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
Stefano La Porta (Italy), member
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 1 June 2014, 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 its date of signature until 31 May 2019.
2. According to art. 1, par. 2, Annex 1 of the contract, the player was entitled to a monthly salary of EUR 383,200 “before deduction of individual income tax”. Moreover, art. 2, par. 2, Annex 1 stipulates that the player was entitled to a monthly housing allowance in the amount of EUR 5,000.
3. Furthermore, pursuant to art. 1, par. 5, Annex 1 of the contract, “additional premiums may be paid to [the player] in accordance with the Clubs team bonus system”.
4. According to art. 11, par. 7 of the contract, “all and any amounts stated into the Contract and its annexes are gross. The Club shall never be responsible for any compensation should the tax rate be changed pursuant to the law or due to any other reason”.
5. Art. 1 par. 5, Annex 1 of the contract provides that “all payments indicated in the Contract and its Annexes are performed in Currency of Country D. In that case, if the due sums are indicated in the foreign currency, the payment is performed in Currency of Country D at the rate of the Central Bank of Country D on the day of charge”.
6. On 24 July 2015, the player sent a letter to the club, requesting the payment of outstanding salaries in the amount of 6,747,918.32, for the period between June 2014 and May 2015. In particular, the player contested the exchange rate used by the club for the payment of the salaries, which the latter made in Currency of Country D. Moreover, the player also requested match bonuses in the total amount of 4,435,000.
7. On 7 August 2015, the player sent a further letter to the club, reiterating his previous requests.
8. On 21 August 2015, the club replied to the player rejecting his requests. In particular, as to the applicable exchange rate, the club pointed out that the payment of the salaries had been made in accordance with the “rate of the Central Bank of Country D on the day of charge”, which “may differ from a payment day”.
9. On 4 September 2015, the player again requested the payment of the above-mentioned outstanding salaries and match bonuses, together with, inter alia, copy of his payment slips and of the club’s bonus system for seasons 2014/2015 and 2015/2016.
10. On 30 April 2017, the player lodged a claim in front of FIFA against the club for outstanding remuneration, requesting 11,182,918.32 plus 5% interest p.a. as of 25 July 2015, broken-down as follows:
a) 6,747,918.32 as outstanding salaries for the period between June 2014 and May 2015;
b) 522,000 as part of a bonus for a match allegedly played on 13 March 2015;
c) 3,913,000 as part of the bonus for the winning of the Tournament E, which the club allegedly partially paid on 28 May 2015.
Furthermore, the player requested sporting sanctions to be imposed on the club.
11. In his claim, the player affirmed that, for the period between June 2014 and May 2015, he was entitled to salaries in the “total net amount” of 236,982,510.30, but received 230,234,591.98 only. More specifically, the player maintained that the club had to use the exchange rate of the Central Bank of Country D applicable “on the last day of the month” or, alternatively, “on the day of payment”. In order to support his argumentations, the player submitted the following table:
12. Moreover, the player affirmed that all the salaries “must be accrued” on the last day of each month. In particular, in order to support his argumentation, the player submitted a statement issued by the alleged club’s auditor according to which, pursuant to the law of Country D, “employees’ salaries shall be charged on the last day of each month” and, in any event, the “date of charge (accrual) may differ from the date of payment”.
13. As to the requested bonuses, the player alleged that he did not receive the same match bonuses of his team-mates. In particular he affirmed that:
a) for the bonus of the match played on 13 March 2015, he was paid 174,000, while his teammates 696,000;
b) for the Tournament E winning bonus, he received 87,000 instead of 4,000,000.
14. On 14 June 2017, FIFA informed the Claimant and the Respondent about the closure of the investigation-phase.
15. On 4 August 2017, the club replied to the claim, i.e. after the closure of the investigation-phase by the FIFA administration.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 30 April 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 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 and 2 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. In this respect, the Chamber was eager to emphasize that, contrary to the information contained in FIFA’s letter dated 20 August 2018, by means of which the parties were informed of the composition of the Chamber, the member Joaquim Evangelista and the member Todd Durbin refrained from participating in the deliberations in the case at hand, due to the fact that the member Joaquim Evangelista has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Todd Durbin refrained from participating and, thus, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.
4. In continuation, 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 (edition 2018), and considering that the present claim was lodged on 30 April 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
5. The competence of the Chamber 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 considered pertinent for the assessment of the matter at hand.
6. First, the Chamber noted that the employment relationship between the Claimant and the Respondent was governed by a contract valid as from 1 June 2014 until 31 May 2019.
7. In continuation, the Chamber acknowledged that, on 30 April 2017, the Claimant lodged a claim against the Respondent in front of FIFA, alleging that, on that date, the following amounts remained outstanding:
a) 6,747,918.32 for the salaries of the period between June 2014 and May 2015;
b) 522,000 as part of a bonus for a match allegedly played on 13 March 2015;
c) 3,913,000 as part of a bonus for winning Tournament E.
8. In this context, the Chamber first referred to art. 25 par. 5 of the Regulations, according to which the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. Considering that the claim of the Claimant was lodged in front of FIFA on 30 April 2017 only, the Chamber found that it could not enter into any claim for salaries and bonuses that fell due prior to 30 April 2015.
9. Taking into account the previous consideration, the Chamber preliminarily concluded that the Claimant’s request for the salaries and bonuses accrued before the date of 30 April 2015 was barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.
10. In continuation, the members of the Chamber took note that, according to the contract, the player’s salary was agreed in euros and payable in Currency of Country D. Furthermore, the DRC observed that, in his claim, the Claimant argued that the amounts paid by the Respondent in Currency of Country D did not cover the amounts contractually agreed in euros. In particular, the player claimed that, pursuant to the applicable exchange rate, the conversion from euros to Currency of Country D resulted in outstanding salaries due.
11. Subsequently, the Chamber observed that the Respondent submitted its reply to the claim after notification of the closure of the investigation of the matter at hand. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard, the DRC decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant.
12. In view of the aforementioned considerations, in respect of the question as to whether or not the amounts paid by the Respondent in Currency of Country D corresponded to the amounts contractually agreed in euros, 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 amounts paid by the Respondent in Currency of Country D did not cover the amounts contractually agreed in euros.
13. Having stated the above, the members of the Chamber concurred that the Claimant did not substantiate his allegations, as it did not present any evidence in respect of the exchange rate which the Respondent allegedly had to apply to the amounts contractually agreed. In particular, the Claimant did not provide the Chamber with any evidence which could corroborate that the exchange rate indicated by the Claimant was, in fact, correct.
14. On account of the aforementioned considerations, the DRC had no other option than to conclude that, since the Claimant had not been able to prove that the amount paid by the Respondent did not correspond to the amount contractually agreed, his claim for outstanding salaries was rejected. In particular, the DRC highlighted that the Claimant failed to provide any official document which would demonstrate that the official exchange rates actually corresponded to the ones he alleged were applicable.
15. In continuation, as to the claim for outstanding bonuses, the Chamber first noted that, pursuant the contract, the payment of bonuses was subject to the club’s bonus system. With the above in mind, taking into account the documentation presented by the Claimant in support of his petition, the DRC observed that the Claimant had not submitted any evidence with reference either to the club’s bonus system or the bonuses allegedly agreed. As such, it was not possible for the DRC to ascertain that the player was actually entitled to the requested bonuses.
16. Consequently, the DRC concluded that the Claimant had not fully substantiated his claim for outstanding bonuses with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules and, thus, decided to reject also this part of the claim.
17. 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
The claim of the Claimant, Player A, is rejected insofar as it is admissible.
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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