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 22 November 2019

Decision of the Dispute Resolution Chamber (DRC) judge

passed on 22 November 2019,

by

Pavel Pivovarov (Russia),

on the claim presented by the player,

Sophie Williams, England,

represented by Mr Hrvoje Raic

as Claimant

and the club,

US Femminile Latina Calcio, Italy

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 20 December 2017, the English player, Sophie Williams (hereinafter: the Claimant or the player) and the Italian club, US Femminile Latina Calcio (hereinafter: the Respondent or the club) concluded an agreement titled “Agreement on reimbursement of costs for amateur sports activity” (hereinafter: the agreement), valid as from 1 January 2018 until 30 May 2018.

2. According to art. 5 of the agreement, the club “undertakes to pay the football player, for the sports activity under Art 2 of the present Agreement, an annual fixed reimbursement fee amounting to EUR 1750,00 to be paid in 5 monthly instalments, by the 5th day of the month succeeding the month in which the services required from the football player were executed, starting from the 1 January 2018 until 30 May 2018.”

3. Pursuant to art. 2 of the agreement, the player “undertakes, as an ‘amateur’ football player, to participate in the Association’s [club] training and competitive activities”.

4. In addition, art. 4 of the agreement stipulates that “the relationship between the parties, having in mind the associating connection, type of function, modes of execution and of explicit intention of the parties, expressly excludes any type of dependent employment and does not intend payment of social security contributions”.

5. Furthermore, the parties agreed in art. 6 of the agreement that the “fixed reimbursement fee excludes payment of premiums or fees for performed football activities and expressly constitutes a reimbursement of costs borne by the football player (including but not limited to: the use of football’s own car, gas, meals and tolls)”.

6. Moreover, art. 8 of the agreement stipulated that “during the period of stay, i.e. from 1 January 2018 to 30 May 2018 the football player shall use suitable means of transport on a case-by-case-basis agreed by the Company providing the football player with accommodation, e.g. apartment […] equipped with WIFI, and the utility bills shall be borne by the Association.”

7. Finally, in art. 9 of the agreement the parties agreed that “all controversies which might arise from the application, interpretation, validity, execution and/or termination of the present agreement shall be resolve by the ordinary judge competent to adjudicate cases of that value and in that territory.”

8. On 30 November 2018, the Claimant lodged a claim for outstanding remuneration and requested the payment of the total amount of EUR 1,750, corresponding to five monthly “reimbursements”, plus 5% interest p.a. as from the due dates.

9. The Claimant further requested the imposition of sporting sanctions against the Respondent.

10. In its reply, the club contested the competence of FIFA, as the club deemed that art. 22 lit. b of the FIFA RSTP is only applicable on employment related disputes and, in casu, “the parties have never signed a labour – employment contract between them”.

11. Furthermore, the club referred to Italian law and highlighted that “amateur players are those who play for a club belonging to the National Amateur League (Lega Nazionale Dilettanti). They do not have an employment contract, but rather an economic agreement concerning the reimbursement of their transfer and training costs by the club. Such agreements can also allow for a lump sum which may be up to EUR 25,822 (gross) on a yearly basis.”

12. In this respect, the club argued that “amateurs do not receive amount which can be considered as salaries but exclusively a refund of costs”.

13. Moreover, the club stressed that “female players […] are also considered as amateurs”.

14. As a consequence, the club claimed that as “there is no employment relationship between amateurs players and amateurs clubs, the CAE [Commissione Accordi Economici] is the competent body which decides cases concerning travel allowances, flat-rate expenses, ‘prize-giving items’ and other refund of costs-agreements”.

15. Alternatively, the club deemed that “as per article 9 of the Agreement, the Parties agreed that in the event of a dispute, it shall be resolved by the ordinary judge competent to adjudicate cases of that value and in that territory”. In this regard, the player referred to the “Ordinary Civil Tribunal of Latina, the city where the Agreement has been signed” as the competent body to decide in this case.

16. As reply to the club’s rejection of FIFA’s jurisprudence, the player argued that “the Respondent’s submission about the alleged lack of FIFA DRC jurisdiction in the present case are, simply put, just wrong”.

17. Furthermore, the player deemed that it’s a “longstanding and well established jurisprudence” that “provisions of the national law on the status of the player are i.e. completely irrelevant for the case in hand.”

18. In addition, the player argued that the “Respondent has failed to even try to demonstrate that the expenses of the Claimant on monthly basis exceeds the remuneration paid by the Respondent”.

19. Moreover, the player stressed that the “designation of the Claimant in the Agreement” and the “classification of the player made by the association” are not relevant.

20. In regards to the clause of art. 9 of the agreement, the player pointed out that “it’s blatantly obvious that such provision is vague and obviously fails to make clear reference to any specific court.”

21. Finally, the player argued that “the analyzed tribunals obviously do not meet the minimum requirements from the Circular 1010 of FIFA to be considered as independent”.

22. In her claim, the player deemed that on 30 August 2018, she has put the club in default for the payment of EUR 1,750, however to no avail.

23. In this regard, the player argued that the club failed to pay any “overdue payables”.

24. In its reply to the claim, the club deemed that the player “acted in bad faith by hiding the real facts of the case” and that the club has never received the default notice.

25. In addition, the club argued that “the Respondent did not refunded a part of the amount of the expenses to the player because the Claimant, during a period of rehabilitation entirely arranged and covered by the Respondent, left without any reasons or inform the Respondent.”

26. Consequently, the club stressed that the claim of the player shall be rejected.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 30 November 2018. Consequently, 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 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions June 2018 and 2019), the DRC judge shall, in principle, adjudicate on employment-related disputes between a club and a player, with an international dimension.

3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the grounds that the agreement concluded with the Claimant established the “Ordinary Civil Tribunal of Latina” as the competent body to deal with the case.

4. On the other hand, the DRC judge noted that the player rejected the competence of the “Ordinary Civil Tribunal of Latina” over the present affair, alleging that the jurisdiction clause included in the agreement was not clear and specific enough.

5. In relation to the above, the DRC judge deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

6. Therefore, while analysing whether he was competent to hear the present matter, the DRC judge considered that he should, first and foremost, analyse whether the agreement at the basis of the present dispute contained a clear and specific jurisdiction clause.

7. In this respect, the DRC judge recalled that art. 9 of the agreement stipulates that “all controversies which might arise from the application, interpretation, validity, execution and/or termination of the present agreement shall be resolve by the ordinary judge competent to adjudicate cases of that value and in that territory.”

8. Having examined the relevant provision, the DRC judge came to the conclusion that art. 9 of the agreement does not constitute a clear jurisdiction clause in favour of one specific court in Italy, since it is drafted in a generic manner and even fails to mention the relevant country. Consequently, the DRC judge understood that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction.

9. Furthermore, the DRC judge observed that the player and the club have different opinions as to whether this dispute is to be considered an employment related dispute as the club deemed that the parties never signed a “labour – employment contract”, whereas the player rejected the club’s arguments in its entirety.

10. In this regard, the DRC judge duly noted that the agreement contained a provision stipulating that the Claimant was entitled to receive from the Respondent a monthly amount of EUR 350 as well to be provided with an accommodation by the Respondent.

11. In this context, the DRC judge referred to art. 2 par. 2 of the Regulations, which stipulates that “A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs”.

12. Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations as well as the amounts payable to the player on the basis of the agreement, the DRC judge concluded that it was beyond a doubt that the player was in fact paid more for her footballing activity than the expenses she effectively incurred. In this regard, the DRC judge was eager to emphasize that a player’s remuneration as per the criteria set out in art. 2 par. 2 of the Regulations constitutes the decisive factor in the determination of the status of the player and that the legal nature or the designation of the contract is of no relevance in this regard. This approach has been confirmed by the Court of Arbitration for Sport (CAS) in its decision CAS 2006/A/1177, whereby the Panel also emphasized that the definition contained in the mentioned provision is the only ground to establish a player’s status. For the sake of completeness, the DRC judge pointed out that according to the said decision the classification of a player made by the association of his club is not decisive to determine the status of a player. And, finally, the remuneration in question may well fall short of a living wage, but as long as it exceeds the expenses effectively incurred by the player, the criterion of art. 2 of the Regulations is met.

13. Equally, the DRC judge highlighted that the second element contained in said art. 2 par. 2 of the Regulations, i.e. the existence of a written contract, is met.

14. On account of all the above, the DRC judge concurred that the player was registered as a professional with the club.

15. Thus, the DRC judge established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the DRC judge is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance and that the claim of the Claimant is admissible.

16. In continuation, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2018 and 2019), and considering that the Claimant’s claim was lodged on 30 November 2018, the June 2018 edition of the aforementioned regulations (hereinafter; the Regulations) is applicable to the matter at hand as to the substance.

17. The competence of the DRC judge and the applicable regulations having been established, and entering into the substance of the matter, the DRC judge started by acknowledging the above-mentioned facts as well as the documentation contained in the 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.

18. In so doing, the DRC judge first noted that on 20 November 2017, the player and the club effectively concluded an employment contract valid as from 1 January 2018 until 30 May 2018, by means of which the player was entitled to receive the remuneration detailed in point I.2. above.

19. Subsequently, the DRC judge acknowledged that, according to the Claimant, the Respondent had failed to pay any amounts in accordance with the agreement, i.e. EUR 1,750.

20. In continuation, the DRC judge noted, that the Respondent did not contest that it had failed to make any payments, but the club argued that it never received a default notice from the player and deemed that the player left the club during “a period of rehabilitation” without informing the Respondent.

21. In this regard, the DRC judge emphasised that the Respondent failed to provide any evidence for its arguments, in fact, the club failed provide any details of the alleged circumstances. Moreover, the DRC judge considered that the arguments raised by the Respondent, in particular, that it allegedly had not received any default notice, cannot be considered a valid reason for the non-payment of the monies claimed by the Claimant. In other words, the reasons brought forward by the Respondent in its defence do no exempt the Respondent from its obligations to fulfil its contractual obligations towards the Claimant.

22. Consequently, the DRC judge decided to reject the argumentation put forward by the Respondent in its defence.

23. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the player’s remuneration, in the total amounts of EUR 1,750, corresponding to 5 monthly instalments.

24. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payments as of the day following the day on which the relevant payments fell due, until the date of effective payment.

25. Furthermore, taking into account the consideration under number II.14 above, the DRC judge 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.

26. In this regard, the DRC judge 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.

27. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

28. Finally, the DRC judge 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 DRC judge

1. The claim of the Claimant, Sophie Williams, is admissible

2. The claim of the Claimant is accepted.

3. The Respondent, US Femminile Latina Calcio, has to pay to the Claimant the amount of EUR 1,750, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 6 February 2018 on the amount of EUR 350;

b. 5% p.a. as from 6 March 2018 on the amount of EUR 350;

c. 5% p.a. as from 6 April 2018 on the amount of EUR 350;

d. 5% p.a. as from 6 May 2018 on the amount of EUR 350;

e. 5% p.a. as from 6 June 2018 on the amount of EUR 350.

4. 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 amount mentioned under point 3 above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 3 above 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).

6. In the event that the amount due plus interest in accordance with point 3 above is 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 amount is 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).

7. The ban mentioned in point 6 above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum plus interest is 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 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 DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer