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 13 August 2015, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Mario Gallavotti (Italy), member on the matter between the player, Player A, Country B as Claimant and 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 13 August 2015, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Mario Gallavotti (Italy), member on the matter between the player, Player A, Country B as Claimant and the club, Club C, Country D as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 18 July 2011, the Player A (hereinafter: the Claimant), born on 13 October 1989, concluded a “Promissory employment contract between the club and the professional player” (hereinafter: the contract), with the Club of Country D, Club C, (hereinafter: the Respondent), establishing the duration of the “future employment contract” as from 1 January 2012 “until the end of the 2014/2015 season”. 2. In accordance with the contract, the Claimant was entitled to the following monthly remuneration, to be paid in ten monthly instalments: - Season 2011/2012: EUR 3,000; - Season 2012/2013: EUR 3,000; - Season 2013/2014: EUR 3,000; - Season 2014/2015: EUR 3,000. 3. In addition, section 10 of the contract established the following: “10ª. – Durante a vigência de cada época de Contrato, o Atleta terá direito a receber duas viagens de vinda e regresso ao seu país de origen – Country B. 10th. - During the term of each contract period, the [Claimant] will be entitled to receive two round trips to his country of origin – Country B” (free translation from Language of Country D). 4. Furthermore, the contract included, inter alia, the following clauses: “O Contrato definitivo de Trabalho será outorgado em dia, hora e local a designar pelo 1º Contratante, por meio de notificaçao a efectuar ao 2º Contratante, por qualquer forma que se possa considerar adequada e idónea a essa formalidade. No caso de recusa de qualquer uma das partes na concretizaçao do Contrato prometido, aplicar-se-à a Clausula penal prevista na alínea 18ª do presente Contrato Promessa, além de outros danos que as partes possam ter causado (...) 18ª.- A titulo de Cláusula penal para eventualidade de incumprimento da celebraçao do Contrato definitivo, acordam e establecem reciprocamente o montante de 100.000,00€ (Cem Mil €uros) a pagar pela parte faltosa à contraparte. The final employment contract will be awarded on a day, time and place to be determined by the first contracting party [i.e. the Respondent], by means of a trustworthy and appropriate notification given to the second contracting party [i.e. the Claimant]. In case of refusal of any party in implementing the Promissory Agreement, the penalty clause as outlined in section 18 of this Promissory Agreement shall be applied, as well as any other damages that the parties may have caused (...) 18ª.- In the event of a failure to conclude a definitive agreement, the parties have agreed to establish a penalty clause in the amount of € 100,000.00 (one hundred thousand euro), to be paid by the party in default to the counterparty” (free translation from Language of Country D). 5. On 28 June 2013, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of a total amount of EUR 100,000, plus 5% interest, due to the Respondent’s failure to conclude a final employment contract, in accordance with clause 18 of the contract. In this regard, the Claimant explained that, in December 2011, he tried to contact the Respondent via telephone, but that he received no reply and he consequently returned to his former club on 1 February 2012, after the closure of the transfer window in Country D. 6. In addition, the Claimant requested the imposition of sporting sanctions on the Respondent. 7. In its reply, the Respondent contested the Claimant’s claim by stating that it was time-barred, since the contract was signed on 18 July 2011 and the Respondent was notified of the claim on 24 July 2013. 8. As to the substance of the case, the Respondent considered that the Claimant never presented himself at the Respondent’s facilities, “despite numerous telephone contacts” with him. The Respondent stated that the Claimant’s alleged manager in Country D explained that “the [Claimant] wasn’t now interested in signing”. Consequently, the Respondent considered that the Claimant failed in signing the definitive agreement, and that, consequently, he should be condemned to pay the amount of EUR 100,000. 9. After being requested by FIFA to clarify the nature of its apparent counterclaim, the Respondent did not provide any further comments. 10. In his replica, the Claimant insisted that the claim was not time-barred, since his right to claim any financial compensation began on 1 January 2012, when the definitive employment agreement should have been signed. In addition, the Claimant explained that he did not travel to Country D because the Respondent did not send him the air tickets that were necessary to do so, as established in the contract. 11. In its final comments, the Respondent stated that the contract should not be considered because it is not the original document and the signatures of the parties are not recognized by a legal authority, and that it is unknown if the provided translation is reliable. 12. Notwithstanding the above, the Respondent insisted that it is not true that the Claimant contacted it to sign the definitive agreement, and that in any case the Respondent did not commit to send the airplane tickets, since that would be done after the signing of the definitive agreement. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 28 June 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) is applicable to the matter at hand (cf. art. 21 of the 2012, 2014 and 2015 editions 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 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players, edition 2015, 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 of Country B and a Club of Country D. 3. The Chamber then reverted to the argument of the Respondent, according to whom the present matter is barred by the statute of limitations on the basis of the Regulations on the Status and Transfer of Players. In this regard, the members of the Chamber referred 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 said Regulations if more than two years have elapsed since the event giving rise to the dispute. The present claim having been lodged in front of the DRC on 28 June 2013 and the event giving rise to the dispute, that is, the conclusion of the contract between the Claimant and the Respondent, having occurred on 18 July 2011, the members of the Chamber had to reject the respective argument of the Respondent and confirmed that the present petition was lodged in front of the DRC within said two years’ period of time. The matter is, thus, not barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition 2015). 4. The competence of the Chamber having been established, the 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 on the Status and Transfer of Players (editions 2012, 2014 and 2015), and considering that the present matter was submitted to FIFA on 28 June 2013, the 2012 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 5. Having established the foregoing, 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 emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand. 6. In this respect, the members of the DRC took note that, on 18 July 2011, a contract was concluded between the Claimant and the Respondent, establishing the conditions upon which the parties would conclude a “future employment contract”. 7. Within this context, the members of the Chamber noted that, as acknowledged by the parties at stake, the “future employment contract” outlined in the contract was never concluded. 8. In view of the above, the Chamber took note of the Claimant’s claim, according to which he requested the payment of the amount of EUR 100,000 by the Respondent, corresponding to the penalty fee established in clause 18 of the contract, due to the Respondent’s alleged failure to conclude the “future employment contract” with the Claimant. 9. Bearing in mind the previous considerations, the Chamber went on to deal with the possible consequences of the non-conclusion of the “future employment contract”. 10. In doing so, the DRC highlighted, as a preliminary consideration, that there is no provision in the Regulations entitling a party to compensation for the nonconclusion of a “future employment contract”. 11. Nevertheless, the Chamber held that, in the absence of a specific rule applicable to the case, it first of all had to clarify as to whether the contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of non-conclusion of a future employment contract. 12. In this regard, the Chamber noted that, in accordance with the 18th clause of the aforementioned contract, the parties agreed that, in case of failure to implement the “future employment contract”, a penalty fee in the amount of EUR 100,000, would be payable by the party in default to the counterparty. 13. Taking into account the previous considerations, the members of the Chamber further analysed the provisions existing under the 18th clause of the contract. In particular, the Chamber further examined the following provision, as written in the aforementioned clause: “O Contrato definitivo de Trabalho será outorgado em dia, hora e local a designar pelo 1º Contratante, por meio de notificaçao a efectuar ao 2º Contratante, por qualquer forma que se possa considerar adequada e idónea a essa formalidade. (...) The final employment contract will be awarded on a day, time and place to be determined by the first contracting party [i.e. the Respondent], by means of a trustworthy and appropriate notification given to the second contracting party [i.e. the Claimant]. “ 14. In this regard, the Chamber unanimously agreed that, in consideration of the specific formulation of the relevant provision, the Claimant and the Respondent agreed that it was the Respondent’s duty to make all necessary arrangements for the conclusion of the “future employment contract”. 15. Within this context, the Chamber observed that, according to the Respondent, the Claimant failed in signing the contract despite its “numerous telephone contacts” and that, consequently, he should be held liable for the non-conclusion of the “future employment contract”. 16. In this respect, 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. 17. According to this, the Chamber noted that the Respondent did not substantiate its defense, as it did not present any evidence in support of its allegation that it took all necessary steps to conclude the “future employment contract”. 18. Consequently, the members of the Chamber unanimously agreed that the 18th clause of the contract is applicable to the matter at stake, and that, consequently, the Respondent should be held liable towards the Claimant for the non-conclusion of the “future employment contract”. 19. In continuation, the Chamber focussed its attention on the consequences of the non-conclusion of the “future employment contract”, attributable to the Respondent. In this regard, the Chamber recalled the contents of the penalty clause in the contract. 20. After due deliberation, the members of the Chamber concluded that penalty clauses may be freely entered into by the contractual parties and may be considered acceptable, in the event that the pertinent written clause meets certain criteria such as proportionality and reasonableness. In this respect, the Chamber highlighted that in order to determine as to whether a penalty clause is to be considered acceptable, the specific circumstances of the relevant case brought before it shall also be taken into consideration. 21. In this regard, the Chamber outlined that the wording such clause was clear, and that it was freely, reciprocally and mutually agreed upon between the parties. In particular, the Chamber noted that, in his statement of defense, the Respondent suggested that the Claimant should be held liable for the payment of the penalty fee. Consequently, the members of the Chamber had no other option than to consider that the penalty fee was acceptable in view of its mutual applicability. 22. Consequently, the Chamber unanimously decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant a penalty fee in the total amount of EUR 100,000. 23. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 100,000 as from 28 June 2013 until the date of effective payment. 24. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by the parties. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 100,000, plus 5% interest p.a. as from 28 June 2013 until the date of effective payment. 3. In the event that the amount plus interest set forth in point 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 under point 2. 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 (CAS) Avenue de Beaumont 2 CH-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: Marco Villiger Acting Deputy Secretary General Enclosed: CAS directives