F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 7 July 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 between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2015-2016) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 7 July 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 between the parties I. Facts of the case Facts relating to the preliminary issue of the competence of the DRC judge: 1. On 27 August 2012, the Player of Country B, Player A (hereinafter: player or Claimant) and the Club of Country D, Club C (hereinafter: club or Respondent) signed an employment contract, in accordance with which “Any dispute in respect of the contract shall be governed by the Football Association of Country D and/or FIFA regulations applicable and in force” (cf. art. 3.a. of the employment contract). 2. On 28 August 2012, the parties signed a “contract of image rights”, which does not contain a jurisdiction clause. 3. The club contested the competence of FIFA to deal with the present matter arguing that the Football Association of Country D has an independent arbitration body which should deal with the matter, i.e. the Dispute Resolution Chamber of the Football Association of Country D. 4. The player, for his part, insisted that FIFA’s Dispute Resolution Chamber is competent to deal with the present matter. Facts relating to the substance of the matter: 5. The employment contract signed between the parties on 27 August 2012 was valid for the 2012-13 season. 6. In accordance with the employment contract, the player was to receive salary amounting to EUR 10,000 per season, payable in 10 equal monthly instalments of EUR 1,000, as from 31 August 2012 until 31 May 2013 with a 60 days’ grace period. 7. The “contract of image rights” signed between the parties on 28 August 2012 stipulates that the player was entitled to receive inter alia the amount of EUR 30,000 during the 2012-13 season, payable in 10 instalments of EUR 3,000 each as from 31 August 2012 until 31 May 2013 with a 60 days’ grace period. 8. According to the “contract of image rights”, the player was further entitled to receive an accommodation allowance of EUR 500 per month, air tickets, bonuses, and a car. 9. On 16 June 2014, the player put the club in default of payment of the amount of EUR 21,900. 10. On 18 July 2014, with a subsequent amendment on 12 November 2014, based on the club’s response to his claim (cf. point I./14. below), the player lodged a claim in front of FIFA against the club maintaining that he only received the total amount of EUR 22,600 relating to salary and accommodation allowance. 11. Therefore, the player asked that the club be ordered to pay the outstanding amount of EUR 22,400, plus interest, as follows: a. interest on all payments that were received late in the period between September 2012 until 15 May 2013; b. EUR 900 for January 2013 on basis of the employment contract plus interest as of 1 February 2013; c. EUR 3,500 for January 2013 on the basis of the “contract of image rights” plus interest as of 1 February 2013; d. EUR 4,500 for each of the months of February until May 2013 (total EUR 18,000) on the basis of both contracts plus interest as of the first day of the following month. 12. In reply to the claim, the club held that FIFA’s Dispute Resolution Chamber is not competent to adjudicate on the player’s claim based on the “contract of image rights”. Furthermore, the club asserts that the “contract of image rights” cannot be admitted, since it was not submitted to the Football Association of Country D in accordance with the latter’s regulations. 13. As regards rental payments, the club asserted that these payments are included in the “contract of image rights” and that, thus, nothing can be awarded to the player in this regard. In addition, the club alleged that instead of paying EUR 500 to the player, it provided the player with an apartment and paid the rent directly to the landlord. 14. The club stressed that the player was paid the total amount of EUR 23,100, thus more than the amount of EUR 10,000 that the player was entitled to receive according to the employment contract. 15. Furthermore, the club presented a document dated 19 July 2013 and signed by both parties, in accordance with which the contract was terminated and the club would have undertaken to pay to the player the total amount of EUR 10,000 by cheques in 5 instalments as from October 2013 until February 2014. According to this document, the player would have no other claim against the club if the five instalments are fully and definitively settled. 16. According to the club, this document is void, since it was signed after the expiry of the employment contract and the player had received payments in excess of his contractual entitlements. In addition, the club alleges that the player tried to induce the club into signing this document. 17. Therefore, the club rejected the player’s claim and lodged a counterclaim against the player asking to be reimbursed the amount of EUR 13,100 that it considers having paid in excess of the player’s entitlements. Furthermore, without prejudice to its position, the club deemed that the player cannot claim more than the EUR 10,000 included in the document dated 19 July 2013. 18. The player rejected the club’s argument regarding the “contract of image rights” and insisted that it shall be taken into account, pointing out that it was jointly concluded with the employment contract and is structured as a typical football contract, including additional benefits of the player. 19. Furthermore, the player contested that the club paid the rent to the landlord and referred to the payment receipts that he presented along with his claim. 20. The player asserted that it was the club who asked him to sign the document dated 19 July 2013 in return of the club’s written declaration that the employment relation between the club and the player had expired. 21. Therefore, the player rejected the counterclaim of the club and he amended his initial claim in the light of the club’s response. 22. The club rejected the amended claim of the player. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 18 July 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and highlighted that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) he 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 of Country B and a Club of Country D. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies maintaining that the Football Association of Country D has an independent arbitration body which should deal with the matter, i.e. the Dispute Resolution Chamber of the Football Association of Country D. 4. In this regard, the DRC judge noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 5. While analysing whether he was competent to hear the present matter, first and foremost, the DRC judge deemed it of utmost importance to highlight that the neither the “contract of image rights” nor the employment contract at the basis of the present dispute contains a choice of jurisdiction. In this context, the DRC judge highlighted that art. 3.a. of the employment contract, which states that “Any dispute in respect of the contract shall be governed by the Football Association of Country D and/or FIFA regulations applicable and in force”, is a choice of applicable law, which does not concern procedural matters. The DRC judge therefore concluded that the contracts at the basis of the present claim do not contain any arbitration or jurisdiction clause. What is more, article 3.a. of the employment contract clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of the aforementioned art. 22 lit. b) of the Regulations on the Status and Transfer of Players. 6. In view of all the above, the DRC judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC judge is competent, on the basis of art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 7. Subsequently, the DRC 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 on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 18 July 2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 8. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. 9. To start with, the DRC judge acknowledged that the parties to the dispute had signed an employment contract on 27 August 2012 valid for the 2012-13 season, in accordance with which the Respondent would pay to the Claimant a total remuneration in the amount of EUR 10,000 in 10 monthly instalments. 10. The DRC judge further noted that the parties signed a “contract of image rights” on 28 August 2012, in accordance with which the Claimant was entitled to receive from the Respondent inter alia the amount of EUR 30,000 during the 2012-13 season in 10 monthly instalments as well as a monthly accommodation allowance of EUR 500. 11. Subsequently, the DRC judge took into account that according to the Claimant, the Respondent had failed to pay remuneration in the total amount of EUR 22,400 on the basis of both of the aforementioned contracts. 12. At this point, bearing in mind the parties’ diverging positions with respect to the “contract of image rights”, the DRC judge deemed that he shall first establish as to whether such contract can be taken into account in the present matter. 13. More specifically, the DRC judge had to establish whether, for formal reasons, he was competent to deal with this specific component or not. In fact, it appears that this part of the claim could possibly not be considered due to the DRC judge lacking competence to deal with disputes related to image rights. 14. While analysing whether he was competent to hear this part of the claim, the DRC judge wished to highlight that the image rights contract in the matter at stake does contain employment-related elements like bonuses, flight tickets, accommodation, which, in the opposite case, may have led the DRC judge to believe that it was in fact a genuine image rights agreement instead of a separate agreement to the employment contract, i.e. rights and obligations directly linked to the services of the Claimant as a player. 15. As a general rule, if there are separate agreements, the DRC tends to consider an agreement on image rights as non-employment related, as a result of which it would fall outside its scope of competence on the basis of art. 22 of the Regulations. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. The DRC judge noted that such elements, like the stipulations regarding bonuses, the use of a car, accommodation, which are typical for employment contracts and not for image rights agreements, are included in the “image rights contract” which is at the basis of the Claimant’s petition. 16. In continuation, the DRC judge recalled that according to the Respondent, the image rights contract could not be admitted, since it was not submitted to the Football Association of Country D in accordance with the latter’s regulations. In this respect, the DRC judge referred to the DRC’S constant jurisprudence in accordance with which the homologation and/or registration of an employment contract by/at a club’s association does not constitute a condition for its validity. 17. On account of the above, the DRC judge rejected the Respondent’s arguments relating to the “contract of image rights” and concluded that he is competent to deal with the Claimant’s claim relating to the “image rights contract” and that the latter contract can be taken into consideration in the present matter. 18. Having said this, the DRC judge proceeded with a careful examination of the documentation presented by the Respondent in support of the payments it alleges having made to the Claimant and concluded that these documents refer to payments, until May 2013, of a total amount of EUR 22,600 plus EUR 700 relating to air tickets. 19. In this respect, the DRC judge recalled that the Claimant was entitled to receive the total amount of EUR 45,000 in payment of his salary and accommodation for the entire season in accordance with the employment contract and the “image rights contract”. 20. The DRC judge then turned his attention to the Respondent’s allegation that rental payments were directly made by it to the landlord of the Claimant’s apartment, which allegation was contested by the Claimant. In this regard, bearing in mind art. 12 par. 3 of the Procedural Rules, the DRC judge took into account that the Respondent had not presented any documentation in support of such position. Furthermore, the DRC judge noted that the Claimant presented a copy of the rental agreement he entered into with his landlord as well as receipts of payments made by him to the landlord. Consequently, the DRC judge decided to reject the Respondent’s allegations relating to the contractual accommodation allowance payments. 21. On account of all of the above, the Respondent having paid, until and including May 2013, a total of EUR 22,600 in connection with the Claimant’s contractual entitlements relating to salary and accommodation allowance, the DRC judge established that the Respondent, at expiry of the employment relation between the parties, had failed to remit the amount of EUR 22,400 to the Claimant in accordance with its contractual obligations relating to the Claimant’s salary and accommodation allowance. 22. Having said this, the DRC judge recalled the Respondent’s allegations relating to the document dated and signed on 19 July 2013, which was submitted by the Respondent and in accordance with which the club would have undertaken to pay to the Claimant the total amount of EUR 10,000 by cheques in 5 instalments as from October 2013 until February 2014. According to this document, the Claimant would have no other claim against the Respondent if the five instalments are fully and definitively settled. 23. In this regard, the DRC judge took into account that according to the Respondent, this document is void. On the other hand, the DRC judge considered that, taking into account the documentation on file, the aforementioned amount of EUR 10,000 was not paid by the Respondent to the Claimant subsequent to the signature of the relevant document. Furthermore, the DRC judge did not see any reason why the Claimant’s claim should be limited to the amount of EUR 10,000 as alternatively stated by the Respondent. 24. On account of all of the above, the DRC judge rejected the Respondent’s claim that it paid the amount of EUR 13,100 in excess of the Claimant’s contractual entitlements and accepted the Claimant’s claim that the Respondent is liable to pay to the Claimant the amount of EUR 22,400 in outstanding remuneration. 25. Therefore, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must pay the amount of EUR 22,400 to the Claimant. 26. Furthermore, with respect to the Claimant’s claim relating to interest on the payments which he received late, the DRC judge took into account that neither the employment contract nor the “image rights contract” contains a clause entitling the player to receive payment of interest in the event of late receipt of his financial entitlements. 27. In addition, taking into consideration the claim of the Claimant as well as the payment documents presented by the Respondent, which were not contested by the Claimant, the DRC judge concluded that he was not in the position to award interest as of the due date of each of the outstanding instalments as from January 2013 until May 2013 as claimed by the Claimant. Indeed, from the documentation on file, it could not be clearly distinguished which payment made by the Respondent should be awarded to which contractual instalment. 28. Therefore, the DRC judge decided to partially accept the Claimant’s claim relating to interest payments and that the Respondent must pay interest of 5% p.a. on the total amount of outstanding remuneration of EUR 22,400 as from the expiry of the contractual relation, i.e. 31 May 2013, until the date of effective payment. III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 22,400, plus interest at the rate of 5% p.a. as from 31 May 2013 until the date of effective payment. 4. In the event that the amount due to the Claimant 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. 5. Any further claim lodged by the Claimant is rejected. 6. 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 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: Markus Kattner Acting Secretary General Encl.: CAS directives