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 (DRC) judge passed in Zurich, Switzerland, on 10 February 2015, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player P, from country C as Claimant against the club, Club T, from country A as Respondent 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 (DRC) judge passed in Zurich, Switzerland, on 10 February 2015, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player P, from country C as Claimant against the club, Club T, from country A as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 21 June 2010, the Player P from country C (hereinafter: the Claimant), and the Club T from country A (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid from the date of signature until 31 May 2011. 2. According to clause 4 of the contract, the Respondent undertook to pay the Claimant the following amounts, inter alia: a) EUR 77,000 as annual remuneration, payable as follows: i. EUR 30,000 “shall be paid in the moment of execution of this Contract and once the [Claimant] has arrived to the Football Association from country A in the name of Club T and further to the transfer permission issued by the Football Federation from country C”; ii. EUR 47,000 payable in 10 instalments of EUR 4,700 each, “as of 01-05 August 2010 and shall continue for nine months”. b) “For each win during the championship, the [Claimant] shall be rewarded: pursuant to the [Respondent’s] regulations: 1. If he plays in the starting line-up: 100% 2. If he is a substitute: 60% 3. If he does not play: 30% The [Claimant] shall be awarded and punished for taking the Republic’s Cup in accordance with the [Respondent’s] regulations”. Equally, clause 4.g) of the contract stipulated that “the [Claimant’s] incomes are stated in gross amounts. The [Claimant] shall pay the taxes in accordance with the law in country A”. 3. On 13 October 2011, the Claimant lodged a claim against the Respondent in front of FIFA requesting, after having amended his claim, the payment of outstanding monies amounting to EUR 30,300, plus interest of 15% p.a., as well as procedural costs, broken down as follows: a) EUR 27,000 as outstanding salaries; b) EUR 3,300 as outstanding bonus payments. 4. In this context, the Claimant pointed out that the total value of the contract was of EUR 77,000. However, the Respondent allegedly had only made partial payments of the salaries stipulated in the contract in the total amount of EUR 50,000. Equally, the Claimant alleged that the Respondent also failed to pay him bonuses amounting to EUR 3,300 for the 30 games he played and the 11 matches the team won, in accordance with the Respondent’s regulations. 5. In this respect, after the expiry of the contract, the Claimant contacted the club in order to demand the payment of the outstanding amounts due to him as per the contract by no later than 1 October 2011, however, without allegedly receiving an answer from the Respondent. The Respondent was further informed that, in case of non-compliance, he would lodge a claim in front of FIFA. 6. In its response to the Claimant’s claim, the Respondent rejected his allegations and referred to clause 4 of the contract (cf. point I.2 b) above). In this regard, it explained that the calculation of the amount of the Claimant’s monthly salary is done as follows: “ - The monthly salary is divided equally to the number of official matches per month. - The outcome of the division is multiplied proportionally with the percentage of his activation, specified in the Agreement. - The outcomes of the calculation per match then are summed together.” 7. In this context, and referring to the matches the Claimant participated in, the Respondent stated that the total amount of EUR 6,137 had to be deducted from the amount of EUR 47,000, considering that during the 2010/2011 season the Claimant, out of 42 matches, played 30 times in the starting line-up, twice as a substitute and 10 times, he did not play at all. As a consequence, the Claimant was only entitled to receive the total amount of EUR 70,863 during the entire validity of the contract. 8. Equally, the Respondent emphasised that the amounts stipulated in the contract were gross amounts. Thus, a tax deduction of 10% had to be taken into consideration. Summing up, the Claimant’s total net income would have been in the amount of EUR 63,163. Finally, the Respondent stated that “in base of the bilateral agreement, if existing is not in the amount of 27.000 Euro, but 13.837 Euro”. 9. Furthermore, the Respondent also pointed out that, on 15 October 2011, it was transformed into a joint stock company. In this context, the Respondent stated that “the financial report drawn in the moment of transformation was deposited in all the competent institutions”. In this regard, the Respondent emphasised that the balance of debts and credits towards third parties is reflected in said financial report and that the Claimant is not listed in it, i.e. the alleged debt towards the Claimant does not exist. Finally, the Respondent requested the Claimant to bear all procedural costs. 10. In his replica, the Claimant rejected the Respondent’s statements, in particular, the deduction amounting to EUR 6,137 (cf. point I.7 above). In this respect, the Claimant explained that the contract stipulated “additional earnings for each win” (cf. point I.2 b) above), i.e. the percentages stipulated in said clause are not meant to be deductions from his monthly salary, but additional percentages corresponding to performance bonuses. In this context, he stated that his salary is a fixed amount and should not be subject to his performance. Equally, the Claimant rejected the Respondent’s tax deduction and referred to clause 4.g) of the contract (cf. point I.2 above), stating that he will make the relevant tax payments once he receives the outstanding monies from the Respondent. 11. Despite having been invited by FIFA to do so, the Respondent did not provide its final position. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge or the judge) analysed whether he was competent to deal with the matter at stake. In this respect, the judge 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 13 October 2011. Therefore, the DRC judge 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 DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a player from country C and an club from country A. 3. Furthermore, the 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 (editions 2010, 2012 and 2014), and considering that the present claim was lodged on 13 October 2011, the 2010 edition of said regulations is applicable to the matter at hand as to the substance. 4. The competence of the DRC judge and the applicable regulations having been established, the 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. 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 it was undisputed by the parties that, on 21 June 2010, they had signed an employment contract valid as from the date of signature until 31 May 2011, in accordance with which the Claimant was entitled to receive inter alia the amounts detailed in point I.2 above. 6. The judge further noted that, on the one hand, the Claimant claims that the Respondent had failed to make several payments regarding salaries and bonuses up to the end of the contractual relationship. Consequently, the Claimant asked to be awarded the payment of the total outstanding amount of EUR 30,300, plus interest of 15% p.a., as well as procedural costs (cf. point I.3 above). 7. The DRC judge further noted that, on the other hand, the Respondent rejected the claim of the Claimant and explained that, with regard to the calculation of the Claimant’s salary, the percentages specified in clause 4 of the contract (cf. point I.2 b) above) were subject to the Claimant’s participation in official matches during the 2010/2011 season, i.e. said percentages did not establish a bonus payment table but rather a guideline for possible deductions on the Claimant’s salary in case he would not play in the starting line-up. In this respect, and considering the participation of the Claimant in official matches, the Respondent stated that the Claimant was only entitled to receive the total amount of EUR 70,863 for the entire duration of the contract. In addition, the Chamber observed that the Respondent emphasized that the amounts stipulated in the contract were gross amounts. As a consequence, so the Respondent, a tax deduction of 10% had to be taken into consideration which, ultimately, resulted in the Claimant’s net income amounting to EUR 63,163 for the entire duration of the contract. Finally, the judge also took due note that the Respondent acknowledged still owing to the Claimant the amount of EUR 13,837. 8. Subsequently, the judge observed that the Claimant rejected the Respondent’s arguments stating, in particular, that the salary stipulated in the contract is a fixed amount and that the percentages would correspond to performance bonuses. Finally, the DRC judge also observed that the Claimant rejected the Respondent’s statement with regard to the tax deduction that supposedly had to be made by the Respondent. In this regard, the Claimant referred to the contract (cf. point I.2 above), and stated that it will be up to him to make the relevant tax payments once he receives the outstanding monies from the Respondent. 9. Finally, the Chamber noted that the Respondent did not submit its final position on the present matter. 10. Having established the aforementioned, the judge deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the Claimant’s request for outstanding remuneration could be upheld. 11. At this point, and for the sake of good order, the DRC judge 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 on the basis of an alleged fact shall carry the respective burden of proof. Bearing in mind the aforementioned principle, the judge noted that in the present dispute, the Respondent bore the burden of proof regarding the payment of the Claimant’s remuneration. 12. In this respect, the DRC judge first noted that the Respondent was not able to provide any type of documentary evidence of the payment to the Claimant of the salaries and bonus payments claimed by him as outstanding. The DRC observed, instead, that the Respondent invokes several arguments in order to justify the non-payment of the Claimant’s remuneration. 13. At this point, the judge deemed it appropriate to recall the wording of the article which stipulates the percentages in question, which is as follows: “For each win during the championship, the [Claimant] shall be rewarded: pursuant to the [Respondent’s] regulations: a) If he plays in the starting line-up: 100% b) If he is a substitute: 60% c) If he does not play: 30% The [Claimant] shall be awarded and punished for taking the Republic’s Cup in accordance with the [Respondent’s] regulations”. 14. From the wording of the aforementioned clause, the DRC judge deemed that it was not clearly stipulated that the percentages established as performance bonuses refer to a reduction to the Claimant’s monthly salaries, but rather to an additional amount payable to him, in accordance with his performance in official matches of the Respondent. 15. In this respect, the DRC judge deemed that the Respondent’s interpretation of the second part of clause 4 of the contract (cf. point II.13 above) was clearly arbitrary, since it led to an unacceptable result based on non-objective criteria, which entitled the Respondent to adapt the Claimant’s salary based on his participation in official matches as it wished. The DRC judge emphasised that, since it is the Respondent itself who decides on the Claimant’s participation or not in official matches, the Respondent’s interpretation of the clause in discussion would lead to an unjustified disadvantage of the Claimant’s financial rights. 16. In this regard, the judge considered that the possibility granted to the Respondent to adapt the Claimant’s salary based on its own discretion, i.e. by deciding whether or not the Claimant was set to play in the starting line-up, as a substitute or not at all, appeared to be of a highly subjective nature, entailing that, de facto, it is left to the complete and utter discretion of the Respondent whether or not it was willing to pay to the Claimant the complete salary or not. 17. In view of the foregoing, the DRC judge was of the opinion that the Respondent’s interpretation of clause 4 of the contract invoked by the Respondent in order to make deductions on the Claimant’s salary was clearly potestative and that, consequently, the respective argumentation of the Respondent could not be upheld by the judge. 18. The judge then focused on the Respondent’s second argument, according to which taxes in the amount of 10% had to be deducted from the Claimant’s remuneration, according to the law in country A. In this respect, the DRC judge referred once again to the principle of burden of proof and pointed out that, in spite of the fact that the contract stipulated that the amounts therein established are gross, the Respondent was not able to prove that 10% is the actual percentage deductible from the Claimant’s income and neither that these deductions were indeed paid by the Respondent to the relevant tax authorities in country A. Thus, the DRC judge deemed that also this argument of the Respondent had to be rejected. 19. Having established the aforementioned, the DRC judge began to analyse the Claimant’s request for the payment of the outstanding salaries and the bonus payment. 20. In this regard, the DRC judge first observed that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the remuneration that was outstanding at end of the contractual relationship i.e. the amount of EUR 27,000. 21. Subsequently, with regard to the Claimant’s request for the participation bonus in the amount of EUR 3,300, the judge deemed it important to recall once again the general legal principle of the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). In this context, he observed that the Claimant had not presented any documentary evidence regarding his entitlement to the bonus in question. 22. In view of the foregoing, the DRC judge decided that the Claimant’s request for the bonus in the amount of EUR 3,300 should be rejected. 23. In conclusion, the judge decided that the claim of the Claimant is partially accepted and that the Respondent is to be held liable to pay the outstanding amount of EUR 27,000 to the Claimant as well as 5% interest p.a. on said amount as from 13 October 2011 until the date of effective payment. 24. The DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the DRC judge 1. The claim of the Claimant, Player P, is partially accepted. 2. The Respondent, Club T, is ordered to pay to the Claimant outstanding remuneration in the amount of EUR 27,000 plus 5% interest p.a. as from 13 October 2011 until the date of effective payment, within 30 days as from the date of notification of this decision. 3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. 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. 4. Any further claims lodged by the Claimant are rejected. 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are 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