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 December 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 December 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Mario Gallavotti (Italy), 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 10 June 2013, 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 the date of signature until 31 May 2015.

2. As per the contract, the Claimant was to receive a total salary of EUR 200,000 net for the season 2014-2015, payable in eleven equal instalments from 31 July 2014 until 31 May 2015, due on the last day of each month.

3. On the same date, the parties signed a “supplementary agreement” (hereinafter: the annex), stating that “[the annex] is additional and unbreakable part to the [contract] of the [Claimant] with [the Respondent] and does not substitute or annul the [contract]”.

4. According to art. 3 of the annex, the Respondent undertook to pay the Claimant the following bonuses:

 EUR 50,000 net in the event the Respondent participated in the group stage of League E;

 EUR 25,000 net in the event the Respondent won the championship in Country D.

5. Art. 4 of the annex provided for an allowance amounting to EUR 15,000 net per season, payable in eleven instalments simultaneously with the Claimant’s salary, in order to cover accommodation, transportation and traveling expenses that the Claimant might incur.

6. On 12 November 2015, the Claimant lodged a claim before FIFA against the Respondent, requesting the amount of EUR 75,000 as outstanding bonuses for the season 2014-2015, plus 5% interest p.a. as of the due date of each bonus payment.

7. The Claimant alleged that, on 26 August 2014, the Respondent qualified, with the Claimant’s contribution, to the group stage of the League E. Moreover, the Claimant held that, on 24 May 2015, the Respondent won the championship in Country D.

8. Yet, the Claimant sustained that he did not receive the respective bonus of EUR 50,000 and EUR 25,000 resulting from said participation and victory, as per art. 3 of the annex. The Claimant asserted having claimed the relevant bonuses to the Respondent prior to lodging the present claim, in vain.

9. The Claimant further underlined that the amount claimed should be distinguished from the amount of EUR 50,000 that he had already received within the season 2014-2015. In this regard, the Claimant specified that said amount was paid to all team members for reaching the group stage of the League E in the season 2014-2015 as a separate team bonus, determined in a separate agreement between the Respondent and the team, and was paid out in various amounts by the Respondent, depending on sporting results. In this respect, the Claimant provided a calculation table of the team’s bonuses explaining the relevant amount.

10. The Claimant also provided a testimony from a former player of the Respondent, Mr F, in order to substantiate that all team members, including those who had no contractual clause regarding bonus payments, had received the said separate team bonus of EUR 50,000 from the Respondent and that said payment had been made voluntarily by the Respondent to all team members, regardless of any contractual obligations.

11. In its statement of defence, the Respondent first of all emphasised that the Claimant left the Respondent at the end of May 2015, without any request. The Respondent further alleged that it became aware of the Claimant’s request for alleged outstanding bonuses by means of correspondence dated 16 February 2016 sent by the Claimant to the Respondent.

12. With regard to the Claimant’s allegations pertaining to a team bonus of EUR 50,000 for reaching the group stage of the League E, the Respondent stressed that no conclusive evidence was submitted by the Claimant in this respect, and that the calculation table provided by the Claimant to substantiate his allegations was not an official document of the Respondent and was irrelevant to his claim. The Respondent added that the testimony of a former player could not establish that the said former player did receive the relevant amount of EUR 50,000 or that said amount was paid to all players irrespective of the contractual provisions applicable to each of them independently.

13. Subsequently, the Respondent held that the Claimant received fully and all of the amounts due under the contract. In this respect, the Respondent provided evidence in order to substantiate the payment of the Claimant’s monthly salary of EUR 18,182 from July 2014 to May 2015, as well as the payment of the Claimant’s monthly allowance of EUR 1,364 from August 2014 until April 2015.

14. The Respondent also submitted the following bank checks, allegedly cashed out by the Claimant soon after their handover, in order to evidence that it paid all bonuses foreseen in the annex as well as additional bonuses, and this is, already before the end of the employment relationship with the Claimant:

Season 2013-2014

a) EUR 21,000 on 30 October 2014, allegedly as additional bonus payment for winning the championship 2013-2014 which led to the qualification to the group stage of the League E for 2014-2015;

b) EUR 25,000 on 19 November 2014, as payment of the bonus foreseen in art. 3 par. 2 of the annex, as indicated by the Claimant’s handwritten note under the bank check: “I receive my prime for winning the championship of the year 2013/2014”.

Season 2014-2015

c) EUR 27,291 on 17 December 2014;

d) EUR 27,291 on 18 February 2015;

e) EUR 36,388 on 26 March 2015;

f) EUR 9,240 on 15 July 2015.

15. In particular, the Respondent explained that the Claimant requested to be paid the bonus of EUR 50,000 as per art. 3 par. 1 of the annex while the Respondent was already participating in the relevant competition, in order to secure the payment of said amount before leaving the Respondent at the end of the season.

16. As to the bonus of EUR 25,000 provided in art. 3 par. 2 of the annex, the Respondent sustained that it paid said bonus before the end of the season 2014-2015, while there were a few matches left, and that the Respondent would have been willing to pay it to the Claimant in any event in order to reward his efforts and commitments throughout the season.

17. In view of the above, the Respondent asserted that, by the end of March 2015 (cf. bank checks c), d) and e); point 14 above), it had paid to the Claimant the total amount of EUR 90,970 corresponding to (i) bonuses in accordance with the annex (i.e. EUR 50,000 as bonus for participating in the group stage of the League E and EUR 25,000 for winning the championship 2014-2015 in Country D); (ii) as well as additional bonuses amounting to EUR 15,970 “equivalent to the amount that had paid voluntarily in the previous season (that is Euro 21,000)” in order to “keep the [Claimant] happy and support his good performance with the [Respondent]”.

18. The Respondent then acknowledged that, in July 2015, it paid to the Claimant an additional bonus in the amount of EUR 9,240 (cf. bank check f); point 14 above) as a “gesture of recognition” of his services. Yet, the Respondent asserted that it was out of good will and that it did not commit or agree to pay any additional bonuses than the ones contractually foreseen.

19. In view of the aforementioned, the Respondent deemed that the Claimant’s claim shall be rejected and that he should pay to the Respondent the amount of EUR 5,000 as legal expenses of the Respondent.

20. In his replica, the Claimant stated that the payments presented by the Respondent as bonuses for the season 2014-2015 did not relate to the claimed amounts.

According to the Claimant, these amounts were all paid voluntarily and independently of the bonuses contractually foreseen.

In particular, the Claimant alleged that he always acknowledged receipt of the contractual bonuses, especially referring to the payment of the bonus of EUR 25,000 on 19 November 2014 (cf. handwritten note on the bank check b); point 14 above), and highlighted that the relevant evidence was missing for the alleged bonus payments regarding the season 2014-2015.

21. Moreover, the Claimant maintained that the relevant bonus payments for the season 2014-2015 were made in accordance with a “reward system” inter alia based on the number of minutes played by the respective players and did not relate to the bonuses contractually foreseen, hence, according to the Claimant, the bank checks did not bear the same amounts.

In particular, the Claimant alleged that he played most of the time in the League E group stage; this is why he apparently received approx. EUR 100,000 in accordance with the “reward system” allegedly established by the Respondent. In this regard, the Claimant provided documentation evidencing his statistics, especially his playtime with the team in the League E group stage. The Claimant therefore requested FIFA to urge the Respondent to disclose said “reward system”.

22. Besides, the Claimant provided documentation evidencing the Respondent’s win of the Championship of Country D in the season 2014-2015 as well as the participation of the Respondent in the League E group stage for the relevant season and insisted that in view of the foregoing, the resulting bonus payments of EUR 25,000 and EUR 50,000 were still outstanding.

In the event FIFA decided that the amount of EUR 50,000 as bonus for the Respondent’s participation in the League E group stage had already been paid, the Claimant then deemed that he was entitled to additional voluntary bonus payments from the Respondent.

23. In view of the aforementioned, the Claimant reiterated his claim.

24. In its duplica, the Respondent asserted that the burden of proof relied on the Claimant. According to the Respondent, the Claimant failed to submit evidence to support his allegations as to the payments received as not being related to contractually agreed bonuses. The Respondent also underlined that the player did not submit any evidence pertaining to the Respondent’s obligation to pay additional amounts from the ones contractually agreed.

25. On account of the above, the Respondent upheld its initial position.

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 12 November 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) is applicable to the matter at stake (cf. art. 21 par. 1 and 2 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 in front of FIFA on 12 November 2015, the 2015 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 and in a first instance, the DRC acknowledged that, on 10 June 2013, the Claimant and the Respondent had concluded an employment contract valid as of the date of signature until 31 May 2015.

6. In continuation, the DRC observed that the Claimant claimed outstanding bonuses for the season 2014-2015, based on art. 3 of the annex of the contract, insofar as the Respondent qualified to the group stage of the League E on 26 August 2014 and the Respondent won the Championship of Country D on 24 May 2015. The members of the DRC also took into account that the Claimant held that all bonus payments made by the Respondent for the 2014-2015 season were based on a “reward system” and were independent from the stipulations of art. 3 of the annex of the contract.

7. Equally, the Dispute Resolution Chamber took note that, on the other hand, the Respondent maintained that, by the end of March 2015, it had paid all contractual bonuses for the season 2014-2015, as well as additional bonuses which were paid on a voluntary basis.

8. At this stage, the Chamber deemed it fit to refer 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.

9. In this regard, the DRC observed that the Respondent provided sufficient evidence as to the payment of all contractual bonuses for the season 2014-2015 by the end of March 2015.

10. The DRC then reverted to the main argument of the Claimant, who sustained that the contractual bonuses allegedly paid by the Respondent for the season 2014-2015 did not relate to art. 3 of the annex of the contract but rather to extra bonuses, paid voluntarily as per a reward system established by the Respondent and subject to minutes played by each player.

11. In this respect, the DRC alluded to the calculation table of the team’s bonuses provided in the Claimant’s submission and underlined that such document did not appear to be official and to originate from the Respondent.

12. Bearing in mind the above, the Chamber concurred that the Claimant did not provide any conclusive evidence in support of his argumentation pertaining to the alleged reward system put in place by the Respondent.

13. As a result, and in the absence of any additional written agreement by the parties for the payment of further incentives, the DRC considered that all contractual bonuses for the season 2014-2015 were paid to the Claimant by the end of March 2015.

14. 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

For the Dispute Resolution Chamber:

Marco Villiger

Deputy Secretary General

Encl: CAS directives