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 passed in Zurich, Switzerland, on 28 March 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Jon Newman (USA), member Eirik Monsen (Norway), member Theodore Giannikos (Greece), member Mario Gallavotti (Italy), member on the claim presented by the player, Player L, from country A as Claimant against the club, Club R, from country B 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 passed in Zurich, Switzerland, on 28 March 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Jon Newman (USA), member Eirik Monsen (Norway), member Theodore Giannikos (Greece), member Mario Gallavotti (Italy), member on the claim presented by the player, Player L, from country A as Claimant against the club, Club R, from country B as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 30 May 2008, Player L, from country A (hereinafter: player or Claimant), and Club R, from country B (hereinafter: Club R or Respondent), signed an employment contract valid as from 1 July 2008 until 30 June 2012 (hereinafter: contract). 2. In accordance with art. 11.3.d) of the contract, “En cas de transfert du joueur vers un autre club pendant la durée de la présente convention, le joueur aura droit à 15% sur le montant de transfert net perçu par [Club R]”. (Free translation: the player is entitled to receive 15% of the net transfer fee received by Club R in the event of a transfer of the player to another club during the contractual duration). 3. On 20 May 2011, the parties signed an agreement by means of which they mutually terminated the contract with effect as of 30 June 2011 (hereinafter: agreement). 4. The agreement further sets forth that “all social and legal obligations have been fulfilled until 30 June 2011”. (Note: free translation of the club’s country B translation [“Toutes les obligations sociales et légales ont été accomplies jusqu’au 30 juin 2011”] of the relevant clause drafted in language of country D). 5. On 30 July 2011, the player lodged a claim against Club R in front of FIFA maintaining that it still owes him the total amount of EUR 90,000 plus interest in connection with his temporary transfer to other clubs during the contractual relation with Club R. 6. In this regard, the player refers to art. 10 par. 1 of the FIFA Regulations on the Status and Transfer of Players, which stipulates inter alia that a loan is subject to the same rules as apply to the transfer of players. 7. According to the player, he was first transferred on a loan basis to Club H, from country D as of 3 August 2009 involving a loan compensation of EUR 400,000. The player claims that on the basis of art. 11.3.d) of the contract and this transfer he is entitled to receive EUR 60,000 from Club R. 8. In addition, the player maintains that he was transferred on a loan basis to the Club C, from country B on 29 July 2010, on the occasion of which Club R allegedly received a loan compensation of EUR 200,000 net. In this regard, the player presented the relevant loan agreement, which was also signed by him, indicating a compensation of EUR 20,000 per month to be invoiced as from 1 August 2010 until 1 June 2011. The player claims that on the basis of art. 11.3.d) of the contract and this transfer he is entitled to receive EUR 30,000 from Club R. 9. Club R, for its part, stresses that, apart from FIFA Regulations, country B law is applicable in this matter in accordance with the agreement and country B law. 10. In addition, Club R rejects the player’s interpretation of art. 11.3.d) of the contract and asserts that the 15% were only due to the player in the event of his transfer to another club on a definitive basis, on the occasion of which the club would be entitled to receive a transfer compensation. 11. Club R stresses that the player, who also signed the relevant loan contracts, was aware that the fees received by Club R on the occasion of the player’s loan were to partially compensate Club R for the remuneration that it had to remit to the player during the loan period on the basis of their employment contract and did not constitute a transfer compensation. In this respect, Club R presented the loan agreement entered into with Club H on 31 July 2009, which is also signed by the player and which includes the obligation of Club R to continue to pay the player’s remuneration on the basis of their employment contract. Club H and Club R agreed upon a compensation of EUR 400,000 in a separate document dated 31 July 2009. The loan agreement with Club C stipulates that Club C would pay EUR 20,000 per month to Club R upon presentation of invoices for the use of the player’s services and that it is within this context that Club R would continue to pay the player’s remuneration (except match bonuses) on the basis of their employment contract. 12. With regard to the interpretation of art. 11.3.d) of the contract, Club R presents an analysis of country B law dealing with the interpretation of contractual clauses and the real and common intention of the contractual parties. 13. In this respect, Club R inter alia points out that the wording of the relevant article is construed in the singular form (i.e. “transfer” and not “transfers”), which would thus exclude temporary transfers. Furthermore, the percentage is aimed at the net transfer compensation to be received by Club R in order to compensate for the loss of the player’s services and in order to have a budget to engage the services of a replacement player in the event of a definitive transfer of the player. 14. As regards art. 10 par. 1 of the FIFA Regulations invoked by the player, Club R highlights that a transfer on a loan basis is merely considered a transfer from an administrative point of view. It further stresses that Club R, except for match bonuses, continued to pay the player’s remuneration during both loan periods and that the amounts it received from the two clubs where the player went on loan were merely a contribution to such player remuneration remitted by Club R. Therefore, these loan payments cannot be considered a net transfer compensation to the benefit of Club R. 15. Club R further points out that none of the loan contracts, which were also signed by the player, stipulates that the player would be entitled to receive 15% on the payments to be received by Club R. 16. In addition, Club R highlights that at no point in time, whether before, during or after each of the loans, the player ever claimed payment of 15% on any amount. 17. Furthermore, Club R considers that the agreement (cf. points I./3. and I./4. above) constitutes the most important proof that the player’s claim should be rejected, since this mutual termination agreement does not only not include any compensation to be paid to either of the parties, but does state that Club R fulfilled all of its obligations. 18. Club R adds that by signing said termination agreement, without any mention of allegedly outstanding payments, and confirming that Club R had fulfilled its obligations until 30 June 2011, the player confirmed that he would not receive any % in connection with his transfers on a loan basis and even that he renounced to any % on the transfer compensation agreed upon between Club R and Club G, from country B on the occasion of his definitive transfer as of the 2011-12 season. 19. In his replica, the player rejects the arguments of the club and highlights that in accordance with the relevant loan agreements, the amounts were received by Club R as loan fees and not as compensation for the player’s remuneration. He stresses that Club R’s position is not logical and wonders why, if the loan payments were to be considered compensation for the continued payment of the player’s remuneration by Club R, the clubs would not have simply decided that his transfer on a loan basis was for free and the player would have received his remuneration directly from the new clubs. 20. He further insists that a transfer on a loan basis is to be regarded as a “transfer” and he highlights that the wording of the relevant contractual clause does not exclude transfers on a loan basis. 21. The player stresses that the wording of the agreement is such that it cannot include the monies presently claimed for the following reasons: a. The wording does not specify that the parties have no further or future claims towards each other or that all debts have been settled. Social and legal obligations as referred to in the agreement refer to social contribution payments and obligations to be fulfilled in the context of the player being transferred to another club, respectively. b. A mutual agreement only includes the issues that parties agree upon; any points that are not agreed upon between the parties obviously are not included. c. The club’s conduct following the date of signature of the agreement: in July 2011, the club acknowledged its debt to the player regarding 15% of the transfer compensation received by Club R on the occasion of his definitive transfer in summer 2011. The player finds such conduct to be in contradiction with the club’s position under number I./18. above. 22. In this context, the player also points out that in his reply e-mail to the club of 30 July 2011, he already informed Club R that he considered to be entitled to 15% on the loan fees as well. 23. In its duplica, the club reiterates its previous statements and inter alia insists that the monies received from Club H and Club C on the occasion of the player’s loan are merely a partial contribution to the remuneration that Club R continued to remit to the player. Club R, in fact, continued to be the player’s employer. Should the 15% be considered due to the player on the basis of the player’s loan, then the relevant amounts should have been deducted from the remuneration it remitted to the player. 24. The club refers to a decision passed by the DRC in February 2010 and highlights that when the player and the club signed the agreement on 20 May 2011, the player was well aware of the contents of art. 11.3.d) of the contract, whereas he had not excluded any monies that the club allegedly still owed him. In addition, while being aware of art. 11.3.d) of the contract, the player never raised any issue relating to said contractual clause during the entire contractual duration with Club R or at the signature of the relevant loan agreements. 25. In this respect, the club also highlights that its acknowledgement that the player was entitled to receive 15% of the net transfer fee received on the occasion of the player’s definitive transfer (cf. point I./21.c. above) merely shows the club’s good faith and confirms that the basis of the 15% payment to the player was the player’s definitive transfer. ***** II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 30 July 2011. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an country A player and a country B club. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2012), and considering that the present claim was lodged on 30 July 2011, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. The members of the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid as from 1 July 2008 until 30 June 2012 and that, on 20 May 2011, the parties signed an agreement by means of which the employment contract was terminated by mutual consent. It was further noted that, subsequently, the player was transferred on a definitive basis to the country B club, Club G. 6. The Chamber then reviewed the claim of the Claimant, who maintains that he is entitled to receive 15% of the amounts received by the Respondent on the occasion of his transfers on a loan basis to other clubs during the period of time he was contractually bound to the Respondent on the basis of art. 11.3.d) of the relevant employment contract. Therefore, he asks that the Respondent be ordered to pay the amount of EUR 90,000 plus interest. 7. At this point, the Chamber recalled that in accordance with art. 11.3.d) of the contract, “En cas de transfert du joueur vers un autre club pendant la durée de la présente convention, le joueur aura droit à 15% sur le montant de transfert net perçu par [Club R]”. (Free translation: the player is entitled to receive 15% of the net transfer fee received by Club R in the event of a transfer of the player to another club during the contractual duration). 8. In continuation, the members of the Chamber noted that the Respondent, for its part, rejects the claim of the Claimant. In this regard, the Respondent, apart from its position that the relevant percentage does not apply to transfers on a loan basis, invokes the clause inserted in the termination agreement signed by and between the parties, by means of which the Claimant, according to the Respondent, acknowledged that the Respondent had fulfilled all of its obligations towards him. 9. In this regard, the Respondent refers to the clause in the agreement, which stipulates (in free translation) that “all social and legal obligations have been fulfilled until 30 June 2011”. (Note: free translation of the club’s language of country F translation [“Toutes les obligations sociales et légales ont été accomplies jusqu’au 30 juin 2011”] of the relevant clause drafted in language of country D). 10. Having said that, first and foremost, the Chamber wished to stress that it has remained undisputed that the Claimant duly received from the Respondent the amount of money relating to 15% of transfer compensation apparently received by the Respondent on the occasion of the definitive transfer of the Claimant to Club G, from country B, subsequent to the signature of the relevant termination agreement. 11. The members of the Chamber agreed that the aforementioned clause inserted in the agreement (cf. points I./4. and II./8. above) signed by both the Claimant and the Respondent unambiguously stipulates that the Respondent had fulfilled all of its social and legal obligations until 30 June 2011. In addition, bearing in mind 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, the Chamber deemed that the Claimant had not presented any documentation, which would demonstrate that any payments in line with art. 11.3.d) of the employment contract would be excluded from the obligations referred to in the relevant clause of the termination agreement. 12. Furthermore, the members of the Chamber highlighted that the Claimant signed the termination agreement on 20 May 2011 while being fully aware of the contents of the aforementioned art 11.3.d) of the contract. Consequently, should the Claimant consider to be entitled to receive 15% on the amounts of money received by the Respondent on the occasion of his transfers on a loan basis, whereas these payments had not been made by the Respondent, the Chamber concurred that the Claimant had the option to either not sign the agreement or have these allegedly outstanding payments explicitly excluded from the legal effects of the agreement. 13. On account of the aforementioned clause in the termination agreement, the Chamber could not uphold the Claimant’s arguments. In addition and as a result thereof, the Chamber agreed that the issue as to whether art. 11.3.d) of the employment contract would apply to a transfer on a loan basis of the player, as alleged by the Claimant and contested by the Respondent, does not need to be addressed. 14. On account of the above, the Chamber decided to reject the claim of the Claimant in its entirety. ***** III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Player L, is rejected. ***** 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 Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives