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 23 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 23 March 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Theo van Seggelen (Netherlands), member

Carlos González Puche (Colombia), member

Alejandro Marón (Argentina), 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 12 July 2015, 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 from the date of signature “for a full season of 2015-2016 and expiry until end of season 2015-2016”.

2. According to article 4 of the contract, the Respondent undertook to pay the amount of USD 350,000 to the Claimant as follows:

- 20% of the full amount to be paid “after signing the contract and after passing medical and physical test and obtaining ITC card”;

- 80% of the full amount divided in ten monthly payments during the season beginning on 22 August 2015.

3. Article 5 of the contract established the Respondent’s obligations, indicating inter alia the following:

“(5-1) to fulfill its financial obligations mentioned in article 4”;

“(5-6) all costs for the work permit and related issues are club’s obligations”;

“(5-8) according to tax office rules and football federation of Country D the player undertakes to pay his tax.”

4. On 9 September 2016, the Claimant lodged a claim against the Respondent in front of FIFA, asking to be awarded the total amount of USD 112,000 corresponding to outstanding remuneration, plus interest. Moreover, the Claimant requested that the Respondent bears all procedural costs.

5. According to the Claimant, the Respondent only paid him six instalments and that therefore, four instalments of USD 28,000 each remained outstanding.

6. The Respondent submitted its position, stating that the Claimant is only entitled to receive “USD 24,826”, which allegedly corresponds to the difference between the full contractual amount of USD 350,000 and the amount of USD 328,714.

7. In this respect, the Respondent held having already paid the Claimant the amount of USD 243,429. Moreover, the Respondent alleged that the amount of USD 84,745 must be deducted from the Claimant’s remuneration, being composed of:

- USD 70,000 corresponding to “team-disciplinary fines”;

- USD 7,745 deducted as withholding tax;

- USD 7,000 corresponding to “membership fees of Football League of Country D Organization”.

8. In support of its position, the Respondent enclosed a copy of its letter dated 10 August 2016 addressed to the Claimant’s lawyer, stating inter alia that “according to the financial documents of this club signed and confirmed by the said player showing that he has received all his payment for the contract and has no claim for his contract”. Moreover, the Respondent enclosed an unsigned table issued by the club itself listing payments allegedly made to the Claimant and deductions applied, indicating the amount of USD 24,826 as “Creditor Balance of Contract”.

9. In his replica, the Claimant insisted on his claim, stating that he neither accepts nor recognizes any of the deductions made by the Respondent. In particular, the Claimant stated the following:

- The deduction of USD 70,000 “from an alleged four days of absence in training sessions” is not applicable because (i) he did not miss any trainings; (ii) in any case, a preceding disciplinary proceeding for the imposition of a fine is necessary; (iii) a fine in this amount is disproportionate and unreasonable.

- The withholding tax and the membership fee of league organization are obligations of the Respondent, in accordance with article 5, paras. (5-1) and (5-6) of the contract.

10. Moreover, the Claimant stated that he does not recognize the table presented by the Respondent and insisted that the Respondent only paid six monthly instalments.

11. Although invited to do so, the Respondent did not submit final comments.

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 9 September 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 9 September 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 Chamber acknowledged that the parties had signed an employment contract, which stipulated that the Claimant was entitled to a total remuneration in the amount of USD 350,000, whereas 20% of the total amount, i.e. USD 70,000, was due after the signing of the contract and the remaining 80%, i.e. USD 280,000, was divided in ten monthly instalments payable during the season 2015/2016.

6. In continuation, the DRC noted that the Claimant alleged that the Respondent had only paid six instalments, failing to pay the last four instalments of the contract in the total amount of USD 112,000. Consequently, the Claimant asked to be awarded the total amount of USD 112,000 plus interest.

7. Equally, the members of the DRC took note that the Respondent asserted that the Claimant was only entitled to receive the amount of USD 24,286, considering the amounts allegedly paid to the Claimant as well as the amounts that should be deducted from his remuneration. The Claimant, for his part, rejects the position of the Respondent as well as the documentation presented by the latter in its defence.

8. Considering the opposing position of the parties, the members of the DRC proceeded to analyse the arguments of the parties as well as the documentation on file. In this respect, first and foremost, the DRC referred to the contents of art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

9. In this context, the Chamber took note that in support of its arguments, the Respondent presented a letter addressed to the Claimant’s lawyer, dated 10 August 2016, stating that according to the financial documents of the Respondent, allegedly signed and confirmed by the Claimant, he had received all payments related to the contract, as well as an unsigned table issued by the Respondent itself, listing all payments allegedly made to the Claimant and the deductions applied to his remuneration.

10. In this context, the DRC took note that the Respondent argued having paid the Claimant the total amount of USD 243,429, which was denied by the Claimant who insisted on his claim in the total amount of USD 112,000. In this regard, the members of the DRC concluded that the Respondent had not provided credible documentary evidence regarding any payments made to the Claimant, only providing the aforementioned table drawn up by the Respondent, which lists alleged payments to the Claimant and which was specifically rejected by the latter. Moreover, the DRC highlighted that the Respondent had not submitted final comments or any other documentation after having received the Claimant’s replica in this matter.

11. Therefore, the DRC concluded that the Respondent had failed to demonstrate having paid the total amount of USD 243,429 to the Claimant.

12. In continuation, the Chamber reverted to the argument of the Respondent that the total amount of USD 84,745 should be deducted from the Claimant’s remuneration, corresponding to “team-disciplinary fines”, withholding tax as well as “membership fees of Football League of Country D Organization”.

13. In this regard, the DRC took into consideration that the membership fees referred to by the Respondent are not established in the contract and that, thus, there is no contractual basis in accordance with which the Respondent would be entitled to deduct such fees. Likewise, the contract does not include a clause in accordance with which taxes are to be deducted from the Claimant’s remuneration. The contract actually establishes that the Claimant was responsible for paying taxes. Moreover, the Chamber highlighted that the Respondent had not submitted documentation corroborating its allegations in this regard.

14. In continuation, with respect to the “team-disciplinary fees”, the Chamber noted that the Respondent did not provide documentary evidence of any disciplinary proceedings related to the imposition of a disciplinary fine or of any decision in relation thereto.

15. To summarise, as regards all of the deductions invoked by the Respondent, the members of the DRC stressed that the only document provided by the Respondent in support of its argumentation was a document issued by the Respondent itself, which was not signed by the Claimant and even contested by the latter and thus, which neither demonstrates that the Respondent was entitled to make such deductions nor that the Claimant had accepted such deductions.

16. In addition, the Chamber highlighted that the letter addressed by the Respondent to the Claimant’s lawyer, dated 10 August 2016, does not demonstrate that the Claimant had received his remuneration in full.

17. Considering all the above, the members of the DRC concluded that the Respondent has not provided sufficient evidence in its defence and that, therefore, the Respondent’s arguments could not be upheld.

18. Furthermore, on account of the above, the DRC agreed to accept the Claimant’s claim and decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract and, consequently, is to be held liable to pay the outstanding amount of USD 112,000 to the Claimant.

19. In addition, taking into consideration the Claimant’s claim and bearing in mind that the Claimant had not specified his request for interest, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 112,000 as of the date on which the claim was lodged in front of FIFA, i.e. 9 September 2016.

20. The DRC further decided that the Claimant’s claim for procedural costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the Dispute Resolution Chamber.

21. The Chamber 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, Player A, is partially accepted.

2. 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 112,000 plus 5% interest p.a. as from 9 September 2016 until the date of effective payment.

3. In the event that the aforementioned sum 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 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

Encl. CAS directives