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 theDispute Resolution Chamber passed in Zurich, Switzerland, on 18 December 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Philippe Diallo (France), member on the claim presented by the player, Player H, from country C as Claimant against the club, Club C, from country R as Respondent regarding an employment-related 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 theDispute Resolution Chamber passed in Zurich, Switzerland, on 18 December 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Philippe Diallo (France), member on the claim presented by the player, Player H, from country C as Claimant against the club, Club C, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 6 January 2008, Player H, from country C (hereinafter: the Claimant), and the Club C, from country R (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid from 1 January 2008 until 30 June 2011. 2. According to the contract, the Claimant was entitled to receive the following net amounts: - EUR 300,000 net “shall be paid at the signing date of this agreement”; - EUR 23,810 net per month during the whole term of the contract, which shall be paid “until the 5th day of next month”; - EUR 600 per month for house renting; 3. Furthermore, the contract stipulates that the Respondent would pay all the costs “of moving the personal items to Club C” and that the Claimant would enjoy medical services, treatment and medicines for any accident suffered during the training and playing period. 4. Clause 12 of the contract establishes: “Any dispute between the Parties arising from or in connection with this Agreement, including its validity, interpretation, execution or termination, shall be settled amiably. Unless the Parties shall reach an amiable resolution then any such dispute shall be submitted to the competent bodies of the country R Football Association and the Professional Football League”. 5. By means of the conclusion of a transfer agreement dated 11 June 2009, the Claimant was transferred from the Respondent to Club E, from country G. 6. On 25 May 2010, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the payment of outstanding salaries in the total amount of EUR 80,729.11 plus the default interest of “5% p.a. from the day on which each of the respective payments was due”, according to the following breakdown: - EUR 59,525 for salary of the months of May, June and half of April 2009; - EUR 5,492.88 for medical services and treatments; - EUR 1,320.82 for house renting of the months of May and June 2009; - EUR 14,390.41 for costs of moving his personal items to Club C. 7. The Claimant outlined that he suffered an injury during a game on 6 April 2008 and that subsequently he paid the amount of EUR 5,492.88 for the treatment of such injury. Equally, the Claimant explained he had neither been paid the two months of rent for May and June 2009 nor an amount of EUR 120,82 concerning the electricity, TV and internet. Furthermore, the Claimant declared that he had paid EUR 13,390.41 for the “cost of transport of the household” and EUR 1,000 for his “excessive baggage”. 8. The Respondent, in its response, firstly challenged FIFA’s competence to decide on the matter, on the basis of clause 12 of the contract and alleging the existence of two national independent arbitration tribunals in country R that meet the requirements of the FIFA Regulations i.e. the National Dispute Resolution Chamber of the country R Football Federation at national level and the Dispute Resolution Committee of the country R Professional Football League “at the level of the first competitional league”. In this respect, the Respondent referred to art. 23, 44 and 56 of the “Statute of the country R Football Federation” and added that the parties agreed that “the dispute will be brought for solving only to the country R Football Federation’s and PFL’s sports jurisdiction tribunals (country R Football Federation or country R Professional Football League (PFL))”. 9. Upon FIFA’s request to provide the pertinent documentation which govern the proceedings in front of the above-mentioned tribunals, the Respondent sent the Regulations on the Status and Transfer of Players, which also govern the procedures before the arbitration tribunals of the country R Football Federation and PFL and which were approved on 22 June 2009 by the Executive Committee of the country R Football Federation. 10. Article 26.5 of the abovementioned regulations establishes the composition of the country R Football Federation’s NDRC as follows: (i) a chairman and a deputy chairman, chosen by the representatives of players and clubs from a list prepared by the country R Football Federation Executive Committee; (ii) three player representatives, suggested by the Association of Amateur and Non-amateur Football Players; and (iii) three club representatives, suggested by the country R Football Federation Executive Committee. The decisions of this NDRC are taken, according to article 33.1 of the relevant regulations, by simple majority of the panel and, in the event of a tie, the chairman will have the final vote. 11. Art. 26.8 of the aforementioned regulations states that the competence for solving disputes and cases involving only clubs that participate in the First League National Championship, and their players, shall be determined exclusively by the jurisdictional bodies of the PFL, i.e. the NDRC of the PFL and the PFL Review Commission. The NDRC of the PFL and the PFL Review Commission shall be composed of 5 members, two acting as chairman and deputy chairman, respectively. The nominal composition of the NDRC of the PFL and the PFL Review Commission is approved by the PFL Executive Committee, for a one-year mandate. 12. According to article 34 of such regulations, the decisions of the NDRC of both the country R Football Federation and the PFL can be appealed before the Review Commission and, likewise, the decisions of the latter may be appealed in front of the Court of Arbitration for Sport (CAS), according to article 36.17 of the regulations. 13. Additionally, the Respondent rejected all of the Claimant’s allegations as to the substance of the matter, stating that the Respondent had no financial obligations towards the Claimant since the date of the transfer agreement, i.e. 11 June 2009. The Respondent held that “with the completion of the transfer agreement, all the club [Respondent] obligations to the player [Claimant] were ceased according to the provisions of art. 19.12 of the Regulations on the Status and Transfer of Players”. Said article stipulates that all material and financial rights and obligations of the two clubs and of the transferred player are regulated through the transfer contract. Any contractual obligation of the former club towards the player that has been transferred on a final basis shall expire as of the date of the transfer, except for the obligations provided for in the transfer contract. 14. Moreover, the Respondent alleged that it had paid the Claimant the total amount of EUR 711,737 during the employment relationship including an advance payment of the salaries of EUR 300,000. The Respondent stated it paid EUR 404,770 for salaries (17 x EUR 23,810) and the advance of “EUR 300,000 for 42 months means 7,142 a month”. Therefore 17 x EUR 7,142 = EUR 121,414. Hence, the Respondent asserted the Claimant was entitled to EUR 526,184 (EUR 404,770 + EUR 121,414), but received EUR 711,737, so the Respondent has no debt whatsoever to the Claimant. 15. Furthermore, the Respondent declared that the Claimant did not have the Respondent’s permission or approval as to the medical services, the accommodation or the moving of his personal items. Therefore, the Respondent requested the dismissal of the Claimant’s claim. 16. The Claimant, in his replica, maintained that FIFA is competent to decide on the matter and that the abovementioned article 19.12 should not be applicable, as the transfer of the Claimant was agreed between two different associations and so such transfer “is not within the scope of any national football federation”. 17. In addition, the Claimant declared that the payment of EUR 300,000 was agreed in the contract as a signing fee and not as an advance payment of the Claimant’s salaries. The Claimant also pointed out that the list of payments enclosed by the Respondent explicitly shows how only 14 whole monthly salaries and one half monthly salary were paid, from the total of 17 monthly salaries, so there are still two and a half monthly salaries unpaid by the Respondent. 18. Finally, the Claimant stated that the payment of medical services, accommodation and moving of his personal items were agreed in the contract without the obligation of any prior consent or approval from the Respondent. 19. In its final position, the Respondent repeated its previous arguments stressing the point of FIFA’s lack of competence to decide on this matter. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 25 May 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 3 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a country C player and a country R club regarding an alleged outstanding amount deriving from the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 12 of the employment contract and alleging that only the deciding bodies of the country R Football Federation and/or the PFL were competent to deal with the present case. In particular, the Chamber took note that the Respondent argued that these two arbitration tribunals respected the principles set out in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, FIFA Circular no. 1010 of 20 December 2005 and the National Dispute Resolution Chamber (NDRC) Standard Regulations, such as the principle of equal representation of players and clubs and of fair proceedings. Furthermore, the Respondent stated that the parties had agreed to submit any dispute relating to the employment contract to “the country R Football Federation’s and PFL’s sports jurisdiction tribunals”. 5. In this regard, the Chamber acknowledged that the Claimant contested the competence of the deciding bodies of the country R Football Federation and PFL and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 6. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it 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 Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber 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 it was competent to decide on the matter, the Chamber, for the sake of completeness, first referred to clause 12 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said clause 12, “any dispute shall be submitted to the competent bodies of the country R Football Association and the Professional Football League”. Hence, the members of the Chamber outlined that the content of clause 12 is rather vague and that said clause does not explicitly refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. 8. Notwithstanding the above, the DRC turned its attention 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 view of the above, the Chamber went on to examine the documentation presented by the Respondent and acknowledged that the country R Football Federation Regulations – edition 2009 – provided by the latter appear to be applicable to the proceedings of the relevant arbitration tribunals, in accordance with art. 39.1, 39.2 and 41.1 of the country R Football Federation Regulations. 10. Firstly, the members of the Chamber stressed the fact that, at least, two deciding bodies of the first instance appeared to exist in country R at national level, i.e. the NDRC of the country R Football Federation and the DRC of the PFL, and analysed the respective jurisdiction of the two aforesaid deciding bodies. In this respect, the DRC noted that, whereas the NDRC of the country R Football Federation is competent inter alia to decide on disputes concerning “the construing, enforcement and performance of the contractual clauses in the contracts executed between clubs and players, as well as regarding the maintenance of contractual stability” (art. 26.2 of the country R Football Federation Regulations), the DRC of the PFL is “exclusively” competent to solve disputes “involving only clubs that participate in the First League National Championship, and their officials, players and coaches (…) according to the annual agreement between the country R Football Federation and the PFL” (art. 26.8 of the country R Football Federation Regulations). 11. On account of the above, the DRC was eager to point out that, in view of the Regulations of the country R Football Federation, the respective jurisdiction of these two country R deciding bodies did not appear to depend on the nature of the dispute but rather on the participation of the club involved in a possible dispute in the “First League National Championship” or not. In this respect, the Chamber duly noted that the Respondent was a club participating in the “First League National Championship” and that thus the DRC of the PFL was the relevant decision-making to analyse in the present matter. 12. With regard to the composition of the DRC of the PFL, the DRC observed that art. 26.8 in fine of the country R Football Federation Regulations stipulates that the DRC of the PFL – and its appeal body – is composed of “five members, two of them acting as chairman and deputy chairman, respectively. The nominal composition of the NDRC of the PFL and the PFL Review Commission [the appeal body] is approved by the PFL Executive Committee, for one-year mandate.” The DRC noted that, whereas the composition of the NDRC of the country R Football Federation was further detailed in art. 26.5 of the country R Football Federation Regulations, no additional documentation and/or information was provided in relation with the exact composition of the DRC of the PFL. 13. In view of the lack of documentary evidence, the Chamber deemed that the Respondent had failed to prove that the DRC of the PFL was indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. 14. In view of all the above and referring to the principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber 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. 15. Subsequently, the Chamber 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, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009, 2010 and 2012) and, on the other hand, to the fact that the present claim was lodged on 25 May 2010. The Dispute Resolution Chamber concluded that the 2009 edition of the Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 16. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the members of the Chamber started by acknowledging that the parties to the dispute had signed a valid employment contract on 6 January 2008 in accordance with which the Respondent would pay the Claimant a sign-on fee of EUR 300,000 as well as a monthly salary of EUR 23,810. 17. Equally, the Chamber observed that according to the employment contract at stake, the Claimant was entitled to EUR 600 per month for renting accommodation and to an unspecified amount for the cost of moving his personal items to the city of the Respondent. 18. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent requesting the payment of the amount of EUR 80,729.11 plus interest, corresponding to unpaid monthly salaries of half of April, May and June 2009, unpaid rent of accommodation for the months of May and June 2009, medical services and treatments abroad allegedly paid by the Claimant and expenses of moving to the city of the Respondent. 19. Thereafter, the members of the Chamber took note of the reply of the Respondent, who alleged that it did not owe any salary to the Claimant on the basis that the amount of EUR 300,000, to which the Claimant was entitled at the signing of the contact, was an advance payment of salaries. Moreover, the Chamber noted that the Respondent held that the Claimant did not have a specific permission or approval from the Respondent, regarding the expenses for accommodation, medical treatment and moving. 20. In this regard, the Chamber recalled once more that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 21. In view of the above, the Chamber concluded that the Respondent shall carry the burden of proof that the salaries of part of April, May and June 2009, as well as the rent for the months of May and June 2009, had been paid. 22. In this respect, the members of the Chamber observed that the Respondent was not able to corroborate that the amount established in the contract as signing fee was, indeed, an advance payment of salaries and that, therefore, it had already paid more to the Claimant than he was actually entitled to. In particular, the Chamber established that the literal wording of the relevant clause in the contract could lead to no other conclusion than that the amount of EUR 300,000 was to be paid at the signing date. Thus, the Chamber decided that the EUR 300,000 was to be considered as a sign-on fee and bore, as such, no relevance whatsoever to the payment of the monthly salaries of the Claimant. 23. Furthermore, and in relation to the Respondent’s argument that art. 19.12 of the country R Football Federation Regulations were applicable to the present matter, the DRC was of the firm opinion that the relevant article may be applicable to domestic transfers, it can, for obvious reasons, not be applicable to the transfer of a country C player from country R to country G, i.e. a transfer with an international dimension that does not fall under the scope of the country R Football Federation regulations. Therefore, the Chamber also rejected the Respondent’s argumentation in this respect. 24. Equally, the Chamber acknowledged that the Claimant was transferred to a new club on 11 June 2009 and decided that, therefore, he was entitled to receive the monthly salary as established in the contract until such date. 25. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s salary of half of the month of April, the full month of May and ten days of the month of June 2009. 26. Likewise, the members of the Chamber observed that the Respondent failed to pay the monthly amount for rent of accommodation, as established in the contract, for the months of May and June 2009. 27. As a consequence, the Chamber decided that the Respondent, in accordance with the general legal principle of pacta sunt servanda, is liable to pay to the Claimant outstanding salaries in the total amount EUR 43,651 and the rent for accommodation in the total amount of EUR 1,200. 28. In continuation, the members of the Chamber took note that the Respondent declared that the Claimant should have requested a specific permission or approval from the Respondent, regarding the expenses for medical services and for moving his personal items to the city of the Respondent. 29. With regards to the costs of moving the Claimant’s personal items to the city where he had to render his services, the members of the Chamber took note that the contract clearly stipulated that the Respondent would pay “all the costs of moving” and, consequently, decided that the Respondent had, in principle, to reimburse the Claimant for all his costs related to his move to Club C. In this respect, the Chamber observed that the Claimant, in this direction, presented documentary evidence in the form of two invoices of EUR 1,000 and EUR 13,390.41 corresponding to the payment of excess of baggage and of the services of a moving company, respectively. 30. Nevertheless, the Chamber noted that the invoice corresponding to the amount of EUR 1,000 for excess of baggage, issued by “country R Air”, is dated 14 February 2008. Subsequently, the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not consider any petition if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case. 31. In this respect, the Chamber concurred that the Claimant’s claim against the Respondent was lodged in front of FIFA on 25 May 2010 and that the event giving rise to this specific petition, regarding an invoice for excess of luggage, arose on 14 February 2008. Consequently, the Chamber concluded that the Claimant had not brought this specific claim against the Respondent within the aforementioned two-year period of time. 32. On account of all the above-mentioned, and in view that the employment contract entitled the Claimant to claim the payment of moving his personal items to the city of the Respondent, the Chamber determined that the Respondent, is liable to pay to the Claimant the expenses of moving to country C in the total amount EUR 13,390.41. 33. As to the request of the Claimant regarding medical expenses incurred by him due to an injury, the Chamber took note that the documentary evidence in this regard, presented by the Claimant, referred to costs paid by the Claimant to medical clinics and hotels in country G. Taking into account that the Respondent is a country R club based in the city of Club C, the members of the Chamber deemed that the Claimant should have had a specific authorisation from the Respondent in order to receive his medical treatments abroad. 34. Consequently, the Chamber decided that the Claimant’s claim for the “medical services and treatments” is rejected. 35. Taking into account all the above, the DRC decided to partially accept the Claimant’s claim. Consequently, the Respondent has to pay to the Claimant the amount of EUR 58,241.41. 36. In continuation and with regard to the Claimant's request for interest, the DRC decided that the Claimant is entitled to 5% interest p.a. until the date of effective payment as follows: a) 5% p.a. as of 5 May 2009 on the amount of EUR 11,905; b) 5% p.a. as of 5 June 2009 on the amount of EUR 23,810; c) 5% p.a. as of 5 July 2009 on the amount of EUR 7,936; d) 5% p.a. as of 1 May 2009 on the amount of EUR 600; e) 5% p.a. as of 1 June 2009 on the amount of EUR 600; f) 5% p.a. as of 26 May 2008 on the amount of EUR 13,390.41. 37. The Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player H, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 58,241.41 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 5 May 2009 on the amount of EUR 11,905; b. 5% p.a. as of 5 June 2009 on the amount of EUR 23,810; c. 5% p.a. as of 5 July 2009 on the amount of EUR 7,936; d. 5% p.a. as of 1 May 2009 on the amount of EUR 600; e. 5% p.a. as of 1 June 2009 on the amount of EUR 600; f. 5% p.a. as of 26 May 2008 on the amount of EUR 13,390.41. 4. If the aforementioned sum plus interest is not paid within the stated time limit, 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 Dispute Resolution Chamber 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: Jérôme Valcke Secretary General Encl. CAS directives