F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 2 October 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 2 October 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Aloys Bertrand Nong, Cameroon

represented by Mr Alberto Ruiz de Aguiar Díaz Obregón

as Claimant

against the club,

FC Pars Jonoubi Jam, IR Iran

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 12 July 2017, the Cameroonian player, Aloys Bertrand Nong (hereinafter: Claimant), and the Iranian club, FC Pars Jonoubi Jam (hereinafter: Respondent), signed an employment contract (hereinafter: contract) valid “for one football seasons from 12 July 2017 and will be terminated after the end of football season matches in 2017-2018”.

2. Art 4.7 of the contract read as follows: “The [Claimant] is obliged to grant his passport to the [Respondent] and if it is necessary take it by cooperation with the [Respondent’s] manager”.

3. In accordance with art. 7 of the contract, the Claimant’s remuneration, inter alia, was established as follows:

- “amount of contract for football season 2017-2018 will be [Iranian Rials IRR] 5,600,000,000 net;

- 30% of the amount of contract after signing the contract and registering at league organization will be paid to him.”

4. On 8 December 2017, the Claimant put the Respondent in default requesting the payment of the total amount of IRR 1,708,639,183, providing the Respondent a deadline of 10 days. According to the default notice, this amount corresponded to the outstanding balance of IRR 140,639,183 out of the 30% of the contract that had to be paid after the signature of the contract and IRR 1,568,000,000 as salaries from August 2017 to November 2017.

5. On 20 December 2017, the Claimant put the Respondent in default requesting the payment of same amount as in his default notice of 8 December 2017, providing the Respondent a deadline until 24 December 2017. In said default letter, the Claimant highlighted that if the amount was not paid within the granted deadline, he would terminate the contract.

6. On 27 December 2017, the Claimant unilaterally terminated the contract with Respondent in writing with immediate effect due to the alleged “repeated breach of contract committed by [the Respondent]”.

7. On 12 February 2018, the Claimant lodged a claim against the Respondent, requesting outstanding remuneration and compensation for breach in the total amount of IRR 4,060,639,183, plus 5% interest p.a. calculated as from the due dates. The Claimant broke down the requested amount as follows:

a) IRR 140,639,183 as outstanding remuneration;

b) IRR 3,920,000,000 as compensation for breach of contract, corresponding according to the player to “the residual value of the contract, i.e. the 70% of the contract”.

8. Moreover, the Claimant requested sporting sanctions to be imposed on the Respondent.

9. Regarding the request for outstanding remuneration, the Claimant maintained that the Respondent only paid him IRR 1,539,360 817 instead of IRR 1,680,000,000 corresponding to the totality of the 30% of the contract, due on the date of signature. As a consequence, the Claimant sustained that IRR 140,639,183 remained outstanding.

10. Concerning the alleged compensation for breach of contract, the Claimant held that in the absence of a contractual provision regarding the due dates for payment for the residual 70% of the contract, this amount should have been paid in 10 monthly instalments of IRR 392,000,000 each, namely as from August 2017 to May 2018.

11. The Claimant maintained that, after the partial payment made following the signing of the contract, he had not receive any amounts from the Respondent during the months of August 2017 until December 2017. The Claimant underlined that, although he put the Respondent in default twice, the Respondent had not reacted to said default notices and therefore, he proceeded to terminate the contract with just cause.

12. The Claimant further declared that after the termination of the contract, the Respondent retained his passport and obligated him to sign a mutual termination agreement in order to allow him to sign for another club.

13. Along those lines, the Claimant held that due to the difficulties he was having in order to sign with another Iranian club, his legal representative sent a correspondence to the Iranian FA explaining that the Claimant had terminated the contract and requested the return of his passport.

14. In its reply to the claim, the Respondent stated that after terminating contract, the Claimant stayed in Iran and joined the Iranian club, FC Saipa, with the work permit issued by the Respondent, which allegedly caused several problems for the Respondent.

15. Moreover, the Respondent explained that “on 27 may 2018, we as club and the player have reach to enclosed mutual agreement to solve our problems specifically, help player to leave Iran ASAP”.

16. In this context, the Respondent enclosed an undated document titled “agreement” (hereinafter: the first agreement) allegedly signed by the Claimant, which inter alia read as follows:

“Mentioned contract terminated on 27 Dec 2017 during half session by a letter behalf of player's lawyer despite Club's opposition […]

1. By signing this document, the player or his legal introduced agent or Lawyer certify that the contract terminated legally on 27 Dec 2017 and there is no any claims or responsibilities on any matters against Club after half session.

2. The club should pay just 50 percent of amount of contract {5,600,000,000 IRR) totally which 30 percent paid by club previously according to attached receipts…

3. After signing this agreement, Club guarantee the payment of the remaining 20% of the contract also the responsibility of getting required permission related visa and permission work to depart player from Iran until 4 June 2018.

4. After the date of this agreement, all previous claims against Pars Jonoubi & Cultural Club, behalf of player or his legal lawyer, including attached letters specifically, which dated 11 Feb 2018 from lawyer to FIFA will be cancelled and void.

The player before departing from Iran and getting the rest of salary must contact with FIFA as regardless of the complaint against Club and a transcript to Club and Football Federation of Islamic Republic of Iran.”.

17. The Respondent further maintained that “in accordance with lack of any settlement with current club (Saipa), 5 days holidays in Iran and as well as for preventing problems regarding Visa exit process that may arise at the airport, we need more times to solve the player’s problems and help him to exit.” Furthermore, as per the Respondent, “during 2-3 years ago, the player has played for some Iranian Club with difference type of Visas or permission works which must settle in many difference cities. Absolutely it take time to issue final settlement that unfortunately coincided with the holidays.”

18. In his replica, the Claimant referred to the first agreement and held that he “does not recognize the validity of said document, and does not recognize the signature inserted therein”.

19. The Claimant explained that after lodging the claim, the Respondent and his new club Saipa, had “blocked his exit from Iran by all means available”. Moreover, the Claimant held that only after he complained several times, was he able to exit Iran on 27 June 2018.

20. In conclusion, the Claimant insisted on his claim and request for relief.

21. In its duplica, the Respondent provided an original version of the first agreement.

22. Furthermore, the Respondent explained that, “after many difficult process to solve the player’s passport matters, Club and Mr Nong reached to second and final agreement during the last payment on 25 June 2018.”

23. In addition, the Respondent enclosed another document titled “agreement” dated 25 June 2018 (hereinafter: the second agreement) signed by the Claimant and which includes his fingerprint. The second agreement inter alia included the following:

“With signing this agreement, both parties have agreed on below matters.

1. The player or his legal agent or lawyer certify that mutual contract terminated legally on 27 Dec 2017 and there is no any claims or responsibilities on any matters against Club after half session.

2. The club should pay just 50 percent of amount of contract {5,600,000,000 IRR) totally which 30 percent paid by club previously according to attached receipts… By signing this agreement, player or his legal lawyer confirms that they have no any demands to Club. The Club guarantee the payment of the remaining 20% of contract also the responsibility of providing required documents related visa and permission work to depart player from Iran.

3. After the date of this agreement, all previous and current complaints in all legal or Sport organization such as FIFA, CAS or IRIFF against Pars Jonoubi Jam Sport & Cultural Club, behalf of player or his legal lawyer, are canceled and will be void. Including attached letters specifically, which dated 11 Feb 2018 from lawyer to FIFA.

4. The player or his legal lawyer has no any complaints against the club since today. They must contact with FIFA to announce his regardless of the current complaint against Club before departing from Iran and getting the rest of salary. Sending a transcript of mentioned letter to Club and Football Federation of Islamic Republic of Iran is necessary.”

24. Furthermore, the Respondent enclosed a document titled “Payment Receipt” dated 25 June 2018 (hereinafter: the payment receipt / waiver) allegedly signed by the Claimant and which included his fingerprint.

25. The payment receipt / waiver inter alia read as follows: “This document has issued to confirm the payment of 1/150/000/000 Rials as remaining amount of the contract between Mr. Aloys Bertrand Nong Passport Number 0698345 as player with Pars Jonoubi Sports & Cultural club for IRI Football Premier league 2017-2018. By signing this document, Mr. Nong confirms the receipt of all amount of contract and fully settled; also certify that, the player has no any claims against Pars Jonoubi Sport & Cultural club on payment, Salary, Bonuses matters.”

26. Finally the Respondent referred to both agreements, and stated that “it means that there is two agreements between player and us, which the first one signed on 27 May 2018 and before finding obstacles on the Tax and Visa matters of player. The second and last one, which you can find the original version, enclosed, officially signed on 25 Jun 2018 with testifier behalf of player and club. You can also recognize the player's fingerprint below the agreement.”

27. With regard to the new documentation provided by the Respondent in its duplica, the Claimant held that he:

a) “Maintains his initial claim against the Club, consisting of a claim for the remaining part to be paid of 30 per cent of the value of the contract, which the Club should have paid with the signing of the contract and which never paid in full, amount corresponding to 140,639,183 Rials.”

b) “Maintains his initial claim of the payment of 70% of the value of the contract, i.e. the amount of 3.920.000.000 deducting only the payment of the amount received on 25 June 2018 and amounting to the amount of 1.150.000.000, so that the Club continues to owe the Player for this concept the amount of 2.770.000.000.”

28. In this regard, the Claimant argued that the second agreement does not represent a waiver of his entitlements and that the amounts claimed by him are consistent, given that, by means of the second agreement, the Respondent committed itself to pay 50% of the contract, as well as 20% of the contract i.e. 70% of the contract (minus the amount received on 25 June 2018 of 1,150,000,000).

29. In its final comments, the Respondent held that the second agreement was valid and binding, and was signed with the satisfaction and consent of the parties. Moreover, the Respondent referred to art. 3. and 4 of the second agreement.

30. On 15 January 2018, the Claimant concluded an employment contract with the Iranian club, Saipa CSC, valid until 23 June 2019, by means of which the Claimant was entitled to the following remuneration:

USD 50,000, payable as follows:

 USD 25,000 “at the time of conclusion of the contract”

 USD 25,000, on 21 May 2019;

 “Article 1: for satisfaction letter the amount USD 100.000 that the amount USD 50.000 on 06 March 2018 and the amount USD 50.000 at the end of half season 2018-2020 after legal deductions will be paid to the player”.

USD 90,000, payable as follows:

 “30%” or USD 27,000 “at the time of conclusion of the contract”

 “20%” or USD 18,000 “at the end of the 15th week in season 2018-2020”

 “20%” or USD 18,000 “at the end of 22nd week in season 2018-2020”

 “30%” or USD 27,000 on 22 May 2020.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 12 February 2018. Consequently, the DRC concluded that 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 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 2019), 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 Cameroonian player and an Iranian club.

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 Player (edition January 2018), and considering that the present claim was lodged on 12 February 2018, the January 2018 edition of said regulations (hereinafter: the 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. 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. In this respect, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well as the documentation on file, bearing in mind 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.

6. First of all, the DRC acknowledged that, on 12 July 2017, the player and the club signed an employment contract, valid as from the date of signature until “the end of football season matches in 2017-2018”.

7. Moreover, the DRC noted that the Claimant unilaterally terminated his contract on 27 December 2017, invoking just cause due to alleged outstanding remuneration. Furthermore, the members of the DRC noted that on 12 February 2018, the Claimant lodged a claim against the Respondent claiming compensation for breach of contract in addition to outstanding remuneration.

8. In addition, the Chamber noted that according to the Respondent, the parties had reached a “mutual agreement to solve our problems specifically”. In this context the DRC took into consideration the two agreements provided by the Respondent: one allegedly signed by the parties on 27 May 2018 and the one signed on 25 June 2018, as well as the payment receipt / waiver dated 25 June 2018 and allegedly signed by the Claimant.

9. First of all, the DRC elucidated that the Claimant confirmed signing the second agreement in which the parties inter alia declared that “the contract terminated legally on 27 Dec 2017; [that] the club should pay just 50 percent of amount of contract (5,600,000,000 IRR) totally which 30 percent paid by club previously according to attached receipts; [and that] the club guarantee the payment of the remaining 20% of contract”.

10. Secondly, the Chamber referred to the payment receipt / waiver dated 25 June 2018 and recalled that, according to said document, the Claimant allegedly confirmed “the payment of 1/150/000/000 Rials as remaining amount of the contract […] By signing this document, [the Claimant] confirms the receipt of all amount of contract and fully settled; also certify that, the [Claimant] has no any claims against [the Respondent] on payment, Salary, Bonuses matters”.

11. Given the above, the Chamber established that the primary issue at stake is to determine as to whether the matter was indeed amicably settled between the parties by means of the agreement of 25 June 2018 and the payment receipt / waiver and thus, whether the Claimant had consequently waived his right to claim outstanding remuneration and compensation vis-à-vis the Respondent.

12. In this light, the DRC placed particular emphasis on the fact that, by means of his final comments, the Claimant did not deny having signed the second agreement dated 25 June 2018, nor the payment receipt / waiver also dated 25 June 2018 (cf. I.27 and I.28). In fact, the Chamber underlined that according to his statements, the Claimant confirmed having received the amounts stipulated in both the second agreement and the payment receipt / waiver.

13. Consequently, DRC wished to establish that, by means of the second agreement dated 25 June 2018, it remained undisputed that the parties had terminated the employment contract on 27 December 2017 by mutual agreement. As a result, the Chamber emphasized that any request for compensation by the Claimant for breach of contract is rejected.

14. In continuation, and referring once again to the second agreement, the Chamber further established that the following three issues remained undisputed:

a) The Claimant would receive 50% of the total contract, i.e. IRR 2,800,000,000;

b) The Claimant has received 30% of the total contract, i.e. IRR 1,680,000,000;

c) The remaining 20% of the total contract, i.e. IRR 1,120,000,000 will be paid by the Respondent.

15. Finally, the DRC referred to the payment receipt / waiver and concluded that the Claimant received IRR 1,150,000,000, an amount which covers the entire amount outstanding to the Claimant in accordance with the second agreement.

16. Notwithstanding the above, the Chamber took into consideration the Claimant’s comments regarding the second agreement and the payment receipt / waiver, who insisted on his original claim, arguing that he was still entitled to “30% of the value of the contract […] corresponding to 140,639,183 Rials”. Moreover, the DRC noted that as per the Claimant, he was still entitled to “70% of the value of the contract, i.e. the amount of 3.920.000.000 deducting only the payment of the amount received on 25 June 2018 and amounting to the amount of 1.150.000.000, so that the Club continues to owe the Player for this concept the amount of 2.770.000.000.”

17. The DRC could not follow the Claimant’s argumentation. As per the Chamber, the second agreement should be interpreted as meaning that the Respondent had already paid to the Claimant 30% of the total contract. As such, the DRC understood that the Claimant’s claim for IRR 140,639,183 is groundless.

18. Furthermore, the DRC was of the firm opinion that the Claimant was not in a position to request 70% of the value of the contract, since it had already established that the contract had been terminated by mutual agreement on 27 December 2017 and that, as a consequence, the Claimant could not request compensation for breach of contract.

19. In light of all of the above, and in particular bearing in mind the fact that the validity of the second agreement as well as of the payment receipt / waiver remained uncontested, the Dispute Resolution Chamber decided that the Claimant had already obtained all the amounts he had requested. As a result, the DRC decided that it must reject the claim put forward by the Claimant in its entirety.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Aloys Bertrand Nong, is rejected.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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