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 29 July 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 July 2016,

in the following composition:

Geoff Thompson (England), Chairman

Santiago Nebot (country B), member

John Bramhall (England), member

Guillermo Saltos (Ecuador), 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

Facts relating to the preliminary issue of the competence of the DRC:

1. On 29 July 2013, the player from country B, Player A (hereinafter: Claimant or player), and the club from country D, Club C (hereinafter: Respondent or club), represented by its Vice president, Mr E, signed a Spanish and a German version of a document entitled “Contrato preliminar” and “Punktation” respectively (hereinafter: agreement), valid from 15 July 2013 until 15 June 2014.

2. The club contested the competence of FIFA to deal with the claim lodged against it by the player, referring to a “subsidiary competence” of FIFA according to art. 22 lit. b of the FIFA Regulations on the Status and Transfer of Players.

3. In this context, the club argued that the judicial bodies of the Football Association of country D, as well as of the Football Association of region F, would be competent to deal with the matter at hand and that the player should have submitted his claim in front of one of these bodies.

4. The club further held that the deciding bodies in country D guarantee a “correct and fair trial” and therefore meet the requirements of art. 22 lit. b of the FIFA Regulations on the Status and Transfer of Players.

5. In support of its position, the club presented extracts of the “Rechtspflegeordnung des Fussballverbandes von Land D” [free translation: Regulations regarding the administration of justice of the country D’s Football Association]. The club pointed out that the complete version would be available online.

6. The player, for his part, insisted that FIFA’s Dispute Resolution Chamber is competent to deal with the present matter. In particular, the player held that the contract at the basis of the dispute contains no arbitration clause, that the parties had not agreed on any decision-making bodies and that the country D’s decision-making bodies do not meet the requirements stipulated in the FIFA Regulations.

Facts relating to the substance of the matter:

7. According to the agreement, the club undertook to pay the player a monthly salary of EUR 1,000.

8. The spanish version of art. 5 of the agreement stipulates that “Excediendo el contrato preliminar, el jugador no solamente se compromete a firmar dicho document, sino tamblén la escritura después de la respective presentación de la misma. Dicha contiene las estipulaciones generales de la particularidad de deporte de fútbol. Este contrato preliminar obtendrá la validez jurídica, cuando sea refrendado por el representante autorizado del Club el Vicepresidente E.”

9. The respective German version of art. 5 of the agreement reads as follows: “Der Spieler verpflichtet sich über die Punktation hinausgehend eine schriftliche Vertragsurkunde beinhaltend allgemeine mit der Eigenart des Fussballsports zusammenhängende Vertragsbestimmungen nach Vorlage zu unterfertigen. Die Punktation erlangt erst Rechtswirksamkeit, wenn diese durch den zeichnungsberechtigten Vertreter des Vereins – Vizepräsident E gegengezeichnet wird.“

[free translation of both the Spanish and the German version into English: Besides this agreement, the player undertakes to sign a written contract including general contractual provisions with specific football related references. The agreement is only legally effective if the authorized representative of the club, vice president E, has signed said contract].

10. On 6 August 2014, the player lodged a claim with FIFA against the club regarding outstanding remuneration and requested to be awarded the following monies:

- EUR 4,000 corresponding to salaries of September to December 2013 (4x EUR 1,000);

- EUR 2,750 relating to accommodation costs of August to December 2013 (5x EUR 550).

In addition, the player requested 5% interest p.a. as of the respective due dates until the date of effective payment.

11. In his arguments, the player stated that the club failed to pay the above-mentioned salaries and that the club had verbally agreed to pay monthly accommodation costs of EUR 550.

12. In its reply as to the substance of the claim, the club requested that the claim be rejected and held that the agreement signed on 29 July 2013 is no valid and binding contract.

13. In this respect, the club argued that the player infringed art. 5 of the agreement, since he did not sign a written contract even though the club provided the player with a draft of a contract to enable him to do so.

14. In conclusion, the club stated that no legal effects arose from the agreement, since the written contract was never produced by the player.

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 6 August 2014. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; 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, would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D.

3. In continuation, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding body invoking an alleged jurisdiction of the judicial bodies of the Football Association of country D or the Football Association of region F. In this regard, the Respondent deems that according to art. 22 lit. b of the FIFA Regulations on the Status and Transfer of Players FIFA’s deciding body has a “subsidiary competence”.

4. The DRC noted that the Claimant, for his part, rejected such position and insisted that FIFA has competence to deal with the present matter.

5. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), it is competent to deal with a matter such as the one at hand, unless the parties have explicitly opted in writing for such dispute to be decided by an independent arbitration tribunal, which guarantees fair proceedings and respects the principle of equal representation of players and clubs, that has been established at national level within the framework of the association and/or a collective bargaining agreement.

6. 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 deciding body than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal derives from a clear reference in the employment contract.

7. 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 jurisdiction clause.

8. After the analysis of the agreement’s content, the members of the Chamber concluded that it does not contain any jurisdiction clause at all.

9. Having established that the first criterion for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body.

10. On account of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that 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 deal with the present matter as to the substance.

11. In continuation, 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 6 August 2014, the 2014 edition of said regulations is applicable to the matter at hand as to the substance.

12. The competence of the Chamber and the applicable regulations having been established, the DRC 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.

13. In this respect, the DRC acknowledged that, on 29 July 2013, the parties had signed an agreement, valid as of 15 July 2013 until 15 June 2014.

14. In continuation, the Chamber acknowledged that the Claimant requested to be awarded payment of outstanding remuneration on the basis of, inter alia, the agreement.

15. The members of the Chamber took note that the Respondent, for its part, rejected the Claimant’s claim challenging the validity of the agreement. In particular, the Respondent argued that the agreement would only be legally effective if the player would conclude a written contract signed by the club’s vice president, as stipulated in art. 5 of the agreement.

16. In view of the above, the Chamber highlighted that the first issue to be addressed is whether a legally binding written employment contract had been concluded by and between the Claimant and the Respondent.

17. In this regard, the Chamber recalled that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both parties. After careful study of the agreement presented by the Claimant, the Chamber concluded that all such essential elements are included in the pertinent document, in particular, the fact that the contract establishes that the Claimant is entitled to receive remuneration, including a monthly salary, in exchange for his services to the club as a player during a specific period of time. In the context of the specific matter at hand, the DRC highlighted that the agreement was signed by the Respondent’s vice president, Mr E, who is referred to in art. 5 of the agreement as the authorized representative of the club.

18. Having stated the above, the DRC turned its attention to art. 5 of the agreement, which states, in its free translation in English, that: “Besides this agreement, the player undertakes to sign a written contract including general contractual provisions with specific football related references. The agreement is only legally effective if the authorized representative of the club, vice president E, has signed said contract”.

19. The Chamber recalled that according to the Respondent, the Claimant had not signed such written contract in spite of the fact that it allegedly had provided the Claimant with a draft of a contract to enable him to do so. In this regard, the Chamber referred to art. 12 par. 3 of the Procedural Rules and noted that the Respondent had not submitted evidence corroborating its allegation that it provided the Claimant with a draft of a contract and that he refused to sign such a written contract. Therefore, the DRC had to reject such argument of the Respondent.

20. Analysing the content of said art. 5 in the context of the whole agreement, which contains the essentialia negotii of an employment contract as established above, the Chamber deemed that the agreement should be considered as a valid and legally binding employment contract. In this regard, and within the context of the specific matter at hand, the Chamber highlighted once again that the agreement was signed by the club’s vice president himself, who according to the contents of art. 5 of the agreement is the authorised person to enter into a written contract with the player. In addition, from the information and elements on file, the Chamber deducted that the agreement had in fact started to be executed by the parties.

21. In conclusion, the members of the Chamber rejected the Respondent’s argument that the agreement is no valid and binding contract and established that the Claimant was entitled to monthly remuneration in the amount of EUR 1,000 during the validity of the agreement, i.e. as from 15 July 2013 until 15 June 2014.

22. In this respect, the DRC recalled that the Claimant asked to be awarded outstanding remuneration in the amount of EUR 4,000 corresponding to monthly salaries between September 2013 until December 2013 plus accommodation costs in the amount of EUR 2,750 for the period between August 2013 until December 2013.

23. Having said the above, the Chamber recalled the basic principle of the burden of proof, as stipulated in 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.

24. With this in mind, the members of the Chamber noted that the Respondent, whose sole defence appears to be based on the alleged non-validity of the agreement, did not present evidence of payment of the Claimant’s alleged outstanding salary or valid reasons for non-payment of such remuneration.

25. Regarding the Claimant’s claim relating to accommodation costs, the Chamber decided to reject said part of the claim in absence of a contractual basis in the agreement and considering that no evidence was presented by the Claimant supporting his argumentation of an oral agreement in this regard.

26. On account of the above, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent must pay outstanding salaries in the total amount of EUR 4,000 to the Claimant.

27. In addition, taking into consideration the Claimant’s petition, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the instalments included in the total amount of EUR 4,000 as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

28. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant.

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, outstanding remuneration in the amount of EUR 4,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 1 October 2013 on the amount of EUR 1,000;

b. 5% p.a. as of 1 November 2013 on the amount of EUR 1,000;

c. 5% p.a. as of 1 December 2013 on the amount of EUR 1,000;

d. 5% p.a. as of 1 January 2014 on the amount of EUR 1,000.

4. In the event that the aforementioned amount and interest due to the Claimant are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s 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:

Marco Villiger

Deputy Secretary General

Encl: CAS directives