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 15 November 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 November 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Johan van Gaalen (South Africa), member

Wouter Lambrecht (Belgium), 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

arisen between the parties

I. Facts of the case

1. On 2 February 2015, the player of Country B, Player A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 3 February 2015 until 30 June 2015.

2. The contract stipulated that the Claimant was, inter alia, entitled to receive the following amounts from the Respondent:

a. a monthly salary of EUR 166,666, payable at the end of each month;

b. a “down payment” of EUR 500,000, payable upon the signature of the contract;

c. EUR 100,000 “in case of winning the Country D Premier League of 2014/2015”;

d. EUR 75,000 “in case of winning the X Cup of 2014-2015”;

e. EUR 50,000 “in case of winning the XX Cup of 2014/2015”.

3. According to the Claimant, on 10 September 2015, the agent who allegedly negotiated his contract with the Respondent, Mr E (hereinafter: the agent), had sent an email to him, informing him that “he had spoken to the [Respondent] and the latter offered to schedule the payments due to the [Claimant] over several instalments as per a settlement offer sent to the [Claimant]”. The email dated 10 September 2015 reads as follows: “I spoke to the [Respondent] yesterday. They got this 3 options for you. I suggest that you go for one of them. You will get payed from the first of October and forward. See it all as bonus money, you were there for 4 months and you got 1.5M Euro for that. I think it is fair to agree on their request, because of the way it all turned out. You still have the option and right to get all your money it is just up to you what you want. So signed one of the options and send back to me and I will take it from there”.

4. In continuation, according to the Claimant, on 11 October 2015, he allegedly signed a settlement agreement (hereinafter: the settlement agreement) with the Respondent and sent it to the agent for “further submission to the [Respondent]”.

5. The preamble of the alleged settlement agreement stipulates, inter alia, the following:

“1. The preamble above forms an integral part of this Agreement and the Employment contract.

2. The First Party [the Respondent] agrees to pay the Second Party [the Claimant] an amount of One Million Three Hundred Thousand Euros (EUR 1,300,000) of which supersedes the amounts stipulated in the Employment Contract.

3. The amount set out above in art. (2) shall be paid by the First Party to the Second Party in instalments:

A. An amount of Two Hundred Thousand Euros (EUR 200,000) to be paid to the Second Party at the end of the month of November 2015.

B. An amount of Five Hundred Thousand Euros (EUR 500,000) to be paid to the Second Party at the end of the month of January 2016.

C. An Amount of Three Hundred Thousand Euros (EUR 300,000) to be paid to the Second Party at the end of the month of March 2016.

D. Amount of Three Hundred Thousand Euros (EUR 300,000) to be paid to the Second Party at the end of the month of August 2016.

4. The Second Party undertakes not to claim the First Party or any other party with additional funds as a result for the settlement of the Employment contract of the Second Party with the First Party except those stipulated in art. 3 of this Agreement”.

6. By means of a correspondence dated 11 October 2017, the Claimant put the Respondent in default of payment allegedly due under the employment contract, for a total amount of EUR 1,458,330, corresponding to: i) 5 outstanding salaries from February 2015 until June 2015, ii) the down payment, as well as iii) the two bonuses for winning the X Cup and the XX Cup.

7. On 23 November 2017, the Claimant lodged a claim against the Respondent before FIFA, requesting that the latter pay him the following amounts:

a. EUR 1,300,000, plus 5% interest p.a. as of the due dates, corresponding to the outstanding remuneration due under the alleged settlement agreement;

b. EUR 250,000, as compensation for the damage caused by the Respondent “by refusing to pay its contractual obligation on time which had caused tremendous damage”;

c. EUR 15,000 by way of contribution to his incurred legal fees.

8. The Claimant also requested FIFA to impose sporting sanctions on the Respondent.

9. In his claim, the Claimant held that, while he had always fulfilled his own obligations, the Respondent failed to pay him his remuneration as stipulated in the contract. Furthermore, the Claimant explained that, on 10 September 2015, the agent had sent him an email, informing that “he had spoken to the [Respondent] and the latter offered to schedule the payments due to the [Claimant] over several instalments as per a settlement offer sent to the [Claimant]” (cf. point I.3 above).

10. Moreover, the Claimant affirmed that he had no other choice than accepting “the settlement offer” made by the Respondent. In this regard, the Claimant sustained that he signed “the settlement offer” on 11 October 2015 but explained that he “never got a countersigned copy of the said settlement agreement”. What is more, the Claimant underlined that he “insisted with the agent to receive a countersigned copy of the contracts signed with [the Respondent], but in vain”.

11. Furthermore, the Claimant stated that “although the settlement agreement was only signed by [the Claimant], however it is without doubt a binding agreement on the [Respondent], since it was the one who made the offer and the [Claimant] had accepted the offer and sent the agreement back to the [Respondent] duly signed”.

12. Moreover, the Claimant affirmed that the case at hand is not time-barred, considering that i) “a new 2 years’ time prescription would start running as of the due date of the new debt, in the case at hand the first settlement is due on the 30th November 2015” and that ii) the Claimant lodged his claim “before the expiry of the 2 years’ time prescription”.

13. In its response to the claim, the Respondent stated that the Claimant is “time-barred from lodging any claim as more than two years have passed since the event giving rise to this dispute – the expiration of the [Claimant]’s contract in June 2015”.

14. Furthermore, the Respondent affirmed that the Claimant, “knowing that [the claim] is time-barred”, produced an unsigned settlement agreement, which was allegedly negotiated with an intermediary who had no authority to act on behalf of the Respondent”.

15. Moreover, the Respondent affirmed that following the expiration of the contract on 30 June 2015, the Claimant had left the Respondent and was not in contact with it “until the below chain of events occurred”.

16. In addition, the Respondent sustained that it received an email dated 12 October 2017 from the Claimant’s legal representatives, by means of which the Claimant put the Respondent in default of payment, “referring exclusively to the employment contract”. In this context, the Respondent underlined that it “has no knowledge of any alleged settlement agreement, and certainly provided no authority to any third party to enter into and negotiate any settlement agreement on its behalf”.

17. In this regard, the Respondent maintained that “the sole agreement signed between the parties is the employment contract” and reaffirmed therefore, that the claim is “clearly and obviously time-barred” and should be deemed inadmissible.

18. What is more, the Respondent stated that the evidence of the alleged settlement agreement is “merely a copy of an unsigned document” and claimed that there is “zero evidence that this document was ever generated by the [Respondent] or contemplated by anybody at the [Respondent]”.

19. Finally, the Respondent rejected the claim of the Claimant in its entirety, and requested FIFA to impose all the legal costs for a total of EUR 20,000 on the Claimant.

II. Considerations of the Dispute Resolution Chamber:

1. First of all, the Dispute Resolution Chamber (hereinafter: DRC or Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 23 November 2017. Consequently, the DRC concluded that the 2017 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 Procedural Rules).

2. Subsequently, 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 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. In continuation, and before being able to enter into the substance of the matter, the Chamber needed to verify whether it could deal with this affair or not for formal reasons, in particular with respect to the Respondent’s objection that the claim is to be considered as time-barred.

4. In this respect, the members of the Chamber referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition June 2018) which, in completion to the general procedural terms outlined in the Procedural Rules, clearly established that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

5. In view of the above, the Chamber deemed it fundamental to underline that, in order to determine whether it could hear the present matter, it should first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.

6. In this respect, the members of the Chamber took note that the claim of the Claimant is based on the alleged settlement agreement and considered that the document at the basis of the present dispute was the alleged settlement agreement, in accordance with which the Respondent allegedly had undertaken to pay the Claimant the total amount of EUR 1,300,000 in 4 instalments with due dates between 30 November 2015 and 31 August 2016.

7. On account of the aforementioned considerations and, in particular, of the Claimant’s request for outstanding remuneration falling due at the earliest, on 30 November 2015 in accordance with the alleged settlement agreement, the DRC decided that the event given rise to the dispute, and hereby the starting point of the time period of two years set out under art. 25 par. 5 of the Regulations, occurred on 30 November 2015.

8. In this respect, the Chamber deemed that the claim of the Claimant must not be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition June 2018), in view of the fact that the present claim was lodged on 23 November 2017, thus within the time limit of two years since the event giving rise to the dispute. As a result, the claim of the Claimant is admissible.

9. The competence of the Chamber having been established, 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 (2016 and 2018 editions), and considering that the present claim was lodged on 23 November 2017, the 2016 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

10. The competence of the DRC 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 above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considers pertinent for the assessment of the matter at hand.

11. In this respect, the members of the Chamber recalled that the parties had signed an employment contract valid from 3 February 2015 until 30 June 2015.

12. In continuation, the Chamber equally noted that, according to the Claimant, he had, on 11 October 2015, allegedly concluded a settlement agreement with the Respondent, in accordance with which the Respondent allegedly had undertaken to pay him the total amount of EUR 1,300,000 in 4 instalments with due dates between 30 November 2015 and 31 August 2016.

13. Furthermore, the members of the Chamber observed that the claim of the Claimant is only based on the alleged settlement agreement and noted that the Claimant affirmed that he never received a counter-signed copy of said agreement and that “although the settlement agreement was only signed by the [Claimant], however it is without a doubt a binding agreement on [the Respondent]”.

14. The Chamber, then, took due note of the fact that the Respondent, for its part, contested having ever signed said agreement and underlined that it had no knowledge of any alleged settlement agreement involving the Claimant.

15. In view of this dissent between the parties in respect of the basic question as to whether or not a settlement agreement between the parties had been concluded, 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 Claimant to prove that the alleged settlement agreement, on the basis of which he claimed outstanding remuneration from the Respondent, had indeed been concluded between the parties.

16. Having stated the above, the DRC recalled that the Claimant maintained that he never received a counter-signed copy of the alleged settlement agreement.

Moreover, the Chamber observed that the Claimant argued that, although said agreement was only signed by him, it had to be considered as a binding agreement “since [the Respondent] was the one who made the offer and [the Claimant] had accepted the offer and sent the agreement back to [the Respondent] duly signed”.

17. The members of the DRC further observed that the Respondent vehemently denied having made any offer for a settlement agreement or having ever signed a settlement agreement with the Claimant and stressed that the copy of the alleged settlement agreement provided by the Claimant only bears the signature of the Claimant.

18. Bearing in mind the aforementioned arguments presented by all parties, the Chamber deemed it important to recall that, in order for a legal document to be considered as valid and binding, it must bear the signature of both parties. In this respect, the DRC emphasised that it remained undisputed that the Claimant failed to submit a copy of the alleged settlement agreement signed by both the Claimant and the Respondent.

19. In light of the foregoing, the members of the Chamber decided that the alleged settlement agreement presented by the Claimant cannot be considered as a valid and binding legal document since it was not signed by the Respondent. What is more, the DRC referred to art. 12 par. 3 of the Procedural Rules and wished to emphasise that the Claimant did not provide any further evidence that any settlement agreement had been concluded.

20. As a consequence, the DRC decided that, since the Claimant had not been able to prove that a settlement agreement had validly been concluded between himself and the Respondent, there was no possibility for the Chamber to enter into the question whether or not such alleged settlement agreement had been breached.

21. All the above led the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant 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).

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