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 14 August 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player M, from country P 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 (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 14 August 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player M, from country P 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 20 July 2008 Player M, from country P (hereinafter: player or Claimant), and Club L, from country L (hereinafter: club or Respondent), signed an employment contract as well as a supplementary agreement, both valid as from 1 June 2008 until 31 May 2010 or after the last game of the Championship 2009/10, whichever is the latest. 2. Furthermore, art. 2 of the contract indicates that it “is agreed by both parties that the first 12 months of the Player´s contract are considered as probation according to the Termination Law of 1967”, whilst art. 14 of the contract further indicates that the “Player agrees to adhere to the Rules, Regulations and Bye-Laws of the country C Football Association and/or of the Dispute Resolution Committee of country C Football Association in case of any grievance and/or any dispute with the Club”. 3. In accordance with art. 4 of the contract, the player was inter alia entitled to receive: EUR 15,000 net payable in 10 equal monthly instalments of EUR 1,500, the first due on 30 August 2008 and the next to be paid on the last day of each consecutive month until full payment. 4. Moreover, and in accordance with art. 1 of the supplementary agreement, “the club shall pay the Player additionally to his agreed salary in contract of employment dated 20/07/2008”, EUR 85,000 for the season 2008/09: EUR 10,000 as a signing-on fee and EUR 75,000 payable in ten equal instalments, starting as from 30 August 2008 until 30 May 2009. 5. On 28 December 2009, the player lodged a claim against the club in front of FIFA, requesting to be awarded the amount of EUR 70,500 plus interest corresponding to the outstanding salaries for the 2008/09 season, as well as legal fees and any other or further remedy FIFA’s DRC deems appropriate. 6. According to the player, he had “honoured his agreement and played with the team of the Club till the end of the football season 2008-2009”; however, the club had only paid him EUR 29,500 out of the corresponding EUR 100,000 due for the 2008/2009 season. 7. In its reply, the club rejects the player´s allegations and principally claims that FIFA has no competence or jurisdiction to handle the present matter, as the parties had agreed to exclude the jurisdiction of FIFA in any grievance case and to “admit any grievance or any claim at the relevant organs of the country C Football Association”. 8. Upon FIFA’s request to provide the pertinent regulations as well as the procedural rules, the country C Football Association provided part of the “Regulations for the registration and transfer of football players” (edition 2005; hereinafter: the Regulations of the country C Football Federation), which entered into force on 15 June 2005. a. With regard to the jurisdiction of the Dispute Resolution Committee (hereinafter: the Committee): According to art. 22.11 of the Regulations of the country C Football Federation, the Committee is competent to “adjudicate and/or resolve any financial or other disputes which may arise: a) between clubs and non-amateur players […]”. b. as to the composition: Art. 22.1 par. 1 and par. 3 of the Regulations of the country C Football Federation establishes that the Committee consists of five members (Chairman, Vice-Chairman and three members). The Chairman, Vice-Chairman and one of the three members are elected by the Executive Committee of the country C Football Federation, whereas the two remaining members are nominated by the country C Football Players’ Association. c. finally, with respect to the possibility of an appeal: Concerning the possibility of an appeal against a decision taken by the Committee, art. 22.10 stipulates that “any decision of the [Committee] may be appealed to the Disciplinary Authority of the [country C Football Federation]. The Disciplinary Authority shall finally decide on the appeals referred thereto”. 9. Furthermore, the club sustains that the claim is barred by the statute of limitations, since allegedly more than two years had elapsed from the date that the alleged grievance occurred. Finally and notwithstanding the lack of competence, the club concluded its defence by claiming to have fully complied with its financial obligations towards the player. 10. In its replica, the player rejects all the club’s allegations, in particular, that the present claim is prescribed, stressing that the claim was filed on 28/12/2009, “i.e. 5 months after the termination of collaboration between the player and the club”. 11. In spite of having been invited by FIFA to do so, the club failed to provide its final position, however, after the investigation-phase was concluded the club informed FIFA that it “had paid to the player at a previous date the amount of 58,500 for full and final settlement of the case”. 12. In reaction, the player denies having received EUR 58,500 from the club stressing to have never signed such a receipt of payment. According to the player, on 21 July 2010, date in which the full and final settlement receipt was allegedly signed for, he was not even in country C, reason for which the player categorically rejects this and maintains his initial request of relief. 13. Finally, in spite of having been requested by FIFA to do so, the club failed to provide the original version of the payment receipt dated 21 July 2010. ***** 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 matter at stake. 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 and 2012; hereinafter: Procedural Rules) and took note that the present matter was submitted to FIFA on 28 December 2009, thus, after the 2008 edition entered into force on 1 July 2008 and prior to the 2012 edition entering into force. 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 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 P player and a country C club. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies alleging that the parties had agreed to submit any dispute arisen between them to the Dispute Resolution Committee of the country C Football Association and, in this respect, it referred to the alleged arbitration clause contained in art. 14 of the contract (cf. point I./2 above). 4. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the 2012 edition of the 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. 5. While analysing whether he was competent to deal with 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 contains a jurisdiction clause. 6. Having said this, the DRC judge turned his attention to art. 14 of the employment contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said art. 14, “the player agrees to adhere to the Rules, Regulations and By-Laws of the country C Football Association and/or of the Dispute Resolution Committee of country C Football Association in case of any grievance and/or any dispute with the club”. 7. In view of the aforementioned clause, the DRC judge was of the opinion that art. 14 of the employment contract is not clear and merely states that the Claimant would “agree to adhere”. Therefore, the DRC judge concluded that the jurisdiction of the relevant country C body does not derive from a clear reference in the employment contract. 8. However, the DRC judge wished to stress that, even if the contract at the basis of the present dispute would have included an arbitration clause in favour of national dispute resolution, the Respondent was unable to prove that, in fact, the Dispute Resolution Committee of the country C Football Federation 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 the FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 9. In this respect, the DRC judge referred to the general principle of equal representation of players as well as of 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. 10. Indeed, this prerequisite is not only mentioned in the Regulations on the Status and Transfer of Players, but also in the FIFA 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.” 11. Subsequently, the DRC judge referred to the ``Regulations of the country C Football Federation’’ made available by the country C Football Federation and began to analyse its content. In this context, the DRC judge noted that according to the aforementioned country C Regulations, the chairman, a vice-chairman and one member are elected by the Executive Committee of the country C Football Federation and two members are elected by the country C Football Players’ Association. 12. In light of the above and in conformity with the well-established jurisprudence of the DRC, the DRC judge decided that the “Regulations of the country C Football Federation” and the Dispute Resolution Committee of the country C Football Federation regulated therein do not meet the aforementioned principles. 13. In view of the above, the DRC judge established that, in line with the constant and well-established 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 he 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. 14. Subsequently, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2009, 2010 and 2012) and considering that the claim was lodged in front of FIFA on 28 December 2009, the 2009 edition of said Regulations is applicable to the present matter as to the substance. 15. 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 to acknowledge the facts of the case as well as the documents contained in the file. 16. In this respect, the DRC judge acknowledged that it was undisputed by the parties that, on 20 July 2008, they signed an employment contract and a supplementary agreement, in accordance with which the Claimant was entitled to receive, inter alia, for the 2008/09 season, the total amount of EUR 100,000. 17. 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 70,500, corresponding to outstanding salaries for the 2008/09 season, as well as interest and legal fees. 18. Subsequently, the DRC judge noted that the Respondent, in its defence, besides claiming to have paid the Claimant all amounts due, considered the Claimant´s claim to be barred by the statute of limitations, since allegedly more than two years had elapsed from the date the alleged grievance occurred. 19. In this context, the DRC judge deemed that he had to first of all analyse the preliminary issue of prescription. In this line, the DRC judge recalled that according to art. 25 par. 5 of the Regulations, FIFA´s competent deciding bodies shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. 20. In this context, the DRC judge was eager to emphasise that the facts giving rise to the dispute in casu were the non-payments by the Respondent of the Claimant´s full salary for the 2008/2009 season. This said, the DRC judge recalled that the Claimant lodged his claim in front of FIFA against the Respondent on 28 December 2009. Therefore, the DRC judge came to the conclusion that at the moment the Claimant lodged his claim with FIFA, not more than two years had elapsed and thus, the claim could not be considered barred by the statute of limitations. Hence, the DRC judge concluded that the Claimant’s claim is admissible. 21. Turning his attention to the financial aspects of this contractual relationship, the DRC judge noted that on the one hand, the Claimant recognised to have received EUR 29,500 out of the corresponding EUR 100,000 for the 2008/2009 season, whilst on the other hand, the Respondent maintained to have paid the Claimant all his due amounts. 22. Furthermore and concerning the alleged amounts paid to the Claimant by the Respondent, the DRC judge emphasized that the Respondent initially failed to either substantiate its defense or present any documentary evidence; it was not until the closure of the investigation, that the Respondent provided FIFA with a copy of a payment receipt dated 21 July 2010 by means of which it alleged that it “had paid to the player at a previous date the amount of 58,500 for full and final settlement of the case”. 23. In this context, the DRC judge took note of the fact that, after having been requested by FIFA to provide the original payment receipt, as to analyse its content and signature, the Respondent inexplicably failed to do so. 24. This said, the DRC judge emphasized that, in accordance with the principle of the burden of proof, which is a basic principle in every legal system, each party to a legal procedure is responsible to corroborate its allegations. In other words, any party deriving a right from an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 25. Subsequently, the DRC judge decided that, since the Claimant contested the fact to have received the amount of EUR 58,500 and also contested the validity of the signature contained in the payment receipt, it was the procedural obligation of the Respondent to present the original payment receipt in order to provide proof for its position and to refute the Claimant´s allegations. 26. In this respect, the DRC judge considered that, since the Respondent abstained from providing the original payment receipt, it renounced to its right of defense and accepted the allegations of the Claimant, i.e. that he received EUR 29,500 from the Respondent only. 27. In view of all the above and, in particular, taking into account the lack of sufficient and proven documentary evidence provided by the Respondent, the DRC judge concluded that it could be established that the Respondent had failed to pay to the Claimant the amount of EUR 70,500 due under both the contract and the supplementary agreement signed on 20 July 2008. Consequently, 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 latter the outstanding amount of EUR 70,500. 28. Moreover, and taking into account the Claimant's request for interest as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided that the Claimant is entitled to receive interest at the rate of 5% p.a. over the amount of EUR 70,500 as of 28 December 2009 until the date of effective payment. 29. Equally, the DRC judge decided that, in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution Chamber’s respective longstanding jurisprudence, the Claimant’s claim for legal costs is rejected. 30. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player M, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club L, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 70,500 plus 5% interest p.a. on said amount as of 28 December 2009 until the date of effective payment. 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 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