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 24 August 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 24 August 2018

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Joaquin Evangelista (Portugal), member

Todd Durbin (USA), member

Stefano La Porta (Italy), 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 Claimant or the player), and the club of Country D, Club C (hereinafter: the Respondent or the club), signed an employment contract (hereinafter: the contract) valid as from 17 January 2016 until 30 June 2016.

2. In accordance with art. 4 of the contract, the player’s remuneration was established as follows:

“(4-1) The full amount of the contract is USD 180,000 (equals to currency of Country D: 6,300,000,000) […].

(4-2) 20% of the full amount will be paid after signing the contract and after passing medical and physical test maximum 4 days and obtaining ITC card.

(4-3) 80% of the full amount bill be paid in four (4) monthly payments as per the followings: February 26th, March 26th, April 26th, and May 26th, 2016.

Note: All the payment shall be in US dollar […]”.

3. Moreover, art. 8 provided several bonus payments to be paid to the player, inter alia, “the club will pay USD 300 for scoring any goal”.

4. On 12 February 2018, the player lodged a claim against the club before FIFA, requesting outstanding remuneration in the total amount of USD 109,500, plus 5% interest calculated as from the due dates. The player broke down the requested amount as follows:

- USD 108,000 as outstanding salaries;

- USD 1,500 as bonuses.

5. In respect to the outstanding salaries claimed, according to the player, the club only paid him two instalments of USD 36,000 (for a total of USD 72,000) during the employment relationship. In consequence, the player sustained that USD 108,000 remains outstanding, amount that corresponds to the monthly salary payments due on 26 March 2016, 26 April 2016 and 26 May 2016, respectively, in the amount of USD 36,000, each.

6. Regarding the bonuses claimed, the player sustained that he scored 5 goals, which would entitle him to receive USD 1,500 for this concept.

7. By means of its letter dated 27 June 2018, FIFA invited the club to provide its position to the claim lodged by the player by no later than 17 July 2018.

8. On 18 July 2018, and again on 24 July 2018, the club requested an extension to reply to the claim, request that was denied by the FIFA administration as the club only requested an extension to reply after the expiry of the deadline granted by FIFA to do so.

9. On 30 July 2018, and after the parties were already notified of the closure of the investigation-phase, the club replied to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 12 February 2018. Consequently, the 2018 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 members of the Chamber referred to art. 3 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 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 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 Chamber 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 claim was lodged on 12 February 2018, the 2018 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which the Chamber considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC acknowledged that the Claimant and the Respondent signed an employment contract valid as from 17 January 2016 until 30 June 2016, in accordance with which the Claimant was entitled to receive from the Respondent a total salary remuneration of USD 180,000 as mentioned in point I. / 2. above. In addition, the DRC took note that art. 8 of the contract provided several bonus payments to be paid to the player, inter alia, “the club will pay USD 300 for scoring any goal”.

6. The Claimant lodged a claim against the Respondent before FIFA, requesting the Respondent to be ordered to pay him outstanding salaries in the total amount of USD 109,500 corresponding to: USD 108,000 as monthly payments due on 26 March 2016, 26 April 2016 and 26 May 2016, respectively, in the amount of USD 36,000, each; as well as USD 1,500 for having scored five goals during the relevant sporting season.

7. Subsequently, the DRC observed that the Respondent, despite having been invited to do so, failed to submit its reply to the claim of the Claimant, or to timely request an extension of the deadline within the relevant time limit set by FIFA, (i.e. 17 July 2018). In fact, the club requested an extension of the deadline on 18 July 2018 and on 24 July 2018, this is, after the expiry of the deadline granted to the Respondent to reply to the claim. Moreover, after the investigation phase in the matter at hand was subsequently closed, the Respondent submitted unsolicited comments to the claim.

8. Based on the foregoing, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 and art. 16 par. 11 of the Procedural Rules, first of all the Chamber decided that the Respondent’s request for an extension of the deadline was correctly denied by the FIFA Administration, as it was submitted outside the deadline granted to the Respondent and that in the absence of a timely answer of the Respondent, the investigation phase of the matter at hand was closed in accordance with art. 9 par. 3 of the Procedural Rules.

9. What is more, the Chamber recalled art. 9 par. 4 of the Procedural Rules, which provides, inter alia, the following: “The parties shall not be authorised to supplement or amend their requests or their arguments, to produce new exhibits or to specify further evidence on which they intend to rely, after notification of the closure of the investigation”. In this respect, the members of the Chamber decided not to take into account the unsolicited comments of the Respondent.

10. Furthermore, as a consequence of the aforementioned consideration, the DRC concluded that, in accordance with art. 9 par. 3 and art. 9 par. 4 of the Procedural Rules, it shall take a decision on the basis of the documents on file that were provided prior to the deadline set by FIFA and prior to the subsequent closure of the investigation phase, in casu, on the statements and documents presented by the Claimant.

11. Having said this, the DRC acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant a global salary remuneration that amounted to USD 180,000, 80% of which was supposed to be paid in four equal instalments, i.e. of USD 36,000 each.

12. Taking into account the documentation presented by the Claimant in support of his petition, the Chamber concluded that the Claimant had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence.

13. On the other hand, the Chamber concluded that the Claimant had not fully substantiated his claim pertaining to the bonus with pertinent documentary evidence in accordance with art. 12.3 of the Procedural Rules, which reads as follows: “Any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. Therefore, as the Claimant failed to present any documentary evidence supporting his request of the said amount, the DRC deemed that it has not been sufficiently proved and, consequently, the claim concerning the bonus in the amount of USD 1,500 had to be rejected.

14. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 108,000 corresponding to the instalments due on 26 March 2016, 26 April 2016 and 26 May 2016, respectively, in the amount of USD 36,000, each.

15. In addition, taking into account the Claimant’s request as well as the constant practice of the Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payments as of the day following the day on which the relevant payments fell due, until the date of effective payment.

16. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is 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, outstanding remuneration in the amount of USD 108,000 plus 5% interest p.a. until the date of effective payment as follows:

- 5% p.a. over the amount of USD 36,000 as from 27 March 2016 until the date of effective payment;

- 5% p.a. over the amount of USD 36,000 as from 27 April 2016 until the date of effective payment;

- 5% p.a. over the amount of USD 36,000 as from 27 May 2016 until the date of effective payment;

3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, 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.

*****

Note relating to the motivated decision (legal remedy):

According to article 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:

____________________________

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives