DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 18 maggio 2017 • Stagione sportiva: 2016/2017

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 18 May 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 18 May 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Takuya Yamazaki (Japan), member

Mohamed Al Saikhan (Saudi Arabia), member

Wouter Lambrecht (Belgium), 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

between the parties

I. Facts of the case

1. On 29 January 2015, the Player of Country B, Player A (hereinafter: Claimant) and the Club of Country D, Club C (hereinafter: Respondent), concluded an employment contract (hereinafter: first contract), drafted in English, valid from January 2015 until the end of season 2016/2017.

2. According to the first contract, the Claimant was entitled to receive the following amounts:

- USD 130,000 “net for the rest of season 2014/2015”;

- USD 250,000 “net for the season 2015/2016”;

- USD 300,000 “net for the season 2016/2017”.

Furthermore, the first contract established that the Claimant was entitled to receive USD 50,000 as a sign-on fee and “30% as a sign fee for the 2015/2016 & 2016/2017 seasons within a month from its start”.

3. On 31 January 2015, the Claimant and the Respondent signed another employment contract, named “Contract of Professional Football Player” (hereinafter: second contract), drafted in Language E, valid for two and a half seasons, until the end of season 2016/2017. In this respect, both the Claimant and the Respondent provided each a translated version of the second contract in English.

4. The second contract established in its preamble the following:

English version provided by the Claimant:

“The two parties acknowledge their capacity of entering into contract; the two parties also acknowledge that they have read the regulations of players’ Affairs; and this preceding preamble is considered part and parcel of this contract and as its supplementary”.

English version provided by the Respondent:

“The two parties hereby declare their capacity to contract and they have read the regulation of player affairs which is valid during the signing of this contract and this regulation supersedes any other consideration as part of this contract and complementary to it”.

5. According to the second clause of the second contract, the total value of said contract was USD 680,000 divided as follows:

Season 2014/2015: USD 130,000, payable in 6 instalments.

Season 2015/2016: USD 250,000, payable as follows:

- USD 75,000 due on 1 September 2015;

- USD 13,000 due on 1 October 2015;

- USD 13,000 due on 1 November 2015;

- USD 13,000 due on 1 December 2015;

- USD 13,000 due on 1 January 2016;

- USD 13,000 due on 1 February 2016;

- USD 13,000 due on 1 March 2016;

- USD 13,000 due on 1 April 2016;

- USD 13,000 due on 1 May 2016;

- USD 13,000 due on 1 June 2016;

- USD 13,000 due on 1 July 2016;

- USD 45,000 due on 1 August 2016.

Season 2016/2017: USD 300,000, payable in 12 instalments as of 1 September 2016.

In this respect, the Claimant’s translated version of the second contract indicates that the value of the contract is gross, whereas the Respondent’s translated version does not indicate whether the amount is gross or net.

6. The fourth clause of the second contract determined the following:

- it shall be authenticated and the Respondent shall pay the fees, which shall be divided equally between the Respondent and the Claimant;

- the Claimant bears the taxes applicable arising from the contract or any other remuneration as per the law and the Respondent shall deduct the taxes from the amounts due to the Claimant and pay to the relevant tax authority.

7. The Players’ Affairs Regulations of the Football Association of Country D (hereinafter: the Regulations of the Football Association of Country D), established in its art. 5.b) inter alia that:

- “The value of the contract authentication is 3% of the value of the contract, which shall be paid to Football Association of Country D through the club”;

- “The club and the player shall equally bear the authentication fees and the club shall deduct percentage of the player from his due payments”.

8. On 20 June 2016, the Claimant lodged a claim before FIFA against the Respondent requesting payment of outstanding remuneration in the total amount of USD 69,000 composed of part of the instalment due on 1 December 2015 (USD 4,000) as well as the full instalments of USD 13,000 each due respectively on 1 January, 1 February, 1 March, 1 April and 1 May 2016. The Claimant further requested interest of 5% as of the due dates.

9. In this respect, the Claimant stated having only received USD 110,000 regarding the season 2015/2016 and thus, that the amount of USD 69,000 was outstanding when he lodged his claim. Also the Claimant stated having put the Respondent in default, submitting a copy of the default notice dated 7 June 2016.

10. The Respondent replied to the claim, stating that, on 1 September 2016, a new board of directors was appointed and upon receipt of the Claimant’s claim, a meeting was held with the Claimant and the parties agreed to solve the matter amicably. In this context, the Respondent held having paid the amount of USD 35,000 to the Claimant, on 17 October 2016, as well as that the parties agreed to schedule the payment of the remaining due net amounts, in accordance with the contract, in instalments during the next period. In this regard, the Respondent presented a copy of a receipt in the amount of USD 35,000 signed by the Claimant, which indicates as reference “Part from my contract season 2016/2017”.

11. The Claimant submitted his replica, recognizing the payment of USD 35,000, but insisting on his claim, stating that such amount shall be deducted from the claimed amount. Moreover, the Claimant denied having agreed to a new payment schedule and stated that the amount paid shall be considered as a partial payment of the outstanding remuneration.

12. The Respondent submitted its duplica alleging that the Claimant’s claim is unsubstantiated, since he is claiming outstanding salaries related to the season 2015/2016, which were allegedly paid in full.

13. Moreover, the Respondent stated that the Claimant ignores that the amounts to be paid by the Respondent are net amounts after taxes, which the Respondent shall withhold and deduct from the Claimant’s remuneration in accordance with the second contract.

14. The Respondent affirmed that, after the change in the management board, it needed time to finalize internal governing procedures in order to manage the club. The Respondent discussed the situation with the Claimant and confirmed its commitment to comply with payment of his salaries in accordance with the contract. Moreover, according to the Respondent, it was verbally agreed that the Claimant would withdraw his claim before FIFA, which became needless after he received his salaries and the Respondent agreed to pay in accordance with the contract during the next season.

15. The Respondent was then surprised by the Claimant’s request not to deduct taxes from his salary.

16. According to the Respondent, the salaries in the second contract were gross and the Respondent was required to deduct the relevant taxes. Consequently, the Respondent held that the contractual value of USD 680,000 corresponded to a net amount of USD 510,000 after deducting 25% of due taxes as per the second contract. In particular, the Respondent detailed the amount due per season as follows:

- USD 97,500 net amount for the season 2014/2015;

- USD 187,500 net amount for the season 2015/2016;

- USD 225,000 net amount for the season 2016/2017.

In this regard, the Respondent made reference to the fourth clause of the second contract.

17. Moreover, the Respondent held that, in accordance with art. 5.b) of the Regulations of the Football Association of Country D, both parties should equally bear the authentication fees of the second contract as well as that it had to deduct half of the authentication fee from the remuneration due to the Claimant.

18. Therefore, considering the total value of the second contract, the Respondent had to pay the amount of USD 20,400 (3%) to the Football Association of Country D to approve the contract and register the Claimant. Consequently, according to the Football Association of Country D regulations and the second contract, USD 10,200 had to be deducted from the Claimant’s remuneration, respectively USD 1,950 for the 2014/2015 season, USD 3,750 for the season 2015/2016 and USD 4,500 for the 2016/2017 season, considering the remuneration for each season.

19. Considering the aforementioned, the Respondent affirmed that for the relevant season 2015/2016 the remuneration due was the net amount of USD 187,500 and thus, after deducting the authentication fee of USD 3,750, the Claimant was entitled to receive the amount of USD 183,750.

20. According to the Respondent, the Claimant received the following net amounts as from September 2015, amounting to USD 185,000:

- USD 10,000 on 29 September 2015, in cash. In this respect, the Respondent provided the original receipt signed by the Claimant, which bears as reference “Part from my contract season 2015/2016”. In particular, the receipt indicates as total amount $13,333, taxes $3,333 and net $10,000;

- USD 10,000 on 13 November 2015, in cash. In this respect, the Respondent provided the original receipt signed by the Claimant, which bears as reference “Part from my contract season 2015/2016”. In particular, the receipt indicates as total amount $13,333, taxes $3,333 and net $10,000;

- USD 75,000 on 17 January 2016, in cash. In this respect, the Respondent provided the original receipt signed by the Claimant, indicating as reference “Part from my contract season 2015/2016”. In particular, the receipt indicates as total amount $100,000, taxes $25,000 and net $75,000;

- USD 10,000 on 14 March 2016, by cheque number xxx, which copy was provided by the Respondent. The Respondent also presented the original cheque issuance form signed by the Claimant, which indicates as reference payment for the season 2015/2016 and also refers to deductions;

- USD 5,000 on 14 March 2016, by cheque number xxx, which copy was provided by the Respondent. The Respondent also submitted the original cheque issuance form signed by the Claimant, which indicates as reference payment for the season 2015/2016 and also refers to deductions;

- USD 25,000 on 8 August 2016, in cash. In this respect, the Respondent submitted the original receipt signed by the Claimant, indicating as reference “Part from my contract season 2015/2016”. In particular, the receipt indicates as total amount $33,333, taxes $8,333 and net $25,000;

- USD 30,000 on 10 September 2016, in cash. In this respect, the Respondent submitted the original receipt signed by the Claimant, indicating as reference “Part from my contract season 2015/2016”. In particular, the receipt indicates as total amount $40,000, taxes $10,000 and net $30,000.

21. In this context, the Respondent held having paid the Claimant even more than he was entitled to for the season 2015/2016 and thus, the amount of USD 1,250 shall be considered as payment for the season 2016/2017. In particular, the Respondent highlighted that the Claimant signed all receipts which clearly indicated the total amount, the 25% deduction related to taxes and the final payment made to him.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 20 June 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are 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 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 2016), and considering that the present claim was lodged on 20 June 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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 the Claimant and the Respondent signed two employment contracts, respectively on 29 January 2015 and on 31 January 2015, both valid until the end of the season 2016/2017.

6. The Chamber took note that the Claimant lodged a claim against the Respondent for outstanding remuneration in relation to the season 2015/2016, which was rejected by the Respondent, who alleged that the Claimant’s remuneration for said season was paid in full.

7. In this respect, the DRC first and foremost took note that the first and the second contracts have similar financial terms. However, the Chamber considered that the second contract, dated 31 January 2015, shall be taken into consideration within the scope of the present matter, since it is the latest contract version signed by the parties. Moreover, the DRC highlighted that the second contract was the contract invoked by both parties, considering the claim and the Respondent’s arguments.

8. In continuation, the members of the Chamber took note that, according to the Claimant, the Respondent had failed to pay the total amount of USD 69,000 regarding the season 2015/2016 for the instalments due between 1 December 2015 and 1 May 2016.

9. On the other hand, the DRC took into account that the Respondent, for its part, held having paid all the amounts due regarding the season 2015/2016, considering the applicable deductions contractually agreed. In particular, the DRC took note that the Respondent affirmed that, in accordance with the contract, the amounts due to the Claimant were gross amounts and subject to a tax deduction of 25%.

10. Considering the conflicting position of the parties, the members of the DRC made reference 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 burden of proof.

11. In this context, the Chamber reverted to the second contract and took note that the English translation of the second contract provided by the Claimant clearly indicated that the remuneration is gross. Moreover, the Chamber highlighted that in both translations of the second contract it is established, in its fourth clause, that the Claimant shall bear the cost of taxes, which the Respondent shall deduct from the amounts due to the Claimant and pay to the tax authorities.

12. Moreover, the DRC took note that the Respondent submitted several receipts all duly signed by the Claimant. In particular, the Chamber took into account that each and every receipt indicate the gross amount, the net amount paid to the Claimant and the relevant tax deduction, which corresponds to 25% of each payment.

13. In addition, the Chamber took note that the Respondent further submitted a copy of cheques and the respective cheque issuance forms also duly signed by the Claimant. In particular, the DRC took into account that the relevant forms also indicate the tax deductions.

14. On account of all the above, the members of the DRC considered, on the one hand, that the Respondent was entitled to deduct taxes from each payment made to the Claimant in accordance with the second contract. On the other hand, the DRC concluded that the Respondent demonstrated having consistently deducted 25% of each sum due as remuneration. In this respect, the DRC highlighted that the Claimant clearly accepted the 25% tax deductions by signing each and every of the receipts which indicated such tax deductions. Consequently, based on the documentation on file, the Chamber accepted that the relevant tax percentage applicable in the case at hand is 25%.

15. In conclusion, the DRC considered that for the season 2015/2016, which is the relevant season in the matter at hand, the Claimant was entitled to a total remuneration of USD 250,000 gross, which corresponds to USD 187,500 net after tax deductions.

16. In continuation, the Chamber took note that the Respondent further held that an authentication fee in the amount of USD 3,750, representing 1,5% of the contractual value for the season 2015/2016 in accordance with the second contract, shall be deducted from the Claimant’s remuneration.

17. In this respect, the DRC reverted again to the contents of the second contract and verified that, in accordance with the fourth clause, the contract should be authenticated and the Respondent should pay the relevant fee, which should be equally divided between the Claimant and the Respondent.

18. Furthermore, the DRC took note that the Respondent submitted a copy of the Regulations of the Football Association of Country D applicable to the second contract in accordance with its preamble (cf. point I./4. above), which specifies that the authentication fee corresponds to 3% of the contractual value. Moreover, the Regulations of the Football Association of Country D further specify that the Respondent should deduct the Claimant’s part of the percentage from the Claimant’s remuneration.

19. In this context, the DRC recalled the principle of burden of proof and considered that the Respondent had demonstrated being entitled to deduct such fee. In particular, the DRC took into account that the contractual value for the season 2015/2016 was of USD 250,000 and therefore, the authentication fee due for the relevant season was USD 7,500, corresponding to 3%. Moreover, considering that the authentication fee should be equally divided by the parties, the Claimant should bear the amount of USD 3,750.

20. Considering all the above, the DRC concluded that the Claimant was entitled to receive the total amount of USD 183,750 for the season 2015/2016, considering the tax deductions and the deduction of the authentication fee.

21. Having established the above, the Chamber acknowledged that in accordance with the documentation presented by the Respondent in its defence (cf. point I./20. above), the Respondent demonstrated having paid the Claimant the total amount of USD 185,000 for the relevant season.

22. As a consequence of all of the above, the DRC concluded that the Respondent has paid the Claimant’s remuneration due for the season 2015/2016 in full and, thus, that there is no remuneration outstanding in connection with the season 2015/2016.

23. Therefore, the DRC decided to reject the claim of the Claimant.

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 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

www.tas-cas.org

For the Dispute Resolution Chamber:

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS directives