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 B as Claimant against the club, Club A, 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 B as Claimant against the club, Club A, from country C as Respondent regarding an employment-related contractual dispute arisen between the parties I. Facts of the case 1. On 1 January 2011, Player P, from country B (hereinafter: the Claimant), and Club A, from country C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as from 1 June 2011 until 30 May 2012. 2. Clause 1 lit. a) of the contract provided for a total remuneration of EUR 80,000, payable in monthly instalments of EUR 8,000 each, of which the first instalment shall be paid on 31 June 2011 and the following “on the 30th of each following working month”. 3. On 18 July 2011, the parties signed a termination agreement, according to which the Claimant was entitled to receive the amount of EUR 15,000 as compensation for the termination of the contract and “as a full and final settlement of all his claims emanating from the contract of employment dated 1/01/2011”. According to its art. 2, the parties agreed that the Respondent shall give three post-dated cheques for the amount of EUR 5,000 each to the Claimant. 4. Clause 4 of the termination agreement establishes that “this agreement shall be governed and construed by the country C Football Association rules and regulations”. 5. On 11 January 2012, the Claimant lodged a complaint before FIFA against the Respondent requesting from the latter the total outstanding amount of EUR 20,000 plus interest and additional costs, made up as follows: - EUR 5,000 as partial salary of June 2011; - EUR 15,000 as compensation agreed in the termination agreement. 6. In particular, the Claimant explained that the Respondent had paid him only the amount of EUR 3,000 instead of EUR 8,000 for the salary of June 2011 and with delay. In July 2011, the Respondent had allegedly informed the Claimant that it would no longer pay his salary and that he was not part of the team anymore. Therefore, the parties agreed on the termination of the contract. According to the Claimant, he had received three cheques of EUR 5,000 each with the due dates 15 October 2011, 15 December 2011 and 15 February 2012. However, the cheques could not be honoured, but he still had to pay charges amounting to currency of country H 194.50. Finally, the Claimant stated having tried to reach the president of the Respondent several times, however, without success. 7. In its reply to the claim, the Respondent contested FIFA’s competence referring to clause 4 of the termination agreement (cf. point I. 4. above) stating that the DRC of the country C Football Association is competent. 8. In this regard, the Respondent provided a copy of the “Regulations for the registration and transfer of football players” of the country C Football Association (edition 2005; hereinafter: the Regulations of the country C Football Association). 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). 10. With regard to the substance of the matter, the Respondent alleged having fully and finally settled all disputes and therefore the Claimant cannot claim any other amount from the Respondent. 11. In this respect, the Respondent alleged that it provided the player with three cheques for the fulfilment of the termination agreement, of which the first cheque had allegedly been paid in cash due to some problems with the bank “and a receipt has been issued while the remaining of the cheques have been presented and have been honoured by the club”. 12. Finally, the Respondent asked to condemn the Claimant to pay to the Respondent the legal expenses incurred as well as any procedural costs. 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 took note that the present matter was submitted to FIFA on 11 January 2012. Consequently, the DRC judge concluded that 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 3 of the Procedural Rules). 2. With regard to the competence of the DRC judge, art. 3 of the Procedural Rules states 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 B 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 clause 4 of the termination agreement highlighting that the “Dispute Resolution Committee” of the country C Football Federation is competent. 4. In this respect, the DRC judge referred to the above-mentioned clause of the termination agreement, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said clause, “this agreement shall be governed and construed by the country C Football Association rules and regulations”. Hence, the DRC judge outlined that said clause does not explicitly refer to the exclusive competence of a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations in order to settle disputes between the contracting parties regarding the execution of the agreement. 5. Notwithstanding 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. 6. 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. 7. 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.” 8. In conformity with the jurisprudence of the DRC, the DRC judge decided that the country C Football Associaion’s “Regulations for the Registration and Transfer of Football Players”, 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. 9. 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. 10. 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 2010 and 2012) and considering that the present claim was lodged in front of FIFA on 11 January 2012, the 2010 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. 11. 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. 13. First of all, the DRC judge acknowledged that the Claimant and the Respondent had concluded an employment contract valid as from 1 June 2011 until 30 May 2012. Furthermore, the DRC judge noted that on 18 July 2011, the parties signed a termination agreement, according to which the Claimant was entitled to receive the amount of EUR 15,000 as compensation for the termination of the contract and “as a full and final settlement of all his claims emanating from the contract of employment dated 1/01/2011”. According to its art. 2, the parties agreed that the Respondent shall give three post-dated cheques for the amount of EUR 5,000 each to the player. 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 20,000 plus interest, corresponding to the partial salary of June 2011 of EUR 5,000 and compensation agreed in the termination agreement of EUR 15,000. 13. Subsequently, the DRC judge noted that the Respondent, in its defence, stated that it had paid the Claimant all amounts due, since it provided the latter with three cheques of which the first cheque had been paid in cash, while the remaining cheques have been honoured by the Claimant. 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. 16. In view of all the above and, in particular, taking into account the lack of documentary evidence presented by the Respondent, the DRC judge concluded 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 termination agreement. 17. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the Respondent must fulfil its obligations towards the Claimant and is to be held liable to pay the Claimant the outstanding amount of EUR 15,000 plus 5% interest p.a. as of 11 January 2012. Equally, the DRC judge decided that the Claimant has to return to the Respondent the three cheques with the value dates of 15 October 2011, 15 December 2011 and 15 February 2012, respectively issued by Club A in the total amount of EUR 15’000 to the order of “Player P”. 18. Finally, the DRC judge turned its attention to the request of the Claimant for the partial salary of June 2011 in the amount of EUR 5,000. In this respect, the DRC judge recalled that according to the termination agreement signed by the parties on 18 July 2011, the amount of EUR 15,000 was agreed upon between the parties as compensation for the termination of the contract and “as a full and final settlement of all his claims emanating from the contract of employment dated 1/01/2011”. 19. Therefore, the DRC judge concluded that the termination agreement clearly specified that any other debt beyond EUR 15,000 of the Respondent towards the Claimant is no longer claimable. 20. In view of the above, the DRC judge decided that he must reject the Claimant’s claim regarding the partial salary of June 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 partially accepted. 3. The Respondent, Club A, 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 15,000 plus 5% interest p.a. as of 11 January 2012 until the date of effective payment. 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. Any further request filed by the Claimant is rejected. 6. The Claimant, Player P, has to return to the Respondent, Club A, within 30 days as from the date of notification of this decision the three cheques with the value dates of 15 October 2011, 15 December 2011 and 15 February 2012, respectively issued by Club A in the total amount of EUR 15’000 to the order of “Player P”. 7. The Claimant, Player P, is directed to inform the Respondent, Club A, 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