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 15 October 2015, in the following composition: Geoff Thompson (England), Chairman Taku Nomiya (Japan), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), member Joaquim Evangelista (Portugal), 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 15 October 2015, in the following composition: Geoff Thompson (England), Chairman Taku Nomiya (Japan), member Theodore Giannikos (Greece), member Eirik Monsen (Norway), member Joaquim Evangelista (Portugal), 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 June 2011, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as of 1 July 2011 until 30 June 2015. 2. Pursuant to art. 1.1 of the contract, “[t]he Club shall employ the Football player as a Sportsman-Instructor (Professional Football Player) of the structural division Football team ‘Club C’”. 3. On an unspecified date, the Claimant and the Respondent concluded a document called “Wage conditions of the Football Player” (hereinafter: the annex) according to which the Claimant was entitled to the following remuneration: - From 1 July 2011 until 30 June 2012: a monthly salary of EUR 124,500; - On 31 July 2011: EUR 1,840,000; - From 1 July 2012 until 30 June 2013: a monthly salary of EUR 143,700; - From 1 July 2013 until 30 June 2014: a monthly salary of EUR 153,250; - From 1 July 2014 until 30 June 2015: a monthly salary of EUR 162,800. 4. In addition, art. 1.12 of the annex stipulates that “[a]ll payments, indicated in the Contract its Annexes, are performed in Currency of Country D. In that case, if the due sums are indicated in the foreign currency, the payment is performed in Currency of Country D as follows: • during the year 2011 – at the rate of 40 Currency of Country D per 1 Euro • during each following year – at the rate of the Central Bank of Country D on the 31st of December of the previous year”. 5. On 10 March 2015, the Claimant’s agent requested the Respondent to apply the exchange rate published by the Central Bank of Country D on 31 December 2014, i.e. 68.3427 per EUR 1, while paying his salary. 6. On 13 March 2015, the Respondent informed the Claimant that due to economic crisis in Country D and the increase of the exchange rate of the Currency of Country D, the Football Premier League of Country D issued a Memorandum on 24 December 2014 providing that until 30 June 2015, the exchange rate applicable to employment contracts concluded with clubs participating in the league will be limited to 55 per EUR 1. 7. On 29 April 2015, the Claimant’s legal representative contacted the Respondent requesting the payment of 13,341,720 within eight days. In particular, the Claimant reproached the Respondent for having paid him, since January 2015, 6,499,856 instead of the amount of 9,810,286 that should have been paid according to the exchange rate in force on 31 December 2014, i.e. 68.342 per EUR 1. In addition, the Claimant pointed out that the Respondent excluded him from the professional team and requested 100,000 as compensation in this regard. 8. On 12 May 2015, the Respondent replied to the Claimant’s default notice outlining that according to art. 1.1 of the contract, it is entitled to transfer the Claimant to other club’s teams and that the Claimant was provided with professional training conditions. In continuation, the Respondent reiterated that it was paying the Claimant’s salary in accordance with the limitations imposed by the Football Premier League of Country D. 9. On 18 May 2015, the Claimant wrote back to the Respondent acknowledging that in certain circumstances, a player could be relegated to a second training group provided that it is temporary and based on objective sporting reasons. In this respect, the Claimant outlined that he had been side-lined as from January 2015 due to the failure of his transfer to a Club of Country E for reasons independent of his will and, thus, concluded that the side-lining was illegal. Moreover, the Claimant emphasised that the Respondent was not allowed to unilaterally modify the remuneration agreed and therefore claimed the following: - 13,241,720 as outstanding remuneration corresponding to the difference between the salaries that should have been paid and the salaries actually paid; - his salaries for May and June 2015 to be paid at the exchange rate 68.342; - to be provided with his salary sheets. 10. On 26 May 2015, the Respondent sent a new correspondence to the Claimant reiterating its previous considerations and outlining that the Claimant agreed with the proposed exchange rate through his agent. Furthermore, the Respondent proposed to mutually terminate the contract in exchange for the payment of the salary for June 2015 at the rate applicable on the day of payment. 11. Between 27 May 2015 and 1 June 2015, the Claimant and the Respondent exchanged several correspondence by means of which they reiterated their respective positions. In particular, the Respondent stressed that on 16 March 2015, the Claimant’s agent and its Head of Legal agreed on the exchange rate of 55.68 per EUR 1 and explained that the Civil Code of Country D entitles it to amend the contract in case of essential change of circumstances. 12. On 5 June 2015, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the following: - EUR 50,000 as moral damage; - EUR 50,000 as sporting damage; - EUR 283,913.38 as outstanding remuneration for the period running from 1 January 2015 until 31 May 2015; - EUR 10,000 as attorney fees; - EUR 1,000 as translation fees; - EUR 50,000 as damage caused by the Respondent’s refusal to provide him with salary sheets; - 5% interest p.a. on the aforementioned amounts in case they are not paid within 30 days of notification of the decision; - To order the Respondent to provide him with salary sheets, along with a penalty of EUR 50 per day of delay as from the date of notification of the decision. - Sporting sanction to be imposed on the Respondent. 13. In his claim, the Claimant repeats his previous considerations regarding the sidelining. 14. In continuation, the Claimant refers to art. 1.12 of the annex and therefore asserts that considering the exchange rate applicable, i.e. 68.342 per EUR 1, his monthly salary amounts to 9,810,286. However, the Claimant alleges that the Respondent has only paid him a monthly salary of 6,499,856 since January 2015. Consequently, the Claimant concludes that the Respondent failed to pay him 16,552,150, i.e. EUR 283,913.38. In this respect, the Claimant reserves his right to claim an additional amount of 3,310,430, i.e. EUR 56,782.86, in case the Respondent also paid 6,499,856 as salary for June 2015. 15. In its reply to the Claimant’s claim, the Respondent first points out that since the beginning of the contract, the Claimant has received “7 754 385 385,28 Euro (!) And 16 099 412 (!) as premiums and as a compensation for an apartment”. 16. Furthermore, the Respondent explains that as of July 2014, the Claimant was sent to the B-team due to the “tough competition in the A-team, strict quota rules against foreign players, and the limitation on the number of players that the Club may include in the A-list”. In this respect, the Respondent insists that the Claimant benefited from professional training conditions and outlines that in accordance with art. 1.1 of the contract, it is entitled to employ the Claimant in the way it considers appropriate considering the needs and the bests interests of the Respondent. In this regard, the Respondent emphasises that the Claimant never complained about it. The Respondent further adds that it found two clubs interested in the Claimant’s services, but the latter refused the offers. 17. In continuation, the Respondent explains that in October 2014, Country D went through a financial crisis resulting from the collapse of the Currency of Country D. The Respondent asserts that the collapse of the Currency of Country D has to be considered as a significant change of circumstances which, in accordance with the jurisprudence of the Swiss Federal Tribunal, released it from the obligation set out in art. 1.12 of the annex regarding the exchange rate applicable. Moreover, the Respondent alleges that due to above-described situation, and to protect the Clubs of Country D and their players from the consequences of bankruptcy, the Football Premier League of Country D issued a Memorandum on 24 December 2014 by means of which it established a “single corporate exchange rate” of 55 per EUR 1. The Respondent further stresses that the exchange rate was mandatory and that in case it did not comply with it, it could have faced sanctions up to the exclusion from the league. In support of its assertion, the Respondent presented a declaration made by its legal counsel stating that according to the Football Premier League of Country D Charter, a member of the Football Premier League of Country D can be excluded in case of breach of the Football Premier League of Country D Charter or other Football Premier League of Country D’s documents. In view of the above, the Respondent sustains that it held negotiations with its players in order to adapt the exchange rate applicable to their contract. In this respect, the Respondent explains that the agreed rates varied from 44 to 60.5852. In particular, the Respondent insists on its good faith, pointing out that it offered the Claimant “a fair rate of 55.68 per Euro”, which was refused by the latter and then proposed him to terminate the contract prior to its expiry in exchange for the payment of his salary for June 2015, which was also rejected. In addition, the Respondent underlines that if the payment was made at the rate of 68.342 per EUR 1, the Claimant would have unduly enriched himself. Considering the above, the Respondent considers that the Claimant acted in bad faith and violated art. 2 of the Swiss Civil Code. 18. Moreover, the Respondent maintains that, in accordance with the exchange rate claimed by the Claimant, 16,552,150 is equivalent to EUR 242,193.39 and not to EUR 283,913.38. 19. In addition, the Respondent alleges that pursuant to its regulations on salary payment, the salary sheets are delivered to the employee upon his request. 20. Finally, the Respondent affirms that the Claimant did not prove that he incurred legal expenses and outlines that sporting sanctions can only be imposed in the framework of art. 17 of the Regulations on the Status and Transfer of Players, i.e. in case of breach of contract leading to the termination of the contract, quod non. 21. In his replica, the Claimant first points out that the parties freely agreed that the his salary would depend on the exchange rate of the Central Bank of Country D on 31 December of the previous year. Therefore, and in accordance with the principle of the autonomy of the parties, the Claimant sustains that any modification of his salary required his consent. 22. Furthermore, the Claimant alleges that the theory of unforeseeability is only admitted in administrative law and not in private law, which is governed by the principle of the intangibility of the contract. Equally, the Claimant outlines that the parties did not include in the contract a revision clause by means of which they would have agreed to renegotiate the terms of the contract in case of substantial change of circumstances. 23. In continuation, the Claimant argues that the Memorandum issued by the Football Premier League of Country D is not opposable to him. 24. Nevertheless, the Claimant acknowledged a mistake in the conversion into euro of the amount claimed as outstanding remuneration and amended his claim in this respect, requesting the amount of EUR 290,632 as outstanding remuneration for the period running from January until June 2015. 25. In addition, the Claimant reiterates that his side-lining, apart from causing him a moral damage, also had consequences on his skills and thus on his future career. In this respect, the Claimant considers that the DRC is competent to award compensation for such damages. 26. As regards the salary sheets, the Claimant argues that he did not request them to the Respondent due to the fact that, until July 2014, the Respondent provided him with them spontaneously. 27. Finally, the Claimant maintains that the DRC is competent to impose sporting sanctions on the Respondent in virtue of art. 17 par. 4 of the Regulations on the Status and Transfer of Player. 28. In its final comments, the Respondent first emphasises that the Claimant’s argumentation does not rest upon a specific legislation. 29. The Respondent further outlines that the theory of unforeseeability is enshrined in art. 451 par. 1 of the Civil Code of Country D. 30. In addition, the Respondent asserts that the Claimant did not prove having suffered a damage due to the non-delivery of salary sheets. Equally, the Respondent maintains that the Claimant did not present any evidence regarding the extent of his professional and moral damages. 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 5 June 2015. Consequently, the 2015 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 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. 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 (edition 2015), and considering that the present claim was lodged in front of FIFA on 5 June 2015, the 2015 edition of said Regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. Subsequently, the DRC wished to point out that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard the Chamber emphasised that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. 5. 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. 6. In this respect, the members of the Chamber acknowledged that the parties had signed an employment contract on 21 June 2011 as well as an annex, according to which the Claimant was entitled to a monthly salary of EUR 162,800 for the 2014-15 season. The Chamber further noted that pursuant to art. 1.12 of the annex, “[a]ll payments, indicated in the Contract its Annexes, are performed in Currency of Country D. In that case, if the due sums are indicated in the foreign currency, the payment is performed in Currency of Country D as follows: during the year 2011 – at the rate of 40 Currency of Country D per 1 Euro during each following year – at the rate of the Central Bank of Country D on the 31st of December of the previous year”. 7. Furthermore, the members of the Chamber took note that it remained uncontested that the exchange rate published by the Central Bank of Country D on 31 December 2014 amounted to 68.342 per EUR 1. Equally, the Chamber noted that the Respondent does not challenge the fact that between January and June 2015, it paid the Claimant a monthly salary of 6,499,856, de facto applying an exchange rate of 39.925 per 1 EUR. 8. In continuation, the DRC observed that the Claimant alleges that the Respondent had failed to pay him outstanding remuneration in the amount of EUR 290,632 as of January 2015. In particular, the Chamber noted that the Claimant argues that the Respondent did not apply the exchange rate agreed in the contract for the months of January to June 2015, i.e. the exchange rate published by the Central Bank of Country D on 31 December 2014, paying him a monthly salary of 6,499,856 instead of 9,810,286. Equally, the Dispute Resolution Chamber took note of the reply of the Respondent, which asserts that it applied the cap rate established in the Memorandum of the Football Premier League of Country D issued on 24 December 2014. In this regard, the DRC noticed that the Respondent insists on the mandatory nature of the Memorandum, emphasising that the non-compliance with the latter could have resulted in sanctions as, inter alia, its exclusion from the league. 9. At this stage, the members of the Chamber focused their attention on the alleged obligation for the Respondent to comply with the cap rate imposed by the Football Premier League of Country D by means of the Memorandum. In this respect, the Chamber first observed that according to the relevant Memorandum, the cap rate, for players whose salary was stipulated in euros, was established at 55 per EUR 1. Nevertheless, the DRC pointed out that according to its declarations, the Respondent offered the Claimant “a fair rate of 55.68 per Euro”, i.e. a higher rate than the alleged mandatory cap rate established by the Football Premier League of Country D, in an attempt to settle the matter at stake. In the same vein, the Chamber highlighted that the Respondent submitted further documentation showing that a rate of 60.5852 per EUR 1 was applied to several players of the team. The Chamber, while making reference to the principle “venire contra factum proprium non valet”, outlined that the Respondent would not have agreed to pay an exchange rate higher than the one established in the Memorandum if it had considered that said exchange rate was of mandatory nature. The aforementioned elements led the Chamber to conclude that the relevant Memorandum did not impose any obligation on the clubs participating in the Football Premier League of Country D but rather constituted a recommendation to the clubs. 10. In continuation, and for the sake of completeness, 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. 11. According to this, the Dispute Resolution Chamber noted that the Respondent, in order to substantiate its allegation as to the mandatory nature of the relevant Memorandum, did not submit any Football Premier League of Country D Regulations but merely a statement made by a member of its own administration regarding the alleged sanctions in case of failure to comply with the Football Premier League of Country D Regulations. Therefore, and after outlining that the fact that the statement was made by a member of the Respondent administration put in doubt the reliability of its statement, concluded that the Respondent did not satisfactorily carry the burden of proof regarding the possible sanctions that it was facing. 12. In view of the above, the Chamber decided to reject the Respondent’s argument as to its obligation to comply with the Memorandum and therefore, held that the latter had to pay the Claimant’s salary in accordance with the contract and the annex, i.e. applying the exchange rate of 68.342 per EUR 1, as published by the Central Bank of Country D on 31 December 2014. 13. Bearing in mind the foregoing, and in particular the fact that the Respondent applied an exchange rate of 39.925 per EUR 1, the Chamber established that the Respondent did not comply in full with its financial obligations. Consequently, and taking into consideration the Claimant’s claim as well as the exchange rate applicable on 31 December 2014, the DRC established that the Claimant is entitled to receive the amount of 19,862,372 as outstanding remuneration. 14. As a consequence, and in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay outstanding remuneration in the amount of 19,862,372 to the Claimant. In this regard, the Chamber was eager to emphasise that, in accordance with its well-established jurisprudence in this respect, it cannot grant any outstanding amounts in EUR, as the parties had agreed upon payment of the Claimant’s remuneration in Currency of Country D. 15. Subsequently, the DRC analysed the request of the Claimant corresponding to compensation for moral and sporting damages in the amount of EUR 100,000. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 16. Moreover, the Chamber rejected the Claimant’s claim related to his attorney fees in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 17. 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 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 the amount of 19,862,372. 3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its 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 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: Markus Kattner Acting Secretary General Encl. CAS directives