F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, from country D as Claimant against the club, Club K, from country T as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 January 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Johan van Gaalen (South Africa), member Todd Durbin (USA), member Damir Vrbanovic (Croatia), member on the claim presented by the player, Player A, from country D as Claimant against the club, Club K, from country T as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 18 July 2007, Player A, from country D (hereinafter: the Claimant), and the Club K, from country T (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from 18 August 2007 until 30 June 2009. 2. According to the contract, the Claimant was to be remunerated as follows: Season 2007-2008 - EUR 80,000 payable by 10 August 2007; - EUR 90,000 paid in 10 monthly instalments of each EUR 9,000 between 30 August 2007 and 31 May 2008; - EUR 1,500 as match appearance fee per League and Cup matches (100% if the player plays in the first eleven, 75% if he comes on as a substitute and 50% if he is in the first 18 but does not participate). Season 2008-2009 - EUR 80,000 payable by 10 August 2008; - EUR 100,000 paid in 10 monthly instalments of each EUR 10,000 between 30 August 2008 and 30 May 2009; - EUR 1,500 as match appearance fee per League and Cup matches (100% if the player plays in the first eleven, 75% if he comes on as a substitute and 50% if he is in the first 18 but does not participate). 3. Furthermore, the Claimant and his family were entitled to 3 round tickets from country D to country T per year and the Respondent would pay “all expenses related to the accommodation ie. rent, electricity, internet connection etc.” . 4. On 26 April 2010, the Claimant lodged a claim against the Respondent in front of FIFA maintaining that the latter had not fulfilled its obligations under the contract. According to the Claimant, he was paid the following salaries for the season 2007/2008: Payments Dates Payments Dates Deductions due in payments made (EUR) payments from salary EUR due made (EUR) 80,000 10/08/2007 80,000 14/08/2007 9,000 31/08/2007 9,000 (cash) Beginning of September 2007 9,000 30/09/2007 8,715 08/10/2007 285 9,000 31/10/2007 8,723.66 9/11/2007 276.34 9,000 30/11/2007 7,712.31 18/12/2007 287.69 9,000 31/12/2007 8,660.15 23/01/2008 339.85 9,000 31/01/2008 7,225.44 04/03/2008 1,774.56 9,000 29/02/2008 8,657.44 25/03/2008 342.56 9,000 31/03/2008 8,085.33 30/05/2008 914.67 9,000 30/04/2008 8,676.69 30/05/2008 323.31 9,000 31/05/2008 8,679.52 30/06/2008 320.48 170,000 165,135.54 4,864.46 5. Hence, the Claimant maintains that for the 2007/2008 season he was paid the total amount of EUR 165,135.54 instead of EUR 170,000, thereby indicating that: - EUR 2,689.23 was legitimately deducted for additional flight tickets, and - EUR 2,175.23 was illegitimately deducted relating to the rent. 6. In this respect, the Claimant outlined that the Respondent did not agree with the apartment he had chosen and provided him with another apartment chosen by the Respondent. The Claimant argued this was a breach of the contract and added that the Respondent refused to pay more than USD 2,000 for the apartment and made illegitimate deductions of the deficit, totalling EUR 2,175.23. 7. Furthermore, according to the Claimant, he was paid the following salaries for the season 2008/2009: Payments Dates Payments made Dates payments due in payments (EUR) made EUR due 80,000 10/08/2008 80,000 08/08/2008 10,000 31/08/2008 8,605 19/09/2008 10,000 30/09/2008 10,000 22/10/2008 10,000 31/10/2008 10,000 24/11/2008 10,000 30/11/2008 7.864,90 17/12/2008 10,000 31/12/2008 10,000 21/01/2009 10,000 31/01/2009 8,001 17/03/2009 10,000 28/02/2009 15,000 11/05/2009 10,000 31/03/2009 5,000 21/05/2009 10,000 30/04/2009 No payment - 10,000 31/05/2009 No payment - 180,000 154.470,90 8. Hence, for the 2008/2009 season, the Claimant asserts to have been paid a total of EUR 154,479.90 instead of EUR 180,000, thereby indicating that: - The amount of EUR 1,395 was legitimately deducted for flight tickets; - The amount of EUR 4,134.10 (EUR 2,135.10 + EUR 1,999) was illegitimately deducted relating to flight expenses; - The amount of EUR 20,000 for the salaries of April and March 2009 was not paid at all. 9. Moreover, the Claimant stated that he was involved in 31 matches in the 2008/2009 season, 26 as a starter, 2 as a participating sub and 3 as a nonparticipating sub. However, instead of receiving the amount of EUR 43,500, the Claimant only received EUR 41.246,70, leaving a balance of EUR 2,253.30. 10. Equally, the Claimant indicated that he was promised a promotion bonus of currency of country T 40,000 in the event that the Respondent would be promoted to the country T First division, which it did at the end of the 2008/2009 season. In this respect, the Claimant enclosed a witness statement of himself to prove that such promotion bonus had been agreed upon. 11. Therefore, the Claimant initially claimed the amount of EUR 48,002.63 from the Respondent plus interest “at the prevailing daily rate that FIFA determines”, calculated as follows: - EUR 26,309.33 in respect of the monthly salaries for the 2007/2008 and 2008/2009 seasons; - EUR 2,253.30 for appearance bonuses in matches during the 2008/2009 season; - EUR 19,440 (40,000 currency of country T) for the unpaid promotion bonus. 12. Furthermore, the Claimant requested to increase the above-mentioned amount by a factor of 2 as a compensation for the numerous breaches of contract during the protected period as well as to impose sporting sanctions on the Respondent. Equally, the Claimant requested that the Respondent would pay the Claimant’s legal expenses. 13. In its reply to the claim, the Respondent stated that no matter can be addressed if more than two years have elapsed since the facts arose. Therefore, in relation to the Claimant’s request to be paid the amount of EUR 2,175.23, the Claimant can only claim the amount of EUR 643.79 relating to the salary payments of 30 April 2008 and 31 May 2008. 14. Furthermore, the Respondent states that the Claimant omitted to mention that two additional payments were made: - EUR 1,000 in cash; - Currency of country T 5,400 (EUR 3,000) to his country T bank account. In this respect, the Respondent submitted a receipt dated 18 July 2007 for the amount of EUR 1,000 as well bank statements for the payment of the amounts of currency of country T 1,800 and currency of country T 2,600, paid on 17 and 24 September 2007 respectively. 15. As to the accommodation, the Respondent asserts that the Claimant approved the apartment and was informed of the rent of USD 2,000. The Respondent explained that the Claimant insisted to stay in the apartment and agreed to “pay the balance up to USD 500 per month”. Therefore, the Respondent deemed that it could make “legitimate deductions of the deficit (of between EUR 250 to EUR 400 depending on the prevailing exchange rate at the time) from the player’s monthly salary totalling EUR 2,175.23”. 16. As for the 2008/2009 season, the Respondent stated that: a) By September 2008, the Claimant and his family were already in over- expenditure of flight tickets and therefore the amount of EUR 1,395 was legitimately deducted. Also, the amount of EUR 4,134.10 was legitimately deducted in this respect, outlining that the Claimant himself confirmed that he was already in over-expenditure of flight tickets; b) As to the salaries of April and May 2009, the Claimant’s family made an over-expenditure of flights tickets of EUR 17,500 and provided a statement of travel agency provided that the Respondent paid the amount of currency of country T 37,943 to it. Therefore, the Respondent held that this amount should be set off and the claim for outstanding salary has to be rejected in full; c) As to the outstanding appearance bonuses, the Respondent indicated it paid the amount of EUR 33,250 as well as currency of country T 17,831 (according to the Respondent, corresponding to EUR 10,000), totalling the amount of EUR 43,250, which corresponds to the total amount the Claimant was entitled to; d) As to the promotion bonus, the Respondent held that such bonus was not stipulated in any contract or agreement nor was it promised to the Claimant orally. 17. In conclusion, the Respondent stated that the conditions for set-off of the respective debts are clearly satisfied and the Respondent has no debt whatsoever towards the Claimant. 18. In his replica, the Claimant stressed that there is no right for the Respondent to set-off its debt since i) it makes no submissions that shows that any of the alleged payments were required to be paid back to the Respondent by the Claimant, and ii) even if the facts of the payments alleged by the Respondent to the Claimant are accepted, the Respondent has not demonstrated any basis on which the Claimant is a debtor in respect of these payment. The Respondent has therefore failed to satisfy the conditions established in the country S Code of Obligations. 19. Furthermore, the Claimant stated that: a) The Respondent’s failure to pay only crystallised on 30 June 2009. Hence, all payments have been timeously claimed for; b) As to the payment of currency of country T 5,400, the Claimant accepts that such amount was paid, however, it did not constitute a salary payment, but represented the ‘win bonuses’ which were not provided for in the contract; c) As to the EUR 1,000 payment, this was an “additional gratuitous payment” outside of the contract; d) As to the accommodation, art. 5.11 of the contract clearly stipulated that the Respondent would pay all expenses related to the accommodation. Therefore, no deductions can be accepted in this respect; e) As to the flight costs, the Claimant states that only the additional flights are repayable and accepts that the sum of currency of country T 10,970.72 was repayable to the club. However, given that three deductions were made from the Claimant’s salary in September, December and March 2008 (EUR 1,395 + EUR 2,135.10 + EUR 1,999), effectively cancelling this debt, the Claimant requested that the amount of EUR 20,000 for the months of April and May 2009 are paid to him with interest; f) As to the appearance bonus, all the payments made in currency of country T are payments relating to win bonuses, which are an entirely separate matter. The payments of the appearance bonuses were in EUR, the dates of the currency of country T payments do not correspond to the due dates of the appearance bonuses and, thus, the list of payments for win bonuses falls outside the contract and therefore cannot be considered as a set off; g) As to the promotion bonus, the club implicitly accepted that it is common practice in football for clubs to pay a bonus to players in the event that a team achieves promotion; discussions took place between the Claimant and the Respondent and it was understood that the Respondent would pay the Claimant the amount of currency of country T 40,000. 20. On account of all the above, the Claimant amended his initial claim to EUR 46,557.39, calculated as follows: - EUR 4,864.46 in respect of the unpaid salary for the 2007/2008 season; - EUR 20,000 for the Respondent’s failure to pay the salaries of April and May 2009; - EUR 2,253.30 for the unpaid appearance bonuses for the season 2008/2009; - EUR 19,440 for the unpaid promotion bonus. 21. In its duplica, the Respondent reiterated that the Claimant has no claim for unpaid salary and bonuses: - Regarding the season 2007/2008, the Claimant amended his claim from EUR 2,175.23 to EUR 4,864.46. The Claimant’s new claim for EUR 2,689.23 is time-barred; - The Claimant may only have a claim for the payments due on 30 April and 31 May 2008 in the amount of EUR 643.79, however, the Claimant acknowledges receipt of the amount of EUR 1,000 and currency of country T 5,400. Therefore, for the season 2007/2008 there is no outstanding debt whatsoever to the Claimant; - The payments of EUR 1,000 and currency of country T 5,400 are salary payments and not “win bonuses”, the Claimant was not entitled to any separate payments outside the contract; - As to the April and May 2009 salaries, the Respondent reiterated that the Claimant made an over-expenditure of flight tickets in the amount of EUR 17,500, which has to be set off against the Claimant’s wages; - As to the alleged outstanding appearance bonuses, the Respondent held that indisputably paid the Claimant the amounts of EUR 33,250 and “old currency of country T 16,931” totalling the amount of EUR 43,250. Therefore, the Respondent owes no money for appearance bonuses to the Claimant; - There is no promotion bonus stipulated in the contract, nor was it ever promised to the Claimant. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 26 April 2010. Consequently, the previous edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 3 of the 2012 edition 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 2012), 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 country D Player and a country T 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 Players (editions 2009, 2010 and 2012), and considering that the present claim was lodged on 26 April 2010, the 2009 edition of the aforementioned 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. The members of the Chamber started by acknowledging that, on 18 July 2007, the Claimant and the Respondent had concluded an employment contract valid as from 18 August 2007 until 30 June 2009. 5. In this regard, the members of the Chamber duly noted that after the expiry of the contract, the Claimant lodged a claim in front of FIFA claiming that the Respondent had not complied with its obligations in full under the contract and, therefore, requested that the Respondent would pay him the amount of EUR 46,557.39, consisting of the following amounts: - EUR 4,864.46 in respect of the unpaid salary for the 2007/2008 season; - EUR 20,000 for the Respondent’s failure to pay the salaries of April and May 2009; - EUR 2,253.30 as appearance bonuses for the season 2008/2009; - EUR 19,440 for the promotion bonus. 6. In continuation, the Chamber took due note of the arguments put forward by the Respondent, which contested that the Claimant was entitled to any payments, alleging that i) the amounts claimed by the Claimant for the 2007/2008 season could not be considered since these payments were time- barred, ii) the promotion bonus had never been promised to the Claimant, iii) the appearance bonuses had already been paid, and iv) the remaining payments were to be set off against the over-expenditure of the flight tickets. 7. Firstly, the members of the Chamber turned to the request of the Claimant in relation to his alleged outstanding salaries for the 2007/2008 season. In respect of these two salary payments, the Chamber first of all referred to art. 25 par. 5 of the Regulations which, inter alia, stipulates that the DRC shall not hear any case subject to the regulations if more than two years have elapsed since the event giving rise to the dispute. 8. In continuation, the Chamber took note that the Claimant’s claim was lodged on 26 April 2010 and that, consequently, it could not consider any salary payment that, in accordance with the contract, had fallen due before 26 April 2008. Therefore, the Chamber decided that any requests of the Claimant in relation to alleged outstanding payments before 26 April 2008 must be declared barred by the statute of limitations in application of art. 25 par. 5 of the Regulations. 9. On account of the above, the Chamber noted that, in relation to the 2007/2008 season, it could only examine the alleged non-payments of the salaries that fell due on 30 April 2008 and 31 May 2008. In this respect, the Chamber acknowledged that the Respondent had only paid the amounts of EUR 8,676.69 and EUR 8,679.52, where the Respondent should have paid twice the amount of EUR 9,000 as per the employment contract. At the same time, the Chamber duly noted that the Respondent argued that it had paid the additional amounts of EUR 1,000 and currency of country T 5,400 and that, therefore, any outstanding amounts in relation to the 2007/2008 season had been covered. 10. After analysing the payment receipts of the amounts of EUR 1,000 and currency of country T 5,400, the Chamber noted that these amounts were paid in July and September 2007 and that, therefore, they could not correspond to the salaries that fell due in April and May 2008. In view of the foregoing, the Chamber concluded that the Respondent had not proven that it had indeed paid the Claimant the remaining part of his salaries for April and May 2008 and that, thus, in accordance with the legal principle of pacta sunt servanda, the Respondent has to fulfill its obligations as per employment contract. Therefore, the DRC decided that the Respondent is liable to pay the Claimant the amounts of EUR 323.31 and EUR 320,48 corresponding to the remaining parts of the salaries of April and May 2008. 11. In continuation, the Chamber examined the Claimant’s request for the outstanding salaries for April and May 2009, both corresponding to an amount of EUR 10,000. The DRC duly noted the arguments put forward by the Respondent in this respect, but was of the unanimous opinion that the statements of the Respondent and the travel agency were, in itself, not conclusive to establish that such salaries were no longer due. The Chamber pointed out that from the documentation provided it was not able to establish i) which exact amount was to be considered as the over-expenditure and ii) to which exact amount the player was still entitled. What is more, the Chamber noted that the Respondent had already deducted an amount from the Claimant’s salary as over-expenditure of flight tickets, which had been accepted by the Claimant. 12. In view of the above, and referring to the principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber decided that it had not been proven by the Respondent that it had already fulfilled its obligations in connection with the salary payments that fell due in April and May 2009. 13. Furthermore, in relation to the match appearance bonuses for the season 2008/2009, the Chamber noted that the Respondent had paid the amount of EUR 33,250 to the Claimant as well as the amount of currency of country T 17,891. The Chamber stressed however that, applying the relevant exchange rate, the amount of currency of country T 17,891 corresponded to EUR 8,300 only and not, as indicated by the Respondent, to EUR 10,000. Since it was undisputed between the parties that the total amount due as match appearance bonuses for the 2008/2009 season amounted to EUR 43,250, the Chamber established that the amount of EUR 1,700 was still outstanding. 14. Finally, the Chamber turned its attention to the claim of the Claimant regarding the alleged promotion bonus. The Chamber noted that no such promotion bonus had been implemented in the employment contract. Equally, the Chamber, once more referring to the principle of the burden of proof, deemed that the Claimant had not proved to the satisfaction of the Chamber that he was indeed entitled to said promotion bonus. As a result, the Chamber decided to reject this part of the Claimant’s claim. 15. Taking into consideration all the previous considerations, the members of the Chamber concurred that the Respondent was liable to pay the total amount of EUR 22,343.79 to the Claimant. As to the Claimant’s claim to multiply this amount by 2, the Chamber saw no legal or regulatory basis for such request and consequently rejected such request. 16. In addition, taking into consideration the Claimant’s claim and the Chamber’s constant jurisprudence in this respect, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of 22,343.79 as from 26 April 2010 until the date of effective payment. 17. Furthermore, in relation to the Claimant’s request for sporting sanctions, the Chamber pointed out that the present matter only involved a claim for outstanding remuneration and outlined that sporting sanctions can only be imposed in cases regarding the early termination of a contract, as clearly established by art. 17 of the Regulations. 18. Lastly, the DRC held that the Claimant’s claim for legal expenses is rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence. 19. 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 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club K, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 22,343.79 plus 5% interest p.a. on said amount as from 26 April 2010 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ** Note relating to the motivated decision (legal remedy): According to art. 67 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 www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl. CAS directives