F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision25 February 2021

Decision of the

Dispute Resolution Chamber (DRC) Judge passed on 25 February 2021

regarding an employment-related dispute concerning the player B

BY:

Philippe Diallo (France), DRC Judge

CLAIMANT:

A, Country A

Represented by

RESPONDENT:

B, Country B

I. FACTS OF THE CASE

1. According to the information available in the Transfer Matching System (TMS), on 1 July 2016, the Country A club, A (hereinafter: the club or the Claimant) and the Country B player, B (hereinafter: the player or the Respondent) signed an employment contract valid as from the same date until 30 June 2020.

2. On 4 August 2017, the player was transferred from the Claimant to the Country B club, C.

3. On 16 August 2017, the club and the player signed a settlement agreement “concerning the remaining debts in view of the termination of the labour agreement, in the net amount of Country A currency xxx 742.174.71 (seven hundred and forty-two thousand, one hundred and seventy-four xxx and seventy one cents) and complementary net amount of xxx 7.730,38 (seven thousand, seven hundred and thirty xxx and thirty-eight cents)” (hereinafter: the settlement agreement).

4. According to such settlement agreement, the club undertook to pay the player xxx 749,905.09 net in

5 instalments of xxx 149,981 each, the first one upon execution of the settlement agreement and the four remaining respectively on 30/8/17, 30/09/17, 30/10/17 and 30/11/17.

5. On 29 October 2018, the player lodged a claim against the club before FIFA, which was filed under ref. nr. xx-xxxxx. The player sought inter alia payment of the four last instalments of the settlement agreement, amounting to xxx 599,924.

6. By decision dated xxx, the FIFA Dispute Resolution Chamber ruled in favour of the player and partially accepted the claim. The club was ordered thus to pay xxx 599,924 to the player, plus interest as from the due dates.

7. A subsequent appeal was brought by the club before the Court of Arbitration for Sport, which was registered under ref. xxx. Such appeal was fully dismissed on 14 July 2020.

8. By correspondence dated 9 November 2020, the club put the player in default and requested payment of xxx 346,935.21, corresponding to two instalments of the settlement agreement. In such correspondence, the club explained that it paid the amount ordered by the CAS on xxx, but that two instalments of xxx 149,981 each had already been paid respectively on 15 September

2017 and 31 October 2017.

II. PROCEEDINGS BEFORE FIFA

9. On 26 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

10. The club filed the claim at hand and explained that it was going through a significant institutional crisis, claiming that the previous board of directors had been “dismissed”, which led to many employees leaving the club and “a great share of information was lost – including payments that had/had not been paid”. The club claimed that its new staff was not aware that the player had been paid already two out of the four claimed instalments of the settlement agreement.

11. Accordingly, the club requested that the player be ordered to pay xxx 346,935.21 plus 5% interest p.a. as from 16 October 2020 i.e. the date “in which the excessive payment was made”.

b. The reply of the Respondent

12. In spite of having provided FIFA with his e-mail address, the player did not reply to the claim.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence and applicable legal framework

13. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 26 November 2020 and submitted for decision on 25 February 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

14. Subsequently, DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 February 2021) (hereinafter: RSTP), he is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Country A club and an Country B player.

15. To this end, the DRC Judge noted that the present claim, lodged on 26 November 2020, concerns the reimbursement of alleged overpaid amounts, which were made in 2017 and again on October 2020. Thus, the DRC Judge considered that he should examine if the present claim, or any part of it, is barred by the statute of limitations.

16. Indeed, the DRC Judge referred to art. 25 par. 5 of the RSTP, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the Dispute Resolution Chamber 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.

17. In view of the above, the DRC Judge deemed it fundamental to underline that in order to determine whether he could hear the present matter, he 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.

18. In this context, the Chamber referred to the arguments of the parties regarding the event giving rise to the dispute, and noted that the claim remained uncontested.

19. In view of aforementioned apparent lack of dissent between the parties regarding the event giving rise to the dispute and after a thorough examination of the Claimant’s submission and the documentation provided in these proceedings, the DRC Judge confirmed that the explicit request for reimbursement of overpaid amounts implies that the event giving rise to the dispute should be set at the moment when the club could have claimed back the amounts paid, that is, in October 2020.

20. The Single Judge found hence that the claim is admissible.

21. Subsequently, the DRC Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the RSTP, and considering that the present claim was lodged on 26 November 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

22. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

23. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

24. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

25. The DRC Judge moved to the substance of the matter and noted that the club is claiming xxx

346,935.21 arising from the settlement agreement, allegedly overpaid by the Claimant.

26. To this end, the DRC Judge observed that there is no evidence on file of the said payments at the basis of the claim, its date of execution, or any other information in that respect. In order words, the DRC Judge highlighted that the club did not file any evidence of payments made to the player on 16 October

2020, which could demonstrate that the amount sought was indeed overpaid.

27. In this respect, the DRC Judge emphasized that the only receipts found on file are those referring to payments made in 2017.

28. In view of the above, taking into account the lack of documentary evidence provided by the Claimant, the DRC Judge deemed that it was impossible to determine whether the Claimant had indeed overpaid any amounts to the Respondent.

29. In light of the foregoing, and in absence of any other evidence, the DRC Judge came to the conclusion that the Claimant had failed to satisfactorily carry the burden of proof regarding its alleged entitlement for reimbursement of the amount sought in its claim.

30. All the above led the DRC Judge to conclude that the claim of the Claimant had to be rejected.

d. Costs

31. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, he decided that no procedural costs were to be imposed on the parties.

32. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

Emilio García Silvero

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

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

2. The claim of the Claimant is rejected.

3. This decision is rendered without costs. For the Dispute Resolution Chamber:

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

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