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 passed in Zurich, Switzerland, on 23 July 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member John Bramhall (England), 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 (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 passed in Zurich, Switzerland, on 23 July 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member John Bramhall (England), 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 21 November 2013, Player A from Country B (hereinafter: the Claimant), and the Club C from Country D (hereinafter: the Respondent), concluded an employment contract (hereinafter: the first contract), valid as 1 December 2013 until 30 November 2014. 2. Art. 9 of the first contract stipulates that “during the term of this agreement, the [Respondent] must register the player with [The Football Association of Country D] in accordance with [The Football Association of Country D] regulations”. 3. In this regard, art. 4.5 of the regulations of the Football Association of Country D states that “Foreign player to be employed must comply with the following playing status: (iii) only foreign player playing for the top Division are allowed from the Confederations listed below: (a) Asian Football Confederation (AFC); (b) Oceania Football Confederation (OFC)”. 4. On 7 February 2014, the parties concluded a termination agreement (hereinafter: the termination agreement). 5. The termination agreement contains, inter alia, the following stipulations: “3. The [Respondent] will pay the [Claimant] USD$120,000 on or before 1 April 2014. 4. The [Claimant] agrees to enter into a Foreign Player’s Contract with the [Respondent] on or before 23 March 2014 if the [Claimant] is a free player and the Foreign Player’s Contract contains terms no less favourable than those contained in the [first] contract dated 21 November 2013”. 5. The amount payable under paragraph (3) will not be payable if the [Claimant] becomes a registered and contracted player with the [Respondent] on or before 23 March 2014”. 6. On 11 February 2014, the Claimant and the top-tier from country F, Club E, concluded an employment contract, which remained into force until 3 March 2014. 7. On 15 March 2014, the Claimant and the Respondent concluded a second employment contract (hereinafter: the second contract), valid as of the date of signature until 30 November 2014. 8. The second contract contains the same art. 9 as the first contract regarding the Claimant’s registration (cf. point 2 above). 9. Pursuant to the second contract, the Claimant is entitled to receive the following net remuneration: • USD 12,000 as monthly salary payable by the 7th of the following month; • USD 10,000 as sign-on fee. 10. Art. 3.1 (ii) of the second contract provides, inter alia, that “the [Claimant] shall agree and pledge that he will at all time comply with the Regulations of Football Association of Country D (…)”. 11. The second contract further states that “if the contract has been terminated, the [Claimant] may appeal in accordance with art. 6 of this contract”. In this regard, art. 6 provides that “if there is any grievances relating to the [Claimant]’s terms and conditions of service under this contract, the following procedure shall apply: 6.1 A formal written notice of complaint must be submitted to the team manager within 7 days of the grievance arising. 6.2 If the grievance is not resolved to the [Claimant]’s satisfaction within 7 days after the notice is given, a formal written notice of grievance must be given to the secretary of the [Respondent] so that the [Respondent] may consider the matter. The matter shall be considered at the next [Respondent]’s meeting or within 14 days after receipt of the notice, whichever is earlier. 6.3 If the grievance is not resolved by the [Respondent] or the [Respondent]’s decision does not satisfy the [Claimant], the [Claimant] may then appeal to FIFA Players Status Committee and the decision meted out by the FIFA Players Status Committee will be final”. 12. By means of a letter dated 25 March 2014, but apparently received on 2 April 2014, the Respondent sent a correspondence to the Claimant informing of the following: “the [Respondent] is unable to register you in its team s [sic] your previous club in Country B, Club G was participating only in Division 2 of the Country B League. 2. The chief coach (…) arranged for you to participate in a Division 1 club in Country H, to enable you to be registered during the 2nd window on 23 March 2014. 3. Unfortunately this plan failed as we were been informed by Football Association of Country D that Football Federation of Country H did not make any request for your ITC. In other words, you did not obtain ITC while playing in Country H. 4. As such, I truly hope you can sort out the matter before 27 Mac 2014, failing which, [the Respondent] has no choice but to make alternative agreement”. 13. On 2 and 3 April 2014, the Claimant’s representatives asked the Football Federation of Country H to request the ITC to the Football Association of Country D. 14. On 3 April 2014, the Claimant requested the Respondent to register him at the Football Association of Country D in accordance with art. 9 of the second contract, stressing that should the Respondent fail to do so, it should be liable to pay the amount of USD 120,000 as per the termination agreement. 15. By means of a letter dated 2 April 2014, but apparently received on 10 April 2014, the Respondent terminated the contract in writing, emphasising that “till today, [it was] unable to register [him] with the Football Association of Country D” because “[he was] not having International Transfer Certificate (ITC) while playing with Club E in Country H”. 16. On 16 April 2014, the Claimant sent a correspondence to the Respondent by means of which he requested the latter to pay him USD 17,000 as outstanding remuneration corresponding to his salary for March 2014 as well as half of the signon fee, plus USD 96,000 as compensation corresponding to the residual value of the contract, by 25 April 2014. The Claimant also specified that should the Respondent fail to do so, it would refer the case to FIFA. 17. On 8 September 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting to be awarded with the amount of USD 120,000 plus interest as of 2 April 2014 in accordance with the termination agreement, or subsidiarily, with the amount USD 95,454 plus interest as of 2 April 2014, broken down as follows: • USD 17,600 as outstanding remuneration: - USD 10,000 as sign-on fee; - USD 7,600 corresponding to his salary as of 15 March 2014 until 2 April 2014; • USD 77,854 as compensation (USD 95,200 – USD 17,346 as remuneration with his new club). The Claimant additionally requested the imposition of sporting sanctions on the Respondent. 18. In his claim, the Claimant asserts that on 26 January 2014, the Respondent informed him that it was unable to register him in accordance with art. 4.5 (iii) of the regulations of the Football Association of Country D. Consequently, the Claimant states that both parties decided to terminate the first contract and agreed that he would play elsewhere until he was eligible under art. 4.5 (iii) of the regulations of the Football Association of Country D to be re-contracted and registered by the Respondent. The Claimant further explains that although he went to play in the Country F top-tier division and thus complied with his commitment, the Respondent failed to register him and is therefore liable to pay the amount of USD 120,000 stipulated in the termination agreement. In this regard, the Claimant stresses that, even though he had no obligation to do so, he tried to help the Respondent with the registration process by contacting the Football association of Country D and the Football Association of Country H. 19. In its reply to the claim, the Respondent asserts that in accordance with art. 6 of the second contract, prior to lodging a claim in front of FIFA, the Claimant has the obligation to try to solve the dispute internally, which he did not. In view thereof, the Respondent maintains that the claim is premature and therefore inadmissible. 20. In continuation, the Respondent alleges that, when signing the first contract, the Claimant represented himself as a former player of Club I, a top-tier club from Country B, whereas his former club was actually Club J, i.e. a club which is competing in a lower division in Country B. Consequently, the Respondent explains that, due to the Claimant’s misrepresentation, it could not register him in accordance with art. 4.5 (iii) of the regulations of the Football Association of Country D. Nevertheless, the Respondent argues that, in spite of these circumstances, it paid the Claimant’s salary and fees until 7 February 2014, i.e. the date of signature of the termination agreement. The Respondent further sustains that in order to solve the registration issue, it was decided that the Claimant would play in the country F top-tier division. In this regard, the Respondent alleges that on 17 February 2014, the Claimant informed it via a WhatsApp message that “the ITC [was] with Club E”. Based on this allegation, and thus considering that the Claimant was complying with art. 4.5 (iii) of the regulations of the Football Association of Country D, the Respondent asserts that in March 2014, it signed the second contract with him in accordance with the termination agreement and the ITC was requested from the Football Association of Country H. However, according to the Respondent, the Football Association of Country H was unable to issue the ITC in favour of the Football Association of Country D, since the Football Association of Country H never requested the ITC from the Football Association of Country D, when the Claimant was transferred to Club E. Accordingly, the Respondent explains that the Football Association of Country D, on the basis of art. 9 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) according to which players registered at one association may only be registered at a new association once the latter has received an International Transfer Certificate from the former association, considered that the Claimant had not played in a top-tier division in Asia and therefore rejected the Claimant’s registration. In view of the above, the Respondent affirms that the Claimant’s bad faith and failure to take the steps necessary to be eligible under art. 4.5 (iii) of the regulations of the Football Association of Country D constituted a violation of the termination agreement as well as of art. 3.2 (iii) of the second contract entitling it to terminate the latter contract. 21. In his replica, the Claimant first of all rejects the Respondent’s assertion as to the prematurity of the claim. Indeed, according to the Claimant, it would make no sense to lodge an appeal with the very same body as the one that made the decision to unilaterally terminate the contract. In addition, the Claimant maintains that the framework set in art. 6 of the second contract neither guarantees fair proceedings, nor complies with the principle of equal representation. 22. As to the substance, the Claimant asserts that during the 2012-13 season, he won the A-League, i.e. the Country B top-tier division, and took part in the AFC Champions League with Club I but due to the long break between season in the ALeague, i.e. from May to October, he was then registered to play in the academy side of the Club J in order to maintain his fitness and condition in readiness for the 2013-14 A-League season. In view of the above, the Claimant sustains that he met both the literal requirement of art. 4.5 (iii) of the regulations of the Football Association of Country D as well as its objective. 23. In continuation, the Claimant outlines that by means of the termination agreement, the Respondent not only committed to re-contract him but also to register him. In this respect, the Claimant recalled that he complied with his obligations by playing in the country F top-tier division and stresses that in accordance with the DRC jurisprudence a player cannot be held responsible for issues related to the issuance of the ITC or the registration of his contract at the Federation. 24. In its final comments, the Respondent reiterates its assertions as to the admissibility of the claim, stressing that the internal procedure was established in accordance with the Regulations and that the Claimant accepted it by signing the contract without reservation. 25. Furthermore, the Respondent sustains that by means of the termination agreement, the Claimant undertook to take all the steps necessary to become eligible under art. 4.5 (iii) of the regulations of the Football Association of Country D and not only “to play elsewhere”. Consequently, and considering that the Claimant “[was] unable to produce the ITC which is crucial of [his] registration”, the Respondent states that it had no other option but to terminate the contract. 26. On 8 May 2014, the Claimant and the Club K from Country F concluded an employment contract valid as of the date of signature until 8 August 2014 and according to which the Claimant was entitled to receive a net monthly salary of USD 1,800. On 9 August 2014, the Claimant and the club from Country F signed a new employment contract, valid until 8 August 2015 and according to which the Claimant was entitled to receive a sign-on fee of USD 1,200 as well as a net monthly salary of USD 3,200. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 8 September 2014. Consequently, the 2014 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 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Chamber would, in principle, be the competent body to decide on the present litigation involving a player from Country B and a club from Country D, regarding an outstanding amount based on a termination agreement derived from the employment contract concluded between the aforementioned parties on 21 November 2013. 4. However, the DRC acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 6 of the second contract, alleging that the Claimant’s claim is premature since the Claimant should have first resorted to the internal dispute resolution procedure. 5. In this regard, the DRC noted that the Claimant rejected such position and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 6. In this context, and while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber deemed it of utmost importance to highlight that the present dispute pertains to the execution of an agreement signed by the parties with the aim of terminating an existing contractual relationship. 7. Having said this, the DRC turned to the content of the termination agreement, which is the basis of the present dispute between the Claimant and the Respondent. In this respect, the members of the Chamber noted that the termination agreement, which is the result of a foregoing employment contract, does not include any clause providing for a prior and mandatory internal resolution procedure in case of a dispute between the parties. 8. Hence, the Chamber deemed that there is no existence of a clause in the agreement which would preclude the Chamber from adjudicating on the present dispute. 9. In view of all the above, the DRC established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that it 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. 10. Furthermore, the Dispute Resolution Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2015) and considering that the present claim was lodged in front of FIFA on 8 September 2014, the 2014 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. 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. 12. In this respect, the DRC recalled that on 7 February 2014, both parties concluded an agreement by means of which they decided to terminate the first contract. In this respect, the members of the Chamber further observed that clause 5 of the termination agreement provides that the Respondent will pay the Claimant an amount of USD 120,000 on 1 April 2014 unless the latter “becomes a registered and contracted player with the [Respondent] on or before 23 March 2014”. 13. The DRC then turned to the claim of the Claimant, who maintains that he is entitled to the amount of USD 120,000 since, in spite of having entered into a new contract with the Respondent on 15 March 2014, he did not become a “registered” player of the latter. 14. On the other hand, the DRC noted that the Respondent, for its part, acknowledges that the Claimant was not registered by 23 March 2014 but considers that the lack of registration is imputable to the Claimant and that, therefore, the amount of USD 120,000 is not due. 15. In this context, 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 and pointed out the Respondent did not present any relevant element proving that the Claimant’s lack of registration was due to his own fault. In this respect, the Chamber deemed it fit to emphasise that the players have generally no influence on the registration procedure in connection with their international transfer, which are of the sole responsibility of the clubs. 16. Having stated the above, the Chamber pointed out that clause 5 of the termination agreement establishes in a clear and unambiguous manner two cumulative conditions for the Respondent to be released from its obligation of payment, i.e. the signature of a contract, which was done on 15 March 2014, and the registration of the Claimant, which indisputably did not occur. In this regard, and for the sake of completeness, the members of the Chamber deemed it interesting to highlight that the clause only refers to the lack of registration without contemplating the reasons behind the said non-registration. 17. In view of the above, and considering that one of the two cumulative conditions was not fulfilled, the DRC concluded that the Respondent had not been released from his obligation to pay USD 120,000 to the Claimant as per the termination agreement. 18. Hence, the Chamber established that the Respondent had failed to remit to the Claimant the amount of USD 120,000 that the former undertook to pay to the latter on 7 February 2014 by signing the termination agreement. Consequently, the DRC decided that the Respondent, in virtue of the general legal principle of “pacta sunt servanda”, is liable to pay the total amount of USD 120,000 to the Claimant. 19. In addition, and taking into consideration the Claimant’s claim, the Chamber decided that the Respondent had to pay default interest at at a rate of 5% p.a. to the Claimant as from 2 April 2014. 20. Finally, and considering that his primary claim was accepted, the Chamber decided that it no longer needed to analyse the Claimant’s subsidiary claim for outstanding remuneration and compensation for breach of the second contract. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is accepted. 3. 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 120,000 plus 5% interest p.a. on said amount as from 2 April 2014 until the date of effective payment. 4. 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. 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 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 Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. CAS Directives