F.I.F.A. – Camera di Risoluzione delle Controversie (2011-2012) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2011-2012) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 10 May 2012, by Philippe Diallo (France), DRC judge, on the claim presented by the player Player C, from country A as Claimant against the club Club T, from country S as Respondent regarding an employment-related dispute arisen between the Claimant and the Respondent

F.I.F.A. - Camera di Risoluzione delle Controversie (2011-2012) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2011-2012) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 10 May 2012, by Philippe Diallo (France), DRC judge, on the claim presented by the player Player C, from country A as Claimant against the club Club T, from country S as Respondent regarding an employment-related dispute arisen between the Claimant and the Respondent I. Facts of the case 1. On 1 September 2008, Player C, from country A (hereinafter: the Claimant), and Club T, from country S (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid from the date of signature until 30 June 2009. 2. The art. V of the contract established, inter alia, that the respondent would provide the Claimant with the total remuneration of USD 165,000, as follows: - USD 135,000, divided in nine equal monthly instalments of USD 15,000 each “payable within 15 days of a month following the month in which the remuneration is payable” (cf. art. V, 1 and 2 of the contract); - USD 30,000 as “financial bonus”, payable within 5 days of the registration of the Claimant (cf. art. V, 3, lit. a) of the contract). 3. Furthermore, the art. IV lit. (m) of the contract specified that the Claimant should behave in compliance with “the Rules of Organisation of the Club and such other internal documents of the club” (hereinafter: the Code) and, in addition, lit. (r) also provided that the Claimant would have to “pay the Club penalties imposed by the Club based on a current internal document and pay fines for disciplinary offences imposed by country S Football Association to the Club due to fault on the Player’s part”. 4. The Code established in its art. 5.2 lit. (f) that “disciplinary measures are sanctions of financial nature and General manager is entitled to impose such a measure on all players or coaches due to the breach of the player’s or coach’s duties regulated in the contracts. Disciplinary measure may be imposed up to the triple of the player’s or coach’s remuneration per month”. 5. On 5 March 2010, the Claimant lodged a claim against the Respondent before FIFA, requesting the total outstanding remuneration of USD 27,000 plus interest. The Claimant further requested compensation and the payment of legal costs without specifying the amounts claimed, even though invited to do so. 6. In this respect, the Claimant alleged that even though art. V of the contract provided a certain payment schedule, both parties to the contract had agreed that the remuneration would be honoured in 10 instalments of USD 13,500 each, and USD 30,000 as the “financial bonus”. In this context, the Claimant asserted to have honoured the contract until its expiry date and to have received from the Respondent a total remuneration of USD 138,000 only. 7. The Respondent presented its position, rejecting the claim. In this respect, the Respondent confirmed not having paid the remaining outstanding remuneration once the Claimant apparently left country S on 5 June 2009, without having any permission from the Respondent and “even without providing us in advance with the information he intends to do so”. In this context, the Respondent informed having imposed on the Claimant the financial sanction of USD 27,000, corresponding to two monthly remunerations, based on art. IV par. 1 lit. (r) of the contract and on art. 5.2, lit. (f) of the Code providing a copy of the relevant code. However, the Respondent has not provided any further evidence in this regard. 8. In response to the Respondent’s arguments, the Claimant reasserted that he has honoured his contract and contractual obligations and did not leave the country without previously informing or having the authorization of the Respondent. Furthermore, the Claimant provided a copy of an email allegedly exchanged between him and the Respondent’s manager, by means of which the latter requested information regarding his account details to send the outstanding amounts. 9. The Respondent reasserted its previous position as well as stated that the exchange of emails between the manager and the Claimant should not be considered once the Respondent was not aware of such communication as well as that the manager was not given a mandate to act on behalf of the Respondent. 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 5 March 2010. 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. article 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 (, the DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country A player and a country S club. 3. Furthermore, 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and 2009), and considering that the claim was lodged on 5 March 2010, the 2009 edition of the said regulations is applicable to the matter at hand as to the substance (hereinafter: the Regulations). 4. The competence of the DRC judge and the applicable regulations having been established and entering into the substance of the matter, the DRC judge acknowledged the above-mentioned facts as well as the documentation contained in the file. 5. In this respect, the DRC judge took due note that the Claimant requested the payments by the Respondent of the outstanding salaries in the amount of USD 27,000 with default interest of 5% p.a., as well as compensation and legal costs. 6. The DRC judge took due note that, on the other hand, the Respondent rejected the claim by alleging that the Claimant did not honour the contract by departing from country S on 5 June 2009, before the end of the contract, and therefore, the Respondent imposed financial sanctions to the Claimant corresponding to two monthly remunerations. 7. In this respect, referring to art. 12 par. 3 of the Procedural Rules, which establishes that any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC judge determined that the Respondent did neither provided evidence that the Claimant had left the club without authorization nor regarding the imposition of financial sanctions. 8. In any case, the DRC judge considered that the unilateral imposition of financial sanctions corresponding to two monthly salaries, considering that the contract would expiry on 30 June 2009, cannot be considered proportionate and shall be disregarded. In this regard, the Chamber also emphasized that the Claimant does not appear to have had the possibility to defend himself. 9. In this context, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a mean to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent’s argument in this connection. 10. On account of the above, the DRC judge held 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, pay the outstanding remuneration, which is due to the latter. 11. In this respect, the DRC judge noted that the Claimant honoured the contract and that the Claimant’s alleged departure on 5 June 2009 did not justify the financial sanctions of two monthly instalments made by the Respondent (cf. point 8 and 9 above). 12. As a consequence, the DRC judge deemed that on the basis of the documents on file, the Respondent had not paid the Claimant’s outstanding salaries. 13. On this basis and in line with the principle of burden of proof according to art. 12 par. 3 of the Rules, the DRC judge highlighted that the Respondent did not provide justified reasons for its non-fulfilment of its payment obligations, as agreed upon in the employment contract. 14. On account of all of the above, the DRC judge considered it to be established that the Respondent had not paid the Claimant the monthly salaries for May 2009 and June 2009. Therefore, the DRC judge decided that in accordance with the Claimant’s claim the amount of USD 27,000, consisting of salaries for May 2009 and June 2009, was outstanding. 15. In continuation, the DRC judge noted that the Claimant furthermore claimed 5% interest p.a. on the total amount of USD 27,000 as from the relevant due dates. 16. Concerning the interests claimed by the Claimant, the DRC noted that the contract did not provide for any specific interest rate in case of late payment. Consequently, the DRC decided to award, in accordance with the constant practice of the Dispute Resolution Chamber, default interest at a rate of 5% p.a. to the Claimant as from the first day after the respective due dates of each installment. 17. In this regard, the DRC judged noted that, according to the employment contract, it is stipulated that the monthly salaries shall be paid out to the Claimant on the 15th calendar day of “a month following the month in which the remuneration is payable”. Hence, the DRC judge decided that the Respondent had to pay default interest at a rate of 5% p.a. as from 16 June 2009 and 16 July 2009, upon the last two salary payments. 18. In conclusion, the DRC judge decided to partially accept the claim of the Claimant and that the Respondent has to pay the total amount of USD 27,000 as outstanding remuneration plus 5% of interest p.a. on USD 13,500 as of 16 June 2009 and on USD 13,500 as of 16 July 2009. 19. In continuation, the DRC judge analysed the request of the Claimant for compensation. In this regard, he made reference to art. 9 par. 1 lit. g) of the Procedural Rules, according to which the claim shall contain the amount in dispute, as well as to art. 9 par. 2 of the Procedural Rules. In this context, the DRC judge recalled that the Claimant did not specify the amount requested as compensation, even though advised of the consequences, and thus the request for compensation cannot be considered and must be rejected. 20. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 21. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. ******* III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player C, is partially accepted. 2. The Respondent, Club T, has to pay to the Claimant, Player C, within 30 days as from the date of notification of this decision, the amount of USD 27,000 plus 5 % interest p.a. until the date of effective payment as follows: - 5% interest p.a. as of 16 June 2009 over the amount of USD 13,500; - 5% interest p.a. as of 16 July 2009 over the amount of USD 13,500. 3. If the aforementioned amount is not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claims filed by the Claimant, Player C, are rejected. 5. The Claimant, Player C, is directed to inform the Respondent, Club T, 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 Dispute Resolution Chamber Markus Kattner Deputy Secretary General Encl. CAS directives