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 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Mario Gallavotti (Italy), member Mohamed Al-Saikhan (Saudi Arabia), 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 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Mario Gallavotti (Italy), member Mohamed Al-Saikhan (Saudi Arabia), 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 Facts relating to the club’s affiliation: 1. On 2 and 21 August 2013, the Football Federation of country D informed FIFA that the club from country D, Club CP, had been disaffiliated from the Football Federation of country D due to a liquidation process and relegated to the amateur division. 2. After having been informed of this situation, the player from country B, Player A (hereinafter: the Claimant), on 17 June 2014, requested FIFA to continue with the proceedings based on the alleged re-affiliation of Club CP. In this regard, the Claimant maintained that, as Club CP won the C National Championship of the Football Federation of country D in the season 2013/2014, it was automatically promoted to the second division in compliance with the relevant regulations, hence becoming a professional club affiliated to the Football Federation of country D again. In support of his allegations, the Claimant provided a translated extract of the relevant regulations as well as a table where a club named “Club E” appeared in the first position of the C National Championship. 3. In this context, the Football Federation of country D informed FIFA again that Club CP “has been dissolved, has entered into liquidation process and, thus, does not participate in any competition organized under the auspices of the Football Federation of country D”. Additionally, it informed FIFA that the club Club C (hereinafter: the Respondent) is currently affiliated and participating in the Football League Championship, being a “totally different legal entity, not related to [Club CP]” with different registry numbers. 4. In this respect, the Claimant held that Club CP “only registered under new commercial company number but never stopped its activity as a football club”. According to the Claimant, Club CP “never ceased to exist, using many of its same players, maintain its colors and logo, playing at the same stadium […]”. Moreover, the Claimant maintained that on the website of the Respondent there are still references to the use of “’P’” in its historical name and logo. 5. Consequently, on 26 August 2015, the Claimant reiterated his claim as to the substance of the matter against the Respondent, considering that “a club cannot waive its obligations to his employees only by simply changing its number of registration”. 6. The Football Federation of country D, upon request of FIFA, stated that Club CP and the Respondent “operate parallel to and independently of each other, have different administrations, different tax registry numbers, different assets and liabilities and different rights and obligations”. 7. For its part, the Respondent provided its position to the matter at stake, highlighting that the “amateur sports association ‘Club C’, which is a separate and distinct legal entity from [Club CP], took part in the 2013-2014 edition of the ‘C’ national division amateur league […] and eventually managed to secure its promotion to the 2014-2015 edition of the Football League”. In this regard, the Respondent stated that it is a separate and different legal entity, not only from Club CP, but also from the aforementioned amateur sports association Club C. 8. Furthermore, the Respondent specified that no assets or rights were transferred from Club CP to the Respondent and that the latter is not involved in any of the liquidation proceedings related to Club CP. In this respect, the Respondent stressed that the debts against Club CP can still be requested within the context of the liquidation proceedings. 9. In addition, the Respondent acknowledged that the only entity that it succeeded in its rights and obligations was the amateur sports association Club C. Moreover, the Respondent pointed out that the players of the Respondent are different from the players that played with Club CP. In support of the previous statements, the Respondent provided extracts of the Official Government Gazette of Country D, establishing the registration of Club CP in March 2004, the declaration of its liquidation process and disaffiliation in May 2014 and the registration of the Respondent in August 2014. 10. In view of the above, the Respondent requested FIFA to dismiss the claim of the Claimant. Facts relating to the merits of the dispute: 11. On 5 July 2009, the Claimant and Club CP, signed an employment contract (hereinafter: the contract) valid as from 6 July 2009 until 30 June 2012. 12. Clause 3 of the contract established the following remuneration payable to the Claimant: - Season 2009-2010: EUR 215,000 net paid in “11” equal installments of EUR 21,500 net each on the 30th day of each month, the first installment due on 13 July 2009 and the last on 30 May 2010; - Season 2010-2011: EUR 245,000 net paid in “11” equal installments of EUR 24,500 net each on the 30th day of each month, the first installment due on 30 July 2010 and the last on 30 May 2011; - Season 2011-2012 EUR 245,000 net paid in “11” equal installments of EUR 24,500 net each on the 30th day of each month, the first installment due on 13 July 2011 and the last on 30 May 2012. 13. Clause 4 of the contract provides that all the payments mentioned in the contract are “net of any taxes and deductions of any nature”. 14. Clause 6 of the contract establishes the following: “If [Club CP] delays any of the payments indicated in this contract for more than 60 consecutive days, or for any amount of salary equal to 45 days […], the [Claimant] shall have the right and option to terminate the contract and [Club CP] will have to indemnify the [Claimant] with an amount of the whole salary of the current season plus the whole remaining salaries of the following season of this contract as an indemnity. In order to exercise this right and option, the [Claimant] shall first send a written notification to [Club CP] by fax or by hand, and if [Club CP] does not pay the due amount within 15 (fifteen) days after receiving the notification, the [Claimant] shall be free to terminate the contract with the indicated consequences for [Club CP]”. 15. Since, according to the Claimant, Club CP failed to pay the salaries on time, on 19 August 2010, both parties concluded a termination agreement, by means of which Club CP agreed to pay the total amount of EUR 156,570 net to the Claimant in the following way: - EUR 36,570 at the signing of the termination agreement; - EUR 30,000 on 30 October 2010; - EUR 30,000 on 31 March 2011; - EUR 30,000 on 31 July 2011; - EUR 30,000 on 30 October 2011. 16. Furthermore, the termination agreement established that if Club CP did not pay the above-mentioned amounts, “the [Claimant] would not agree in the solution common consent of his contract with [Club CP]”. 17. According to the Claimant, Club CP did not comply with its obligations set forth in the termination agreement by only paying EUR 25,000 of the installment due on 31 March 2011 and by failing to remit the installments that fell due on 31 July and 30 October 2011. In this regard, the Claimant explained that he could not cash the three bank cheques issued by Club CP and dated 31 March, 31 July and 30 October 2011, which were meant to cover the agreed payments. 18. The Claimant explained that he tried to solve the matter by telephone and he even sent an e-mail to Club CP requesting the outstanding amounts, however Club CP only made “oral promises” to him and did not comply with its obligations. In this regard, the Claimant indicated that, in view of the condition established in the termination agreement, he could not accept the mutual termination of the contract and therefore he had the right to request its full execution. 19. On account of the above, the Claimant, on 26 December 2012, lodged a claim against Club CP in front of FIFA for breach of the termination agreement and requesting compensation for the remaining value of the contract. In particular, the Claimant requested the following: - EUR 490,000 net as “loss of income” on the basis of clause 6 of the contract; - EUR 165,000 as punitive damages; - interests on all amounts “payable as the court may deem fit”; - confirmation of Club CP that all the paid amounts are net; - legal costs. 20. On 6 March 2013, Club CP replied to the claim stating that the contract had been mutually and “unconditionally” terminated by means of the termination agreement and therefore, the contract does not produce any effects since 19 August 2010. In view of the foregoing, Club CP deemed that the request of the Claimant in the amount of EUR 490,000 should be rejected. 21. Moreover, Club CP acknowledged that the last two cheques in possession of the Claimant could not be paid because of insufficient funds of Club CP. In this respect, Club CP admitted owing the Claimant the last two installments of EUR 30,000 each as well as EUR 5,000 of the installment due on 31 March 2011 and, therefore, indicated that the outstanding amount owed to the Claimant is EUR 65,000. 22. Additionally, Club CP offered to pay the amount of EUR 65,000 to the Claimant by bank transfer at the time the latter returned the three cheques that were still in his possession. 23. The Claimant, in his replica, repeated his previous arguments and in particular reiterated that the condition of the termination agreement, i.e. “without the payment of the above-mentioned sums the [Claimant] would not agree in the solution common consent of his contract with [Club CP]”, meant that only the complete fulfillment of such agreement would bring the contract to a mutual termination. Based on such statement, the Claimant repeated his request of being awarded the total salaries established in the contract for the seasons 2010-2011 and 2011-2012 plus punitive damages as compensation for breach of the termination agreement. 24. Furthermore, the Claimant enclosed a declaration by means of which he undertakes to return the three cheques in his possession, upon payment by Club CP of their full value. 25. Despite having been invited by FIFA to provide its final position on 2 April 2013, Club CP did not reply or make any further statements. 26. For its part, the Respondent, having been invited by FIFA to provide its position as to the substance of the matter, merely stressed that the claim of the Claimant is time barred as the termination agreement was signed on 19 August 2010 and the Claimant lodged his claim on 26 December 2012. 27. Upon FIFA’s request, the Claimant confirmed that he signed a new employment contract with the club from country B, Club F, valid as from 1 July 2010 until 30 May 2012. According to a written confirmation of Club F, the Claimant’s monthly salary was 30,000 net. 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 26 December 2012. 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 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 shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. In continuation, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 26 December 2012. Therefore, the DRC concluded that the 2012 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. 4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started by acknowledging the abovementioned facts of the matter 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. 5. In this respect, the DRC acknowledged that according to the information received from the Football Federation of country D on 2 and 21 August 2013, the professional club, Club CP, is no longer affiliated to the Football Federation of country D due to its relegation to the amateur division. In addition, the Football Federation of country D clarified that, as a result of its relegation and consequent dissolution, Club CP “does not participate in any competition organized under the auspices of the Football Federation of country D”. 6. The Chamber further noted that the Claimant, for his part, rejected such position and insisted that Club CP was re-affiliated to the Football Federation of country D under a new name and a new tax registry number but maintaining its activity as a football club with the same colours, logo and players as Club CP. Consequently, the Claimant reiterated its claim against the Respondent under the consideration that the Respondent is the same entity as Club CP, i.e. its legal and sporting successor. 7. In this context, the members of the Chamber further took note of the additional information provided by the Football Federation of country D, which maintained that Club CP and the Respondent are independent of each other, have a different management, different tax registry numbers as well as different assets and liabilities. 8. Moreover, the DRC acknowledged the position of the Respondent, which confirmed the information provided by the Football Federation of country D and added that no rights or obligations were transferred from Club CP to the Respondent as well as that it is not involved in any of the liquidation proceedings which Club CP is going through. 9. In view of the foregoing considerations, the Chamber went on to analyse the nature of the alleged relationship between Club CP and the Respondent. In doing so, the DRC first outlined that the Claimant considers that, due to the fact that a club named “Club E” won the C National Championship in the season 2013/2014, such club, allegedly the same as Club CP, was promoted to the second division and, thus, automatically re-affiliated to the Football Federation of country D. 10. In continuation, the Chamber referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the members of the Chamber to conclude that it was for the Claimant to prove that the Respondent is, indeed, the same club as Club CP. Having stated the above, the DRC emphasised that the Claimant did not submit sufficient proof to establish, without a doubt, that Club CP is one and the same club as the Respondent. 11. At this stage, the Chamber turned its attention to the information provided by the Football Federation of country D, which indicated that Club CP had been disaffiliated and “dissolved” and that it does not participate in any competition organized under the auspices of the Football Federation of country D. In this regard, the members of the Chamber concluded that the information provided by the Football Federation of country D in connection with the status of Club CP and the Respondent is reliable and that, in absence of convincing evidence provided by the Claimant stating the contrary, they had no reason to doubt the accuracy of the respective statements made by the Football Federation of country D. Indeed, as confirmed by the Football Federation of country D, Club CP and the Respondent have different administrative and tax registry numbers and can, therefore, under the given circumstances and based on the documentation on file, not be considered as one and the same legal entity. 12. On account of the above, the Chamber confirmed that Club CP, i.e. the club with which the Claimant had signed the contract at the basis of the present dispute, is no longer affiliated to the Football Federation of country D. 13. As a consequence, since the Claimant had not been able to prove that a relationship existed between Club CP and the Respondent i.e. that the Respondent is the legal and sporting successor of Club CP and that, therefore, the Respondent should be liable for the payment of amounts derived from the contractual relationship between the Claimant and Club CP, the Chamber was of the unanimous opinion that the position of the Claimant could not be upheld. 14. All the above led the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Player A, is rejected. ***** 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