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 17 March 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D 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 17 March 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, country B as Claimant against the club, Club C, country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. The player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid from 1 March 2012 until 31 October 2012. 2. According to clauses 2 and 3 of the contract, the Claimant was entitled to receive inter alia the total amount of USD 250,000. “The salary distribution date is 30 Day of each month, and the work first and pay later system is adopted”. 3. Equally, clause 9 of the contract stipulated that “the injuries and any accidents are resulted from breach of law, breach of discipline and violation of social ethics and other misbehaviour, will be responsible by [the player]. [The club] shall inflict punishment according to natures and seriousness as regulated and meanwhile can determine fine within the rang of 100% of [the player’s] monthly salary”. 4. On 13 August 2012, the Respondent issued a “Certificate of salary”, according to which “Player A […] is a professional football player of [the] club. His salary is 20000 USD in our contract from 03-2012 to 10-2012”. 5. On 8 January 2013, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the payment of outstanding salaries amounting to USD 80,000, plus interest of 5% p.a. “starting from the date the present decision has been rendered until payment thereof, at the latest within 30 days starting from the date the present decision has been rendered”, as well as of procedural costs. 6. In this context, the Claimant pointed out that he was entitled to receive USD 20,000 as monthly remuneration in accordance with the “Certificate of salary”. However, the Respondent allegedly failed to make the relevant payments for the months of June, July, August and September 2012 in the total amount of USD 80,000. 7. In its response to the claim, the Respondent stated that the Claimant “only not receive his salary once time on July, is 20.000 USD. But our club had already paid him salary in due time”. In this respect, the Respondent provided payment schedule in the language of country D only. Equally, the Respondent explained that the head coach was fully responsible for the management of the team, thus, he was allegedly authorized to make decisions “on any financial punishment upon the players, in his discretion, in case any violation of the rules taking place”. In this context, the head coach allegedly made the decision to impose a sanction on the Claimant, i.e. “a penalty of 1 month salary […] he then seized the amount of the salary paid by the club”. 8. Furthermore, the Respondent stated that it does not “know why the player always told us 4 salaries 80.000 not give the player”. Finally, the Respondent stated that it also has “absolute evidences that the Claimant has sent text messages to the agent of the head coach […], trying to persuade the head coach to collaborate with him and cheat the club by giving the head coach bribe. Also bribe our club staff, this behaviour is obviously contrary to the code of conduct, and perhaps constitutes the crime of business bribe”. II. Considerations of the DRC judge 1. First, the Dispute Resolution Chamber (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 8 January 2013. Consequently, the DRC judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. With regard to the competence of the DRC judge, art. 3 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 and 2014). 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 player from country B and a club from country D, the litigious value of which does not exceed CHF 100,000. 3. Subsequently, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2010, 2012 and 2014) and considering that the present claim was lodged in front of FIFA on 8 January 2013, the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: the 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 DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts of the case as well as the documentation 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 the Claimant and the Respondent had concluded an employment contract valid as from 1 March 2012 until 31 October 2012. Further, the DRC judge observed that it is undisputed by the parties that the Claimant was entitled to a monthly salary amounting USD 20,000 as per the “Certificate of salary” provided by the player and issued by the club (cf. point I.4. above). 6. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking the payment of the amount of USD 80,000, indicating that the Respondent failed to pay him his salaries from June to September 2012 and that, thus, four monthly salaries had not been paid. 7. Subsequently, the DRC judge noted that the Respondent, in its defence acknowledged that the Claimant’s salary of July 2012 had not been paid (cf. point I. 7 above). 8. In relation to the documentation provided by the Respondent with regard to the alleged non-payment of the Claimant’s salaries of June, August and September 2012, the DRC judge recalled the basic principle of the 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. Similarly, the DRC judge referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all documents of relevance to the dispute shall be submitted in the original version as well as translated into one of the official FIFA languages. 9. In view of the foregoing, the DRC judge deemed it appropriate to emphasize that the Respondent bore the burden of proof of the payment of the Claimant’s remuneration in accordance with the contract and the “certificate of salary”. In this context, the DRC judge noted that, although having been asked to do so, the Respondent did not provide a translated version into one of the FIFA languages of the documents it had enclosed to its submission, in the language of country D only which allegedly prove the correct payment of the Claimant’s salaries. In view of the foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC judge decided that it could not take into account the relevant documents which were not translated into an official FIFA language. 10. In continuation, the DRC judge went on to analyse the second argument of the Respondent, regarding the imposition of a financial sanction on the Claimant for an alleged misbehaviour. In this regard, the DRC judge, always bearing in mind the principle or burden of proof, noted that the Respondent did not provide any copy of an alleged decision or any evidence or specification regarding the disciplinary violation allegedly committed by the Claimant, leading to the application of such fine. 11. Subsequently, the DRC judge further wished to point out that the fine allegedly imposed on the Claimant for an unspecified and unproved disciplinary violation, not supported by any substantial evidence in this regard, and amounting to one month salary must be considered disproportionate and, therefore, not applicable. 12. In this context, and irrespective of the foregoing considerations, the DRC judge wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the DRC judge decided to reject the Respondent’s argument in this regard. 13. Consequently, the DRC judge considered that the Respondent had not sufficiently substantiated its defence, as it did not present any conclusive documentary evidence which could corroborate that it indeed paid the Claimant’s remuneration or that it was in fact entitled to deduct certain amounts from the Claimant’s salary payments of June, July, August and September 2012. 14. In view of all the above, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations towards the Claimant and is to be held liable to pay the Claimant the amount of USD 80,000, corresponding to four monthly salaries amounting to USD 20,000 each. 15. In continuation and with regard to the Claimant's request for interest, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 80,000 as of the date on which the decision was taken, i.e. 17 March 2015, until the date of effective payment. 16. The DRC judge concluded his deliberations in the present matter by rejecting any further claim of the Claimant. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 80,000 plus 5% interest p.a. as from 17 March 2015 until the date of effective payment. 3. In the event that the amount due to the Claimant plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim of the Claimant is 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