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 18 December 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Damir Vrbanovic (Croatia), member Philippe Piat (France), member 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 passed in Zurich, Switzerland, on 18 December 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Damir Vrbanovic (Croatia), member Philippe Piat (France), member 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. On 8 February 2008, 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 as of the date of signature until 31 December 2012. 2. Pursuant to art. 5 of the contract, the Claimant was entitled to receive the following annual salary: - 2008: USD 150,000 net; - 2009: USD 165,000 net; - 2010: USD 185,000 net; - 2011: USD 200,000 net; - 2012: USD 225,000 net. The contract further states that the annual salary is to be paid in twelve equal monthly instalments, each “payable within fifteen days of a month following the month in which the remuneration is payable”. 3. In addition, art. 5 par. 4 of the contract provides that “the Contracting parties have agreed on advanced remuneration in the form of bonus for the Player in the amount of 15% out of his annual remuneration for particular year of sporting activities performance which is due on 30th of January of each particular year”. 4. Moreover, art. 12 par. 7 of the contract stipulates that “All disputes arising out of this Contract including disputes on its validity, interpretation or termination, will be solved by Arbitration of country d according to its internal regulations – so called Arbitration Clause. If the Arbitration Clause proves to be invalid legal agreement, the District Court in a city of country D will be a relevant court”. 5. On 2 August 2013, the Claimant lodged a claim against the Respondent in front of FIFA requesting to be awarded the amount of USD 511,524.84 as outstanding remuneration plus 5% interest as of the due date of each payment, broken down as follows: - 2009: USD 71,231; - 2010: USD 134,173.92; - 2011: USD 91,857.92; - 2012: USD 214,262. 6. In its reply to the claim, the Respondent first of all rejects the jurisdiction of FIFA to deal with the matter, asserting that the Arbitration Court of the Football Association of country D (hereinafter: NDRC of country D) is the competent body. 7. Having been requested by FIFA to provide documentary evidence regarding the arbitration tribunal at national level, the Respondent provided a version of the 2013 edition of the “Statutes of the Arbitration Court of the Football Association of country D“(hereinafter: the NDRC Statutes). The Respondent also provided a version of the 2013 edition of the “Rules of Procedure) of the Court of Arbitration of the Football Association of country D” (hereinafter: the NDRC Procedural Rules). 8. According to art. 1 of the NDRC Statutes, “the Court of Arbitration decides (…) disputes between parties such as the Association, member of the Association or registered player and/or players”. 9. Pursuant to section 9 of the NDRC Procedural Rules, “Arbitration proceedings shall be decided by three arbitrators” and “claimant and defendant shall each appoint one arbitrator” from a list of arbitrators appointed by the Conference of the Football Association of country D (art. 6 of the NDRC Statutes). Subsequently, the arbitrators appointed by the parties jointly designate the president of the panel. 10. Furthermore, section 17 of the NDRC Procedural Rules stipulates that “if the parties in the arbitration agreement have not agreed otherwise, a review of the arbitration award by other arbitrators shall not be allowed”. 11. As to the substance of the claim, the Respondent sustains that due to financial difficulties, it was agreed verbally with the Claimant that his remuneration would be reduced by half and that the additional remuneration provided by art. 5 par. 4 would not be paid for the years 2011 and 2012. 12. In continuation, the Respondent asserts that the amounts fallen due before “August 2010” cannot be claimed due to prescription and therefore, “the claim of [the Claimant] shall be reduced at least to the amount of USD 225.730,09 and accessories thereof”. 13. Finally, and should the Dispute Resolution Chamber (DRC) not consider its previous arguments, the Respondent alleges that the outstanding remuneration due to the Claimant amounts to USD 347,072.98, broken down as follows: - 2009: USD 29,920.34; - 2010: USD 69,355.39: - 2011: USD 57,631.99; - 2012: USD 190,165.26. 14. In its replica, the Claimant rejects the Respondent’s assertion as to the lack of competence of FIFA, stating that the NDRC of country D does not comply with the minimum requirements of independence and equal representation. In this respect, the Claimant outlines that there is no evidence that the players’ representatives are involved in the process of appointment of the arbitrators by the Conference of the Football Association of country D. 15. Moreover, the Claimant asserts that his claim is not time-barred since the event giving rise to the dispute occurred on 31 December 2012, date on which the contract expired and the Claimant started to claim his outstanding remuneration. The Claimant further states that the continuous late payment of remuneration allows the oldest amounts to be incorporated to the most recent ones. 16. In continuation, the Claimant denies that an agreement concerning the reduction of his remuneration was ever reached and sustains that as of 1 January 2009 until 31 December 2012, he was entitled to receive USD 891,250, out of which he only received USD 417,875.43, leaving him with an outstanding amount of USD 473,374.57. 17. Finally, the Claimant states that should the DRC deem his claim partially prescribed, he would still be entitled to receive the amounts fallen due after 2 August 2011. 18. After the closure of the investigation, the Respondent submitted its final comments. The Respondent reiterates that the NDRC of country D constitutes an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. Moreover, the Respondent makes reference to the verbal agreement and outlines that the Claimant never complained about the reduction of wages. Moreover, the Respondent sustains that the Claimant does not acknowledge receipt of four cash vouchers dated 22 February 2009, 2 September 2009, 7 December 2011 and 28 February 2012 respectively. In this regard, the Respondent highlights that the Claimant signed all these vouchers except for the second one. However, as to the second voucher, the Respondent emphasises that it was signed by the Claimant’s agent, whose signature is also contained in the contract. In continuation, the Respondent sustains that all the payments expressly refer to a specific reason and date, which prevent the Claimant from incorporating the oldest amounts to the most recent ones. Finally, the Respondent reiterates its arguments as to the prescription and the calculation of the outstanding amounts. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC) analysed whether it was competent to deal with the case at hand. In this respect, the DRC took note that the present matter was submitted to FIFA on 2 August 2013. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the matter at stake (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 (edition 2014), the Dispute Resolution Chamber is 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. 3. However, the DRC acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 12 par. 7 of the contract. According to said article, the parties to the contract had agreed that “All disputes arising out of this Contract including disputes on its validity, interpretation or termination, will be solved by Arbitration of country d according to its internal regulations”. 4. In this regard, the members of the Chamber emphasised that in accordance with art. 22 lit. b) of the 2008 edition of the Regulations on the Status and Transfer of Players they are competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the Association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 5. In this context, the Chamber wished to stress that the Respondent was unable to prove that, in fact, the Arbitration Court of the Football Association of country D meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations. 6. In this respect, the DRC referred to the principle of equal representation of players and clubs and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a fouryear renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.” 7. In conformity with its jurisprudence, the Chamber decided that the “Statutes of the Arbitration Court of the Football Association of country D”, in accordance with which, inter alia, the arbitrators are appointed by the Conference of the Football Association of country D, do not meet the aforementioned principles. 8. In view of all the above, the DRC established that, in line with its constant jurisprudence, the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber 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. 9. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2014), and considering that the present claim was lodged in front of FIFA on 2 August 2013, the 2012 edition of said Regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 10. Subsequently, the DRC observed that the Respondent submitted a correspondence after the investigation-phase of the matter had already been concluded. As a result, the Chamber decided not to take into account the last submission of the Respondent and established that in accordance with art 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase. 11. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 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. In this respect, the members of the Chamber acknowledged that the parties had signed an employment contract on 8 February 2008. 12. In continuation, the DRC observed that the Claimant alleged that the Respondent had failed to pay him outstanding remuneration in the amount of USD 473,374.57 as of the beginning of 2009. Equally, the Dispute Resolution Chamber took note of the reply of the Respondent, which first of all asserted that it had been agreed verbally with the Claimant that his remuneration would be reduced by half and that the additional remuneration provided by art. 5 par. 4 of the contract would not be paid for the years 2011 and 2012. In addition, the members of the Chamber noted the Respondent’s argument, according to which the Claimant’s claim regarding the amount fallen due before “August 2010” is time-barred. 13. In this respect, the Chamber deemed that, having the claim been lodged on 2 August 2013 only, the part of the claim relating to outstanding remuneration falling due before 2 August 2011 must be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations. Accordingly, the Chamber stressed that it would only focus on the remuneration that had fallen due after this date, i.e. as of the salary for July 2011. 14. In continuation, the DRC recalled 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. 15. According to this, the Dispute Resolution Chamber noted that the Respondent failed to provide evidence substantiating that the parties had mutually agreed on the reduction of the Claimant’s remuneration. On the other hand, the DRC pointed out that the Respondent presented bank receipts evidencing that an amount of USD 111,491.98 had been paid to the Claimant as remuneration since 2 August 2011. 16. Bearing in mind the foregoing, the Chamber established that the Respondent did not comply in full with its financial obligations and that, therefore, the Claimant was entitled to certain outstanding amounts. In calculating the outstanding amounts owed to the Claimant, the members of the Chamber took into consideration the following points: (i) the Claimant was entitled to USD 358,750 as total remuneration as from August 2011; (ii) the Respondent sufficiently proved that it had paid to the Claimant the amount of USD 111,491.98 while the contract was in force. 17. Accordingly, on account of all the above-mentioned considerations, the Chamber concluded that the Respondent had failed to pay to the Claimant an amount of USD 247,258.02. 18. Consequently, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 247,258.02. 19. With regards to the claimed interests, and taking into consideration the Claimant’s claim, the members of Chamber decided that the Respondent had to pay default interest at a rate of 5% as follows: a. 5% p.a. as of 31 January 2012 on the amount of USD 22,258.02; b. 5% p.a. as of 16 February 2012 on the amount of USD 18,750; c. 5% p.a. as of 16 March 2012 on the amount of USD 18,750; d. 5% p.a. as of 16 April 2012 on the amount of USD 18,750; e. 5% p.a. as of 16 May 2012 on the amount of USD 18,750; f. 5% p.a. as of 16 June 2012 on the amount of USD 18,750; g. 5% p.a. as of 16 July 2012 on the amount of USD 18,750; h. 5% p.a. as of 16 August 2012 on the amount of USD 18,750; i. 5% p.a. as of 16 September 2012 on the amount of USD 18,750; j. 5% p.a. as of 16 October 2012 on the amount of USD 18,750; k. 5% p.a. as of 16 November 2012 on the amount of USD 18,750; l. 5% p.a. as of 16 December 2012 on the amount of USD 18,750; m. 5% p.a. as of 16 January 2013 on the amount of USD 18,750. 20. Finally, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 2. The claim of the Claimant, Player A, is admissible. 3. The claim of the Claimant is partially accepted. 4. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 247,258.02 plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 31 January 2012 on the amount of USD 22,258.02; b. 5% p.a. as of 16 February 2012 on the amount of USD 18,750; c. 5% p.a. as of 16 March 2012 on the amount of USD 18,750; d. 5% p.a. as of 16 April 2012 on the amount of USD 18,750; e. 5% p.a. as of 16 May 2012 on the amount of USD 18,750; f. 5% p.a. as of 16 June 2012 on the amount of USD 18,750; g. 5% p.a. as of 16 July 2012 on the amount of USD 18,750; h. 5% p.a. as of 16 August 2012 on the amount of USD 18,750; i. 5% p.a. as of 16 September 2012 on the amount of USD 18,750; j. 5% p.a. as of 16 October 2012 on the amount of USD 18,750; k. 5% p.a. as of 16 November 2012 on the amount of USD 18,750; l. 5% p.a. as of 16 December 2012 on the amount of USD 18,750; m. 5% p.a. as of 16 January 2013 on the amount of USD 18,750. 5. In the event that the abovementioned amount plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. 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