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 21 August 2019

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 August 2019,

in the following composition:

Geoff Thompson (England), Chairman Alexandra Gómez Bruinewoud (Uruguay), member Stijn Boeykens (Belgium), member Wouter Lambrecht (Belgium) member Abu Nayeem Shohag (Bangladesh), 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. The Player of Country B, Player A (hereinafter: the player or the Claimant), and the Club of Country D, Club C (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract), valid as from 11 July 2017 until 31 May 2020.

2. According to clause 3 of the contract, the Claimant was entitled to the following remuneration:

- EUR 1,425,000 for the season 2017-2018;

- EUR 1,150,000, for the season 2018-2019;

- EUR 1,000,000, for the season 2019-2010.

3. On 6 August 2018, the parties concluded a mutual termination agreement (hereinafter: the termination agreement). According to clause 2 of said agreement, the Respondent agreed to pay to the Claimant the following amounts:

- EUR 43,762.55, on 15 September 2018;

- EUR 90,000, on 15 October 2018;

- EUR 75,000, on 15 November 2018;

- EUR 75,000, on 15 December 2018.

4. According to the Claimant, the Respondent never paid him any of the amounts included in the termination agreement, in the total amount of EUR 243,762.55.

5. On 14 February 2019, the Claimant lodged a claim for outstanding remuneration against the Respondent before FIFA and requested the payment of the total amount of EUR 243,762.55, plus 5% interest p.a. as from the due dates.

6. In addition, the Claimant requested the payment of 20% of the due amount as compensation.

7. Moreover, the Claimant requested the payment of legal fees in the amount of EUR 48,752.51 (i.e. 20% of the claimed amount), as well as procedural costs.

8. The Claimant explained that it tried to recover the debt amicably, but that the Respondent explained him that it would only pay if FIFA ordered to do so.

9. The Respondent argued that it paid the amount of EUR 77,705.37 “for premiums payment” and that therefore the Claimant “has no any right to claim for 43.762.55 EUR on the other hand the claimant has claimed 43.762.55 EUR for Premium payment”.

10. The Respondent further noted that it paid “with 13 pieces of payment totally and equally 77,705.37 EUR Premium payment (…) during the season”. In this respect, the Respondent submitted some payment receipts as evidence.

11. The Respondent further rejected the payment of the legal fees.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 14 February 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 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 Player of Country B and a Club of Country D.

3. 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 June 2019), and considering that the present claim was lodged on 14 February 2019, the June 2018 edition of said regulations (hereinafter: 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.

5. First, the Chamber noted that, according to the terms of the termination agreement concluded between the parties on 6 August 2018, the Respondent had to pay the Claimant the amount of EUR 243,762.55 as detailed under point I.3 above.

6. In continuation, the DRC noted that the Claimant alleged that the Respondent failed to pay him the aforementioned amount, the payment of which he requested together with the payment of compensation and of EUR 48,752.51 for legal fees plus procedural costs.

7. Equally, the Chamber took note of the reply of the Respondent, which maintained that it provided the Claimant with the payments listed under point I.9 above. In this respect, the members of the DRC acknowledged that the Respondent submitted some payment receipts in support of his argumentation.

8. In continuation, the members of the Chamber referred to the basic principle of burden of proof, as established in 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.

9. With the above in mind, the members of the Chamber went on to analyse the alleged payment receipts submitted by the Respondent in order to prove the execution of the payments under paragraph I.9 above. In this regard, the members of the Chamber first recalled that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German).

10. Bearing in mind the wording of the aforementioned provision, the Chamber were eager to emphasise that the Respondent failed to submit such documents translated into one of the four official FIFA languages, documents which, therefore, could not be taken into account. What is more, the DRC was comforted with such conclusion by the fact that none of the above-mentioned payment receipts appeared to bear a later date than the date of the first instalment provided in the termination agreement.

11. Consequently, the members of the DRC deemed that no substantial evidence was provided by the Respondent with regard to the alleged payments and, in accordance with the well-established jurisprudence of the DRC, the members of the Chamber had no other option than not to take into account the alleged payment receipts submitted by the Respondent.

12. In view of the above, and considering that the Respondent did not invoke any other reason to justify the non-payment of the Claimant’s receivables, the members of the Chamber concluded that the Respondent did not provide conclusive evidence with its defence and that, therefore, it could be established that the Respondent had failed to pay to the Claimant the amount as agreed upon between the parties in the termination agreement of 6 August 2018. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the aforementioned termination agreement and, consequently, is to be held liable to pay the outstanding amount of EUR 243,762.55 to the Claimant.

13. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest on the aforementioned amount as follows:

- 5% interest p.a. over the amount of EUR 43,762.55 as from 16 September 2018 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 50,000 as from 16 October 2018 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 75,000 as from 16 November 2018 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 75,000 as from 16 December 2018 until the date of effective payment.

14. The DRC further decided that the Claimant’s request for compensation shall be rejected as the Respondent shall already pay the entire value of the termination agreement and, thus, the aforementioned request of the Claimant has no legal basis.

15. Finally, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs and procedural fees, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

16. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

17. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

18. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

19. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

20. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

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 outstanding remuneration in the amount of EUR 243,762.55, plus interest calculated as follows:

- 5% interest p.a. over the amount of EUR 43,762.55 as from 16 September 2018 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 50,000 as from 16 October 2018 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 75,000 as from 16 November 2018 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 75,000 as from 16 December 2018 until the date of effective payment.

3. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus related interest mentioned under point 2. above.

4. The Respondent shall provide evidence of payment of the due amounts plus related interest in accordance with point 2. to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due plus related interest in accordance with point 2. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

6. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

7. In the event that the aforementioned sums plus interest are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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. 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