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 (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player C, from country H as Claimant against the club, Club F, from country S as Respondent regarding an employment-related contractual 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 (DRC) judge passed in Zurich, Switzerland, on 17 May 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player C, from country H as Claimant against the club, Club F, from country S as Respondent regarding an employment-related contractual dispute arisen between the parties I. Facts of the case 1. On 2 July 2008, Player C, from country H (hereinafter: the Claimant), and Club F, from country S (hereinafter: the Respondent) signed an employment contract valid as from 1 July 2008 until 31 May 2009. 2. According to art. II par. 1 of the contract, the Claimant was entitled to receive, inter alia, the following remuneration: - EUR 1,500 monthly salary, to be paid on the 15th day of the following month; - EUR 2,000 monthly travel costs, to be paid on the 15th day of the following month; - EUR 2,000 upon receipt of the International Transfer Certificate (ITC); - 2 x EUR 3,500 for July, August, September to be paid until 2009; - EUR 2,000 to be paid until 30 January 2009; - Accommodation; - Bonus. 3. Art. 11 par. 3 of the contract (hereinafter: arbitration clause) states the following: “Any and all disputes arising from the present contract will be settled by the contractual parties before the competent body of the country S Football Association, and in the event that no agreement is reached, the dispute will be decided by the locally competent court in the country S Republic.” 4. On 21 September 2009, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract and asks to be awarded payment of EUR 25,000, made up of the following amounts: - EUR 20,000 as outstanding salaries as from December 2008 until May 2009 (5 x EUR 3,500 + EUR 2,500, i.e. partial salary of February 2009 (EUR 2,500), since advance payment of EUR 1,000 received), plus 5% interest p.a. as of 1 March 2009 on said amount; - EUR 5,000 as compensation for financial and moral damages, i.e. this not being a procedural compensation in light of art. 15 par. 3 of the Rules governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. 5. The Claimant confirms having received his salary until the end of November 2008, and that he received EUR 2,000 payable until 30 January 2009, which was paid on 15 February 2009, as well as an advance payment of EUR 1,000 for the month of February 2009, which was paid on 20 March 2009. 6. In this respect, the Claimant provided non-translated payment receipts in the total amount of EUR 19,000, paid on the following dates: - EUR 6,000 on 3 July 2008; - EUR 3,000 on 3 July 2008; - EUR 3,500 on 15 November 2008; - EUR 3,500 on 28 November 2008; - EUR 2,000 on 15 February 2009; - EUR 1,000 on 20 March 2009. 7. Moreover, he explains that he duly rendered his services to the Respondent until 31 May 2009. He points out that he participated in 17 matches for the first team and scored one goal. 8. On 9 June 2009, the Claimant sent a letter to the Respondent in which he reminded the latter of its arrears in the amount of EUR 20,000, without having received a reply thereto. 9. In reply to the claim, which was remitted after the expiry of the set deadline, the Respondent challenged the competence of FIFA’s DRC and referred to the arbitration clause of art. 11 par. 3 of the employment contract (cf. I. 3.). 10. The Respondent submitted a translated version of the Statutes of the Court of Arbitration country S Football Association as well as the country S Football Rules of Procedure of the Court of Arbitration. 11. According to art. 1 par. 3 of the country S Football Association, the relevant court is competent to decide on disputes between members of the country S Football Association and players, if the parties “agree and recognize the jurisdiction of that court.” 12. Furthermore, the country S Football Association, stipulate, inter alia: Art. 3 “1) The Arbitral tribunal consists of the executive bodies of the Arbitral tribunal, the arbitrators, and the secretary.” 2) The executive bodies of the Arbitral tribunal are : - the Presidency of the Arbitral tribunal, - the chairman of the Arbitral tribunal, - the vice-chairman of the Arbitral tribunal.” Art. 4 “1) The Presidency manages the activity of the Arbitral tribunal and performs functions entrusted it by the Statute and Rules of Procedure and other functions, if not entrusted to the authority of other persons in accordance with this Statute or Rules of Procedure. 2) The Presidency of the Arbitral tribunal consists of three members elected by the Council of the country S Football Association for a term of 4 (four) years. 3) The Presidency elects the Chairman and Vice-Chairman from among its members. The Chairman and Vice-Chairman, should the Chairman be absent, summon and manage Presidency sessions and make record of these sessions.” (…) 5) The Presidency manages the activity of the Arbitral tribunal, especially: (…) b) determines the registration of an arbitrator in the List of arbitrators of the Arbitral tribunal, c) decides on the deletion of an arbitrator from the List of arbitrators of the Arbitral tribunal. g) serves as the chosen person in accordance with Section 6 (3) of AoAP, especially: - appoints an arbitrator from among the arbitrators registered in the List of arbitrators of the Arbitral tribunal in cases stipulated by law or Rules of Procedure or based on other facts, -resolves pleas to the prejudice/partiality of an arbitrator. (…) 6) Members of the Presidency may be registered in the List of arbitrators of the Arbitral tribunal (…) and may perform the function of arbitrator.” Art. 6 par. 1: “Disputes in accordance with this statute are resolved by independent arbitrators of the Arbitral tribunal, who were appointed in accordance with Rules of Procedure. The rights and obligations of arbitrators are governed by AoAP, this Statute and Rules of Procedure.” Art. 6 par. 4: “Only a person fulfilling the conditions in accordance with Section 6(1) of AoAP and special conditions in accordance with this Statute may be registered in the List of arbitrators, namely a) (…) b) Presidency’s approval of registration in the List of arbitrators.” 13. Moreover, according to par. 16 of the country S Football Association Rules, the decisions of the country S Football Association Arbitration Court have the same legal effect as a final judgement of an ordinary court. 14. As to the substance of the claim, the Respondent explains that the Claimant’s salary consisted of EUR 1,500 per month and not of EUR 3,500. As to the EUR 2,000 monthly travel costs, the Respondent stated that it provided the Claimant with an apartment at the beginning of August 2008 and that as of then the Respondent had no longer an obligation to pay the player said costs. Therefore, the Claimant was entitled to receive, for the entire contract duration, 11 monthly salaries of EUR 1,500, i.e. EUR 16,500, as well as travel costs for July 2008 in the amount of EUR 2,000, which makes the total amount of EUR 18,500. 15. The Respondent claims that it paid the Claimant the total amount of EUR 22,740, thus more than contractually agreed, and therefore fulfilled its financial obligations towards the Claimant. 16. In this respect, the Respondent provided payment receipts allegedly signed by the Claimant for the following amounts: - EUR 6,000 on 3 July 2008; - EUR 3,000 on 3 July 2008; - EUR 3,500 on 26 July 2008; - Currency of country S 24,000 on 1 August 2008; - Currency of country S 16,000 on 21 August 2008; - Currency of country S 11,000 11 September 2008; - Currency of country S 1,500 on 20 September 2008: - Currency of country S 7,000 on 26 September 2008; - Currency of country S 8,000 on 13 October 2008; - Currency of country S 27,000 on 21 October 2008; - Currency of country S 9,000 on 7 November 2008; - EUR 3,500 on 15 November 2008; - Currency of country S 7,500 on 21 November 2008; - EUR 3,500 on 28 November 2008; - EUR 2,000 on 15 February 2009; - EUR 1,000 on 20 March 2009. 17. However, despite having been invited to do so, the Respondent did not provide a translation into one of the four official FIFA languages (English, Spanish, French and German) of the receipts. 18. In his replica, the Claimant stated that the Respondent did not send its position within the given deadline. Therefore, the Claimant asked to decide upon the basis of the documents on file. 19. Furthermore, the Claimant rejects the competence of the country S Football Federation tribunal, stating that said tribunal is not established in accordance with the prerequisites of the FIFA Regulations. In particular, art. 1 par. 3 of the country S Football Federation Statutes states that the tribunal is only competent if the parties had agreed on it and is not in line with the parity principle of art. 22 lit. b) of the Regulations. Furthermore, the Claimant argued that the arbitration clause of the contract only refers to the national administrative court. 20. As to the substance of the case, the Claimant argued that the monthly salary amounted to EUR 3,500 and not EUR 1,500 as claimed by the Respondent. 21. With regard to the payments received in currency of country S, the Claimant explains that they refer to bonus payments according to the contract and should not be regarded as salary payments made by the Respondent. 22. Finally, the Claimant provided FIFA with the decision of the Court Arbitration du Sport (CAS) 2011/A/XXXX Club D v/ Player V decided in the meantime, a case with similar circumstances, whereby the CAS rejected the competence of the country S Football Association tribunal, because the club “… did not provide any evidence that the parties agreed to submit their dispute to the court of arbitration of the SFA. It was made clear by the Player at the hearing that he never gave any sort of agreement in this regard, which is confirmed by the fact that he submitted the case directly to FIFA.” 23. In its final position, the Respondent maintained its previous position and reiterated that FIFA’s DRC shall not be competent and that the decision “Player V” cannot be compared with the present matter, since, contrary to the present matter, in the “Player V” matter there was no arbitration clause in the employment contract. As to the substance of the claim, the Respondent reiterates that the Claimant has no right to receive the travel costs of EUR 2,000, and that he did not even allege to have had such expenses. II. Considerations of the DRC judge 1. First of all, the 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 submitted to FIFA on 21 September 2009. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) the DRC judge is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country H player and a country S club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 11 par. 3 of the employment contract according to which any dispute arisen between the parties shall be submitted to the competent body of the country S Football Association. 4. In this regard, the DRC judge noted that the Claimant rejected such position and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 5. Moreover, the DRC judge took note of the Claimant’s position that the Respondent filed its reply to the claim after the time limit set by the FIFA Administration had expired, and thus that it should not be taken into account. 6. In light of the above, the DRC judge clarified that it is at his discretion to determine whether the Respondent’s position should be taken into account and decided that, in the case at hand, it would be unreasonable not to consider the Respondent’s statements, which were remitted only a few weeks after the given time limit. 7. Reverting to the issue of his competence to hear the present dispute, the DRC judge emphasised that in accordance with art. 22 lit. b) of the 2010 edition of the Regulations on the Status and Transfer of Players he is competent to deal with a matter such as the one in hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC judge referred to the FIFA Circular no. XXXX dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 8. Having said this, the DRC judge turned to art. 11 par. 3 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said art. 11 par. 3, “Any and all disputes arising from the present contract will be settled by the contractual parties before the competent body of the country S Football Association, and in the event that no agreement is reached, the dispute will be decided by the locally competent court in the country S Republic.” 9. In this respect, the DRC judge held that art. 11 par. 3 of the contract does not constitute a valid and enforceable arbitration clause, since it does not make a clear and explicit reference to the specific arbitration body that will be the competent body to adjudicate on the pertinent matter. More specifically, the relevant clause does not explicitly refer to the Arbitral Tribunal of the country S Football Association but rather to arbitration of the country S Football Association in general terms. 10. Hence, art. 11 par. 3 of the employment contract clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 11. However, the DRC judge wished to stress that, even if the contract at the basis of the present dispute would have included such arbitration clause in favour of a national dispute resolution chamber, the Respondent was unable to prove that, in fact, the Arbitration Court of the country S Football Association meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA Circular no. XXXX as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 12. In this context, the DRC judge was eager to emphasize that the documentation presented by the Respondent and acknowledged that the latter provided only an English translation of the Statutes of the Court of Arbitration country S Football Association - edition 2007 as well as the country S Football Rules of Procedure of the Court of Arbitration - edition 2007 and, thus, failed to provide the original version in the country S language. 13. In this respect, the DRC judge referred to the general principle of equal representation of players as well as of clubs, and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. 14. Indeed, this prerequisite is not only mentioned in the Regulations on the Status and Transfer of Players, but also in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives […]; b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives […].” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal […]. Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.” 15. In continuation, the DRC judge observed that according to the translated version of par. 16 of the country S Football Association Rules, the decisions of the country S Football Association Arbitration Court have the same legal effect as a final judgement of an ordinary court. In this regard, the DRC judge held that it does not see that the relevant provisions allow for a possible appeal of the decisions of the country S Football Association Arbitration Court and that it is thus doubtful whether the principle of fair proceedings is guaranteed. 16. Equally the DRC judge was of the opinion that the country S Football Association Arbitration Court did not fulfill one of the conditionae sine qua non stipulated in art. 22 lit. b) of the Regulations - and illustrated in art. 3 par. 1 of the FIFA NDRC Regulations -, being that the national independent arbitration tribunal needs to respect the principle of equal representation between players and clubs. Indeed, the DRC judge highlighted that the country S Football Association Statute does not indicate how the country S Football Association Arbitration Court is constituted nor how proceedings are conducted in front of the Arbitral Tribunal. 17. In view of all the above, 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. 18. Subsequently, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010, 2009 and 2008) and, on the other hand, to the fact that the present claim was lodged on 21 September 2009. The DRC judge concluded that the 2008 version of the Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 19. The competence of the DRC judge and the applicable regulations having been established, the judge entered into the substance of the matter. He started by acknowledging that the parties to the dispute had signed an employment contract valid as from 1 July 2008 until 31 May 2009. 20. Equally, the DRC judge observed that the parties had agreed, inter alia, a monthly salary of EUR 1,500 and a monthly travel cost of EUR 2,000 each to be paid on the 15th day of the following month as well as accommodation. 21. In continuation, the judge noted that, on the one hand, the Claimant lodged a claim against the Respondent requesting the payment of the amount of EUR 25,000, corresponding to the partial unpaid salaries of December 2008 until May 2009 of EUR 20,000 plus 5% interest p.a. as of 1 March 2009 on said amount as well as EUR 5,000 as compensation for financial and moral damages. 22. The DRC judge then turned his attention to the arguments of the Respondent and noted that the latter rejected the claim alleging that the Claimant’s salary consisted of EUR 1,500 per month and not EUR 3,500, and that the EUR 2,000 travel costs are not due to the Claimant since it provided the player with an apartment at the beginning of August 2008. In addition, the Respondent stressed that the Claimant did not even allege to have had such expenses. Furthermore, the DRC judge observed that the Respondent claimed that it paid the Claimant a total amount of EUR 22,740 and therefore more than contractually agreed, since the Claimant was allegedly entitled to receive 11 monthly salaries in total of EUR 16,500 (11 x EUR 1,500) as well as travel costs for July 2008 in the amount of EUR 2,000, being EUR 18,500. 23. Having recalled the parties’ respective positions, the DRC judge turned his attention to the stipulations of the employment contract concluded by the parties. The DRC judge noted that according art. II par. 1 of the employment contract it was clear that the Claimant was entitled to receive, inter alia, a monthly remuneration of EUR 3,500 made up of EUR 1,500 as a monthly salary and EUR 2,000 as travel costs in addition to accommodation. 24. Furthermore, the DRC judge held, referring to the principle of burden of proof (cf. art. 12 par. 3 of the Procedural Rules) could not prove that, despite the clear contractual stipulation, the amount of EUR 2,000 was not due to the Claimant on a monthly basis. Therefore the Respondent’s argument that the player was entitled to receive a monthly salary of EUR 1,500 only instead of EUR 3,500 has to be rejected. 25. In continuation, the DRC judge held that, in light of the Claimant’s respective claim, the Respondent carries the burden of proof that the salaries of December 2008 until May 2009 had indeed been paid. 26. In this respect, the DRC judge first of all expressed his regret that despite having submitted receipts to demonstrate that it paid its obligation in country S language, such documentation was not translated into one of the four official FIFA languages (English, Spanish, French and German; art. 8 par. 1 of the FIFA Statutes), despite FIFA’s request that said documents be translated. 27. The DRC judge was thus not in a position to decide whether the Claimant’s request for the outstanding amount would correlate with any amounts indicated in the payment receipts provided by the Respondent. 28. On account of the aforementioned considerations, the judge established that the Respondent failed to remit the Claimant’s partial salary of December 2008 until May 2009 in the total amount of EUR 20,000. 29. Taking into account all the above, the DRC judge decided that, in accordance with the legal principle of pacta sunt servanda, the Respondent has to pay to the Claimant the amount of EUR 20,000. 30. Concerning the interest claimed by the Claimant, the DRC judge noted that the contract did not provide for any specific interest rate in case of late payment. Consequently, the DRC judge decided to award, in accordance with the constant practice of the Dispute Resolution Chamber, default interest rate of 5% p.a. to the Claimant as from the first day after the respective due dates of each installment. 31. Consequently, the DRC judge decided to partially accept the Claimant’s claim and that the Respondent is liable to pay him EUR 20,000 plus 5% interest p.a. until the date of effective payment as follows: - 5% p.a. as of 1 March 2009 over the amount of EUR 7,000; - 5% p.a. as of 16 March 2009 over the amount of EUR 2,500 - 5% p.a. as of 16 April 2009 over the amount of EUR 3,500; - 5% p.a. as of 16 May 2009 over the amount of EUR 3,500; - 5% p.a. as of 16 June 2009 over the amount of EUR 3,500. 32. Furthermore, as regards the Claimant’s claim pertaining to financial and moral damages, which was not at all specified by the Claimant, the DRC judge decided that such claim is to be rejected. 33. The DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player C, is admissible. 2. The claim of the Claimant, Player C, is partially accepted. 3. The Respondent, Club F, is ordered to pay to the Claimant, Player C, within 30 days as from the date of notification of this decision, the amount of EUR 20,000, plus 5% interest p.a. until the date of effective payment as follows: - 5% p.a. as of 1 March 2009 over the amount of EUR 7,000; - 5% p.a. as of 16 March 2009 over the amount of EUR 2,500 - 5% p.a. as of 16 April 2009 over the amount of EUR 3,500; - 5% p.a. as of 16 May 2009 over the amount of EUR 3,500; - 5% p.a. as of 16 June 2009 over the amount of EUR 3,500. 4. If the aforementioned sum plus interest is not paid within the above-mentioned time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further request filed by the Claimant, Player C, is rejected. 6. The Claimant, Player C, is directed to inform the Respondent, Club F, immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge 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 DRC judge: Jérôme Valcke Secretary General Encl. CAS directives