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 18 December 2012, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player S, from country R as Claimant against the club, Club L, 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 18 December 2012, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player S, from country R as Claimant against the club, Club L, from country C as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 29 January 2009, Player S, from country R (hereinafter: the Claimant), and Club L, from country C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2009. 2. The contract provided that the Claimant was entitled to a total remuneration of EUR 20,000 net, payable in 4 equal instalments of EUR 5,000 each. In addition, the Claimant was entitled to accommodation “up to a price of EUR 500 per month”. 3. Art. 14 of the contract provided that the Claimant agreed “to adhere to the Rules, Regulations and Bye-Laws of the country C Football Association and/or of the Dispute Resolution Committee of the country C Football Association in case of any grievance or dispute with the club”. 4. On 28 December 2009, the Claimant lodged a claim against the Respondent in front of FIFA indicating that the Respondent only paid the first instalment of EUR 5,000 as well as EUR 500 regarding the first rent payment. Consequently, the Claimant, after amending his claim, requested to be awarded with EUR 15,000, corresponding to the salaries of March, April and May 2009. 5. The Claimant added that during the month of March 2009, he received a cheque for EUR 1,000, however, it was not covered by any funds. 6. In its reply, the Respondent firstly disputed the jurisdiction of FIFA, referring to art. 14 of the contract, stressing that the Dispute Resolution Committee of the country C Football Association is the competent body to decide on the present matter. 7. As to the substance of the matter, the Respondent stated that it honoured the contract and that there are no outstanding amounts payable to the Claimant. 8. Upon request, the country C Football Association provided FIFA with its Regulations for the Registration and Transfer of Football Players of the country C Football Association (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). 9. 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). II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) and took note that the present matter was submitted to FIFA on 28 December 2009, thus after 1 July 2008. Consequently, the DRC judge concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. With regard to the competence of the DRC judge, art. 3 par. 1 and par. 2 of the Procedural Rules state 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 R player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 14 of the employment contract highlighting that the parties to the contract had agreed to submit any dispute to the Dispute Resolution Committee of the country C Football Association. 4. Taking into account the above, the DRC judge emphasised that in accordance with art. 22 lit. b) of the 2012 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. 5. 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. 6. 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.” 7. In conformity with the jurisprudence of the DRC, the DRC judge decided that the “Regulations for the registration and transfer of football players country C Football Association (2005)”, in accordance with 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. 8. 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. 9. Subsequently, 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 2009, 2010 and 2012) and considering that the present claim was lodged in front of FIFA on 28 December 2009, the 2009 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. 10. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts of the case as well as the documentation contained in the file. 11. First of all, the DRC judge acknowledged that the Claimant and the Respondent had concluded an employment contract valid as from 29 January 2009 until 31 May 2009. As to the financial terms of said employment contract, the DRC judge took note that it had been agreed upon between the parties that the Respondent would remunerate the Claimant with a salary of EUR 20,000 net, payable in 4 equal instalments of EUR 5,000 each. In addition, the DRC judge took due note that the Claimant was entitled to accommodation “up to a price of EUR 500 per month”. 12. 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 15,000, corresponding to outstanding salary instalments of March, April and May 2009. More specifically, the Claimant indicated that the Respondent had paid him only EUR 5,000 as well as EUR 500 corresponding to the first rent payment. 13. Subsequently, the DRC judge noted that the Respondent, in its defence, maintained that it honoured the contract. 14. 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 a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 15. 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 paid to the Claimant. Therefore, the DRC judge decided it could not take into consideration the argument of the Respondent that it had already paid all the amounts due to the Claimant in accordance with the contract. 16. In view of the above, the DRC judge concluded that the Respondent had not provided any documentary evidence in support of its defence and, therefore, the DRC judge decided that it could be established that the Respondent had failed to pay the Claimant the amount of EUR 15,000 as agreed upon between the parties in the contract. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, 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 15,000. 17. Finally, the DRC judge decided that the Claimant had to return the cheque of EUR 1,000 to the Respondent, which was provided to the Claimant in March 2009. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player S, is admissible. 2. The claim of the Claimant is accepted. 3. The Respondent, Club L, has to pay to the Claimant the amount of EUR 15,000, within 30 days as from the date of notification of this decision. 4. In the event that 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. The Claimant is ordered to return to the Respondent the cheque amounting to EUR 1,000, within 30 days as from the date of notification of this decision. 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 article 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