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 Decision of the Decision of the Decision of the Decision of the Dispute Resolution Chamber Dispute Resolution Chamber Dispute Resolution Chamber passed in Zurich, Switzerland, on 10 April 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Jon Newman (USA), member John Bramhall (England), member Mario Gallavotti (Italy), member Taku Nomiya (Japan), member on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from 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 Decision of the Decision of the Decision of the Decision of the Dispute Resolution Chamber Dispute Resolution Chamber Dispute Resolution Chamber passed in Zurich, Switzerland, on 10 April 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Jon Newman (USA), member John Bramhall (England), member Mario Gallavotti (Italy), member Taku Nomiya (Japan), member on the claim presented by the player, Player A, from country B as Claimant against the club, Club C, from country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 1 January 2012, the player from country B, Player A (hereinafter: the player or the Claimant), and the club from country D, Club C (hereinafter: the club or the Respondent), entered into an employment contract (hereinafter: the contract) valid as from the date of signature until 31 December 2012. 2. According to the contract, the Respondent undertook to pay the Claimant the following amounts: - USD 200,000 within 15 working days of receipt of the player’s ITC; - USD 350,000 “in monthly average before the 30th of every month” (note: USD 350,000 / 12 = USD 29,166.66); - USD 4,000 per match won; - USD 1,500 per draw. 3. Art. 1 of the contract stipulates that: “In order to clarify rights and obligations and to maintain the lawful rights and interest of [the club] and [the player], in consideration of the Contract Law of country D and other relevant laws & regulations of country D, combining with the practice of Country D Football Association Super League and the characteristics of football games as well as referring the related provisions of FIFA. (…)” 4. Art. 15 of the contract is titled “SETTLEMENT OF DISPUTES” and stipulates that: “1. All disputes between the parties taken place during the performance of this contract, shall be settled through negotiation. 2. Any dispute which cannot be settled through negotiation shall be submitted to the arbitration committee of the Football Association from country D, and the arbitral award shall be final, when the subject matter of the dispute relates only to the domestic transfer. Controversial subject involving international transfer may continue to sue FIFA, and FIFA’s decision is final. 3. The parties agreed that all disputes arising from this contract can’t be brought a lawsuit to a local people’s court.” 5. Art. 17 par. 7 of the contract reads: “Matters uncovered in this contract shall be managed in accordance with the laws, regulations, rules of country D and relevant provisions of FIFA and the Football Association from country D.” 6. On 25 December 2012, the Respondent informed the Claimant that it would pay him his “remaining salary” by 10 February “2012”, which, according to the Claimant, should say 10 February 2013. 7. On 15 May 2013, the Respondent informed the Claimant that the amount of USD 117,452 was outstanding, which it would pay by no later than 31 July 2013. 8. On 9 May 2014, the Claimant requested the Respondent to make the payment of USD 117,452 by no later than 23 May 2014. 9. On 2 July 2014, the Claimant lodged a claim against the Respondent in front of FIFA, alleging that upon expiry of the contract, the amount of USD 117,452 was still outstanding, corresponding to approximately 3 monthly salaries and USD 18,000 in bonuses. 10. On 12 August 2014, the Claimant amended his claim requesting payment of the amount of USD 241,642.92, plus 5% interest as from “31 July 2013” corresponding to: - USD 287,310.92 in outstanding salaries; - USD 18,000 in outstanding bonuses; - minus USD 63,668 paid on 25 February 2013. 11. In this respect, the Claimant alleged that during the contract period he received the following amounts as salaries and submitted the corresponding bank statements: 6 March 2012 USD 40,900 29 March 2012 USD 30,900 4 May 2012 USD 40,900 11 June 2012 USD 30,868 13 July 2012 USD 40,868 28 August 2012 USD 40,544.64 14 September 2012 USD 37,708.44 TOTAL USD 262,689.08 (note: USD 550,000 – USD 262,689.08 = USD 287,310.92) 12. In reply to the claim, the Respondent held that FIFA has no jurisdiction since, in accordance with law in country D, employment-related disputes are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission”, referring in this respect to various articles of the “Regulations on the Management of Employment of Foreigners in country D” and the “Law of the country D on Mediation and Arbitration of Labor Disputes.” 13. Art. 5 of the “Regulations on the Management of Employment of Foreigners in country D” reads: “Where a labor dispute arises, the parties are not willing to have a consultation, the consultation fails or the settlement agreement is reached but nor performed, an application for mediation may be made to an mediation institute. Where the parties are not willing to mediate, the mediation fails or the mediation agreement is reached but not performed, an application for arbitration may be made to the labor dispute arbitration commission. Where there is objection to the arbitral award, litigation may be initiated to a people’s court unless otherwise specified herein.” The Respondent insisted that the word “may” cannot be interpreted as a right to “subvert the legal system in country D” and insisted that under law in country D, labor dispute arbitration is a mandatory procedure requirement. According to the Respondent, the labor dispute arbitration commission is the only competent body to deal with a labor dispute in first instance, and this is a mandatory path “prior to bringing the case to the Court (…).” 14. The Respondent further held that art. 15 of the contract does not contain an agreement to submit the present dispute to FIFA, since the claim of the Claimant only concerns salary payments “after the termination of the Contract. Cross-nation factors such as international transfer are not involved.” 15. Furthermore, with reference to art. 1 and art. 17 par. 7 of the contract, the Respondent held that law in country D is applicable. 16. As to the substance, the Respondent alleged that apart from the amount of USD “262,589.08” mentioned by the Claimant, it also paid the player “many times by cash”. Equally, the Respondent indicated that until 15 May 2013 the Claimant had confirmed that only the amount of USD 117,542 was still outstanding and that after 15 May 2013 it “paid off the balance to the player by ways such as cash, bank transfers within several times.” Therefore, the Claimant’s appeal is groundless. Finally, the Respondent deemed that even if it still needed to pay a small amount to the Claimant, his request for interest is without basis, since such interest has not been mentioned in any agreement. 17. In his replica, the Claimant insisted on the competence of FIFA to deal with the matter in accordance with art. 15 and art. 17 par. 7 of the contract. 18. In addition, the Claimant insisted that he did not receive any further payments and stated that although the amount of USD 241,642.92 was originally outstanding, he offered to settle the matter for USD 117,452. Nevertheless, after 25 May 2013 he did not receive any payments from the Respondent. As a consequence, the Claimant reiterated his request for the amount of USD 241,642.92. 19. In its duplica, the Respondent reiterated its earlier position and submitted an undated document signed by the Claimant by means of which he confirmed having received a “cash advance on his salary” in the amount of USD 20,000 as well as an unspecified document written in the language of country D only, which, according to the Respondent, confirmed further payments of salaries and bonuses after 15 May 2013. 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 2 July 2014. Consequently, 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 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, the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an player from country B and a club from country D. 3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies stating that under law in country D employment-related disputes are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission.” Moreover, the Chamber observed that the Respondent argued that art. 15 of the contract did not contain an agreement to submit any potential dispute to FIFA, since the claim of the player only concerns salary payments “after the termination of the Contract. Cross-nation factors such as international transfer are not involved.” 4. Equally, the Chamber noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present dispute in accordance with art. 15 and art. 17 par. 7 of the contract. 5. In this respect, and with reference to art. 22 of the Regulations, the Chamber wished to recall that one of the basic conditions that needs to be met in order to establish that another judicial body than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract. 6. The Chamber is of the view that the employment contract at the basis of the present dispute does not detail that any specific national arbitration tribunal or national court other than FIFA is competent to adjudicate on potential disputes between the Claimant and the Respondent. In fact, the Chamber concurs that the pertinent contract refers to the dispute resolution system of FIFA. Indeed, the second sentence of art. 15 par. 2 reads that: “Controversial subject involving international transfer may continue to sue FIFA, and FIFA’s decision is final.” The Chamber interprets said clause as a reference to dispute resolution of FIFA. The question whether the dispute arose during the validity of the contract or after the expiry of the contract is irrelevant in the Chamber’s view. Hence, the members of the DRC conclude that, in accordance with art. 15 par. 2 of the contract, the parties had agreed upon FIFA’s dispute resolution system in case of potential disputes. 7. However, the Chamber also notes that the Respondent held that employment-related disputes in country D are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission” and that, as a result, the Claimant should have first lodged his claim in front of the Labour-dispute Arbitration Commission and that thereafter, he could have appealed to a “People’s Court”. After a thorough analysis of the documentation provided by the Respondent, the Chamber concluded that the Respondent had not been able to prove that employment-related disputes in country D are of the “compulsory jurisdiction of Labour-dispute Arbitration Commission”, in particular referring to the fact that art. 5 of the “Regulations on the Management of Employment of Foreigners in country D” explicitly states that an application for arbitration may be made. 8. In this context, the Chamber finds it also odd that the pertinent employment contract explicitly states that: “The parties agreed that all disputes arising from this contract can’t be brought a lawsuit to a local people’s court.” 9. In view of the foregoing two considerations, the Chamber fails to understand the Respondent’s line of argumentation when it i) has agreed upon the competence of the arbitration committee of the Football Association from country D for national disputes, ii) has agreed upon the competence of FIFA for international disputes and iii) has explicitly excluded the possibility to refer potential disputes to the “People’s Court”, i.e. an ordinary court in country D. With these considerations in mind, the Chamber is of the view that, at the moment of signing the relevant employment contract, the parties had clearly agreed upon football dispute resolution in order to have their potential disputes settled. 10. For the sake of completeness, the DRC wishes to emphasise that the Claimant relied in good faith on the content of art. 15 par. 2 when he lodged his claim in front of FIFA, which article granted him the possibility to refer matters to FIFA. Equally, it is the Chamber’s view that the Respondent failed to explain why it had agreed upon the football dispute resolution system of FIFA (or even of the Football Association from country D), if indeed employment-related disputes are of the compulsory competence of a national body in country D. 11. As a result, the DRC finds that the Respondent’s objection towards the competence of FIFA’s deciding bodies must be rejected and that it is competent to adjudicate on the present matter in accordance with art. 22 b) of the Regulations. 12. The competence of the Chamber having been established, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasises 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. 13. The Chamber acknowledges that on 2 July 2014 the Claimant lodged a claim against the Respondent in front of FIFA, alleging that upon expiry of the contract, the amount of USD 117,452 remained outstanding. Later on, the Claimant amended his claim to the amount of USD 241,642.92, plus 5% interest as from “31 July 2013”, indicating that he had merely received the amount of USD 262,689.08 from the Respondent. 14. In this context, the Chamber first refers to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. Considering that the claim of the Claimant was lodged in front of FIFA on 2 July 2014 only, the Chamber finds that it cannot enter into any claim for salaries that fell due prior to 2 July 2012. 15. In this framework, the Chamber clarifies that between 1 January 2012 and 2 July 2012, the Claimant was entitled to the amount of USD 375,000, consisting of the amount of USD 200,000 as the signing-on fee, 6 monthly salaries in the amount of USD 29,166.66 and, possibly, to a further amount pertaining to bonuses. Between 2 July 2012 and 31 December 2012, the Claimant was entitled to the amount of USD 175,000, consisting of 6 monthly salaries and, possibly, to a further amount pertaining to bonuses. 16. Having carefully examined the list of payments provided by the Claimant (cf. par. I./11. above), the Chamber stresses that it can neither find any logic in the payment dates nor in the amounts effectively paid. In other words, on the basis of the documentation on file, the Chamber cannot establish to which contractual obligation each separate payment corresponds. 17. Taking into account the previous consideration, the DRC believes that the amount of USD 262,689.08, which had been paid during the course of 2012, as well as the amount of USD 63,668, which had been paid on 25 February 2013, correspond to payments that should have been made between 1 January 2012 and 2 July 2012. As a result, the Chamber considers that the Claimant’s request for an amount of USD 48,642.92 (USD 375,000 – USD 262,689.08 – USD 63,668) is barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations. 18. Having established the above and continuing with the period between 2 July and 31 December 2012, the Chamber notes that in its reply to the claim, the Respondent stressed that, apart from the amounts of USD 262,689.08 and USD 63,668, it had paid various other amounts to the Claimant. In this context, the Respondent submitted documentation which, in its view, proved that it had paid further amounts to the Claimant. 19. In this regard, the DRC wishes to refer to art. 12 par. 3 of the Procedural Rules which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. As such, it is for the Respondent to prove that it had indeed already paid the Claimant the amounts he is claiming. 20. Having analysed the documentation provided by the Respondent, the members of the Chamber refer to art. 9 lit. e) of the Procedural Rules which stipulates that all documents of relevance to the dispute shall be submitted in the original version and, if applicable, translated into one of the official FIFA languages. Taking into account the cited provision, the Chamber concludes that it cannot consider the documentation provided by the Respondent in the language of country D only, i.e. the document which, according to the Respondent, proved that further payments had been made to the Claimant after 15 May 2013. Therefore, the DRC decides to disregard said documentation. 21. As to the undated document apparently signed by the Claimant by means of which he confirmed having received a “cash advance on his salary”, the Chamber underlines that it is unable to determine when such payment was made, to which contractual obligation such payment corresponds (however, if at all, most likely to salaries due between 1 January 2012 and 2 July 2012) and whether or not such payment was already included in the payments the Claimant confirmed to have received. Therefore, DRC decides not to attribute any value to this particular document. 22. As a result, the Chamber concludes that the Respondent had not met its burden of proof that the amounts claimed by the Claimant as outstanding remuneration have in fact been paid. 23. In view of all the foregoing, the Chamber decides that the Claimant is entitled to the amount of USD 175,000, corresponding to his monthly salaries between 2 July 2012 and 31 December 2012 as well as to the amount of USD 18,000 related to bonuses for the 7 matches played between 11 August 2012 and 3 November 2012, i.e. after 2 July 2012. As a consequence, the Chamber finds that the Claimant is entitled to receive the amount of USD 193,000 from the Respondent as outstanding remuneration. 24. In addition, taking into account the Claimant’s request, the Chamber determines that the Respondent must pay to the Claimant interest of 5% p.a. on the above-mentioned amount as from 31 July 2013 until the date of effective payment 25. Finally, the Chamber concludes its deliberations by rejecting any further claim lodged by the Claimant. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is accepted, insofar as it is admissible. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of USD 193,000 plus 5% interest p.a. on said amount as from 31 July 2013 until the date of effective payment. 3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. 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 lodged by the Claimant is rejected. 5. 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 Dispute Resolution Chamber 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 Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl. CAS directives