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 23 September 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player E, from country B 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 (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 23 September 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player E, from country B 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 1 June 2010, the country B player, Player E (hereinafter: the Claimant), and the country C club, Club A (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from “the day of receiving a valid International Transfer Certificate (ITC)” until 31 May 2011. 2. According to clause 2 of the contract, the Respondent would pay remuneration to the Claimant, for the whole term of the contract, in the amount of EUR 25,000 “payable in ten installments of EUR 2,500 per month, as the first installment to be paid on 31 August 2010 and the last to be paid on 31 May 2011”. 3. Clause 3 of the contract established that “any dispute in respect of the contract shall be governed by the FIFA regulations applicable and in force”. 4. On 2 June 2010, the parties concluded a supplementary agreement by means of which they agreed that the Respondent would pay the Claimant, on top of the salaries envisaged in the contract, the amount of EUR 55,000 “payable in ten installments of EUR 5,500 per month, as the first installment to be paid on 31 August 2010 and the last to be paid on 31 May 2011”. 5. Furthermore, the supplementary agreement established that the Respondent should provide the Claimant with accommodation and a car. 6. On 27 December 2012, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration and requested to be awarded with the following amounts: - EUR 5,000 as outstanding salaries for the months of April and May 2011, according to the contract (2 x EUR 2,500); - EUR 11,000 as outstanding salaries for the months of April and May 2011, according to the supplementary agreement (2 x EUR 5,500); - EUR 1,000 for accommodation expenses of April and May 2011. 7. The Claimant explained that the contract expired on 31 May 2011 as agreed, however the Respondent, by the end of the contract, had failed to pay the Claimant the agreed remuneration under the contract and the supplementary agreement, as well as the accommodation expenses, for the months of April and May 2011. 8. The Respondent replied to the claim lodged by the Claimant, contesting FIFA’s competence to deal with the matter at hand and asserting the competence of the relevant deciding body under the country C Football Association, on the basis of “the terms of the contract”. 9. When asked by FIFA to provide the relevant national regulations that evidence that the country C Football Association tribunals fulfill the requirements of FIFA in order to be recognized as an independent arbitration tribunal, the Respondent provided FIFA with the “Regulations for the registration and transfer of football players country C Football Association (2005)” (hereinafter: the country C Regulations; that came into force on 15 June 2005). According to the country C Regulations, the Dispute Resolution Committee (hereinafter: NDRC) is composed of five members, namely the Chairman, the Vice-Chairman and one member, all appointed by the Executive Committee of the country C Football Association and two members appointed by the country C Football Players’ Association (art. 22.1.1 and art. 22.1.3). 10. The decisions are taken by simple majority (art. 22.8.1), subsequent to a summary and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated to the country C Football Association, football players and other interested persons are entitled to lodge a claim before the NDRC (art. 22.13.5). Any decision of the NDRC may be appealed to the Disciplinary Authority of the country C Football Association, which shall reach a final decision (art. 22.10). 11. As to the substance, the Respondent argued that the Claimant was absent from trainings and left the country without the Respondent’s permission. In this regard, according to the Respondent, it informed the Claimant that the disciplinary committee of the Respondent would hold a meeting concerning his absences and invited the Claimant to attend such meeting. As a result of the disciplinary committee’s meeting and in absence of the Claimant, the Respondent imposed on him a fine of two months salaries and decided “to terminate the contracts dated 30 July 2010”. 12. Furthermore, the Respondent declared that it never agreed to pay accommodation expenses to the Claimant and therefore, taking into consideration all of the above, requested the dismissal of the claim. 13. The Claimant, in his replica, insisted on FIFA’s competence to deal with the present affair. Additionally, the Claimant acknowledged to have left the country on 14 May 2011, but stated that it was with the Respondent’s permission and at the end of the season’s training. The Claimant added that it was the Respondent itself which had bought his flight tickets to return to country B, so the Respondent could not state that he left the country without its authorization. 14. Moreover, the Claimant indicated that he never received the letter allegedly sent by the Respondent informing him about the meeting of the Respondent’s disciplinary committee. In this respect, the Claimant declared that he was not absent of any training session and that, in any case, the decision of the Respondent should be considered disproportionate. 15. Despite having been invited by FIFA to provide its final statements to the position of the Claimant, the Respondent did not reply. 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 27 December 2012. Consequently, the 2012 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 of the 2012 edition of the Procedural Rules). 2. Subsequently the DRC judge referred to art. 3 par. 2 and par. 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 2012) he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country B player and a country C club. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that, in principle, he may adjudicate in the present dispute which value does not exceed currency of country C 100,000. 4. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of “the terms of the contract” highlighting that the country C Football Association has an independent deciding body to deal with the matter, i.e. the Dispute Resolution Chamber of the country C Football Association and that this deciding body should hear all disputes between the parties of the employment contract. 5. In this regard, the DRC judge noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 6. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the 2012 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. 7. While analysing whether he was competent to hear 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 contained a jurisdiction clause. 8. Having said this, the DRC judge turned his attention to clause 3 of the contract, which stipulates that “Any dispute in respect of the contract shall be governed by the FIFA regulations applicable and in force”. The DRC judge further pointed out that, apart from this reference, the contract did not contain any arbitration clause. 9. In view of the above, the DRC judge was of the opinion that the employment contract did not make a reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations and even provides for the applicability of the FIFA regulations. In this regard, the DRC judge pointed out that the foregoing is also reflected in the Respondent’s argumentation since it refers to the alleged competence of the deciding body of the country C Football Association according to “the terms of the contract”, without further precision. 10. Having established that the first criteria for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the DRC judge deemed it unnecessary to examine any further points which would need to be assessed before concluding that a national deciding body would be competent instead of FIFA. 11. In view of the above, the DRC judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter had 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. 12. Subsequently, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2012), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 27 December 2012. The DRC judge concluded that the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), is applicable to the matter at hand as to the substance. 13. 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 by acknowledging the abovementioned facts of the matter as well as the documentation contained in the file. 14. In this respect, the DRC judge acknowledged that the parties had signed a valid employment contract on 1 June 2010, in accordance with which the Respondent would pay the Claimant remuneration in the amount of EUR 25,000 payable in ten equal instalments of EUR 2,500 per month. Furthermore, the DRC judge acknowledged that the parties had signed a supplementary agreement on 2 June 2010, according to which the Respondent would pay the Claimant an additional remuneration in the amount of EUR 55,000 payable in ten equal instalments of EUR 5,500 per month. 15. In continuation, the DRC judge noted that the Claimant lodged a claim against the Respondent requesting the payment of the amount of EUR 16,000, corresponding to the unpaid monthly salaries of April and May 2011 as per the employment contract and the supplementary agreement. Moreover, the DRC judge took note that the Claimant requested the amount of EUR 1,000 for unpaid accommodation expenses of April and May 2011. Consequently, the Claimant requested to be awarded with the payment of the total amount of EUR 17,000. 16. Equally, the DRC judge took note of the reply of the Respondent, which alleged that the Claimant had left the club and the country without the Respondent’s permission and that, consequently, the disciplinary committee of the Respondent held a meeting in which, in absence of the Claimant, it recognised the termination of the contract and the supplementary agreement and it imposed a fine on the Claimant of two months salaries. In this regard, the DRC judge took note that the Claimant indicated that he was never notified about any meeting of the Respondent’s disciplinary committee and, therefore, contested and rejected such meeting and the subsequent fine. 17. In this regard, the DRC judge recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In relation to the foregoing, the DRC judge considered that it could not be established from the documentation presented by the Respondent that the Claimant was duly notified of the internal process initiated against him and the subsequent fine imposed on him. Therefore, the DRC judge recalled that such process was not a fair and equal process as it did not give the Claimant the opportunity to contend the accusations brought against him by the Respondent. Hence, the DRC judge decided that the fine imposed by the Respondent on the Claimant should be disregarded. Furthermore, the relevant meeting was held on 23 May 2011, while the Claimant had already left the Respondent. Also, the Claimant’s statement that the Respondent had paid for the flight ticket remained uncontested by the Respondent. Therefore, the DRC judge concluded that the Respondent had in fact authorized the departure of the Claimant. 18. On account of all the above, the DRC judge established that the Respondent failed to remit the Claimant’s monthly remuneration in the total amount of EUR 16,000, corresponding to April and May 2011. 19. The DRC judge, then, recalled the Claimant’s request for accommodation expenses. In this regard, the DRC judge established that the employment contract did not contain any specified amount under this concept and, furthermore, that the Claimant failed to prove that he was entitled to the aforementioned amount for accommodation expenses. In view of the foregoing, the DRC judge decided that the Claimant’s request in relation to the accommodation expenses should be rejected. 20. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 16,000. 21. 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 E, 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, the amount of EUR 16,000. 4. If the aforementioned sum is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. 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