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 an unspecified date, 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 (hereinafter: the contract), valid as from 19 September 2016 until 19 June 2017.

2. According to article III of the contract, the player was entitled to a total “net” remuneration in the amount of EUR 35,000, payable in ten monthly salaries of EUR 3,500 “net” as from 19 September 2016 until 19 June 2017.

3. Article III further provides that “if the objectives of the Club are not met, qualifying for the European competitions from the final standing in the Championship, than it will be intervened into the Player’s last two monthly salaries by deducting from the two last monthly salaries an amount that will be equal to EUR 5,000.00 in order to accumulate the already agreed penalty.”

4. In addition, clause II – o) of the contract established that “The Player is obliged to participate in all activities, appearances, trainings etc. If the Player does not show up and has not informed duly the Club’s president or the trainer, he shall be fined 10% of the salary.”

5. On 02 November 2018, the player lodged a claim against the club before FIFA asking to be awarded the amount of EUR 17,500 as outstanding remuneration corresponding to 5 monthly salaries for the period between 19 January 2017 and 19 June 2017, plus 5% interest p.a. as from “the moment that each salary has become due until their effective payment.”

6. By correspondences dated 9 June 2017 and 4 March 2018, the player put the club in default of payment of the amount of EUR 17,500.

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

8. In its reply to the player’s claim, the club first argued that it provided the player with accommodation and that, according to the contract, it paid the rent and the player was responsible for other expenses and damages. In this regard, the club outlined that the player did not pay the amount of EUR 150 when he left.

9. Furthermore, the club alleged that the player did not attend trainings during the period between 15 and 22 December 2016; therefore the club decided to impose a penalty of EUR 2,800 on the player according to clause II - o) of the contract. (cf. point I.4).

10. Finally, the club referred to the clause related to the club’s objectives of art. III of the contract and pointed out that it imposed a penalty of EUR 5,000 on the player.

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 argumentations and insisted on his initial claim.

13. In fact, the player denied having been absent from the club’s trainings in December 2016.

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

15. Finally, the player emphasised that the contract’s clause related to the penalty for not meeting the club’s objectives shall be considered null and void as players cannot be sanctioned based on their performance.

16. Despite having been invited to do so, the club did not present its comments 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.

5. First of all, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract in accordance with which the Claimant was entitled to a total remuneration in the amount of EUR 35,000, payable in ten monthly salaries of EUR 3,500 as from 19 September 2016 until 19 June 2017.

6. In addition, the DRC took note that, by means of two correspondences respectively dated 9 June 2017 and 4 March 2018, the Claimant put the Respondent in default of the amount of EUR 17,500 corresponding to his monthly salaries for the period between 19 January 2017 and 19 June 2017.

7. The Chamber then took note that the Claimant requested outstanding remuneration in the total amount of EUR 17,500 and argued that, despite having rendered his services and having put the Respondent in default twice, the latter did not comply with its financial obligations towards him.

8. 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, considering that it had deducted from the Claimant’s salary alleged accommodation expenses in the amount of EUR 150 and had imposed a fine of EUR 2,800 on the player for alleged absence at the club’s trainings. Finally, the club alleged having imposed a penalty of EUR 5,000 on the player referring to art. III of the contract (cf. point I. 3.).

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

10. In this regard, the Chamber analysed the salary deduction related to the accommodation expenses as well as the fine imposed on the Claimant due to his alleged absence from training sessions. As regards to the salary deduction, the Chamber first of all noted that the contract does not contain any clause in relation to the accommodation of the player, neither for the payment of expenses in the event of damage.

11. Moreover, in relation to the fine imposed by the Respondent on the Claimant for alleged absence at trainings, the DRC observed that the Respondent did not provide any evidence that it informed the Claimant of any ongoing disciplinary proceedings against him nor sent any warning.

12. 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.

13. 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 means to set off outstanding financial obligations towards players.

14. In continuation, the members of the DRC turned their attention to the penalty of EUR 5,000 imposed on the Claimant. In this context, the Chamber recalled that, according to the contract, the club was entitled to unilaterally deduct payments due to the player “if the objectives of the Club are not met” (cf. art. III of the contract).

15. Regardless of the question as to whether such measure as set out in the aforementioned contractual term would have been applicable to the situation in the present matter, the Chamber agreed that a decrease in any payments to the player by the club could not have been validly applied on the basis of the aforementioned art. III, due to the unilateral and arbitrary character of such clause.

16. What is more, the DRC duly noted that the Respondent, apart from arguing that it had imposed (i) a salary deduction, (ii) a fine and (iii) a penalty 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.

17. 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, shall pay him outstanding remuneration in the amount of EUR 17,500.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 17,500, plus 5% interest p.a. until the date of effective payments, as follows:

a. as of 20 February 2017 on the amount of EUR 3,500;

b. as of 20 March 2017 on the amount of EUR 3,500;

c. as of 20 April 2017 on the amount of EUR 3,500;

d. as of 20 May 2017 on the amount of EUR 3,500;

e. as of 20 June 2017 on the amount of EUR 3,500.

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