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 (Uruguay), member
Stefano Sartori (Italy), member
Dan 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
between the parties
I. Facts of the case
1. On 14 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 (hereinafter: the contract) valid as from 13 July 2015 until 31 May 2017.
2. In accordance with the contract, the Claimant was entitled to the following remuneration from the Respondent:
For the season 2015/2016: the total amount of EUR 140,000 payable in 9 instalments of EUR 15,555.55 each, “starting from 31 August 2015 and ending on 31 May 2016 on monthly basis”;
For the season 2016/2017: the total amount of EUR 155,000 payable in 10 instalments of EUR 15,500 each, “starting from 31 August 2016 and ending on 31 May 2017 on monthly basis”.
3. According to the Respondent, on 1 July 2016, the parties had signed an amendment to the contract (hereinafter: the amendment), by means of which they amended its financial terms regarding the Claimant’s remuneration for the season 2016/2017.
4. In accordance with the amendment, for the season 2016/2017, the Claimant was allegedly entitled to a total remuneration of EUR 100,000, payable in 10 instalments of EUR 10,000 each.
5. Moreover, according to the Respondent, on 1 July 2016, the parties signed also a settlement agreement in accordance with which “the parties hereby declare and accept that although the due and payable amount to the [Claimant] by the [Respondent] is EUR 110,000, the parties hereby agree to accept the payable amount as EUR 80,000 and the [Claimant] irrevocably waives his rights and discharges the [Respondent] for the amount of EUR 30,000 and for the any other amount that is stipulated in the contract regarding 2015/2016 season”.
6. In accordance with the settlement agreement, the Claimant was allegedly entitled to EUR 80,000, payable as follows:
EUR 8,000 on 30 June 2016;
EUR 8,000 on 30 July 2016;
EUR 8,000 on 30 August 2016;
EUR 8,000 on 30 September 2016;
EUR 8,000 on 30 October 2016;
EUR 8,000 on 30 November 2016;
EUR 8,000 on 30 December 2016;
EUR 8,000 on 30 January 2017;
EUR 8,000 on 28 February 2017;
EUR 8,000 on 30 March 2017.
7. On 10 November 2017, the Claimant put the Respondent in default of payment of the amount of EUR 195,405 as outstanding remuneration, claiming that he had only received EUR 99,595 since the beginning of the employment relationship. The Claimant gave the Respondent time until 22 November 2017 in order to remedy its default. On 23 November 2017, the Claimant put the Respondent in default a second time, giving it until 12 January 2017 to remedy its default.
8. On 5 December 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the total amount of EUR 195,405 as outstanding remuneration and 5% interest p.a. as from the default notice of 10 November 2017 until the date of effective payment. The Claimant further requested the reimbursement of legal costs in the amount of EUR 10,000.
9. More in particular, the Claimant explained that – out of the total amount of EUR 295,000 he should have received under the contract – he had only received from the Respondent EUR 99,595, leaving EUR 195,405 outstanding.
10. In reply to the claim, the Respondent argued that, out of the EUR 140,000 that were due to the Claimant for the season 2015/2016, the latter received EUR 32,185. Moreover, the Respondent sustained that, in accordance with the settlement agreement, only EUR 80,000 could be claimed by the Claimant regarding the season 2015/2016.
11. Concerning the season 2016/2017, the Respondent held that, under the amendment, the Claimant was entitled to a total remuneration of EUR 100,000 and that – out of that amount – EUR 76,302 had been duly paid to him.
12. In conclusion, the Respondent claimed it had remitted to the Claimant – by means of 28 different payments, although randomly performed, between August 2015 and September 2017 – the total amount of EUR 108,487.97. Moreover, the Respondent acknowledged that the total amount of EUR 103,697 was still outstanding and requested that the claim for interest and for legal costs be rejected.
13. In his replica, the Claimant contested having signed the amendment and the settlement agreement and claimed that his signature had been forged on both documents. The Claimant did not comment on the alleged payments brought forward by the Respondent.
14. In its duplica, the Respondent argued that the documents had been signed by the Claimant and not forged and reiterated that it recognized the total amount of EUR 103,697 being still outstanding. The Respondent further argued that “the right of litigation will not be used by the player in relation to the waived remaining receivables with the settlement” and that consequently, “a party cannot submit a case regarding a right it has waived”.
15. Despite being requested by the FIFA administration to provide an original of the settlement agreement and of the amendment, the Respondent did not provide any original specimens.
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 5 December 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are 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 (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 (editions June 2018), and considering that the present claim was lodged on 5 December 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, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, 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 first acknowledged that the Claimant and the Respondent signed an employment contract valid as from 13 July 2015 until 31 May 2017 in accordance with which the Claimant was entitled to the total remuneration of EUR 140,000 payable in 9 instalments of EUR 15,555.55 each for the season 2015/2016 and to the total remuneration of EUR 155,000 for the season 2016/2017, payable in 10 instalments of EUR 15,500 each. The Chamber further noted that, according to the Respondent, on 1 July 2016, the parties signed an amendment to the contract, by means of which they allegedly amended the Claimant’s remuneration for the season 2016/2017 and, on the same date, the parties signed a settlement agreement according to which the Claimant was allegedly entitled to EUR 80,000 only from the Respondent for the season 2015/2016.
6. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent, after having previously put the latter in default on 10 and 23 November 2017, arguing that it had failed to pay him remuneration in the total amount of EUR 195,405, corresponding to salaries due under the employment contract.
7. Subsequently, the members of the DRC noted that the Respondent, for its part, maintained that, under the settlement agreement, only EUR 80,000 could be claimed by the Claimant regarding the season 2015/2016, and that, under the amendment, the Claimant was entitled to a total remuneration of EUR 100,000, out which he had received EUR 76,302. The DRC further took note that the Respondent acknowledged being in debt of EUR 103,697 towards to the Claimant.
8. In this regard, the Dispute Resolution Chamber equally took note of the fact that the Claimant, for his part, had categorically denied the conclusion of the amendment as well as the settlement agreement dated 1 July 2016, claiming that his signature had been forged on both documents.
9. The DRC noted that on this allegation, the Respondent maintained that the Claimant had signed both documents.
10. In view of the aforementioned dissent between the parties in respect of the question as to whether or not the amendment and the settlement agreement had been signed by the Claimant, 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 that the amendment and the settlement agreement had been validly concluded and, as such, binding upon the parties.
11. As a result, in accordance with the contents of art. 12 par. 3 of the Procedural Rules, the Chamber observed that, following its standard practice in this respect, during the course of the investigation the FIFA administration requested the Respondent to submit an original copy via mail or courier of the contested documents. However, the Chamber noted that the Respondent failed to provide said documents as requested.
12. In view of the above, the Chamber referred to the contents of art. 12 par. 6 of the Procedural Rules and unanimously concluded that the Respondent had failed to meet its burden of proof, since it failed to provide an original version of the contested documents, despite being asked to do so. As a result, the Chamber concluded that, for the purpose of assessing the matter at stake, it could only take into account the employment contract, consequently disregarding the alleged amendment and settlement agreement.
13. The foregoing having been established, the Chamber took note of the Respondent’s argument that it had remitted to the Claimant certain amounts through various payments. Moreover, the DRC observed that the Respondent acknowledged an outstanding debt of EUR 103,697 towards the Claimant.
14. In this regard, the DRC took note that the Respondent provided multiple payment slips which were not contested by the Claimant and that most of those alleged payments could be identified in the bank account receipt provided by the Claimant.
15. Taking all of the above into consideration, the Chamber was of the opinion that, since the payments alleged by the Respondent were uncontested, the total amount of EUR 108,487.97 could be considered duly paid by the Respondent to the Claimant as from the beginning of the employment relationship.
16. However, the Chamber also took note that the aforementioned payments had been performed by the Respondent in a chaotic manner, rendering it difficult for the Chamber to attach each of them to a specific monthly entitlement. As the total amount paid to the Claimant roughly corresponded to the first 7 salaries of the season 2015/2016, i.e. those running from September 2015 to March 2016 included, the members of the DRC allocated the amount acknowledged by the Claimant to the said monthly entitlements. Consequently, the members of the Chamber concluded that the Claimant’s salaries as from April 2016 until May 2017 included, corresponding to EUR 186,111.10, were still outstanding.
17. The Chamber, thus, deemed that the Claimant was entitled to the salaries as from April 2016 until May 2017 included, for a total amount of EUR 186,111.10.
18. On account of all of the above, the Chamber decided to partially accept the Claimant’s claim and determined that the Respondent, in accordance with the general principle of pacta sunt servanda, must pay him the total amount of EUR 186,111.10.
19. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant 5% interest p.a. on the said amount as of the date of the default notice, as requested, until the date of effective payment.
20. The Dispute Resolution Chamber concluded its deliberations in the present matter establishing that any further claim lodged by the Claimant was rejected.
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, the amount of EUR 186,111.10 as outstanding remuneration, plus 5% interest p.a. as from 10 November 2017 until the date of effective payment.
3. In the event that the aforementioned sum plus interest is not paid 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 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
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