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 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), 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 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 3 September 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Johan van Gaalen (South Africa), member Leonardo Grosso (Italy), 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 dispute arisen between the parties I. Facts of the case 1. On 20 February 2012, the Player from country B, Player A (hereinafter: the Claimant), and the Club from country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from the date of signature until “30 2012”. Both parties as well as an agreement signed by them on 5 January 2013 confirm that the contract end date was 31 December 2012. 2. According to art. 5 of the contract, the Respondent undertook to pay the Claimant inter alia the net amount of EUR 2,000,000, payable as follows: a. EUR 600,000 “upon execution of the contract and Football Association from country D’s receipt of the effective International Transfer Certificate (ITC) […] in 15 working days”; b. EUR 1,400,000 in monthly salaries payable before the 30th of each month. 3. Art. 12.1 of the contract establishes that “[the Respondent] shall compensate [the Claimant] for the termination of the contract cause by [the Respondent]’s violation of this contract or an invalid contract in the reason of [the Respondent] according to the extent of the loss on the basis of law”. 4. Art. 15.2 of the contract stipulates that “Any dispute in respect of matters of football, discipline, or transfers 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 is of a domestic variety). Any other dispute of a more international nature, involving for example any international transfer or any matters which fall under the ambit of FIFA regulations, shall be submitted to the arbitration committee of FIFA and FIFA’s decision is final”. 5. Furthermore, art. 17.6. of the employment contract stipulates that “Matters uncovered in this contract shall be managed in accordance with the laws, regulations, rules of country D and relevant provisions of FIFA and Football Association from country D”. 6. On 5 January 2013, the parties concluded an agreement (hereinafter: the first agreement), by means of which they agreed that: “The club C confirm that the player don’t received his salaries of the months of September, October, November and December 2012. The club C must pay 140,000 Euros x 4 months = 560,000 Euros. The club […] propose the new agreement hereunder: The club […] will pay on 15 January 2013 one salary for the amount of 140,000 Euros. If the amount of 140,000 Euros is not paid on 15 January 2013 this agreement is cancelled. The club […] will pay on 30 January 2013 one salary more an half for an amount of 210,000 Euros. If the amount of 210,000 Euros is not paid on 30 January 2013 the agreement is cancelled. […] If there are unsettled money that Player A borrowed from the club before or should be borne by Player A (the total amount is 4,917.06), the club […] has the right to deduct the same amount from the above amount. As soon as the payments will be registered on the player’s bank account the debt of the club […] with the player […] is finished.” 7. On 5 February 2013, the parties signed another agreement (hereinafter: the second agreement), by means of which “Upon friendly negotiation, both parties agree to further extend the payment date of the second instalment to March 5, 2013”. 8. On 1 March 2013, the Claimant sent a warning to the Respondent, by means of which he referred to the two agreements signed on 5 January 2013 and on 5 February 2013. The Claimant granted the Respondent a final delay of 48 hours in order to pay its debts, after which the agreements should be considered as cancelled and he would “start a procedure” against the Respondent. 9. On 14 March 2013, the Respondent sent the Claimant’s representative an e-mail, explaining inter alia the delay in the payment of the Claimant’s remuneration, allegedly due to the fact that the Respondent had been “punished by the Football Association from country D due to the mistakes made by the past shareholders”. Consequently, “the [Respondent’s] bank account was temporarily frozen for the possible penalty in the future”. 10. On 16 April 2013, the Respondent sent the Claimant’s representative another e-mail, stating “the situation of the club is not very optimistic” and asking him to convince the Claimant not to refer the matter to FIFA, but to try to find an amicable solution with the club instead. 11. On 25 June 2013, the Claimant lodged a claim against the Respondent, requesting that FIFA declare the agreements null and void and to be granted the total amount of EUR 462,000, broken down as follows: a. EUR 420,000 as outstanding remuneration for the months of October to December 2012 (i.e. 3 x EUR 140,000) plus interest of 3% as from 5 March 2013; b. EUR 42,000 as additional compensation based on art. 12.1 of the contract (cf. point I.3. above), corresponding to 10% of the outstanding remuneration. 12. In his claim, the Claimant explains that, as from September 2012, the Respondent stopped paying his salaries. On 31 December 2012, when the contract expired, the total amount of EUR 560,000 corresponding to four monthly salaries was allegedly outstanding. In order to settle the matter in an amicable and swifter manner, the Claimant agreed to reduce the amount owed to him by the Respondent to EUR 350,000, payable in 2 instalments, as stipulated in the first agreement (cf. point I.6. above). 13. As per the Claimant, the Respondent paid the first instalment of EUR 140,000 on 15 January 2013, but failed to pay the second one for EUR 210,000 on 30 January 2013. Thus, the first agreement should be considered as cancelled on 30 January 2013. Subsequently, the parties concluded the second agreement and extended the deadline for the payment of the second instalment until 5 March 2013. The player claims that such amount was never paid, in spite of his reminder (cf. point I.8. above). Thus, the second agreement should also be considered as null and void and the Claimant requests the payment of the total amount due to him as per the contract, i.e. 3 monthly salaries amounting to EUR 420,000, as well as extraordinary compensation based on art. 12 of the contract. 14. In its reply, the Respondent first contested FIFA’s competence to deal with the present matter in favour of the “Football Association from country D’s arbitration commission”, referring to art. 22 b) of the FIFA Regulations and to art. 15.2 of the contract (cf. point I.4. above). In this regard, the Respondent maintained “the case is only dispute on salary payment after the termination of the contract. Cross-nation factor such as international transfer are not involved; therefore, according to the agreement of the player and the club, the case shall be submitted to the arbitration committee of the Football Association from country D, whose decision is final”. 15. The Respondent provided FIFA with a copy of the “Regulations of the Football Association’s Arbitration Commission of country D” (edition 2009; hereinafter: the NDRC Regulations of country D), which establish the following: a) with regard to the jurisdiction of the Football Association from country D’s arbitration commission: According to art. 5 of the NDRC Regulations of country D, the Football Association from country D’s arbitration commission is competent to decide on the following cases “1. Cases that can be applied to the arbitration commission for arbitration from if the decision made by the disciplinary commission of the Football Association from country D […] is not inacceptable to parties; 2. Disputes among member association, football club, football player, coach and manager concerning industry management affairs such as registration, transfer, entry qualifications, employment contract, contract of agent and so on; 3. Other disputes that should be accepted at discretion of the commission”. b) with regard to the composition of the Football Association from country D’s arbitration commission: Art. 25 of the NDRC Regulations of country D provides that “Members of the arbitration commission shall be approved in the meeting of chairman of the Football Association from country D”. Art. 28 stipulates that “When hearing cases between football players and football clubs, the arbitration commission can choose one or two representatives from to hear football player and football clubs randomly to attend trial as cases may be. […]”. c) with regard to the possibility of an appeal: Art. 4 of the NDRC Regulations of country D provides that “Arbitral award of the arbitration commission is final and bounding to parties”. 16. As to the substance of the case, the Respondent deems that the player’s claim for compensation for breach of contract should be rejected, as the contract was not terminated prematurely but rather expired on 31 December 2012. Thus, the consequences of art. 17 of the FIFA Regulations or of art. 12 of the contract (cf. point I.3. above) do not apply to the present matter. 17. The Respondent further deems that the player’s claim for EUR 420,000 and interest should also be rejected. In particular, it acknowledges having failed to pay the second instalment stipulated in the first agreement. However, the postponement of the pay date was agreed upon by the parties, by means of the second agreement. “The club has been negotiating with the player on the second payment date; however, the player breached his original promise and understanding to ask to the club to pay 420,000 Euro”. Thus, the Respondent claims to owe the player only EUR 210,000, in accordance with the amount stipulated in the agreements reached by the parties. 18. In his replica, the Claimant, first of all, holds that the Respondent’s position cannot be considered due to the fact that it arrived after the expiry of the deadline granted. Additionally, the Claimant insists on the competence of FIFA to deal with the present matter, as the NDRC of country D allegedly does not meet the minimum procedural standards required by art. 22 lit. b) of the FIFA Regulations. 19. As to the substance, the Claimant maintains his previous argumentation and insists on his right to claim his unpaid remuneration as per the contract, as the agreements have become invalid, due to the non-compliance of the Respondent therewith. Furthermore, he deems to be entitled to an additional amount of compensation, due to the undeniable damage caused by the Respondent. 20. In its final comments, the Respondent first confirms that its reply was received by FIFA within the deadline stipulated. It further insists on the competence of Football Association from country D’s arbitration committee to deal with the present affair. In this regard, the Respondent refers to the “Regulations on the management of employment of foreign in country D (2011 version)” and to the “Law of country D on labour-related mediation and arbitration” and claims that “employment-related disputes fall within the compulsory jurisdiction of domestic labour-dispute arbitration commission”. Furthermore, the Respondent claims that the parties did not agree to submit any disputes between them to FIFA, as they signed the contract. As to the substance, the Respondent maintains its previous argumentation. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2012, 2014 and 2015; hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 25 June 2013. Consequently, the Chamber concluded that the 2012 edition of the Procedural Rules is applicable to the matter at hand. 2. With regard to the competence of the DRC, art. 3 par. 1 of the Procedural Rules states that the Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 2015; hereinafter: the Regulations). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, 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 a 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 an independent arbitration tribunal in line with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in fine, exists within the Football Association from country D. In addition, the Respondent referred to art. 15.2 of the contract, which stipulates that “any dispute in respect of matters of football, discipline, or transfers 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 is of a domestic variety). Any other dispute of a more international nature, involving for example any international transfer or any matters which fall under the ambit of FIFA regulations, shall be submitted to the arbitration committee of FIFA and FIFA’s decision is final.” The Respondent deems that the present matter lacks international dimension (cf. point I.14. above) and, therefore, based on the content of the aforementioned article, it deems that the relevant deciding bodies of the Football Association from country D are competent to adjudicate the present dispute. 4. In this regard, the Chamber noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter, pointing out that the NDRC of the Football Association from country D does not respect the minimum procedural standards required by art. 22 lit. b) of the FIFA regulations. 5. Taking into account all the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, it is 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 Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 December 2012. 6. In relation to the above, the Chamber also deemed it vital to outline that, in accordance with its well-established jurisprudence and as confirmed by the Court of Arbitration for Sport (CAS), one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employmentrelated dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal derives from a clear reference in the employment contract. 7. In this respect and while analysing whether it was competent to hear the present matter, first and foremost, the Chamber deemed it of utmost importance to highlight that art. 15.2 of the contract clearly states that for international matters or “any matters which fall under the ambit of FIFA regulations”, FIFA is competent. In view of the undoubtable international dimension of a labour dispute involving a player from country B and a club from country D, as well as to the fact that it “falls under the ambit the FIFA Regulations” – namely of art. 22 lit. b) – the members of the Chamber concluded that, in accordance with the relevant regulations, as well as with art. 15.2 of the contract, the DRC is competent to decide upon the matter at hand. 8. In view of all the above, the Chamber 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 would be 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. Subsequently, the Chamber analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 2015) and, on the other hand, to the fact that the present claim was lodged on 25 June 2013. The DRC concluded that the 2012 version of the Regulations is applicable to the matter at hand as to the substance. 10. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the DRC started by acknowledging the above-mentioned facts 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. 11. In this respect, the members of the Chamber acknowledged that it was undisputed by the parties that, on 20 February 2012, the Claimant and the Respondent signed an employment contract valid as from the date of signature until 31 December 2012, in accordance with which the Claimant was entitled to receive the amounts stipulated in point I.2. above. 12. Subsequently, the members of the Chamber noted that it also remained undisputed that, on 5 January 2013, the parties concluded an agreement by means of which the Respondent acknowledged that, after the expiry of the contract, it still owed the Claimant salaries for September to December 2012 in the total amount of EUR 560,000. By means of this agreement, and with a view to solve the matter amicably, the parties agreed to reduce such amount to EUR 350,000 to be paid in two instalments, stipulating that the agreement would be considered as cancelled if one of the instalments would not be paid in time. In addition, the Chamber noted that, on 5 February 2013, the parties concluded a second agreement, concerning a rescheduling of the pay dates stipulated in the first agreement. 13. The Chamber then took due note of the Claimant’s main allegations, according to which in spite of the rescheduling of the second agreement, the Respondent failed to pay the second instalment of EUR 210,000 on 5 March 2013. Consequently, the Claimant claims that the agreement should be considered as cancelled and asks to be awarded his outstanding dues in the amount of EUR 420,000, i.e. EUR 560,000 minus EUR 140,000, corresponding to the first instalment paid, as well as extraordinary compensation based on art. 12.1 of the contract (cf. point I.3. above.) 14. The members of the Chamber further noted that the Respondent acknowledges a pending debt in the amount of EUR 210,000, corresponding to EUR 350,000 as the total due to the Claimant as per the agreements minus EUR 140,000, which were already paid (cf. point I.17. above), but rejects the Claimant’s claim for EUR 420,000 as allegedly outstanding remuneration. In continuation, the members of the Chamber noted that the Respondent points out that the contract was not terminated prematurely, but rather expired on 31 December 2012, which implies that the Claimant’s claim for compensation for breach of contract should be rejected. 15. Having established the aforementioned, the members of the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine the amount due by the Respondent to the Claimant, as well as its contractual basis, i.e. whether the first and the second agreements are still at the basis of the Respondent’s financial obligations towards the Claimant, or rather the employment contract. 16. Before entering the analysis of the above-mentioned issue, the DRC deemed it appropriate to address the Claimant’s argument mentioned in point I.18. above, according to which the Respondent’s reply to his claim should not be admissible, as it was allegedly sent after the expiry of the deadline granted by FIFA for that purpose. In this respect, the Chamber wishes to clarify that the Respondent’s response was duly received by fax within the given deadline and that a copy of it arrived by courier 2 days after the expiry of the deadline. Thus, the Respondent’s reply should be taken into account in the present matter. 17. Having clarified the above, the Chamber entered the discussion of the main topic of the dispute, detailed in point I.15. above. In this context, the DRC first took note of the fact that the Respondent does not dispute having failed to pay the Claimant the second instalment of the settlement as per the first agreement, not even after the postponement of the pay date granted in the second agreement. In fact, the Respondent only claims that the total amount due to the Claimant is EUR 350,000, as per the parties’ agreement, and not EUR 560,000 as claimed by the Claimant. 18. In view of the diverging positions of the Claimant and of the Respondent as to the amount payable by the latter, the Chamber decided to analyse the wording of the first agreement. In this regard, the Chamber noted that the first agreement clearly stated that the amount of EUR 560,000, corresponding to 4 monthly salaries, was the amount that remained unpaid by the Respondent after the expiry of the contract. Furthermore, the first agreement clearly stipulated that “the agreement is cancelled” if the instalments are not paid on schedule (cf. point I.6. above). By means of the second agreement, the parties accepted to extend the deadline for the payment of the second instalment, without modifying any other provisions of the first agreement. 19. In continuation, the members of the Chamber pointed out that the Respondent confirmed to have failed to pay the second instalment of EUR 210,000 within the deadlines established in both agreements. 20. In view of the foregoing, the members of the Chamber concluded that, by signing the agreements, the Respondent agreed that its non-compliance with the payment schedule therein established would entail the cancellation of the settlement and the consequent reestablishment of the obligation to pay its entire original debt, i.e. EUR 560,000. 21. In this context, the DRC deemed it appropriate to emphasize that a party signing a document of legal importance as a general rule, does so on its own responsibility and is consequently liable to bear the possible legal consequences arising from the execution of such document. 22. In view of all the foregoing, and based on the legal principle of pacta sunt servanda, the members of the Chamber came to the conclusion that due to the Respondent’s undisputed non-compliance with the terms of the settlement agreement, the latter was to be considered as cancelled and the obligation to pay all recognisedly outstanding amounts after the expiry of the contract was re-established. 23. Thus, the DRC concluded that the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, it is to be held liable to pay the outstanding remuneration due to the latter in the total amount of EUR 420,000, which corresponds to the amount of EUR 560,000, recognized by the Respondent as the total outstanding debt towards the Claimant, minus EUR 140,000 paid on 15 January 2013. 24. In addition, considering the claim of the Claimant, the members of the Chamber established that an interest rate of 3% p.a. would apply over the aforementioned amount of EUR 420,000, as from 5 March 2013 until the date of effective payment. 25. Subsequently, the Chamber went on to analyse the Claimant’s second request for the payment of compensation for breach of contract in the amount of EUR 42,000 (cf. point I.11. above). In this respect, the members of the Chamber first deemed necessary to emphasise that, as pointed out by the Respondent (cf. point I.16. above), the contract was not prematurely terminated by any of the parties, but expired on its end date, i.e. on 31 December 2012. 26. Having established the foregoing, the Chamber subsequently deemed it appropriate to remind the parties of the terms of the art. 12.1 of the contract, according to which “the [club] shall compensate the [player] for the termination of the contract cause by the [club]’s violation of this contract.” Bearing in mind the aforementioned article and the fact that the contract was not terminated “by the [club]’s violation”, the DRC concluded that no compensation was due to the Claimant by the Respondent in this respect and that this part of his claim must be rejected. 27. The DRC concluded its deliberations by establishing that the Respondent must pay the Claimant the amount of EUR 420,000 plus 3% interest p.a. as from 5 March 2013 until the date of effective payment and, as a consequence, the Claimant’s claim is partially accepted. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 420,000 plus 3% interest p.a. as from 5 March 2013 until the date of effective payment. 4. Any further claims of the Claimant are rejected. 5. In the event that the amount due to the Claimant plus interest 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. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are 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: Marco Villiger Acting Deputy Secretary General Encl. CAS directives