F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 15 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 June 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Guillermo S. Guale (Ecuador), member

Johan van Gaalen (South Africa), 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 1 December 2014, the Player of Country B, Player A (hereinafter; the Claimant or the player) and the Club of Country D, Club C (hereinafter; the Respondent or the club) (hereinafter jointly referred to as the parties) entered into an employment contract (hereinafter; the first contract) valid as of the date of its signature until 30 November 2015.

2. According to the first contract, the Claimant was entitled to receive from the Respondent USD 27,000 “per month to be paid in the following manner”:

a. USD 5,000 as “monthly salary”;

b. USD 54,000 as sign-on fee “to be paid upon signing the Contract”;

c. USD 264,000 as “advance payment (…) to be paid upon signing the Contract for the whole contract period: 1) USD 132,000, 2) USD 132,000”

3. Clause 3 of the first contract reads as follows: “In the case any dispute between the parties (…) the player has the right to appeal his case to the Players’ Status Committee of the Football Association of Country D or alternatively, if applicable to any employment dispute resolution body set-up under laws of Country D…”.

4. Also on 1 December 2014, the parties concluded another contract (hereinafter; the second contract) with the same period of validity as the first contract and which provided for a monthly salary of 16,250 of Currency of Country D.

5. On 12 and 25 August 2015, the Claimant put the Respondent in default of payment of his salaries for June and July 2015 in the amount of “USD 49,000”.

6. On 27 July 2016, the Claimant lodged a claim against the Respondent in front of FIFA requesting outstanding remuneration in the amount of USD 132,000 as “the second advance” plus 5% interest as of “1 November 2014”.

7. In its reply to the claim, the Respondent argued that, in view of clause 3 of the first contract, the Players’ Status Committee of the Football Association of Country D (hereinafter; PSC of the Football Association of Country D) is competent. In this respect, according to the Respondent, “the matter had been brought up to the committee and the discussion of the dispute is still on going”.

8. As to the substance, the Respondent only explained that “to date the discussion” between the parties is still “on going” and that “we are trying to dissolve the problem prudently”. Equally, the Respondent pointed out the discrepancy of the amount claimed by the Claimant in his default notices and that in his request in front of FIFA.

9. In his replica, the Claimant argued that, irrespective of the content of clause 3, only the second contract “has been sent to the Football Association of Country D” and that the contract that is “being questioned before the FIFA is the [first contract]”.

10. As to the discrepancy between the amounts claimed in his default letters and his claim, the Claimant argued that the “overdue payment subsists till the end of the season and accumulated at the amount of USD 132,000”.

11. The Claimant further denied the allegations of the Respondent regarding any discussions.

12. Despite having been asked to do so, the Respondent did not submit any further comments.

13. Upon FIFA’s request, the Football Association of Country D informed that “The Football Association of Country D has yet to receive any complaint regarding claim from the Player A [against] Club C”.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also 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 27 July 2016. Consequently, the 2015 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 2016), the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension.

3. As a consequence, the Dispute Resolution Chamber considered that it would, in principle, be competent to decide on the present employment-related litigation involving a Player of Country B and a Club of Country D.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies as, according to the Respondent, the present matter shall be adjudicated by the PSC of the Football Association of Country D, in accordance with clause 3 of the first contract. In this regard, the Chamber took note that, according to the Respondent, “the matter had been brought up to the committee and the discussion of the dispute is still on going”.

5. Furthermore, the Chamber noted that, on his part, the Claimant rejected the competence of the PSC of the Football Association of Country D since, irrespective of the content of clause 3 of the first contract, only the second contract “has been sent to the Football Association of Country D” and that the contract that is “being questioned before the FIFA is the [first contract]”.

6. With the above considerations in mind, the Chamber wished to recall 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 January 2008.

7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal derives from a clear reference in the contract at the basis of the dispute.

8. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a clear, specific and exclusive arbitration clause in favour of the PSC of the Football Association of Country D.

9. With the above-mentioned considerations in mind and after a thorough analysis of the contract at the basis of the present dispute, in particular of clause 3 of the first contract, the members of the Chamber concluded that said clause does not constitute an exclusive arbitration clause in favour of the PSC of the Football Association of Country D. Indeed, the relevant clause clearly establishes that the player has “the right to appeal his case” to said national deciding body but by no means does it impose on the parties an exclusive obligation to resolve their disputes arising from the first contract in the PSC of the Football Association of Country D. Therefore, the members of the Chamber came to the unanimous conclusion that, in the present matter, one of the indispensable requirements in order to determine that another body than the DRC is competent to deal with an international employment-related dispute is not met.

10. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected and that thus the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to entertain the Claimant’s claim as to the substance.

11. Finally and for the sake of completeness, the Chamber emphasised that the Football Association of Country D confirmed that there is no pending dispute between the parties in front of any of its deciding bodies. In particular, the Football Association of Country D informed FIFA that “The Football Association of Country D has yet to receive any complaint regarding claim from the Player A [against] Club C”.

12. Having established the above, the Chamber proceeded to analyse which edition of the 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016) and considering that the present claim was lodged on 27 July 2016, the 2016 edition of said Regulations is applicable to the present matter as to the substance.

13. The competence of the Chamber and the applicable regulations having been established and entering into the substance of the matter, the Chamber continued its acknowledgment of the above-mentioned facts as well as of 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 substance of the matter at hand.

14. First, the Chamber underlined that the Claimant is basing his claim on the first contract concluded between the parties which provided that the latter party was entitled to receive from the Respondent, inter alia, two payments of USD 132,000 “to be paid upon signing the Contract”.

15. Subsequently, the Chamber referred to the claim of the Claimant who argues that one of those instalments remained unpaid and therefore, requested to be awarded the amount of USD 132,000.

16. Furthermore, the DRC noted that the Respondent neither argued having paid said amount nor denied owing it to the Claimant but rather limited its position to stating that “to date the discussion” between the parties is still “on going” and that “we are trying to dissolve the problem prudently”.

17. On account of the above, the Chamber concluded that it was undisputed that the Claimant is entitled to the requested amount and that the Respondent is the party responsible for its payment. As such, and considering the principle of pacta sunt servanda, the members of the Chamber decided that the Respondent should pay to the Claimant the amount of USD 132,000.

18. As to the request for interest, the Chamber noted that the Claimant asked to be awarded interest on the due amount as of “1 November 2014”. Nevertheless, the Chamber pointed out that in his default notices of 12 and 25 August 2015, the Claimant only requested from the Respondent the amount of USD 49,000 allegedly due to the fact that the “overdue payment subsists till the end of the season and accumulated at the amount of USD 132,000”.

19. Consequently, the members of the Chamber were of the unanimous opinion that the Claimant was of the understanding that the amount of USD 132,000 was payable until the end of the contractual relationship. As such, the Chamber decided to award interest of the due amount as of 1 December 2015.

20. The Chamber concluded its deliberations 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 admissible.

2. The claim of the Claimant is partially accepted.

3. 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 USD 132,000 plus 5% interest p.a. as from 1 December 2015 until the date of effective payment.

4. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 3. 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.

5. Any further claim lodged by the Claimant is rejected.

6. 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 article 58 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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director