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 N, from country P as Claimant/Counter-Respondent against the club, Club C, from country B as Respondent/Counter-Claimant 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 N, from country P as Claimant/Counter-Respondent against the club, Club C, from country B as Respondent/Counter-Claimant regarding an employment-related contractual dispute arisen between the parties I. Facts of the case 1. On 8 July 2009, Player N, from country P (hereinafter: the Claimant/Counter- Respondent), and Club C, from country B (hereinafter: the Respondent/Counter- Claimant), signed an employment contract (hereinafter: the contract) valid as from the date of signature until 30 June 2011. 2. On 21 October 2010, the Claimant/Counter-Respondent and the Respondent/Counter-Claimant signed a “supplementary agreement”, by means of which the parties terminated the contract with effect as of 1 November 2010. 3. According to art. 4 of the supplementary agreement, the Respondent/Counter- Claimant undertook to pay the Claimant/Counter-Respondent the total amount of EUR 40,000, in the following manner: EUR 20,000 until 31 October 2010 and EUR 20,000 until 15 December 2010. 4. In addition, art. 5 of the supplementary agreement establishes that “This supplementary agreement settles definitively the situation between the parties, which arose among them from the employment contract n. XXX/08.07.2009, and the parties cannot present any claim arising from the employment contract”. 5. On 6 April 2011, the Claimant/Counter-Respondent lodged a claim in front of FIFA requesting to be awarded payment by the Respondent/Counter-Claimant of the total amount of EUR 20,000, corresponding to the second instalment due on 15 December 2010 in accordance with the supplementary agreement, plus interest of 5% p.a. as of the due date until effective payment. 6. In his claim, the Claimant/Counter-Respondent explains that in spite of his default notice to the Respondent/Counter-Claimant dated 3 March 2011 and in spite of having informed the latter of his current bank details through his letter of 18 May 2011, no payment has been received from the Respondent/Counter-Claimant. 7. In its response to the claim, the Respondent/Counter-Claimant states that, for his inappropriate behaviour during matches, the Claimant/Counter-Respondent has been sanctioned by the Disciplinary Committee of the country B Football Union to pay fines in the amount of currency of country B 950 to the country B Football Union and of currency of country B 4,000 to the Respondent/Counter-Claimant. According to the Respondent/Counter-Claimant, these penalties have not been paid by the Claimant/Counter-Respondent nor have they been deducted from his salary. 8. In addition, the Respondent/Counter-Claimant argues that, even though according to the employment contract it undertook to provide the Claimant/Counter-Respondent with a residence, the limit for the rent was currency of country B 300 and the difference above this limit shall be paid by the Claimant/Counter-Respondent, according to an order n.15 of 15 May 2009 of the Respondent/Counter-Claimant’s board of directors. Since the Claimant/Counter-Respondent chose an apartment for which the rent cost currency of country B 1,080, the Respondent/Counter-Claimant had to conclude a rent contract for the Claimant/Counter-Respondent in the total amount of currency of country B 17,280. 9. Therefore, the Respondent/Counter-Claimant lodged a counterclaim against the Claimant/Counter-Respondent, requesting that he should proceed with the payment of currency of country B 12,480, corresponding to the difference between the maximum amount allegedly payable as rent expenses and the amount actually paid by the Respondent/Counter-Claimant in this regard. 10. In his replica, the Claimant/Counter-Respondent rejects the counterclaim of the Respondent/Counter-Claimant, since the documents upon which it is allegedly based were submitted to FIFA without translation and, hence, cannot be taken into account. 11. In addition, the Claimant/Counter-Respondent states that the Respondent/Counter- Claimant bases the aforementioned counterclaim on obligations related to the employment contract, in disregard of art. 5 of the supplementary agreement, cited in point 4 above. 12. In its final position, the Respondent/Counter-Claimant explains that, since the fact that the rent expenses were borne by the Respondent/Counter-Claimant was not contested by the Claimant/Counter-Respondent, it does not need to be proven and, hence, no translation of said receipts is needed. 13. Furthermore, the Respondent/Counter-Claimant rejects the application of art. 5 of the supplementary agreement to the present situation, for the aforementioned article was drafted with the sole purpose of establishing that all financial obligations of the Respondent/Counter-Claimant towards the Claimant/Counter-Respondent, regarding his salaries, have been acquitted. 14. Finally, the Respondent/Counter-Claimant claims that a bonus in the amount of currency of country B 9,700, payable in case the Respondent/Counter-Claimant would reach the fourth place in the country B Championship, was wrongly paid to the Claimant/Counter-Respondent, since the Respondent/Counter-Claimant did not reach such position and, therefore, this amount should be reimbursed by the Claimant/Counter-Respondent. 15. Thus, the Respondent/Counter-Claimant amended its counterclaim and requests that the Claimant/Counter-Respondent should reimburse the total amount of currency of country B 22,180. 16. In his final position as to the counterclaim, the Claimant/Counter-Respondent maintains his previous argumentation. 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 6 April 2011. Consequently, the 2008 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 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) (hereinafter: the Regulations), he is competent to decide on the present litigation, concerning an employment-related dispute with an international dimension between a country P player and a country B club. 3. Furthermore, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter concerning the contractual dispute between the parties. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2010) and considering that the present matter was submitted to FIFA on 6 April 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the 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. 5. In this respect, the DRC judge acknowledged that it was undisputed by the parties that they had signed an employment contract on 8 July 2009, valid from the day of its signature until 30 June 2011. 6. Equally, the DRC judge took note that, on 21 October 2010, the parties signed a supplementary agreement, by means of which they terminated the contract with effect as of 1 November 2010 and established that the Respondent/Counter-Claimant should pay the Claimant/Counter-Respondent the total amount of EUR 40,000, of which EUR 20,000 until 31 October 2010 and EUR 20,000 until 15 December 2010. 7. In addition, the DRC judge took note of the wording of art. 5 of the supplementary agreement, according to which “This supplementary agreement settles definitively the situation between the parties, which arose among them from the employment contract n. XXX/08.07.2009, and the parties cannot present any claim arising from the employment contract”. 8. The DRC judge further noted that the Claimant/Counter-Respondent claims that the Respondent/Counter-Claimant, in spite of his reminder of 3 March 2011, has failed to pay him the installment due on 15 December 2010, in the amount of EUR 20,000, as established in the supplementary agreement. Consequently, the Claimant/Counter- Respondent requests that the Respondent/Counter-Claimant should be ordered to pay him the amount of EUR 20,000, plus interests of 5% p.a. as of the due date until effective payment. 9. Subsequently, the DRC judge took note of the fact that the Respondent/Counter- Claimant argues that fines in the amount of currency of country B 950 and currency of country B 4,000 have been imposed on the Claimant/Counter-Respondent by the Disciplinary Committee of the country B Football Union and that those amounts have neither been paid by the Claimant/Counter-Respondent nor deducted from his salary. 10. In addition, the DRC judge noted that Respondent/Counter-Claimant equally argues that the Claimant/Counter-Respondent has chosen a rental apartment for the amount of currency of country B 1,080, while the order n.15 of 15 May 2009 of the Respondent/Counter-Claimant’s board of directors limited this amount to currency of country B 300. 11. Based on the aforementioned argumentation, the Respondent/Counter-Claimant lodges a counterclaim against the Claimant/Counter-Respondent, requesting that he should proceed with the payment of currency of country B 12,480, corresponding to the difference between the maximum amount allegedly payable as rent expenses and the amount actually paid by the Respondent/Counter-Claimant in this regard. 12. In continuation, the DRC judge observed that the Claimant/Counter-Respondent entirely rejects the counterclaim of the Respondent/Counter-Claimant, based on the facts that the documents upon which such counterclaim is based were submitted to FIFA without translation and that art. 5 of the supplementary agreement stipulated that “the parties cannot present any claim arising from the employment contract”. 13. Subsequently, the DRC judge noted that the Respondent/Counter-Claimant claims that the Claimant/Counter-Respondent does not contest the fact that his full rent expenses were borne by the Respondent/Counter-Claimant and that art. 5 of the supplementary agreement referred only to the Claimant/Counter-Respondent’s salaries. In addition, the DRC judge observed that the Respondent/Counter-Claimant argues that a bonus in the amount of currency of country B 9,700 was wrongly paid to the Claimant/Counter-Respondent and, thus, should be reimbursed. 14. Based on the aforementioned, the Respondent/Counter-Claimant amends its counterclaim and requests from the Claimant/Counter-Respondent the payment of the total amount of currency of country B 22,180. 15. Finally, the DRC judge noted that the Claimant/Counter-Respondent maintained his previous argumentation in his final position as to the counterclaim. 16. On account of the aforementioned considerations, the DRC judge pointed out that it was first and foremost crucial to closely examine the content of the aforementioned supplementary agreement of 21 October 2010, and in particular of its art. 4 and 5, in order to establish whether the Claimant/Counter-Respondent would be entitled to claim any outstanding amounts, if at all. 17. In this regard, the DRC judge deemed it appropriate to recall the wording of art. 4 and 5 of the supplementary agreement: while art. 4 establishes that the Respondent/Counter-Claimant should pay the Claimant/Counter-Respondent the total amount of EUR 40,000, EUR 20,000 of which until 31 October 2010 and the other EUR 20,000 until 15 December 2010, art. 5 stipulates that “This supplementary agreement settles definitively the situation between the parties, which arose among them from the employment contract n. XXX/08.07.2009, and the parties cannot present any claim arising from the employment contract”. 18. Bearing in mind the content of the aforementioned articles, the DRC judge also pointed out that none of the parties contest having signed the supplementary agreement or mention any type of reserve made while signing it. 19. In this context, the DRC judge deemed it appropriate to emphasize that a party signing a document of legal importance, as a general rule, does so on its own responsibility and is consequently liable to bear the possible legal consequences arising from the execution of such document. 20. In the present case, this means that, by signing the supplementary agreement, the parties voluntarily agreed that the amount of EUR 40,000 should be paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent and that all financial obligations of the parties arising from the terminated employment contract should be considered as extinguished and are, therefore, no longer claimable by any of the parties. 21. In addition, the DRC judge pointed out that it is not disputed by the Respondent/Counter-Claimant that it has unpaid amounts towards the Claimant/Counter-Respondent in the amount of EUR 20,000, arising from the supplementary agreement. 22. Based on the aforementioned, the DRC concluded that, in accordance with the terms of the supplementary agreement and with legal principle of pacta sunt servanda, the Claimant/Counter-Respondent is entitled to receive from the Respondent/Counter- Claimant the claimed amount of EUR 20,000, corresponding to the outstanding second instalment, plus interest of 5% p.a. as from 16 December 2010 until the date of effective payment. 23. Notwithstanding the foregoing, the DRC judge deemed it appropriate to individually analyse the several arguments put forth by the Claimant/Counter-Respondent and by the Respondent/Counter-Claimant, in order to establish their entitlement to their respective financial claims. 24. In this regard, the DRC judge noted that the Respondent/Counter-Claimant argues that there are several amounts which should be either paid or reimbursed by the Claimant/Counter-Respondent, regarding fines, rental expenses and wrongly paid bonuses and, based thereon, the Respondent/Counter-Claimant lodges a counterclaim against the Claimant/Counter-Respondent, requesting the reimbursement of the total amount of currency of country B 22,180. 25. At this point and for the sake of good order, 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 from an alleged fact shall carry the respective burden of proof. 26. Bearing in mind the aforementioned article, the DRC judge proceeded to analyze the arguments and the documentation provided by the Respondent/Counter-Claimant in support of its counterclaim, in order to request the deduction of several amounts from the amount requested by the Claimant/Counter-Respondent in his claim. 27. The DRC judge first took into account the Respondent/Counter-Claimant’s argument, according to which fines in the amount of currency of country B 950 and of currency of country B 4,000 had been imposed by the Disciplinary Committee of the country B Football Union on the Claimant/Counter-Respondent. In this respect, the DRC judge observed that the Respondent/Counter-Claimant, in spite of having been invited to do so, did not provide any documentary evidence of the existence of a decision of the country B Football Union in this regard. Thus, the DRC judge concluded that the aforementioned fines could not be taken into account in order to reduce any amounts due by the Respondent/Counter-Claimant to the Claimant/Counter- Respondent. 28. In continuation, the DRC judge focused his attention on the subsequent argument of the Respondent/Counter-Claimant, according to which the amount of rent payable for the Claimant/Counter-Respondent was limited to currency of country B 300 and the difference above this limit shall be paid by the Claimant/Counter-Respondent, according to an order n.15 of 15 May 2009 of the Respondent/Counter-Claimant’s board of directors. 29. In view of the aforementioned argument, the DRC judge deemed it appropriate to verify whether the employment contract contained such a stipulation regarding the maximum amount of rent expenses borne by the Respondent/Counter-Claimant. In this respect, the DRC judge observed that the contract signed between the parties on 8 July 2009 did not contain such a provision. 30. In addition, the DRC judge noted that the documentation provided by the Respondent/Counter-Claimant in this regard was submitted only in its original version, without translation into one of the four official FIFA languages (English, Spanish, French and German, art. 8 par. 1 of the FIFA Statutes), and therefore could not be taken into account, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules. 31. Furthermore, the DRC judge analyzed the Respondent/Counter-Claimant’s statement, according to which bonuses in the amount of currency of country B 9,700 were wrongly paid to the Claimant/Counter-Respondent and, thus, should be reimbursed. The DRC judge noted that the Respondent/Counter-Claimant provided copies of several receipts, allegedly regarding the payment of match bonuses to the Claimant/Counter-Respondent. In this respect, the DRC pointed out that said receipts do not bear a date and that no documentation regarding an erroneous payment or the obligation of reimbursement have been submitted by the Respondent/Counter- Claimant. 32. Taking into account the wording of art. 12 par. 3 of the Procedural Rules as well as the allegations and the documentation provided by the parties, the DRC judge concluded that the Respondent/Counter-Claimant was not able to present consistent evidence in order to justify the aforementioned deductions and therefore its request in this regard had to be rejected. 33. In continuation and for the sake of completeness of the analysis of the parties’ arguments, the DRC judge took into account the Claimant/Counter-Respondent’s objection to the Respondent/Counter-Claimant’s counterclaim, according to which both parties, by signing the supplementary agreement, waived their right to file any claims against each other based on the obligations established in the employment contract. 34. In this respect, referring to the aforementioned argument, to the wording of art. 5 of the supplementary agreement and equally to the analysis previously made in points II.17. to II.20. above, the DRC judge concluded that the counterclaim of the Respondent/Counter-Claimant, to the extent that it is based on obligations established in the employment contract, has to be rejected, in accordance with the terms of the waiver contained in the supplementary agreement. 35. In view of the foregoing and taking into account the legal principle of pacta sunt servanda, as well as the fact that the Respondent/Counter-Claimant does not dispute the fact that the amount of EUR 20,000 due on 15 December 2010 in accordance with the supplementary agreement is still outstanding, the DRC judge concluded that the Respondent/Counter-Claimant is to be held liable to pay the Claimant/Counter- Respondent the amount of EUR 20,000, plus 5% interest p.a. as of 16 December 2010 until the date of effective payment. 36. For all the above reasons, the DRC judge decided to accept the claim of the Claimant/Counter-Respondent and to reject the counterclaim of the Respondent/Counter-Claimant. ** III. Decision of the DRC judge 1. The claim of the Claimant/Counter-Respondent, Player N, is accepted. 2. The Respondent/Counter-Claimant, Club C, from country B, is ordered to pay to the Claimant/Counter-Respondent, Player N, within 30 days as from the date of notification of this decision, the amount of EUR 20,000, plus 5% interest p.a. as of 16 December 2010 until the date of effective payment. 3. 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. 4. The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected. 5. The Claimant/Counter-Respondent, Player N, is directed to inform the Respondent/Counter-Claimant, Club C, 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