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 G, from country U as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute 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 G, from country U as Claimant against the club, Club A, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 29 December 2007, Player G, from country U (hereinafter: player or Claimant), and Club A, from country C (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract) valid as from the date of signature until 31 May 2008 “or after the last game of the Championship whichever is the latest” with the option for the club to renew the contract for one more season, thus as from 1 June 2008 until 31 May 2009 “or after the last game of the Championship (2007-2008) or the Cup (2007-2008) whichever is latest”. 2. According to the contract, the club undertook to provide the player, inter alia, for the 2007/08 season, with remuneration in the amount of EUR 5,000, payable in 5 monthly instalments of EUR 1,000 each, the first being due on or before 30 January 2008 and the next on the last day of each consecutive month. Moreover, the player was entitled to receive 2 return air tickets from country C to country U and, in case of a renewal of the contract, a salary of EUR 15,000, payable in 10 monthly instalments of EUR 1,500 each, the first being due on or before 30 August 2008 and the next on the last day of each consecutive month. 3. In addition, art. 14 of the contract provides that “the player agrees to adhere to the Club’s Internal Disciplinary Procedure and to adhere to the Club’s Internal Grievance Procedure set by the Regulations of the Club”. 4. Article 15 of the contract further stipulates that “The player agrees to adhere to the Rules, Regulations and By-Laws of the country C Football Association and/or of the Dispute Resolution Committee of country C Football Association in case of any grievance and/or any dispute with the club”. 5. Additionally to the contract, on 29 December 2007, the player and the club signed a supplementary agreement according to which the player was entitled to receive, in addition to the agreed salary of the contract, for the 2007/08 season, the amount of EUR 30,000, in 5 equal monthly instalments of EUR 6,000, as of 30 January 2008 until 30 May 2008. In case of a renewal of the contract, the player was entitled to receive the amount of EUR 55,000, in 10 equal instalments of EUR 5,500, as of 30 August 2008 until 30 May 2009. 6. Furthermore, on 20 May 2008, the player signed a document establishing a payment schedule according to which the club would pay to the player EUR 10,000, corresponding to salaries for the 2007/08 season, in two equal instalments due on or before 30 May 2008 and 30 June 2008 respectively. 7. On 26 January 2009, the parties signed a new employment contract, valid as of the date of signature until 31 May 2009, according to which the player was entitled to receive EUR 6,000 in four equal instalments of EUR 1,500, the first payable on ``30’’ February 2009 and the next on the last day of each consecutive month until full payment. Furthermore, in accordance with the supplementary agreement signed between the parties on 26 January 2009, the player was entitled to receive, additionally, EUR 6,000 in four equal instalments of EUR 1,500, starting as from ``30’’ February 2009 until 30 May 2009. In addition, according to the new employment contract, the player was also entitled to receive two return air tickets for himself and his family. 8. On 21 September 2009, with a subsequent amendment on 2 August 2010, the player lodged a complaint before FIFA against the club requesting that the latter be ordered to pay the total amount of EUR 19,500 as follows: - EUR 10,000 corresponding to outstanding salaries for the 2007/08 season, which was agreed to be paid in two equal instalments, on 30 May 2008 and 30 June 2008 respectively; - EUR 8,000 corresponding to outstanding salaries for the 2008/09 season (part of salary of March 2009 as well as April and May 2009); - EUR 1,500 corresponding to unpaid airfares. 9. In addition, the player requested to be awarded interest in respect of the outstanding amounts as well as legal fees and any other remedy that the Dispute Resolution Chamber deems appropriate. 10. In its reply, the club disputed the jurisdiction of the FIFA Dispute Resolution Chamber (hereinafter: DRC), citing the alleged arbitration clause in art. 14 of the contract (cf. point I. / 3. above). 11. With regard to the substance of the dispute, the club insisted that it has honoured the contract as well as the document dated 20 May 2008, which it refers to as a settlement agreement between the parties, and that it does not owe any remuneration to the player. Consequently, the club requested that the player’s claim be rejected. 12. The club further sustained that according to paragraph 18 of the new employment contract signed between the player and the club on 26 January 2009, the parties agreed that any previous agreements with the club are null and void, hence ``that the player has no valid claim against the club for the season 2007-2008’’. 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 par. 3 of the Procedural Rules). 2. With regard to the competence of the DRC judge, art. 3 of the Procedural Rules states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of the aforementioned Regulations, the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country U player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies alleging that the parties had agreed to submit any dispute arisen between them to the Dispute Resolution Committee of the country C Football Association and, in this respect, it referred to the alleged arbitration clause contained in art. 14 of the contract (cf. point I. / 3. above). 4. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the 2012 edition of the FIFA Regulations, he is competent to deal with a matter such as the one at 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. 1010 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. 5. While analysing whether he was competent to deal with the present matter, the DRC judge considered that he should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contains a jurisdiction clause. 6. Having said this, the DRC judge turned his attention to art. 14 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said art. 14, “the player agrees to adhere to the Club’s Internal Disciplinary Procedure and to adhere to the Club’s Internal Grievance Procedure set by the Regulations of the Club”. 7. The DRC judge then noted that art. 15 of the employment contract further stipulates that “the player agrees to adhere to the Rules, Regulations and ByLaws of the country C Football Association and/or of the Dispute Resolution Committee of country C Football Association in case of any grievance and/or any dispute with the club”. 8. In view of the aforementioned clauses, the DRC judge was of the opinion that arts. 14 and 15 of the employment contract is rather vague and that said articles do not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 9. However, the DRC judge wished to stress that, even if the contract at the basis of the present dispute would have included an arbitration clause in favour of national dispute resolution, the Respondent was unable to prove that, in fact, the Dispute Resolution Committee 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. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 10. 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. 11. 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.” 12. Subsequently, the DRC judge referred to the ``Regulations for the Registration and Transfer of Football Players country C Football Association (2005)’’ made available by the Respondent and began to analyse its content. In this context, the DRC judge noted that according to the aforementioned country C Regulations, the chairman, a vice-chairman and one member are elected by the Executive Committee of the country C Football Association and two members are elected by the country C Football Players’ Association. 13. In light of the above and in conformity with the jurisprudence of the DRC, the DRC judge decided that the country C Football Association’s ``Regulations for the Registration and Transfer of Football Players (2005)’’ and the Dispute Resolution Committee of the country C Football Association regulated therein do not meet the aforementioned principles. 14. In view of the above, the DRC judge established that, in line with the constant jurisprudence of the DRC, the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that he 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. 15. Subsequently, the DRC judge analysed which edition of the Regulations 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 (editions 2008, 2009, 2010 and 2012) and considering that the claim was lodged in front of FIFA on 21 September 2009, the 2008 edition of said Regulations is applicable to the present matter as to the substance. 16. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. 17. In this respect, the DRC judge acknowledged that it was undisputed by the parties that, on 29 December 2007, they signed an employment contract and a supplementary agreement, in accordance with which the Claimant was entitled to receive, inter alia, for the 2007/08 season, total remuneration in the amount of EUR 35,000 as well as two return air tickets from country C to country U. 18. The DRC judge further noted that, on 26 January 2009, the parties signed a new employment contract and a new supplementary contract valid until 31 May 2009 in accordance with which the player was to receive a monthly total remuneration of EUR 3,000. 19. In continuation, the DRC judge took note that it is undisputed by the parties involved that on 20 May 2008, the parties agreed upon a payment schedule according to which the Respondent would pay to the Claimant EUR 10,000 relating to the Claimant’s remuneration for the 2007/08 season in two equal instalments, on 30 May 2008 and 30 June 2008 respectively. 20. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of EUR 10,000, corresponding to salaries for the 2007/08 season, EUR 8,000 related to salaries for the 2008/09 season, EUR 1,500 corresponding to unpaid airfares as well as interest. 21. Subsequently, the DRC judge noted that the Respondent, in its defence, stated that it had paid the Claimant all amounts due and alleged to have agreed with the Claimant that upon the signature of a new employment contract on 26 January 2009, any previous agreements with the latter would be null and void, hence that the Claimant had ``no valid claim against the club for the season 2007-2008’’. 22. The DRC judge further noted the Respondent’s allegations that it had honoured the contract as well as the settlement signed on 20 May 2008. 23. In this context, the DRC judge first recalled the basic principle of the burden of proof, as stipulated 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 burden of proof. 24. In this respect, the DRC judge noted that the Respondent did not substantiate its defence, as it did not present any documentary evidence in respect of the payments it sustained to have already made to the Claimant. 25. Subsequently, the DRC judge acknowledged clause 18 of the new employment contract signed between the parties on 26 January 2009, which stipulates that ``any previous agreement between the club and the player is null and void’’. In this respect, the DRC judge deemed that such clause, inserted in the new employment contract of 26 January 2009, merely refers and applies to any previous agreement regarding the terms and conditions of employment previously agreed upon between the parties. The DRC judge felt confirmed in such believe in the light of the fact that the previous employment contract of 29 December 2007 contains a clause dealing with the player’s remuneration in the event of a renewal of the employment relation for the 2008/09 season. Consequently, the DRC judge decided that the Respondent’s allegations in this regard cannot be accepted. 26. In view of all the above and, in particular, taking into account the lack of documentary evidence presented by the Respondent, the DRC judge concluded that it could be established that the Respondent had failed to pay to the Claimant the amount of EUR 18,000 due to the Claimant on the basis of the contract and supplementary agreement of 26 January 2009 as well as the document dated 20 May 2008. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the Respondent must fulfil its obligations towards the Claimant and is to be held liable to pay the Claimant the outstanding salaries in the amount of EUR 18,000. In addition, on account of the fact that the Claimant was entitled to receive air tickets from the Respondent on the basis of the employment contract dated 26 January 2009, the DRC judge decided that the Respondent must pay to the Claimant airfares in the amount of EUR 1,500. 27. In continuation, taking into account the Claimant's request for interest as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided that the Claimant is entitled to receive interest at the rate of 5% p.a. over the amount of EUR 18,000 as of 2 August 2010 until the date of effective payment. 28. Furthermore, the DRC judge decided that, in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution Chamber’s respective longstanding jurisprudence, the Claimant’s claim for legal costs is rejected. 29. The DCR judge concluded the deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player G, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club A, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 18,000 plus 5% interest p.a. as of 2 August 2010 until the date of effective payment. 4. The Respondent has to pay to the Claimant the amount of EUR 1,500 relating to air tickets within 30 days as of the date of notification of the present decision. 5. If the aforementioned sums are not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its consideration and formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. 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 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