’s ability to work, in adequate amounts that shall not be less than that specified in the Law of Sports -1988 and in the Regulations derived therefrom and to cover all of the [Claimant]’s activities, in Country D and abroad, both within the framework of Country D’s National Club. 2) The [Claimant] confirms that the terms and amounts of the insurance coverage taken out for him by the [Respondent], as stated above, and which has been shown to him, is to his full satisfaction and that he will not have any claims and/or demands whatever against the [Respondent] and/or the Association in this regard”.

5. On 29 September 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting to be awarded the total amount of EUR 12,890, plus 5% interest p.a. as of 1 June 2016 and reimbursement of legal costs in the amount of EUR 1,000.

6. More specifically, the Claimant argued that the Respondent had not paid him the salaries for October 2015, November 2015 and May 2016, plus “the car use costs”. Moreover, the Claimant argued that he had asked the Respondent multiple times to pay but that the latter had refused to do so, stating that, during the relevant period of time, the Claimant was injured and, therefore, an insurance company should have paid him.

7. With regards to the above, the Claimant specified that, during the whole employment relationship, the Respondent failed to remit him the total amount of 54,144 in the currency of Country D, representing the above-mentioned salaries and the car costs. The Claimant further argued that “according to the official data of the International financial market and economy, 1 Euro equals 4,20 in the currency of Country D”, and consequently claimed EUR 12,890.

8. Furthermore, the Claimant explained that the Respondent’s position concerning the payment during the time he was injured stands in contrast with the employment contract, which does not provide for an insurance company to pay on behalf of the Respondent.

9. In its reply, the Respondent asked that the claim be rejected for the amount claimed. Subsidiarily, it held that, “if it is decided that the [Respondent] has to pay for the period in which he was incapable of working”, the Claimant should only be entitled to 14,653 in the currency of Country D.

10. More in particular, the Respondent explained that it had paid the Claimant 8 of the 10 months of the season concerned and that it had an insurance in place for the event that players of the team got injured. The Respondent argued that, in such case, it was exempted from paying the Claimant his salary while the insurance was supposed to pay the latter a compensation based on his monthly remuneration.

11. In continuation, the Respondent recalled that the Claimant was injured twice and that, consequently, he could not train or play, respectively, between 17 August and 18 September 2015 and between 31 January and 28 February 2016. In this respect, the Respondent argued that the insurance made a payment towards the player for each injury (i.e. for 2 months), totalling, after tax deduction, net 39,491 in the currency of Country D.

12. In his replica, the Claimant entirely reiterated his position and, acknowledging the receipt of the insurance’s payment of 39,491 in the currency of Country D on 7 June 2016, added that his financial requests were net of that payment. In other words, the Claimant specified that he was demanding only the residual amounts of his salaries after what the insurance had paid. More in particular, the Claimant explained that, according to the employment contract, 3 full salaries would have totalled 104,778 in the currency of Country D, whereas he was only requesting 54,144 in the currency of Country D.

13. Furthermore, the Claimant added that the Respondent recognised being in debt towards him through a letter it sent to him on 1 November 2017, where it offered to settle the dispute by paying him 14,653 in the currency of Country D.

14. In its duplica, the Respondent maintained that the parties had signed a “pre-contract” which was not mentioned by the Claimant.

15. In this respect, the Respondent explained that, according to said “pre-contract”, the Claimant was entitled to EUR 7,000 per month for ten months, i.e. EUR 70,000. Furthermore, according to the Respondent, the exchange rate to be considered in this case should be EUR 1 = currency of Country D 4,13. Therefore, according to the Respondent, the Claimant was entitled to a total remuneration of 289,100 in the currency of Country D for 10 months.

16. Furthermore, the Respondent argued that, for the time in which the Claimant was not injured, it remitted the latter payments for the total net amount of 259,910 in the currency of Country D. Consequently, the Respondent concluded that, after the insurance payment (i.e. 39,491 in the currency of Country D), the Respondent had received more than what he was entitled to, i.e. 299,401 in the currency of Country D compared to 289,100 in the currency of Country D allegedly established in the “pre-contract”.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 29 September 2017. Consequently, the DRC judge concluded that the 2017 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 2017 and 2018 editions of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination 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 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 judge confirmed that in accordance with art. 26 par. 1 and par. 2 of said Regulations (editions 2016 and 2018) and considering that the present claim was lodged in front of FIFA on 29 September 2017, the 2016 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 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 submitted by the parties. 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. In this respect, the DRC judge acknowledged that, on 20 July 2015, the Claimant and the Respondent signed an employment contract, pursuant to which the Respondent undertook, inter alia, to pay to the Claimant a total remuneration of 349,260 in the currency of Country D, in ten equal monthly instalments of 34,926 in the currency of Country D each.

6. In continuation, the DRC judge noted that, according to the Claimant, during the course of the employment relationship, the Respondent failed to remit him the total amount of 54,144 in the currency of Country D, representing his salaries for October 2015, November 2015, May 2016 and the car costs. In this respect, the DRC judge noticed that the Claimant requested to be awarded said amount in EUR, namely EUR 12,890.

7. Furthermore, the DRC judge took note that the Respondent, for its part, claimed that it had paid the Claimant 8 out of 10 months during which he performed his services and that, for the 2 months in which he could not due to his injury, an insurance paid him on behalf of the Respondent, thus relieving the latter from any indebtedness towards the Claimant in that respect.

8. With regards to the above, the DRC judge observed that the Respondent explained that the insurance paid the Claimant a total amount of 39,491 in the currency of Country D and that the Claimant acknowledged having received said sum. However, the DRC judge also took note that the Claimant added that he was demanding the residual amounts after what the insurance had paid.

9. The DRC judge further pointed out that the Respondent, with its last submission, argued that the parties had signed a “pre-contract” which had not been mentioned by the Claimant and according to which the latter was entitled to the total amount of EUR 70,000 for the entire employment relationship. The DRC judge observed that, according to the Respondent, said total amount corresponded to 289,100 in the currency of Country D, applying the exchange rate of EUR 1 = currency of Country D 4,13. Therefore, the DRC judge noted that the Respondent claimed having fulfilled all the financial obligations it had towards the Claimant, given that the latter had allegedly received more than what he was entitled to in accordance with the “pre-contract”.

10. In light of the aforementioned, the DRC judge emphasised the need to address the following series of issues: a. what was the binding document defining the contractual obligations of the parties?; b. was the Respondent entirely exempted from paying the Claimant’s salaries during the months in which he was injured?; c. was the Claimant entitled to any outstanding remuneration?; d. finally, should the previous question be answered in the affirmative, to which amount and in which currency?

11. With regards to the first issue, the DRC judge recalled that, with its last submission, the Respondent produced a signed copy of a so-called “pre-contract” that the parties signed on 30 June 2015, arguing that the Claimant’s entitlements were bindingly outlined in said document rather than in the employment contract of 20 July 2015. In this respect, the DRC judge had to observe, as a preliminary remark, that what the Respondent considered to be the sole document defining the financial obligations of the parties had been submitted by the latter only with its last submission rather than, as one would expect, with its reply to the claim.

12. Most importantly, the DRC judge underlined that said document, rather than a binding employment contract, appears to be a simple letter of commitment to conclude a contract, whereby the Respondent outlined the financial relationship between the parties “in case if the [Claimant] […] will sign an agreement with us for the season 2015/2016” and specified that “the signing of the contract with the [Claimant] is conditional to the results of the medical tests […]”. In other words, the DRC judge observed that the “pre-contract” itself suggests that it was meant to be replaced by the ensuing employment contract, which was in fact concluded almost a month after.

13. Moreover, the DRC judge, mindful 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 TMS, recalled that the contract of 20 July 2015 was the only one uploaded in the TMS.

14. Consequently, the DRC judge established that the parties intended and agreed that the employment contract signed on 20 July 2015 included the sole financial obligations of the Respondent towards the Claimant, i.e., inter alia, a total remuneration of 349,260 in the currency of Country D, in ten equal monthly instalments of 34,926 in the currency of Country D each.

15. In continuation, the DRC judge analysed whether the Respondent could validly uphold being exempted from the obligation to remit the Claimant his salaries for the period of time in which the latter could not perform his services.

16. In this respect, the DRC judge turned his attention to, and deemed it worthwhile to recall, the only insurance-related clause envisaged in the employment contract, i.e. art. 4, which reads as follows: “the [Respondent] undertakes […] 1) to insure the [Claimant] at its expense, beginning from the day this Agreement begins and until the day its validity ends, including during the official season following the end of the period of this Agreement, against personal accidents causing death and/or disability and/or loss of the [Claimant]’s ability to work, in adequate amounts that shall not be less than that specified in the Law of Sports -1988 and in the Regulations derived therefrom and to cover all of the [Claimant]’s activities, in Country D and abroad, both within the framework of Country D’s National Club. 2) The [Claimant] confirms that the terms and amounts of the insurance coverage taken out for him by the [Respondent], as stated above, and which has been shown to him, is to his full satisfaction and that he will not have any claims and/or demands whatever against the [Respondent] and/or the Association in this regard”.

17. Consequently, the DRC judge, after having analysed the literal tenor of the above-mentioned clause, had to conclude that nowhere therein was to be found any indication that, in case of injuries, an insurance company would take over the Respondent’s obligations to pay the Claimant’s salaries.

18. Moreover, the DRC judge, 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, observed that the Respondent did not provide any alternative evidence corroborating the allegations on the basis of which it would be exempted from its main obligation or even showing which percentage of the salary had to be paid by the insurance.

19. On account of all the above considerations, the DRC judge could not uphold the Respondent’s argumentation on the point. Consequently, the DRC judge concluded that the Respondent was bound to pay the Claimant’s salaries in full even during the months in which the latter was injured.

20. The foregoing being established, the DRC judge turned his attention to the question as to whether the Claimant was entitled to any outstanding remuneration and, in the affirmative, to the amount.

21. In this respect, the DRC judge first and foremost observed that it remained uncontested that the Claimant received a payment of 39,491 in the currency of Country D. Furthermore, the DRC judge, mindful of the above-mentioned provision of the Procedural Rules, noted that the Respondent produced documents attesting payments made towards the player, allegedly covering the entire employment relationship, for a total amount of 259,910 in the currency of Country D. Consequently, after having carefully considered the evidence before him, it appeared to the DRC judge that the Claimant had received from the Respondent the total amount of 299,401 in the currency of Country D for the whole length of the employment relationship whereas, according to art. 6 of the employment contract, he was entitled to 349,260 in the currency of Country D, thus 49,859 in the currency of Country D more.

22. In relation to the above, and for the sake of completeness, the DRC judge took into account the question of whether the Claimant’s salaries were to be considered gross or net. In this respect, the DRC judge was eager to underline that, although the second part of art. 6 of the employment contract seems to indicate otherwise, said amounts had to be considered net in light of the payments actually performed by the Respondent.

23. More specifically, the DRC judge noticed that, not only did the payment slips submitted by the Respondent not allow to retrieve a uniform ratio between net and gross amounts to be applied as tax deduction to other payments (for instance 39,491 in the currency of Country D paid by the insurance), but they were also not consistent with a different interpretation of the contract, showing on average payments around net 35,000 in the currency of Country D.

24. The DRC judge further underlined that the calculation of the Claimant’s outstanding entitlements was carried out taking into account only the salaries due and effectively paid, while the “car use costs” alleged by the Claimant with his claim were disregarded, as the Claimant failed to provide a specific amount related to such costs as well as any evidence corroborating the related entitlement and the costs effectively incurred.

25. Finally, the DRC judge observed that the Claimant requested to be awarded the amount of EUR 12,890 as outstanding remuneration. However, the DRC judge found it important to note that nowhere in the employment contract was provided that the Claimant’s salaries had to be paid in a currency other than currency of Country D.

26. On account of the above considerations and the documentation on file, the DRC judge decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the amount of 49,859 in the currency of Country D to the Claimant.

27. In addition, taking into account the Claimant’s claim, the DRC judge decided to award the Claimant interest of 5% p.a. as of the day following the expiry of the employment contract.

28. In addition, as regards the claimed legal expenses, the DRC judge referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the Dispute Resolution Chamber, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber and the DRC judge. Consequently, the DRC judge decided to reject the Claimant’s request relating to legal expenses.

29. The DRC judge concluded his deliberations in the present matter by rejecting any further claim of the Claimant.

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, outstanding remuneration in the amount of 49,859 in the currency of Country D, plus 5% interest p.a. as from 1 June 2016 until the date of effective payment.

3. In the event that the above-mentioned amount plus interest due to the Claimant is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged 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.

*****

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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives