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 25 September 2015, in the following composition: Geoff Thompson (Engand), Chairman Carlos González Puche (Colombia), member Theo van Seggelen (Netherlands), member Guillermo Saltos Guale (Ecuador), member Alejandro Marón (Argentina), 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.

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 25 September 2015, in the following composition: Geoff Thompson (Engand), Chairman Carlos González Puche (Colombia), member Theo van Seggelen (Netherlands), member Guillermo Saltos Guale (Ecuador), member Alejandro Marón (Argentina), 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 14 May 2013, the player from country B, Player A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed a pre-contract valid for 48 hours and subject to a medical test. 2. According to the pre-contract, the Respondent undertook to pay inter alia an annual salary of USD 1,750,000 to the player, broken-down as follows: USD 600,000 “on signing”; USD 150,000 due on 1 February 2014; the rest to be paid over ten months. 3. On 1 July 2013, the parties concluded an employment contract (hereinafter: the contract), valid as of the date of signature until 30 June 2014. 4. Article 19 lit. a) and d) of the contract provided for a net fixed-remuneration in the amount of EUR 1,750,000, payable as follows: USD 1,000,000 as annual salary payable in ten monthly instalments of USD 100,000 each, due at the end of each month; USD 600,000 as lump-sum payment due on 20 August 2013; USD 150,000 as lump-sum payment due on 1 February 2014. Article 19 lit. d) in fine of the contract also stated that the Claimant was entitled to “other allowances and compensation” and that, in this regard, “ [the Respondent] regulations on winning competitions shall apply”. 5. Pursuant to article 26 of the contract, “There are additional conditions attached to this contract”. 6. On 11 November 2013, the Claimant put the Respondent in default, via the Football Federation of country D, asking the latter association to urge its member club to proceed to the payment of “the total amount due as contracted by sign-fee, salaries and commission, before the opening of the new transfer window”. 7. On 26 February 2014, the Claimant sent a second default notice to the Respondent as to the non-payment of the lump-sum payments plus fines amounting to USD 1,000,000, granting the Respondent a deadline of 48 hours to proceed to the payment. 8. On 24 September 2014, the Claimant lodged a complaint before FIFA against the Respondent, requesting the outstanding amount of USD 1,400,000, plus 5% interest p.a., broken-down as follows: USD 775,000 as balance of lump-sum payment due on 20 August 2013 plus fine; USD 225,000 as lump-sum payment due on 1 February 2014 plus fine; USD 400,000 corresponding to four-monthly salary; The Claimant further requested the legal costs to be borne by the Respondent. 9. The Claimant first of all sustained that, on 1 July 2013, the parties signed an annex to the contract, which provided for the following fines, payable by the Respondent: USD 300,000 for failing to pay the lump-sum payment due on 20 August 2013; USD 75,000 for failing to pay the lump-sum payment due on 1 February 2014. The said annex also foresaw that “[The Claimant] has a right not to take a part in any official match if [the Respondent] fails with payments in player contract (…)”. 10. According to the Claimant, the annex to the contract was signed by both parties due to the Respondent’s initial failure to pay the amount of USD 600,000 “on signing” as foreseen in the pre-contract. The Claimant further alleged that the Respondent never paid his remuneration on the due dates and held having asked several times before urging the Respondent in writing (cf. points 6 and 7 above). 11. As regards the claimed amount of USD 775,000, the Claimant acknowledged that, on 28 August 2013, the Respondent paid the amount of USD 125,000 (cf. correspondence dated 26 February 2014; point 7 above). In this context, the Claimant deducted said amount to the outstanding lump-sum payment of USD 600,000 due on 20 August 2013 plus fine of USD 300,000. 12. In its statement of defence, the Respondent first of all contested the Claimant’s claim for outstanding remuneration. In particular, the Respondent stated that, since the Claimant did not have a bank account from country D at the beginning of the contractual relationship, it paid the following amounts in cash on 28 August 2013 and provided the payment receipts signed by the player, indicating the following: USD 125,000 as part of the lump-sum payment of USD 600,000; USD 100,000, equivalent to 377,000, as salary for July 2013. 13. Furthermore, the Respondent sustained that, when the Claimant’s bank account from country D was opened, it proceeded to the following alleged payments to the Claimant: 375,420, equivalent to USD 100,000, on 10 December 2013 corresponding to the Claimant’s salary for August 2013; 750,000, equivalent to USD 200,000, on 22 December corresponding to the Claimant’s salary for September and October 2013; 375,000, equivalent to USD 100,000, on 23 January 2014 corresponding to the Claimant’s salary for November 2013; 375,000, equivalent to USD 100,000, on 23 March 2014 corresponding to the Claimant’s salary for December 2013; 751,200, equivalent to USD 200,000, on 3 April 2014 corresponding to the Claimant’s salary for January and February 2014. 14. The Respondent also provided an account statement from the Respondent’s accountancy, in order to corroborate the aforementioned alleged payments on the player’s bank account. The relevant account statement indicated the amount of 3,003,620 as payments made to the Claimant up to 9 October 2014. 15. Therefore, the Respondent alleged that only the Claimant’s salary for March and April 2014, as well as the lump-sum payments of USD 600,000 and USD 150,000 remained unpaid to date. 16. Having said this, the Respondent further referred to a fine in the amount of USD 50,000 imposed as a disciplinary sanction by the Respondent on the Claimant subsequently to the match against the club from country D, Club E, which took place on 25 November 2013. The Respondent explained that, the day prior to the said match, the Claimant left the training camp without permission and refused to take part in the match the following day. 17. As a result, on 27 November 2013, the Respondent notified the Claimant of the deduction of 50% upon his salary for November 2013, in accordance with art. 1.7 of the Internal Rules on Violations and Sanctions for the First Team (hereinafter: the club’s Internal Rules) and art. 49 par. 1 of the General Provisions of the Status and Regulations on Professional Players in the country D (hereinafter: the Regulations of the Football Federation of country D). In this respect, the Respondent provided the minutes of the meeting and notification letter to the Claimant. The Respondent further highlighted that the aforementioned fine was not exceeding 50% of the Claimant’s salary, in accordance with said art. 49 of the Regulations of the Football Federation of country D. In this regard, the Respondent provided a copy in the language of country D of the 2011- 2012 edition of the Respondent’s Internal Rules and alleged that said Internal Rules were attached to the contract and therefore, the Claimant was aware of them as well as a translation into English of art. 1.7 of the club’s Internal Rules and art. 49 of the Regulations of the Football Federation of country D. 18. On 28 November 2013, the Respondent notified the Football Federation of country D of the aforementioned sanction and provided the said notification letter to the Football Federation of country D. The Football Federation of country D also confirmed the aforementioned on 12 October 2014 by means of a letter to FIFA. 19. Subsequently, the Respondent alleged that the Claimant never complained directly to the Respondent about a delay in the payment of his remuneration until reception of the default notice dated 11 November 2013. In this regard, the Respondent asserted having received said notice only on 13 November 2013 via the Football Federation of country D and submitted in this regard the relevant fax report dated 13 November 2013. 20. The Respondent further argued that it never received the default notice dated 26 February 2014 and that, in any event, the said default notice did not bear any signature, date or transmission proof. Moreover, the Respondent stressed that the said document was sent by e-mail to persons who were not entitled to receive official communications of the club, i.e. Mr F who was the English translator of the youth teams of the club. In order to corroborate the relevant allegation, the Respondent provided the employment contract of said translator, along with a written statement from the president of the Respondent regarding the position of said translator; and Mr G, the alleged agent of the player. Therefore, the Respondent deemed that the notice dated 26 February 2014 was null and void and should be rejected by the Dispute Resolution Chamber (DRC). 21. The Respondent also pointed to the lack of written evidence regarding the Claimant’s attempts to oppose the delay of payment to the Respondent. The Respondent insisted on the Claimant’s responsibility to warn in writing the Respondent for outstanding amounts, otherwise he could be deemed to have accepted the late payments. 22. As to the annex to the contract, the Respondent stated that it had never been aware of such document when it signed the contract. Moreover, the Respondent argued that the signature of the president of the Respondent on said document was forged and that the document in question did not bear the stamp of the Football Federation of country D as did the contract and which was a requirement according to art. 15.1 of the Regulations of the Football Federation of country D on Professional Players’ Status and Transfer. In any event, the Respondent considered that it would have never agreed upon a penalty of 50% for the non-payment of the lump-sum payments since, according to the Respondent, it represented an infringement of the legal principle of proportionality. 23. In view of the foregoing, the Respondent deemed owing the Claimant the total amount of USD 775,000, corresponding to: USD 475,000 as balance of lump-sum payment due on 20 August 2013, i.e. USD 600,000 minus USD 125,000 paid on 28 August 2013; USD 150,000 as lump-sum payment due on 1 February 2014; USD 150,000 as balance of salary for March and April 2014, i.e. USD 200,000 minus USD 50,000 as fine imposed on the Claimant. In addition, the Respondent considered that, in accordance with Swiss law, an interest of 5% p.a. shall apply on said amount, “from 30 days as from the date of notification of the DRC decision of the case at stake”. 24. In his replica, the Claimant disputed the Respondent’s allegations and evidence regarding the alleged payments of his salary and also the absence of complete translation of the documentation provided by the Respondent. In particular, the Claimant held that the Respondent used two receipts of payment with the same reference number, date and amount for the months of September and October 2013. Therefore, the Claimant considered that one more month of salary should be added in the calculation of the outstanding salaries. 25. As per the fine of USD 50,000 imposed on the Claimant’s salary for November 2013, the Claimant referred to the annex to the contract which foresaw that in case of failure of payment by the Respondent, he was entitled to refuse to play. The Claimant also recalled that any sanction should be immediate and not serve to set off future outstanding amounts. In this regard, and referring to the documentation provided by the Respondent, the Claimant stressed that his salary for November 2013 was paid without any deduction of the fine imposed on him on 27 November 2013. As a result, the Claimant considered that the fine should not be applicable. 26. Furthermore, in order to evidence the validity of the annex to the contract, which was disputed by the Respondent, the player provided: the stamped exemplary of the annex by the Football Federation of country D; the statement of the lawyer of the player from country B, Mr H, who allegedly signed his contract the same day as the Claimant. The said lawyer reiterated the Claimant’s allegations according to which the Respondent was behind the idea of such annex as a warranty for the future payments, since it had already not paid the sign-on fee to both players. The Claimant also referred to art. 26 of the contract in order to evidence that when signing the contract, the annex was attached to it. 27. Upon FIFA’s request to provide the original of the annex to the contract, the Claimant asserted that he expected to receive it from the Respondent – since all documents are allegedly usually exchanged “on line” – which apparently never happened. Instead, the Claimant provided another copy of said annex. 28. Subsequently, the Claimant stressed that the default notice dated 26 February 2014 was sent to one of the Respondent’s legal representatives, including Mr G (cf. point I.20. above). In this regard, the Claimant provided the mandate given by the Respondent to Mr G on 20 March 2012 in order to “initiate negotiations involving top players and coaches for a possible move to” the Respondent. The Claimant also referred to a letter dated 22 June 2014 from Mr G to the Claimant’s agent, by means of which Mr G stated that he was instructed by the Respondent in order to “solve the matter of the outstanding payments (…) for the season 2013-2014, and to submit an offer to extend the contract for another season (2014-2015)”. The Claimant further provided exchanges of e-mails between both Mr G and the Claimant’s agent on 26 and 29 June 2014, by means of which Mr G made a last offer with the following conditions: USD 1,400,000 as outstanding amounts for the season 2013-2014, i.e. USD 700,000 net payable upon signature and before departing to city I plus USD 700,000 net due on 1 September 2014; USD 1,900,000 for the season 2014-2015. 29. Finally, the Claimant additionally requested the DRC to apply art. 12 bis of the FIFA Regulations of the Status and Transfer of the Players (hereinafter: the FIFA Regulations) to the case at hand, as well as the payment of outstanding bonuses “by matches, Cup and Championship won” which the Respondent apparently failed to evidence the payment. 30. In its duplica, the Respondent reiterated its position as per the total outstanding amount of USD 775,000 due to the Claimant, emphasising on the proof of payment itself and not the possible mistake made in the translation of the document. In this regard, the club provided the payment receipts in English language but with letterheads in the language of country D. The Respondent also stressed that the Claimant was not entitled to twelve but ten monthly salaries, as per art. 19 of the contract. 31. In addition, the Respondent maintained that the Claimant failed to lodge an appeal against the fine of USD 50,000, within the time limit of one week from the date of receipt of the notification letter dated 27 November 2013, as set forth in the Football Federation of country D. In this regard, the Respondent deemed that Swiss law is not applicable and that the law of the parties, i.e. the Regulations of the Football Federation of country D, which implied that the fine was final and binding, was applicable. 32. With regard to the annex to the contract, the Respondent upheld its position as per the forgery, despite the stamped copy of the annex by the Regulations of the Football Federation of country D provided by the Claimant. The Respondent also asserted that there was no rule which allowed a player to refrain from practicing his duty, above all 24 hours prior to an important match, without any further notice to the Respondent. In this regard, the Respondent disputed the lack of evidence by the Claimant indicating that the latter duly notified the Respondent in a reasonable manner that he would not play the relevant match. 33. The Respondent further disputed the validity of the mandate allegedly given by it to Mr G, alleging that said document was also forged and therefore, it had no legal effect in front of the DRC. The Respondent pointed out that, in any event, the mandate was only limited to serve in the starting of the negotiations for a possible move of any player to the club, and not to be used as mandatory power of representation from the Respondent to Mr G for other unauthorised tasks at a later stage, without an additional consent from the Respondent. 34. Finally, as regards the additional requests of the Claimant in his replica (cf. point I.29. above), the Respondent dismissed them all for lack of evidence and details regarding the request for outstanding bonuses and for lack of legal basis as to the request to apply art. 12 bis of the FIFA Regulations. II. Considerations of the Dispute Resolution Chamber 1. First of all, 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, it took note that the present matter was submitted to FIFA on 24 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) is 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 between a player from country B and a club from 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 24 September 2014, the 2014 edition of said Regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the Chamber entered the substance of the present 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 Chamber acknowledged that, on 1 July 2013, the parties concluded an employment contract which was to run until 30 June 2014, and according to which the Claimant was to receive an annual salary amounting to USD 1,000,000 payable in ten monthly instalments of USD 100,000 each at the end of each month, as well as USD 600,000 due on 20 August 2013 and USD 150,000 due on 1 February 2014. 6. The Chamber further observed that the Claimant lodged a claim before FIFA, after having put the Respondent in default on two previous occasions, seeking payment of the amount of USD 1,400,000, plus interest, corresponding to his alleged outstanding fixed-remuneration, bonuses and fines. On the other hand, the DRC duly noted that the Respondent acknowledged that it owed the Claimant outstanding payments but held that its debt towards him amounted to USD 775,000 instead, after deduction of the fine in the amount of USD 50,000 allegedly imposed on the Claimant as disciplinary sanction on 27 November 2013. 7. In this respect, and bearing in mind the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber first of all concurred that the said fine of USD 50,000 imposed on the Claimant shall be disregarded, since the Respondent did not provide any conclusive evidence that the Claimant did take part in the disciplinary procedure conducted by the Respondent and that, thus, his right to be heard was respected. 8. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent’s argument in this connection. 9. In continuation, the DRC took due note that the Respondent acknowledged that it failed to pay the Claimant’s monthly salary in the total amount of USD 200,000, corresponding to two monthly salaries, while the Claimant alleged that the Respondent owed him four monthly salaries amounting to USD 400,000. In this respect, the Chamber referred to art. 19 of the contract which provided for an annual salary amounting to USD 1,000,000 payable in ten monthly instalments of USD 100,000 each. The DRC also pointed to the documentation provided by the Respondent in order to corroborate its payments (cf. point I.12 and 13 above) and, in the absence of arguments and evidence in the contrary from the Claimant, the DRC concluded that solely the Claimant’s salary for March and April 2014 remained unpaid by the Respondent. 10. As to the Claimant’s claim regarding the lump-sum payments due on 20 August 2013 and 1 February 2014 respectively, the DRC emphasised that the Respondent acknowledged having failed to pay the relevant amount as per the contractual schedule. The DRC further pointed to the payment of the amount of USD 125,000 on 28 August 2013 by the Respondent, which was confirmed by the Claimant. In view of the aforementioned, the Chamber concluded that the Respondent failed to pay the lump-sums in the total amount of USD 625,000 corresponding to USD 475,000 as balance of the lump-sum payment due on 20 August 2013 and USD 150,000 as the lump-sum payment due on 1 February 2014. 11. At this stage, the Chamber reverted to the player’s claims related to the annex, which contained various fines in case the Respondent failed to timely execute the relevant lump-payments under the contract, and observed that the Respondent disputed the authenticity of said document, maintaining that the signature of its president contained in the copy of the annex remitted by the Claimant was forged. 12. In this respect, the Chamber wished to underline that, in spite of the request of the FIFA administration to be provided with the relevant annex in its original form, the Claimant was unable to do so and provided another copy of said annex. In accordance with its practice, the DRC had thus no other option but to conclude that the relevant document could not be considered. As a result, the Chamber determined not to award the player any amounts on the basis of the annex. 13. With regard to the Claimant’s additional request for outstanding bonuses “by matches, Cup and Championship won”, the DRC referred to art. 9 par. 1 lit g) combined with 12 par. 3 of the Procedural Rules and thus decided to reject the Claimant’s request in this regard insofar as the Claimant did not specify his claim or substantiate it with documentary evidence. 14. As a consequence, and taking into account the documentation presented by the parties to the dispute as well as the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the outstanding amount of USD 825,000. 15. 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 USD 825,000 as from 24 September 2014 until the date of effective payment. 16. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 17. Finally, the DRC 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 is partially accepted. 2. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 825,000 plus 5% interest p.a. as from 24 September 2014 until the date of effective payment. 3. In the event that the aforementioned amount plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s 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 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