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

between the parties

I. Facts of the case

1. According to the documentation on file, on 23 September 2014, the Club of Country D, Club C (hereinafter: the Respondent) sent an offer to the Player of Country B, Player A (hereinafter: the Claimant), which contained, inter alia, the following conditions:

- “USD 360,000.000 (three hundred and sixty thousand dollars only) net (Tax free) per year.”

- “Two Return tickets for you and your family (wife & 2 Kids) per year and 1 return tickets for you and your family in case of Emergency matters which will be approved by the team Manager”.

- “Bonuses as following: USD 1,000 (Dollars One Thousand Only) per goal scored and USD 500 for every direct assist that results in goals scored”.

2. On 28 November 2014, the Claimant and the Respondent concluded an employment contract, valid as from 1 December 2014 until 30 November 2015 (hereinafter: the contract).

3. According to article 1.1 of the contract, the Claimant was entitled to receive, inter alia, the following amounts:

“USD Thirty Thousand (USD 30,000.00) per month and to be paid in the following manner:

I. USD 5,000.00 per month (hereinafter referred to as the “monthly salary”) throughout the Term;

II. A signing on fee of USD 90,000.00 (3 months) to be paid upon signing of the Contract for the whole contract period;

III. An advance amount of USD 300,000.00 to be paid upon signing of the Contract for the whole contract period:

(1) 1st – USD 150,000.00

(2) 2nd – USD 150,000.00

IV. The monthly salary payment shall be made on the last day of each month´s employment.

V. Contract valid when the player passes his medical and fitness test organized by the employers”.

4. Furthermore, art. 1.7 of the contract reads as follows:

“[The Respondent] shall provide [the Claimant with] two return economy flight ticket for the [Claimant] and his immediate family for the duration of the contract and will also negotiate for any extra return ticket within the [Claimant] and spouse during emergency reasons. The final decision will rest on the Manager/Coach. The destination of return flight ticket is from Country B to Capital E, Country D”.

5. In accordance with art. 1.8 of the contract, the Claimant was also entitled to receive, inter alia, the following amounts as bonuses:

“USD 1,000.00 per goal scored and USD 500.00 for every direct assist that results in goals scored”.

6. On 29 March 2017 –only completed on 21 August 2018–, the Claimant lodged a claim before FIFA against the Respondent, claiming outstanding remuneration in the total amount of USD 96,000, broken down as follows:

- USD 81,000 corresponding to the outstanding monthly salaries of September 2015, October 2015 and November 2015;

- USD 9,000 for allegedly having scored 9 goals during the season;

- USD 2,000 for allegedly having assisted 4 times during the season;

- USD 4,000 corresponding to flight ticket expenses.

7. In his claim, the Claimant explained that, in accordance with what was agreed by the parties in the offer and in the contract, the Claimant’s total remuneration amounted to USD 360,000. Furthermore, the Claimant stated that, on the date of the signature of the contract, the Respondent paid him the amount of USD 90,000. The Claimant further explained that the remaining amount, i.e. USD 270,000, would be paid monthly by the Respondent. In this regard, the Claimant held that the Respondent did not pay him the total amount of USD 81,000, corresponding to the last 3 monthly salaries of September 2015, October 2015 and November 2015.

8. Moreover, the Claimant argued that the Respondent paid him neither the bonuses he was entitled to receive nor the flight tickets´ expenses, despite him having put the Respondent in default of payment of the relevant amounts.

9. Despite having been invited by FIFA to provide its comments on the present matter, the Respondent did not answer to the Claimant’s claim.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the 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 29 March 2017. Consequently, the 2017 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. article 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 (June 2018 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Player of Country B and a Club of Country D.

3. Furthermore, the Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2016 and 2018) and considering that the present claim was lodged in front of FIFA on 29 March 2017, the 2016 edition of 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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.

5. In this respect, the Chamber acknowledged that, following an offer sent by the Respondent on 23 September 2014, the Claimant and the Respondent signed an employment contract, valid as from 1 December 2014 until 30 November 2015, in accordance with which the Claimant was entitled to receive, inter alia, a total remuneration of USD 360,000.

6. Furthermore, the DRC acknowledged that, in accordance with art. 1.7 of the contract, the Claimant was also, inter alia, entitled to receive: “two return economy flight ticket for the [Claimant] and his immediate family for the duration of the contract […] from Country B to Capital E”, as well as match bonuses in accordance with art. 1.8 of the contract.

7. The Dispute Resolution Chamber further acknowledged that, according to the Claimant, the Respondent had failed to remit to him the total amount of USD 96,000, corresponding to i) USD 81,000 as outstanding salaries for the months of September, October and November 2015, ii) USD 11,000 as match bonuses for having scored nine goals and assisted four times during the relevant season and iii) USD 4,000 as “flight tickets’ expenses”.

8. In this respect, the Chamber took note of the argumentation of the Claimant, who held that, the value of the contract, as agreed upon by both parties, amounted to USD 360,000. In particular the DRC acknowledged that, from the total amount of USD 360,000, the Claimant stressed having only received the amount of USD 90,000. In addition, the Chamber duly took note that the Claimant sustained that the remaining value of the contract, i.e. USD 270,000, was payable by the Respondent on a monthly basis, by the last day of each month, in accordance with the contract. Thus, according to the Claimant, the Respondent had failed to pay him the amount of USD 81,000, corresponding to his outstanding salaries for the months of September, October and November 2015.

9. Furthermore, the Chamber took note that the Respondent, for its part, failed to present its response to the claim of the Claimant, despite having been invited to do so. In this way, the Chamber deemed, the Respondent renounced its right to defence and, thus, accepted the allegations of the Claimant.

10. Moreover, and as a consequence of the aforementioned consideration, the Chamber established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents already on file; in other words, upon the statements and documents presented by the Claimant.

11. Having said that, the Chamber highlighted that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the employment contract signed between the parties and that it failed to pay to the Claimant the amount of USD 81,000, corresponding to his outstanding monthly salaries for the months of September, October and November 2015.

12. In view of the above and taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence.

13. On account of the above considerations and the documentation on file, 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 81,000 to the Claimant.

14. In continuation, with regard to the Claimant’s claim for outstanding match bonuses and “flight tickets’ expenses”, the members of the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In this regard, the DRC concluded that the Claimant had not substantiated his claim pertaining to outstanding match bonuses and “flight tickets’ expenses” with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no supporting documentation relating to the Claimant’s claim pertaining to outstanding match bonuses and “flight tickets’ expenses”. Consequently, the DRC decided to reject this part of the Claimant’s claim.

15. In conclusion, for all the above reasons, the Chamber decided to partially accept the Claimant’s claim and to reject any further claim lodged by the Claimant.

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III. Decision of the Dispute Resolution Chamber

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 USD 81,000.

3. In the event that the sum due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA 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 Dispute Resolution Chamber of every payment received.

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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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives