F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 25 September 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Santiago Nebot (Spain), member on the claim presented by the player, Player S, from country G as Claimant/Counter-Respondent against the club, Club P, from country B as Respondent/Counter-Claimant regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 25 September 2014, in the following composition: Geoff Thompson (England), Chairman Mario Gallavotti (Italy), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Santiago Nebot (Spain), member on the claim presented by the player, Player S, from country G as Claimant/Counter-Respondent against the club, Club P, from country B as Respondent/Counter-Claimant regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 8 July 2009, Player S, from country G (hereinafter: the Claimant/Counter-Respondent), and Club P, from country B (hereinafter: the Respondent/Counter-Claimant) signed an employment contract (hereinafter: the contract) valid as from the date of signature until 30 June 2011. 2. According to art. X par. 1, 2 and 4 of the contract, the Respondent/Counter-Claimant undertook to provide the player, inter alia, with the following: - EUR 18,000 net to be paid until 1 February 2010; - EUR 6,000 net as monthly salary, payable at the latest on the 30th day of the following month; - a rented apartment, the cost of which will be determined by the club’s board of directors. 3. In addition, art. XII.3. stipulates that “Disputes between the parties arising from the interpretation or the compliance with the contract shall be solved amicably, by means of a written agreement. In case an amicable solution is not possible, the parties should refer the dispute to the arbitration court of the country B Football Union”. 4. On 11 July 2011, the Claimant/Counter-Respondent lodged a claim against the Respondent/Counter-Claimant in front of FIFA requesting the payment of the total amount of EUR 42,000, as follows: - EUR 24,000 as outstanding salaries for March to June 2011 (4 x EUR 6,000); - EUR 18,000 corresponding to the outstanding payment due on 1 February 2010; - procedural costs. 5. The Claimant/Counter-Respondent claims that, in spite of the default notice sent to the Respondent/Counter-Claimant on 7 July 2011, the latter did not proceed with the payment of the aforementioned amounts. 6. In its reply, the Respondent/Counter-Claimant stated that it “suspended all payments to the footballer after the management established that he has not fulfilled some of his contractual obligations”. In this respect, the Respondent/Counter-Claimant claims that the Claimant/Counter-Respondent was sanctioned by the country B Football Union to pay a fine in the amount of currency of country B 4,555 for unsportsmanlike conduct during official matches. According to the Respondent/Counter-Claimant, this fine was not deducted from the Claimant/Counter-Respondent’s salary. 7. In addition, the following penalties were allegedly imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant: - Currency of country B 10,000 due to inappropriate behaviour and violations of the laws of the game; - Currency of country B 12,000 for having provided “statements to the press concerning his play and training without the explicit prior consent if the club”; - Currency of country B 10,000 for disclosing confidential information about the club to the press. 8. In addition, the Respondent/Counter-Claimant argues that, even though according to the employment contract it undertook to provide the Claimant/Counter-Respondent with an apartment, the limit for the rent was currency of country B 300 and the difference above this limit shall be paid by the Claimant/Counter-Respondent, according to the order n.03 of 15 May 2009 issued by the Respondent/Counter-Claimant’s board of directors. Since the Claimant/Counter-Respondent chose an apartment for which the rent cost currency of country B 1,564.66, the Respondent/Counter-Claimant had to conclude a rent contract for the Claimant/Counter-Respondent in the total amount of currency of country B 32,857.88. In this regard, the Respondent/Counter-Claimant provided copies of several receipts, submitted however without translation into a FIFA language. Thus, the Respondent/Counter-Claimant deems that the Claimant/Counter-Respondent should pay to it the amount of currency of country B 25,957.88, corresponding to the difference between the maximum amount allegedly payable as rent expenses and the amount actually paid by the Respondent/Counter-Claimant in this regard. 9. Furthermore, the Respondent/Counter-Claimant claims to have lodged a claim in front of a country B court, on 1 August 2011, “for the payment of the penalties […] claimed by Club P”. Thus, the Respondent/Counter-Claimant deems that it should not pay any amounts to the Claimant/Counter-Respondent until the court proceedings at the country B court are finished. 10. Finally, the Respondent/Counter-Claimant claims that it is entitled to retain any amounts claimed by the Claimant/Counter-Respondent and that his claim should be rejected. 11. In his replica, the Claimant/Counter-Respondent stated not to be aware of the existence of any claim pending against him in front of a country B court. Furthermore, he points out that the Respondent/Counter-Claimant’s arguments regarding the fines allegedly imposed on him were not supported by any documentation neither have they been previously notified to him. In this regard, he also rejects all the Respondent/Counter-Claimant’s accusations against him and challenged, in particular, the authenticity of the press articles presented by the Respondent/Counter-Claimant as well as their value as documentary evidence. 12. In addition, he points out that the several receipts provided by the Respondent/Counter-Claimant were not translated and, thus, cannot be taken into account. 13. The Claimant/Counter-Respondent further claims that the contract did not provide for any limitation as to the amount of rent payable by the Respondent/Counter-Claimant. He points out that the rental contract was signed between the Respondent/Counter-Claimant and the tenant, without his intervention, and maintains that the Respondent/Counter-Claimant never contacted him before with regard to an alleged obligation of bearing any exceeding rent costs. 14. Based on the foregoing, the Claimant/Counter-Respondent deems that all the Respondent/Counter-Claimant’s allegations should be rejected. 15. In its duplica, the Respondent/Counter-Claimant contests the competence of FIFA to deal with the present matter. The Respondent/Counter-Claimant claims that the country B civil courts should have exclusive jurisdiction over disputes concerning the payment of financial penalties, as the present one. 16. In this regard, the Respondent/Counter-Claimant provides a copy of the claim apparently lodged on 1 August 2011 in front of the Regional Court of country B, by means of which it requested the payment of the total amount of currency of country B 65,637.18 from the Claimant/Counter-Respondent, corresponding to the fines imposed on him by the country B Football Unit and the Respondent/Counter-Claimant, and to the exceeding rent costs allegedly payable by the Claimant/Counter-Respondent. 17. After the closure of the investigation phase, the Respondent/Counter-Claimant informed FIFA that the aforementioned claim was accepted by the Regional Court of country B on 21 March 2013 and that the Claimant/Counter-Respondent was held liable to pay the Respondent/Counter-Claimant the amount of currency of country B 60,943.20 plus interests. In particular, the aforementioned decision states that “The defendant […] was not found at the address he has specified in the application claim” and “no evidence of permanent or present address in country B is available for the defendant. […] Therefore it has been required the notice to the defendant for the formed lawsuit […] through publication in the unofficial section of ‘Official Gazette’. […] After expiration of the given deadline the defendant did not appear in court. Because of which […] he was appointed a special representative”. 18. In his final comments, the Claimant/Counter-Respondent insists that he was never informed of the existence of a claim in country B nor of a decision in this regard. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 11 July 2011. Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules was applicable to the matter at hand (cf. art. 21 par. 2 and 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 in combination with art. 22 b) of the Regulations on the Status and Transfer of Players (edition 2010, 2012 and 2014; hereinafter: the Regulations), the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player, with an international dimension. 3. Having said that, the DRC stated that it would, in principle, be the competent body to decide on the present litigation involving a country G player and a country B club regarding an employment-related dispute. 4. However, the Chamber acknowledged that the Respondent/Counter-Claimant contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that any dispute arisen between the parties should be submitted to the civil courts in country B. 5. Taking into account the above, the Chamber first emphasised that, in accordance with art. 22 of the FIFA Regulations, a player or a club are indeed entitled to seek redress before a civil court for employment-related disputes. However, this should be explicitly and previously agreed by the parties in the employment contract. 6. In this context, the DRC considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause in favour of the country B civil courts. 7. Having said this, the members of the Chamber turned their attention to art. XII.3. of the contract, which stipulates that “Disputes between the parties arising from the interpretation or the compliance with the contract shall be solved amicably, by means of a written agreement. In case an amicable solution is not possible, the parties should refer the dispute to the arbitration court of the country B Football Union”. 8. In view of the aforementioned clause, the members of the DRC pointed out that art. XII.3. of the employment contract does not make any reference to the alleged exclusive jurisdiction of the country B civil courts to decide on the present dispute, as claimed by the Respondent/Counter-Claimant, and only refers to the arbitration court of the country B Football Union. 9. In addition, the Chamber has taken note of the fact that the decision allegedly passed by the Regional Court of country B on 21 March 2013, following a claim allegedly lodged by the Respondent/Counter-Claimant on 1 August 2011, clearly establishes that the Claimant/Counter-Respondent did not take part in the proceedings, as detailed in point I.17. above. 10. Bearing in mind the foregoing, the Chamber established that the Respondent/Counter-Claimant’s objection to the competence of FIFA to deal with the present matter, in favour of the country B civil courts, had to be rejected and that the DRC 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. Consequently, the claim of the Claimant/Counter-Respondent is admissible. 11. Having established the competence of the DRC to deal with the present matter as well as the admissibility of the claim of the Claimant/Counter-Respondent, the Chamber went on to analyse whether the counterclaim of the Respondent/Counter-Claimant could also be considered as admissible or rather considered as affected by res judicata, in view of the claim lodged by the Respondent/Counter-Claimant before the Regional Court of country B on 1 August 2011 and decided by the latter on 21 March 2013. 12. At this point, the Chamber deemed it appropriate to recall that, on the basis of the principle of res judicata, a decision-making body is not in a position to deal with the substance of a claim in the event that another deciding body has already dealt with the same matter by passing a final and binding decision. 13. In continuation, the Chamber noted that in its claim allegedly lodged before the Regional Court of country B on 1 August 2011, the Respondent/Counter-Claimant requested the payment of the total amount of currency of country B 65,637.18 from the Claimant/Counter-Respondent, corresponding to the fines imposed on him by the country B Football Unit, and to the exceeding rent costs allegedly payable by the Claimant/Counter-Respondent. 14. In addition, the Chamber noted that on 21 March 2013 the Regional Court of country B decided that the claim of the Respondent/Counter-Claimant was accepted and that the Claimant/Counter-Respondent was held liable to pay the Respondent/Counter-Claimant the amount of currency of country B 60,943.20, plus interests. 15. Subsequently, the Chamber noted that in its counterclaim lodged before the DRC in the context of the present procedure, the Respondent/Counter-Claimant requested the reimbursement by the Claimant/Counter-Respondent of the difference between the maximum amount allegedly payable as rent expenses and the amount actually paid by the Respondent/Counter-Claimant in this regard, in the amount of currency of country B 25,957.88. 16. In this context, the Chamber underlined that the principle of res judicata is applicable if cumulatively and necessarily the parties to the disputes and the object of the matter in dispute are identical. 17. Taking into account the information detailed in points II.13. to II.15. above, the Chamber concluded that it was clear that both the Respondent/Counter-Claimant’s claim lodged on 1 August 2011 in front of the Regional Court of country B as well as its counterclaim lodged in the present procedure before the DRC involved the exact same parties and had exactly the same object, i.e. the reimbursement by the Claimant/Counter-Respondent of exceeding rent costs allegedly paid by the Respondent/Counter-Claimant. In fact, in its claim before the Regional Court of country B, the Respondent/Counter-Claimant requests, in addition to the reimbursement of exceeding rent expenses, also the payment of the fines allegedly imposed on the Claimant/Counter-Respondent by the country B Football Unit. 18. In light of the above, the Chamber concluded that, in accordance with the general legal principle of res judicata, it is not in a position to deal again with the substance of the counterclaim of the Respondent/Counter-Claimant and that, therefore, the latter should be considered as inadmissible. Thus, the DRC is competent to deal only with the claim of the Claimant/Counter-Respondent. 19. Subsequently, the members of the Chamber went on to analyse which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2010, 2012 and 2014) and considering that the claim of the Claimant/Counter-Respondent in front of FIFA was lodged on 11 July 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 20. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, 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. 21. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 8 July 2009, the Claimant/Counter-Respondent and the Respondent/Counter-Claimant signed an employment contract valid as from the date of signature until 30 June 2011, in accordance with which the Claimant was entitled to receive the amount of EUR 18,000 until 1 February 2010 as well as a monthly salary in the amount of EUR 6,000, inter alia. 22. The DRC noted that, on the one hand, the Claimant/Counter-Respondent claims that, in spite of his reminder dated 7 July 2011, the Respondent/Counter-Claimant failed to pay his remuneration for the period from March to June 2011, amounting to EUR 24,000, as well as the amount of EUR 18,000 due until 1 February 2010. 23. The Chamber further noted that, on the other hand, the Respondent/Counter-Claimant does not contest the existence of outstanding amounts towards the Claimant/Counter-Respondent, but deems that several deductions are to be made from this amount, regarding fines imposed on the Claimant/Counter-Respondent and the difference between the maximum amount of rent payable by the Respondent/Counter-Claimant and the price of the apartment chosen by the Claimant/Counter-Respondent. 24. At this point and for the sake of good order, the DRC deemed it appropriate to remind the parties of the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. Bearing in mind the aforementioned principle, the DRC noted that in the present case the Respondent/Counter-Claimant bore the burden of proof regarding the payment of the Claimant/Counter-Respondent’s remuneration. 25. In this respect, the DRC noted that the Claimant/Counter-Respondent has provided a copy of the correspondence addressed to the Respondent on 7 July 2011, reminding it of the existence of unpaid salaries for the months from March to June 2011, as well as of the EUR 18,000 payable until 1 February 2010. 26. Furthermore, the Chamber duly noted that the Respondent/Counter-Claimant does not dispute the existence of outstanding remuneration towards the Claimant and even confirms that it “suspended all payments to the footballer after the management established that he has not fulfilled some of his contractual obligations”. The Respondent/Counter-Claimant deems that the fines imposed on the Claimant/Counter-Respondent for alleged violation of the laws of the game and disclosure of confidential information to the press (cf. point I.7. above), were to be deducted from any amounts owed to him. 27. Likewise, the DRC acknowledged that the Claimant/Counter-Respondent rejected the aforementioned argument of the Respondent/Counter-Claimant, pointing out that he was never informed of and never participated in the proceedings leading to the imposition of such fines, and contesting the legal value of press articles as documentary evidence. 28. In this context, the Chamber concurred that the alleged fines imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant shall not be taken into account in the present matter, since a) the Respondent/Counter-Claimant did not provide any evidence of an alleged violation of the laws of the game, and b) in any case, the Regional Court of country B has apparently already ruled upon this matter on 21 March 2013, as explained above. 29. In addition, and irrespective of the foregoing considerations, the DRC wished to address the fact that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a method to set off outstanding financial obligations towards players. Consequently, the DRC decided to disregard the Respondent/Counter-Claimant’s argument in this regard. 30. Subsequently, the Chamber focused its attention on the allegation of the Respondent/Counter-Claimant, regarding further retentions to be made to any amounts due to the Claimant/Counter-Respondent as remuneration, corresponding to the payment of rent expenses by the Respondent/Counter-Claimant above the limit set in the “Order no 03” (cf. point I.8. above), which the Claimant/Counter-Respondent rejects. 31. In this regard and bearing in mind the principle of burden of proof, the Chamber noted that in accordance with the allegations of the Claimant/Counter-Respondent, the employment contract signed between the parties on 8 July 2009 does not establish a specific limit for the payment of rent expenses. In addition, the Claimant/Counter-Respondent claims that the rent contract was signed between the Respondent/Counter-Claimant and the tenant and that the Respondent/Counter-Claimant had never before requested from him the reimbursement of any exceeding amounts in this regard. 32. Indeed, the DRC noted that the Respondent/Counter-Claimant did not dispute this specific allegation of the Claimant/Counter-Respondent and only appears to have requested the reimbursement of such rent amounts allegedly paid in excess in its reaction to the Claimant/Counter-Respondent’s claim for outstanding remuneration before FIFA. In any case, also with regard to this argument of the Respondent/Counter-Claimant, the Chamber pointed out that this issue also appears to have been already ruled upon by the Regional Court of country B in its decision of 21 March 2013. Therefore, this argument of the Respondent/Counter-Claimant must be disregarded. 33. Finally, the Chamber also wished to point out that, even if the Regional Court of country B has decided that certain amounts are to be paid by the Claimant/Counter-Respondent to the Respondent/Counter-Claimant, this does not exempt the Respondent/Counter-Claimant from its obligation to comply with its financial obligations towards the Claimant/Counter-Respondent as per the employment contract signed on 8 July 2009 and does not justify the non-payment of the still outstanding amounts to the Claimant/Counter-Respondent. 34. In view of the foregoing, the Chamber concluded that the Respondent/Counter-Claimant was not able to provide substantial evidence of its alleged right to retain any contractual payments due to the Claimant/Counter-Respondent. Thus, the Respondent/Counter-Claimant is, in accordance with the principle of pacta sunt servanda, to be held liable for the payment of outstanding remuneration to the Claimant/Counter-Respondent in the total amount of EUR 42,000, corresponding to his salaries for the months of March to June 2011 as well as the amount of EUR 18,000 payable until 1 February 2010. 35. Furthermore, the Chamber decided that the Claimant/Counter-Respondent’s claim for procedural costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules. 36. In conclusion, the Chamber decided that the claim of the Claimant/Counter-Respondent is partially accepted. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player S, is admissible. 2. The claim of the Claimant/Counter-Respondent is partially accepted. 3. The Respondent/Counter-Claimant, Club P, is ordered to pay to the Claimant/Counter-Respondent outstanding remuneration in the amount of EUR 42,000 within 30 days as from the date of notification of this decision. 4. If the aforementioned amount is not paid within the above-mentioned time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 5. Any further claims lodged by the Claimant/Counter-Respondent are rejected. 6. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant 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. 7. The counterclaim of the Respondent/Counter-Claimant is inadmissible. ***** 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