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 13 December 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player E, from country G as Claimant against the club, Club P, from country I as Respondent regarding an employment-related 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 13 December 2013, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player E, from country G as Claimant against the club, Club P, from country I as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On an unspecified date, Player E, from country G (hereinafter: player or Claimant) and the Club P, from country I (hereinafter: club or Respondent) signed an employment contract (hereinafter: contract) valid for the sporting season 2011/12. 2. According to art. 3 of the contract, the club undertook to pay to the player the total amount of USD 174,000 as follows: • USD 34,800, to be paid one week after the signature of the contract and the receipt of the player’s International Transfer Certificate; • USD 34,800 to be paid at the end of the first part of the sporting season 2011/12; • USD 34,800 to be paid at the end of the sporting season 2011/12; • USD 69,600 to be paid via twelve equal monthly installments of USD 5,800. 3. The employment contract stipulates that the amount of USD 34,800 payable at the end of the sporting season will be paid “upon obtaining a settlement of account and total settlement of accounts of all debits and penalties.” 4. In addition to the foregoing, the contract stipulates that the club shall pay to the player the amount of USD 17,400 in case the club joins the pro league. 5. Additionally, the contract sets forth that all the taxes applicable to the player’s remuneration are to be paid by the player. 6. On 27 July 2012, the player lodged a claim against the club before FIFA in relation with allegedly outstanding salaries. 7. In this respect, the player explained that at the expiry of the contract, he only had received the amount of USD 90,027 and, therefore, that the club still owes him the amount of USD 83,973. 8. In addition, the player held that the club was promoted to the pro league at the end of the season. Consequently, the player asserted that club also had to pay him the amount of USD 17,400. 9. In view of the above, the player claimed payment of outstanding remuneration in the amount of USD 101,373, plus 5% interest p.a. to be applied on said amount as from the date on which the player lodged his claim against the club. 10. In reply to the claim, the club referred to the above-described contractual terms (cf. points. I./3. and I./5. above) and held that as these settlements were not available yet, it withheld the payments due to the player. 11. Additionally, the club asserted that after a deduction of 6% of the player’s salaries in relation to the “share to federation”, the player’s registration fee and the amounts already paid to the player, the total outstanding amount due to the player before the payment of taxes amounted to USD 87,400, including the promotion bonus claimed by the player. 12. In this respect, the club submitted two documents bearing the player’s signature. The first document, dated 24 December 2011, reads that the player will pay the taxes related to his contract at the end of the season and before leaving country I. Additionally, it reads that if the club has paid any sums to the tax administration, the club can deduct such amounts from his salaries. 13. The second document, dated 14 May 2012, reads that the player asked the club to proceed to the payment of his taxes and to pay him his dues after the club would have received a “clearance” from the tax administration. 14. In his replica, the player specified that in line with the contractual stipulations, he already paid his taxes to the country I tax administration. Hence, in the player’s opinion, the club’s assertion that it withheld the player’s remuneration is unjustified. 15. The player submitted in this regard a document dated 15 May 2012 issued by the Tax Division of the country I Minister of Economy and Finance. 16. Said document reads that the player paid to the tax administration the amount of currency of country I 70,000,000 for the year 2011 in relation to his employment contract. 17. Additionally, the player asserted that there is no provision in the contract in relation to a deduction of 6% of his wages in connection with the payment of a registration fee. According to the player, if such an amount is to be paid, it is not the player’s obligation to do so. 18. In conclusion, the player rejected the club’s arguments and maintained his claim in full. 19. In its duplica, the club referred to a letter it received from the aforementioned tax administration. According to said letter, the tax administration certifies that in connection with the year 2011, the player’s tax amounted to currency of country I 364,910,400, to be increased by an amount of currency of country I 51,609,320 corresponding to penalties for late payment calculated up and until 18 February 2013. The document further mentions that an amount of currency of country I 70,000,000 has been paid on 15 May 2012 and shall consequently be deducted from the two aforesaid amounts. 20. In his final statement, the player recalled the amount corresponding to his outstanding receivables and that, in line with his obligation contained in the contract, he already has paid his taxes to the country I tax administration. 21. Additionally, the player pointed out that the club is acting in bad faith since, as long as the player does not receive his dues, he cannot pay the remaining part of his tax to the country I tax administration. 22. In the player’s opinion, the club does not have any valid reason for not paying him the claimed amounts. 23. Finally, the club referred to the player’s written agreement dated 14 May 2012, in accordance with which the club shall pay the player’s taxes and that such amounts shall be deducted from the player’s salary. 24. In this respect, the club pointed out that the player only partially complied with his tax-related obligations. 25. The club further explained that according to the league Regulations, which were allegedly accepted by the player in writing, 6% of the player’s salary shall be paid to the national federation. 26. In continuation, the club held that it paid on the player’s behalf the amount of USD 10,440 to the national federation in this regard. 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, the DRC judge took note that the present matter was submitted to FIFA on 27 July 2012. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country G player and an country I club. 3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2012), and considering that the present matter was submitted to FIFA on 27 July 2012, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC judge acknowledged that the parties had signed an employment contract, in accordance with which the player was entitled to receive, inter alia, a total fix remuneration of USD 174,000 for the term of the contract. 6. Moreover, the DRC judge noted that the employment contract stipulated that the Respondent shall pay to the Claimant an additional amount of USD 17,400, in case the club would be promoted in the pro league at the end of the sporting season 2011/2012. 7. In continuation, the DRC judge noted that the Claimant alleged that the Respondent had failed to pay outstanding salaries in the amount of USD 83,973, as well as the amount of USD 17,400 relating to the above-mentioned promotion bonus. 8. Consequently, the Claimant asked to be awarded payment of the total amount of USD 101,373, plus interest to be applied on said amount as from the 27 July 2012, i.e. the date on which the player lodged his claim against the club. 9. Equally, the DRC judge took due note of the reply presented by the Respondent. In this respect, the DRC judge noted that the Respondent firstly asserted that it had to withhold the payment due to the Claimant as it was waiting to be in possession of a “settlement of accounts” which would contain “debits” and “penalties” potentially impacting the final amount due as remuneration to the player. 10. Additionally, the DRC judge noted that the Respondent held that, taking into account the above-listed reasons (cf. point I./11. above), it only owed the Claimant a total gross amount of USD 87,400, being specified that this amount includes the promotion bonus in the amount of USD 17,400 that the player referred to in his statement of claim. 11. Finally, the DRC judge also noted the Respondent’s position in relation to the aforementioned document dated 14 May 2012. 12. The DRC judge was eager to highlight that after a careful analysis of the parties’ respective submissions, it was undisputed that the above-referred promotion bonus in the amount of USD 17,400 was due to the Claimant. 13. Consequently, the DRC judge found that the amount of USD 17,400 was to be included in the scope of the total amount payable by the Respondent to the Claimant. 14. In continuation, the DRC judge turned his attention to the Respondent’s statement in accordance with which the club only owed to the Claimant the total gross amount of USD 87,400, the promotion bonus being included. 15. In this regard, the DRC judge recalled that according to the Respondent, this amount would result from the fact that one had to take into account the deduction of 6% of the Claimant’s salaries in connection with the “share of the federation”, the player’s registration fee, and the amounts already paid by the Respondent to the Claimant during the execution of the employment contract. 16. In this context, the DRC judge referred to the general legal principle of the burden of proof, as set forth in art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 17. In addition, the DRC judge referred to art. 9 par. 1 lit. e) of the Procedural Rules, which stipulates that petitions shall contain documents of relevance to the dispute in the original version and, if applicable, translated into one of the official FIFA languages. 18. Bearing in mind the preceding considerations, and after a careful analysis of the documentation available on file, the DRC judge found that the Respondent had neither submitted documentary evidence in relation to the alleged deduction of 6% of the player’s salary based on a “share of the federation”, nor in connection with fees relating to the Claimant’s registration. 19. Following the same reasoning, the DRC judge also found that the Respondent had failed to submit documentary evidence in relation to previous payments of salaries it claimed having made during the execution of the employment contract. 20. Having so found, the DRC judge turned his attention to the Respondent’s arguments related to the payment of the Claimant’s taxes to the relevant national tax authority. 21. In this respect, the DRC judge was firstly eager to point out that according to the employment contract, it was the player’s obligation to proceed with the relevant payment of taxes to the country I tax authority. 22. Also, the DRC judge noted that such modus operandi was detailed in a document dated 24 December 2011 which, inter alia, reads that the player will pay the taxes related to his contract at the end of the sporting season and that if the club has paid any sums to the tax administration, such amounts could be deducted from the player’s salaries. 23. In continuation, based on the documentation on file, the DRC judge was able to verify that the Claimant had proceeded to pay taxes in the amount of currency of country I 70,000,000 to the country I tax administration on or about 15 May 2012. 24. On the other hand, the DRC judge noted that if the Claimant requested the Respondent to proceed to the payment of his taxes on his behalf in accordance with the document dated 14 May 2012, the Respondent did not submit any evidence that it ever proceeded to the payment of any amount to the country I tax authority on the player’s behalf since the date of signature of the aforementioned document, i.e. 14 May 2012, until today, whereas the Respondent has been duly informed of the outstanding amount of taxes by the relevant tax authorities. 25. In this context, the DRC judge took particular note of the letter issued by the country I tax administration, which the Respondent submitted to the appreciation of this decision-making body along with its reply to the Claimant’s claim. 26. From the contents of said letter, the DRC judge could notice that the country I tax administration had communicated to the Respondent a precise calculation of the total amount of the player’s paid and unpaid taxes, including an amount related to penalties for late payment, calculated up and until 13 February 2013. 27. As a consequence, and bearing in mind that the Respondent did not prove having paid any amount on the player’s behalf in connection with the latter’s employment to the country I tax administration, the DRC judge decided to reject the Respondent’s argument in this respect. 28. In view of all of the above, the DRC judge concluded that the arguments brought forward by the Respondent in support of its position that it only owed USD 87,400 to the Claimant were not justified and shall hence be rejected in full. As a result, and bearing in mind the consideration under point II./10. above, the DRC judge decided that the Respondent is liable to pay the amount of USD 101,373 to the Claimant. 29. Taking into consideration the Claimant’s claim, the DRC judge decided to award the Claimant interest at a rate of 5% p.a. to be applied on the amount of USD 101,373, calculated as from 27 July 2012 until the date of effective payment. III. Decision of the DRC judge 1. The claim of the Claimant, Player E, is accepted. 2. The Respondent, Club P, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 101,373, as well as 5% interest p.a. on said amount as from 27 July 2012 until the date of effective payment. 3. In the event that the amount due to the Claimant is not paid by the Respondent within the stated deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and decision. 4. 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: Markus Kattner Deputy Secretary General Encl. CAS Directives