F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 10 July 2013, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player P, from country Q as Claimant against the club, Club D, from country C as Respondent regarding an employment-related contractual dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 10 July 2013, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player P, from country Q as Claimant against the club, Club D, from country C as Respondent regarding an employment-related contractual dispute arisen between the parties I. Facts of the case 1. On 4 August 2008, Player P, from country Q (hereinafter: the Claimant), and the Club D, from country C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) as well as an additional agreement (hereinafter: the agreement), both valid as from the date of signature until 31 May 2010, i.e. 1 year and 10 months. 2. According to art. 2 of the contract and to the agreement, the Respondent undertakes to provide the Claimant, inter alia, with: - EUR 45,000 of salary for the season 2008/2009, payable in ten monthly instalments of EUR 4,500, as of 31 August 2008; - EUR 52,000 of salary for the season 2009/2010, payable in ten monthly instalments of EUR 5,200, as of 31 August 2009. 3. In addition, art. 3 of the contract establishes that “Any dispute in respect of the contract shall be governed by the FIFA regulations applicable and in force”. 4. On 6 April 2011, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the payment of the total amount of EUR 16,000, resulting from the cancellation of six cheques issued by the Respondent in favour of the Claimant, plus interests of 5% p.a. as from the due date of each instalment, as follows: - EUR 3,000 cheque, dated 30 August 2010; - EUR 3,000 cheque, dated 30 September 2010; - EUR 1,000 cheque, dated 15 December 2010; - EUR 3,000 cheque, dated 31 January 2010; - EUR 3,000 cheque, dated 28 February 2011; - EUR 3,000 cheque, dated 30 March 2011. 5. According to the Claimant, as the contract came to an end, the Respondent still owed him the total amount of EUR 27,000 corresponding to outstanding salaries. In order to acquit its debts towards the Claimant, the Respondent issued several cheques dated as from June 2010 until March 2011. 6. The Claimant argued that the first cheques, in the amount of EUR 11,000, were paid by the Respondent; however, as of August 2010, the bank refused the payment of the cheques, having returned them with a “stop payment” stamp. 7. By means of three letters - dated 5 January 2011, 22 February 2011 and undated - the Claimant has reminded the Respondent of its arrears in the amount of EUR 6,000, EUR 10,000 and EUR 16,000, respectively; the reminders, however, remained unanswered. 8. In its response, the Respondent rejects FIFA’s jurisdiction over the present dispute, alleging that it is not employment-related, but rather concerns a civil matter, namely the payment of cheques. Therefore, either the Dispute Resolution Committee of the country C Football Association or a country C court should have jurisdiction over the present case. 9. The Respondent and the country C Football Association provided FIFA with a copy of the “Regulations for the registration and transfer of football players” (edition 2005; hereinafter: the Regulations of the country C Football Association), which establish the following: a. with regard to the jurisdiction of the Dispute Resolution Committee (hereinafter: the Committee): According to art. 22.11 of the Regulations of the country C Football Association, the Committee is competent to “adjudicate and/or resolve any financial or other disputes which may arise: a) between clubs and non-amateur players […]”. b. with regard to the composition: Art. 22.1 par. 1 of the Regulations of the country C Football Association establishes that the Committee consists of five members (Chairman, Vice- Chairman, three members). The Chairman, Vice-Chairman and one member are elected by the Executive Committee of the country C Football Association, whereas two members are elected by the country C Football Players’ Association. c. with regard to the possibility of an appeal: Concerning the possibility of an appeal against a decision taken by the Committee, art. 22.10 stipulates that “any decision of the [Committee] may be appealed to the Disciplinary Authority of the [country C Football Association]. The Disciplinary Authority shall finally decide on the appeals referred thereto”. 10. With regard to the substance of the dispute, the Respondent explains that the cheques have not been paid because of a change in its Board of Directors, which required that the signatures thereon be changed. The Claimant was requested to return the aforementioned cheques, in order that they could be replaced, but failed to do so. Thus, the Respondent affirms that it cannot proceed to make any payments, if the Claimant does not return the cheques. 11. In his replica, the Claimant insists on the fact that the present matter is employment-related, since it arose from the non-compliance of the Respondent with its financial obligations towards him, as per the employment contract signed between the two parties. Therefore, he insists on the jurisdiction of FIFA over the present case and point out that the deciding body of the country C Football Association does not guarantee fair proceedings, for it does not respect the principle of equal representation of players and clubs. 12. In addition, the Claimant states that the changes in the Respondent’s directory should not affect its financial obligations towards him, since it is an exclusively internal matter. 13. Finally, the Claimant further states never having been contacted by the Respondent in order to return the cheques and no proof of such contact has been presented by the Respondent. 14. In its final position, the Respondent maintains its previous argumentation and states that the Claimant refused to receive new cheques after the Respondent’s change of personnel. 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 stated that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) (hereinafter: the Regulations), he would be, in principle, competent to decide on the present litigation, concerning an employment-related dispute with an international dimension between a country Q player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies, stating that any dispute arisen between the parties should be submitted to the Dispute Resolution Committee of the country C Football Association. 4. In this respect, the DRC judge referred to art. 3 of the employment contract, according to which “Any dispute in respect of the contract shall be governed by the FIFA regulations applicable and in force”. 5. In view of the aforementioned clause, the DRC judge was of the opinion that art. 3 of the employment contract does not make any reference to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations, and even establishes that, in case of a dispute between the parties, the FIFA Regulations shall be applicable. Therefore, the DRC judge deemed that the contract at the basis of the dispute at hand does not contain an arbitration clause in favour of the country C Football Association national deciding body. 6. Notwithstanding the above, the DRC judge emphasised that in accordance with art. 22 lit. b) of the 2008 edition of the Regulations on the Status and Transfer of Players 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 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. 7. In this context, the DRC judge wished to stress that the Respondent was unable to prove that, in fact, the country C Football Association “Dispute Resolution Committee” 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 FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 8. In this respect, the DRC judge referred to the jurisprudence of the Dispute Resolution Chamber, which already, on several occasions, established that the country C Football Association “Dispute Resolution Committee” does not meet 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 this regard, the DRC judge, as previously done by the DRC, referred to the principle of equal representation of players and 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. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the 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.” 9. In accordance 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”, as per which, inter alia, the chairman, 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, do not meet the aforementioned principles. 10. In view of all 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 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. 11. 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 (edition 2010) and considering that the claim in front of FIFA was lodged on 6 April 2011, the 2008 edition of said Regulations is applicable to the present matter as to the substance. 12. 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. 13. In this respect, the DRC judge acknowledged that it was undisputed by the parties that, on 4 August 2008, they signed an employment contract, valid as from the date of signature until 31 May 2010, according to which the Claimant was entitled to receive, inter alia, for the season 2008/2009, a monthly salary of EUR 4,500, payable 10 times, as of 31 August 2008; and for the season 2009/2010, a monthly salary of EUR 5,200, payable 10 times as of 31 August 2009. 14. In continuation, the DRC judge noted that, on the one hand, the Claimant claims that, as the contract came to an end, the Respondent still owed him the total amount of EUR 27,000, corresponding to outstanding salaries, and that in order to acquit its debts, the Respondent issued several cheques dated as from June 2010 until March 2011. However, the payment of 6 cheques dated 30 August 2010, 30 September 2010, 15 December 2010, 31 January 2010, 28 February 2011 and 30 March 2011, amounting to EUR 16,000, was refused by the bank. In spite of his reminders, the Claimant allegedly never received any answer or payment from the Respondent. 15. Therefore, the Claimant requests from the Respondent the payment of the total amount of EUR 16,000, plus interest of 5% p.a. as from the due date of each instalment, corresponding to the aforementioned unpaid cheques. 16. Subsequently, the DRC judge noted that, on the other hand, the Respondent claims that the payment of the cheques was refused by the bank because of changes in the Respondent’s board of directors, which required that the signatures thereon be changed. According to the Respondent, the Claimant was requested to return the cheques in order to have them replaced, but failed to do so. Therefore, the aforementioned payments are still outstanding. 17. The DRC judge further noted that the Claimant, in his replica, states never having been contacted by the Respondent in order to have the cheques replaced and deems that the Respondent’s staff changes should not affect the execution of its financial obligations. 18. Finally, the DRC judge took note of the fact that the Respondent, in its last position to the Claimant’s claim, maintains its previous argumentation. 19. Having established the aforementioned, the DRC judge deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the Claimant is entitled to receive any amounts from the Respondent. 20. In view of the above, the DRC judge firstly noted that the Respondent does not dispute the fact that the amount of EUR 16,000, corresponding to outstanding salaries as per the employment contract, remains unpaid due to the fact that the cheques dated 30 August 2010, 30 September 2010, 15 December 2010, 31 January 2010, 28 February 2011 and 30 March 2011, issued by the Respondent on behalf of the Claimant, could not be cashed. 21. In addition, the DRC judge pointed out that, on the one hand, the Respondent alleges changes in the composition of its Board of Directors as the reason for the bank’s refusal to pay the aforementioned cheques and states that the Claimant never reacted to its requests to return the cheques, so that they would be replace by validly signed ones. 22. Furthermore, the DRC judge noted that, on the other hand, the Claimant does not consider the foregoing explanation able to justify the Respondent’s non-compliance with its financial obligations and claims never having been contacted by the Respondent with respect to a request for returning the cheques in question. 23. 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. 24. In this respect, the DRC judge deemed that the Respondent bore the burden of proof regarding the fulfilment of all payments mentioned as outstanding by the Claimant. In the present case, the DRC judge noted that the Claimant provided a copy of his letters, dated 5 January 2011, 22 February 2011 and undated, reminding the Respondent of its arrears towards him. The DRC judge, however, observed that the Respondent not only acknowledged having outstanding debts towards the Claimant but also did not provide any type of documentary evidence that it had indeed requested the Claimant to return the cheques, in order to be able to substitute them for new, payable ones. 25. In addition, the DRC judge agreed with the Claimant in the sense that changes in the Respondent’s staff should not affect the execution of its previous obligations. Moreover, the DRC judge emphasized that such changes are considered to be of administrative, internal nature and do not influence the legal rights and obligations of the Respondent towards its contractual counterparties. 26. In view of the foregoing, the DRC judge concluded that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the employment contract concluded with the Claimant and, consequently, is to be held liable to pay the outstanding remuneration due to the latter, in the amount of EUR 16,000, plus 5% interest p.a. until the date of effective payment, as follows: - 5% p.a. as of 1 September 2010 over the amount of EUR 3,000; - 5% p.a. as of 1 October 2010 over the amount of EUR 3,000; - 5% p.a. as of 16 December 2010 over the amount of EUR 1,000; - 5% p.a. as of 1 February 2011 over the amount of EUR 3,000; - 5% p.a. as of 1 March 2011 over the amount of EUR 3,000; - 5% p.a. as of 1 April 2011 over the amount of EUR 3,000. 27. Having established the above and taking into account the fact that the aforementioned cheques, the non-payment of which is at the basis of the present dispute, appear to be in possession of the Claimant, the DRC judge concluded his deliberations in the present matter by establishing that the Claimant is ordered to return to the Respondent within 30 days as from the date of notification of this decision, the following cheques: - cheque amounting to EUR 3,000, dated 30 August 2010; - cheque amounting to EUR 3,000, dated 30 September 2010; - cheque amounting to EUR 1,000, dated 15 December 2010; - cheque amounting to EUR 3,000, dated 31 January 2010; - cheque amounting to EUR 3,000, dated 28 February 2011; - cheque amounting to EUR 3,000, dated 30 March 2011. III. Decision of the DRC judge 1. The claim of the Claimant, Player P, is admissible. 2. The claim of the Claimant, Player P, is accepted. 3. The Respondent, Club D, is ordered to pay to the Claimant, Player P, within 30 days as from the date of notification of this decision, the amount of EUR 16,000, plus 5% interest p.a. until the date of effective payment, as follows: - 5% p.a. as of 1 September 2010 over the amount of EUR 3,000; - 5% p.a. as of 1 October 2010 over the amount of EUR 3,000; - 5% p.a. as of 16 December 2010 over the amount of EUR 1,000; - 5% p.a. as of 1 February 2011 over the amount of EUR 3,000; - 5% p.a. as of 1 March 2011 over the amount of EUR 3,000; - 5% p.a. as of 1 April 2011 over the amount of EUR 3,000. 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. The Claimant, Player P, is ordered to return to the Respondent, Club D, within 30 days as from the date of notification of this decision, the following cheques: - cheque amounting to EUR 3,000, dated 30 August 2010; - cheque amounting to EUR 3,000, dated 30 September 2010; - cheque amounting to EUR 1,000, dated 15 December 2010; - cheque amounting to EUR 3,000, dated 31 January 2010; - cheque amounting to EUR 3,000, dated 28 February 2011; - cheque amounting to EUR 3,000, dated 30 March 2011. 6. The Claimant, Player P, is directed to inform the Respondent, Club D, 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: Markus Kattner Deputy Secretary General Encl. CAS directives