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 3 October 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 3 October 2018,

by Philippe Diallo (France), DRC judge,

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 9 July 2016, the player of Country B, Player A (hereinafter: Claimant), and the club of Country D, Club C (hereinafter: Respondent) signed an employment contract valid as from the date of signature until 20 May 2017 (hereinafter: contract).

2. In accordance with art. 4 of the contract, the Claimant was entitled to receive the following remuneration from the Respondent:

“1- Gross amount of one season 5.766.750.000 in the currency of Country D (USD 165000) that will be payable as below:

1-1- 40% of amount, the amount of 2.306.700.000 in the currency of Country D will be paid to the player after legal deductions and after signing the contract.

1-2- 30% of amount, the amount of 1.730.025.000 in the currency of Country D will be paid in semi season to the player;

1-3- 30% of amount, the amount of 1.730.025.000 in the currency of Country D will be paid at the end of the season after confirmation of the supervisor will be paid to the player.”

3. Moreover, art. 11 of the contract establishes, inter alia, in

- par. 1: ”the club also has the right in case of any violation by the (player) that causes lack of technical quality, according the supervisor, board of directors’ approval and internal regulations determine the penalty maximum up to %30 and the player has no right for any complaint for this article.”

- par. 8: ”the player is committed to pay all legal deductions of the contract (insurance and tax…) that will be deducted in the payment”;

- par. 9: ”the player is obliged to complete tax payers’ form to jurisdiction economic affairs and finance and receiving the tax clearance”

4. On 22 May 2017, the Claimant and the Respondent signed a memorandum of understanding (hereinafter: memorandum) to “cancel” the employment relationship, according to which the amount of 1,000,000,000 in the currency of Country D would be paid to the Claimant with a cheque dated 27 May 2017 after signing the memorandum. The memorandum further refers to article 11 par. 8 of the contract, according to which the Claimant is obliged to pay tax and legal deductions. Furthermore, the memorandum states that the Claimant “after signing this memorandum of understanding and receiving the aforementioned amount declares that has received all the claims from [the Respondent] and hereafter has no claim from [the Respondent] and has no right for domestic and international protest.”

5. On 1 February 2018, the Claimant lodged a claim against the Respondent before FIFA requesting to be awarded the amount of USD 46,000. Alternatively, the Claimant requested to be awarded the amount of USD 37,700, corresponding to USD 46,000 minus tax deductions.

6. According to the Claimant, at the time the parties signed the memorandum, i.e. on 22 May 2017, the Respondent was in default of payment of the amount of USD 66,000 corresponding to part of the second instalment as well as the full third instalment in accordance with art. 4 of the contract.

7. The Claimant acknowledged having received 1,000,000,000 in the currency of Country D agreed in the memorandum of understanding, in the net amount of USD 20,000.

8. The Claimant held that with the memorandum the Respondent only partially settled its debt and that the memorandum does not serve as a full settlement of the contractual obligations.

9. According to the Claimant, the Respondent was not willing to pay the amount of USD 46,000 due to an alleged fine imposed for “the poor placement of the club in the championship of Country D.”

10. The Claimant underlined that, at the end of the contract, he was obliged to stay in Country D with his family since the Respondent kept all their passports and that he signed the memorandum under duress.

11. The Respondent, for its part, rejected the Claimant’s claim.

12. In this respect, the Respondent held that it fulfilled all its obligations towards the Claimant and that the Claimant was responsible to pay taxes according to art. 11 paras 8 and 9 of the contract.

13. Furthermore, the Respondent stressed that, according to the memorandum, the Claimant had “no claim from Club C” and “no right to claim to domestic and international authorities.”

14. The Respondent denied that it withheld the Claimant’s passport and that the Claimant was compelled to sign the memorandum. It further held that it provided the Claimant and his family with flight tickets to return to Country B.

15. Despite being invited to do so, the Claimant did not comment on the Respondent’s submission.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 1 February 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018) he 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 DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the present claim was lodged on 1 February 2018, the 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

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

5. First of all, the DRC judge acknowledged that, on 9 July 2016, the Claimant and the Respondent had concluded an employment contract valid as from its date of signature until 20 May 2017.

6. The DRC judge further observed that, on 22 May 2017, the Claimant and the Respondent signed a memorandum of understanding, according to which, inter alia, the parties agreed that the Claimant will receive from the Respondent the amount of 1,000,000,000 in the currency of Country D, with reference to art. 11 par. 8 of the contract, pursuant to which the Claimant was obliged to pay tax and legal deductions, by cheque after signing the memorandum.

7. In addition, the DRC judge took due note that said memorandum stated that the Claimant “after signing this memorandum of understanding and receiving the aforementioned amount declares that has received all the claims from [the Respondent] and hereafter has no claim from [the Respondent] and has no right for domestic and international protest.”

8. In continuation, the DRC judge noted that in his claim against the Respondent, the Claimant seeks payment of the amount of USD 46,000 on the basis of art. 4 of the employment contract, corresponding to part of the second instalment payable at mid-season as well as the entire third instalment to be paid at the end of the season.

9. Furthermore, the DRC judge took due note that the Claimant acknowledged having received the amount agreed in the memorandum of understanding, i.e. 1,000,000,000 in the currency of Country D, in the net amount of USD 20,000.

10. Subsequently, the DRC judge took into account that the Respondent, for its part, rejected the claim of the Claimant. In this regard, the Respondent invoked the clause inserted in the memorandum of understanding, by means of which the Claimant, according to the Respondent, acknowledged that the Respondent had fulfilled all of its financial obligations towards him.

11. Moreover, in its argumentation, the Respondent mentioned that in accordance with the memorandum, the Claimant had “no claim from Club C” and “no right to claim to domestic and international authorities.”

12. Having said that, first and foremost, the DRC judge wished to stress that it has remained undisputed that the Claimant duly signed the memorandum and received from the Respondent the amount of 1,000,000,000 in the currency of Country D agreed by and between the parties within the memorandum of understanding.

13. As regards the Claimant’s allegation that he signed the memorandum of understanding under duress, the DRC judge referred to art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, and concluded that the Claimant had not presented documentation corroborating his allegation that he was forced to sign the memorandum of understanding. Consequently, the DRC judge determined that the Claimant’s respective argument could not be upheld.

14. Having established the above, the DRC judge underlined that in accordance with aforementioned clause inserted in the memorandum (cf. points I./4. and II./7. above) the Claimant unambiguously acknowledged that, after signature of the memorandum and receipt of the Respondent’s payment of the amount of 1,000,000 in the currency of Country D, the Respondent had fulfilled all of its financial obligations towards him.

15. Taking into account the preceding considerations, the DRC judge decided to reject the claim of the Claimant in its entirety.

III. Decision of the DRC judge

The claim of the Claimant, Player A, is rejected.

*****

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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives