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 9 May 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 May 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Eirik Monsen (Norway), member

Pavel Pivovarov (Russia), member

Todd Durbin (USA), 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 4 July 2016, the Player of Country B, Player A (hereinafter: the player or the Claimant), and the Club of Country D, Club C (hereinafter: the club or the Respondent), concluded an employment contract, valid “for the period of 2016-2017 football season” (hereinafter: the contract).

2. According to article 3.1 of the contract, the player was entitled to a total “net” remuneration in the amount of EUR 40,000 for the entire duration of the contract. In addition, article 3.4 of the contract provides that the player was entitled, inter alia, to a bonus of EUR 5,000 ”for playing 70% of the matches of the season”.

3. Article 2.2 of the contract established that the club “undertakes the payment of rent of the apartment to accommodate the player. All other liabilities (electricity, water, elevator, building administrator, etc.) shall be paid by the player.”

4. On 2 November 2018, the player lodged a claim against the club before FIFA, asking to be awarded the amount of EUR 25,000 as outstanding remuneration, corresponding to 5 monthly salaries (from January 2017 to May 2017) of EUR 4,000 each, and the bonus of EUR 5,000, plus 5% interest p.a. as from “the moment that each salary and bonus has become due until their effective payment.”

5. By correspondence dated 4 March 2018, the player put the club in default of payment of the amount of EUR 25,000.

6. In his claim, the player explained that, despite having fulfilled his contractual obligations as well as having put the club in default, the latter did not reply nor fulfilled its financial obligations towards him.

7. What is more, in relation to the bonus claimed, the player presented an extract from the “Transfermarkt” website, according to which the player had participated in more than 70% of the club’s matches during the season 2016/2017. On account of the above, the Claimant argued that, therefore, the relevant contractual bonus of EUR 5,000 had become due.

8. In its reply to the claim, the club first considered that it provided the player with accommodation and that, according to art. 2.2 of the contract, the player was responsible for other expenses and damages. In this regard, the club affirmed that it had applied a salary deduction of EUR 110 on the player, due to the alleged damages caused by the latter.

9. Furthermore, the club stressed that the player did not resume his duties for trainings after the holidays, despite the club’s instructions. Therefore, the club decided to impose a fine of 10% on the player’s January salary, equalling EUR 400.

10. Finally, the club alleged that it had discussed with the player about the penalties related to the non-fulfilment of the club’s objectives.

11. In this respect, the club submitted an accounting document, which allegedly outlined all the deductions made by the club on the player’s remuneration.

12. In his replica, the player rejected the club’s argumentation and insisted on his initial claim.

13. In fact, the player denied having been absent from the club’s trainings after the holiday season.

14. Moreover, the player affirmed that the club never informed him about its decision to sanction him during the term of the contract.

15. Despite having been invited to do so, the club did not present any comment on the player’s replica.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 2 November 2018. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 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. Furthermore, 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 June 2018), and considering that the present claim was lodged on 2 November 2018, the June 2018 edition of the 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 aforementioned facts as well as the arguments and documentation submitted by the parties. The Chamber, however, 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. First of all, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid for the sporting season 2016/2017, in accordance with which the Claimant was entitled to a total remuneration in the amount of EUR 40,000 as well as, inter alia, a bonus of EUR 5,000 subject to the Claimant’s playing 70% of the season matches. As regards the contractual duration, the DRC duly noted that, according to the information available in TMS, the relevant football season in Country D started on 21 August 2016 and ended on 31 May 2017.

6. In addition, the DRC noted the content of art. 2.2 of the contract, according to which the Respondent agreed to provide the Claimant with accommodation at its expenses but that several costs such as “electricity, water, elevator, building administration, etc.” were payable by the Claimant.

7. Moreover, the members of the Chamber acknowledged that, by means of a correspondence dated 4 March 2018, the Claimant put the Respondent in default of the amount of EUR 25,000, corresponding to his monthly salaries between January and May 2017, in the total amount of EUR 20,000, as well as the bonus of EUR 5,000.

8. The Chamber then took note that the Claimant requested outstanding remuneration in the total amount of EUR 25,000 and argued that, despite having rendered his services and having put the Respondent in default, the latter did not comply with its financial obligations towards him.

9. Furthermore, the members of the DRC observed that, for its part, the Respondent held that it had fulfilled all its financial obligations towards the Claimant and considered that it had deducted from the Claimant’s salary the amount of EUR 110 in relation to alleged damages caused by the player to the accommodation and a fine of EUR 400 imposed on him for alleged absence at the club’s trainings.

10. At this stage, taking into account the diverging positions of the parties, the members of the Chamber determined that the main issue at stake consisted in assessing whether the Respondent had to pay the requested amounts to the Claimant, or if it had valid reasons not to.

11. In this regard, the Chamber analysed the salary deduction related to the accommodation’s damage as well as the fine imposed on the Claimant due to his alleged absence from training sessions. As regards the salary deduction, the Chamber first noted that art. 2.2 of the contract is rather vague and unclear in particular regarding the payment of expenses in the event of damage. Moreover, the DRC also took note that the Respondent did not provide any evidence as to the alleged damages caused by the Claimant to the accommodation.

12. In continuation, as to the fine imposed by the Respondent on the Claimant for alleged absence at trainings, the DRC observed that the Respondent neither submit any proof of the alleged absence, that it informed the Claimant of any ongoing disciplinary proceedings against him, nor that it sent him any warning.

13. Consequently, and bearing in mind the general legal principle contained in art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC concluded that the aforementioned argumentations of the Respondent had to be rejected.

14. Furthermore, and in any case, the Chamber wished to point out that, in accordance with its longstanding jurisprudence, 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. What is more, the DRC duly noted that the Respondent, apart from arguing that it had applied a salary deduction and imposed a fine on the Claimant, did not present evidence confirming that it had remitted any payment to the Claimant, in particular in relation to the amounts claimed by the player in his claim.

16. Therefore, the Chamber determined that the Respondent could not set-off its debt towards the Claimant by means of the salary deduction and the fine imposed on him and that, thus, the amount of EUR 20,000 in concept of outstanding salaries is due to the Claimant.

17. At this point, the members of the Chamber turned their attention to the claim of the Claimant, on the basis of which the latter claimed the total amount of EUR 5,000 in relation to a contractual bonus payment (cf. point I.2.). Bearing in mind the content of art. 12 par. 3 of the Procedural Rules, the DRC took due note that the Claimant submitted evidence that he had indeed participated in more than 70% of the club’s matches during the season and that, as a consequence, the abovementioned bonus of EUR 5,000 was due.

18. For all the above reasons, the Chamber decided to accept the player’s claim and determined that the Respondent, in accordance with the principle of pacta sunt servanda, must pay him the total amount of EUR 25,000 for outstanding remuneration.

19. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of the respective due dates until the date of effective payment.

20. 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.

21. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

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

23. Finally, the Chamber recalled that the above-mentioned ban 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 outstanding remuneration in the amount of EUR 25,000, plus 5% interest p.a. until the date of effective payments, as follows:

a. as of 1 February 2017 on the amount of EUR 4,000;

b. as of 1 March 2017 on the amount of EUR 4,000;

c. as of 1 April 2017 on the amount of EUR 4,000;

d. as of 1 May 2017 on the amount of EUR 4,000;

e. as of 1 June 2017 on the amount of EUR 4,000;

f. as of 1 June 2017 on the amount of EUR 5,000.

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 psdfifa@fifa.org, 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.

*****

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

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