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 2 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 2 March 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mario Gallavotti (Italy), member

Pavel Pivovarov (Russia), member

Jon Newman (USA), member

Roy Vermeer (Netherlands), 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

Facts relating to the preliminary issue of the competence of FIFA’s Dispute Resolution Chamber:

1. On 31 January 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 first contract) which in its art. 10 provided as follows:

“Item 10: Settlement of Disputes:

1) The two parties shall seek solving their disputes on the enforcement of the contract by amicable ways.

2) The NDRC of the Football Federation of Country D is concerned with considering and resolving the disputes that arise between the club and player on this professional contract, implementing and interpreting it”.

2. On 10 November 2015, the Claimant lodged a claim against the Respondent in front of FIFA.

3. In its reply to the claim, the Respondent questioned the competence of FIFA to deal with the present matter. In particular, and based on art. 10 of the first contract, the Respondent argued that the only competent body to decide upon a dispute involving the parties is the National Dispute Resolution Chamber of the Football Federation of Country D (hereinafter: the NDRC of the Football Federation of Country D). In this respect, the Respondent asserted that the NDRC of the Football Federation of Country D complies with the requirements established in art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations).

4. After having been requested by FIFA to provide documentation which could prove that the matter should be dealt with by the NDRC of the Football Federation of Country D, the Respondent provided FIFA with a copy of the Regulations of the NDRC of the Football Federation of Country D (hereinafter: the NDRC Regulations of the Football Federation of Country D). In this respect, art. 6 of the said regulations stipulates inter alia the following:

“6-2: The chamber shall be composed of a chairman, a vice-chairman and six members.

6-3: … The chairman and the [vice]-chairman shall be appointed by the Board of Directors of the Football Federation of Country D.

(…)”

5. In his replica, the Claimant held that the Respondent failed to provide sufficient evidence to support its allegations, as the Claimant sustained that the copy of the NDRC Regulations of the Football Federation of Country D submitted by the Respondent appears to be “rather a fake document printed out on white paper and construed for the present case….”. The Claimant further sustained that the translation of said regulations lacks validity as the submitted translation is neither an official translation nor a certified one.

6. Moreover, the Claimant stressed that the NDRC of the Football Federation of Country D does not comply with the requirements established in art. 22 lit. b) of the Regulations in order to be recognized as an independent tribunal. In particular, the Claimant argued that the Respondent has not proven that the NDRC of the Football Federation of Country D is indeed operative, i.e. “not only existing on paper”. Moreover, the Claimant referred to art. 6-3 of the NDRC Regulations of the Football Federation of Country D and stressed that, in view of the aforementioned provisions, the principle of equal representation of clubs and players is not respected in said national body, since the chairman and vice-chairman shall be appointed by the Board of Directors of the Football Federation of Country D and not by consensus by the player and club representatives from a list of at least five persons, while referring to art. 3.1 lit. a) of FIFA’s NDRC Standard Regulations.

7. Following the abovementioned, the Claimant reiterated that FIFA is competent to deal with his claim.

8. In its duplica, the Respondent reiterated its exception of lack of jurisdiction of the DRC and provided FIFA with a copy of a certified translation of the NDRC Regulations of the Football Federation of Country D. In this respect, art. 6 of said certified translation stipulates the same points 6.2 and 6.3 as the copy of the NDRC Regulations of the Football Federation of Country D previously submitted (cf. point I.4. above) and additionally, the following:

“(…)

6-5: Pending establishment of the professional football players league to nominate their representatives in the chamber, the board appoints three members in the chamber to represent the professional football players.”.

Facts relating to the substance of the matter:

9. On 31 January 2015, the Claimant and the Respondent concluded the first contract valid as of 1 February 2015 until 30 June 2015.

10. After the natural expiry of the contract, the Claimant and the Respondent concluded a second employment contract (hereinafter: the second contract), valid as from 1 August 2015 until 31 May 2016.

11. According to the first contract, the Claimant was entitled to receive from the Respondent, inter alia, the total amount of USD 500,000 for the duration of the contract, payable as follows:

a. USD 250,000 “due on the date of the ITC issue” (hereinafter: the sign-on fee);

b. USD 50,000 as monthly salary to be paid by the end of each month.

12. By correspondence dated 16 October 2015, the Claimant put the Respondent in default of payment of USD 350,000, setting a time limit until 6 November 2015 in order to remedy the default.

13. On 10 November 2015, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to him outstanding remuneration in the amount of USD 350,000, corresponding to his salaries of May and June 2015 as well as the sign-on fee, plus 5% interest p.a. on the amount of USD 250,000 as from 6 February 2015, 5% interest p.a. on the amount of USD 50,000 as from 1 June 2015 and 5% interest p.a. on the amount of USD 50,000 as from 1 July 2015. The Claimant explained that the basis of his claim is the first contract only.

14. In his claim, the Claimant explained that he only received the amount of USD 150,000 up until the natural expiry of the first contract, corresponding to 3 monthly salaries of USD 50,000, each, and therefore, the salaries of May and June 2015, as well as the sign-on fee as established in the first contract, remain outstanding.

15. In its reply as to the substance, the Respondent held that the Claimant accepted the late payments of the amounts as he failed to give any notice to it regarding the alleged outstanding amounts before 16 October 2015. Furthermore, the Respondent held that the Claimant should have made it aware of this outstanding remuneration at the date of signing the second contract or before leaving the club on 18 September 2015.

16. Moreover, the Respondent pointed out that, on 30 October 2015, it replied to the player’s letter of 16 October 2015 (note: copy of letter on file), and sustained that only the salaries of May and June 2015, in the amount of USD 100,000 are still outstanding, while rejecting that the sign-on fee is outstanding. Moreover, the Respondent held that the Claimant, in connection with a decision from the Football Confederation of Continent F was sanctioned with a fine of USD 10,000, which the Respondent sustained having paid on his behalf.

17. In light of the above, the Respondent maintained that by means of its letter dated 5 November 2015, it explained the Claimant that the total amount outstanding to him is USD 90,000 and requested the Claimant to send the corresponding invoice.

18. As to the sign-on fee, the Respondent held that it “has refuted the claimant’s allegation concerning the request of the signing fee amounting to USD 250,000, which is an incentive sum paid when [the Claimant] joined [the Respondent] at the very beginning of the employment contract in the presence of his agent”.

19. Furthermore, the Respondent held that interest on USD 90,000 should only apply as from 7 November 2015, taking into account the Claimant’s letter dated 16 October 2015 and the deadline provided to it in said letter (cf. point I.12 above).

20. In his replica, as to the substance, the Claimant held that he never consented to the late payments of the Respondent. In relation to the sign-on fee, the Claimant argued that the Respondent failed to provide any evidence of its alleged payment, sustained that he never waived such amount and reiterated that he never received it.

21. In respect to the fine imposed by the Football Confederation of Continent F, the Claimant rejected that such amount should be deducted, as according to him, the Respondent failed to provide any evidence as to whether its payment was related to a sanction imposed on him, or to a sanction imposed on the Respondent regarding the same match, and corresponding to the same amount.

22. Moreover, the Claimant held that, in any case, he was never notified in writing about the sanction and that the Respondent never notified him that it would deduct this amount from his salary. Moreover, the Claimant held that no disciplinary proceedings had been conducted respecting the principles of fair justice and, as a new contract was offered by the Respondent, in good faith he concluded that the Respondent would take over the payment of this sanction.

23. Finally, the Claimant maintained his request for relief.

24. In its duplica, the Respondent reiterated its position and in respect to the fine imposed by the Football Confederation of Continent F on the Claimant, the Respondent clarified that indeed a fine corresponding to the same amount was imposed on both parties regarding the same match. The Respondent held that it paid both fines. Along these lines the Respondent provided a copy of the disciplinary decision of the Football Confederation of Continent F dated 19 May 2015, by means of which USD 10,000 was imposed as a fine on the Claimant, and a copy of the disciplinary decision of the Football Confederation of Continent F dated 12 June 2015, by means of which USD 10,000 was imposed as a fine on the Respondent. Moreover, the Respondent provided documentation to support that it paid both fines.

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 10 November 2015. Consequently, the Chamber concluded that 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 2015 and 2017 editions of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations (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 of Country B and a Club of Country D.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies alleging that the Claimant should have addressed his claim to the NDRC of the Football Federation of Country D, in compliance with art. 10 of the first contract.

4. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent, as he sustained that the NDRC of the Football Federation of Country D is not, in fact, operative. Furthermore, the Claimant maintained that the NDRC of the Football Federation of Country D does not respect the principle of equal representation of players and clubs.

5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit b) of the Regulations 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 (hereinafter: the NDRC Regulations), which came into force on 1 January 2008.

6. In this respect, the DRC turned its attention to the principle of equal representation of players and clubs and underlined that this principle is one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”.

7. On account of the above, the Chamber went on to examine the documentation submitted by the Respondent in order to prove its allegation that the NDRC of the Football Federation of Country D meets the requirements to be recognized as an independent arbitration tribunal established at national level within the framework of the Football Federation of Country D. In this regard, the DRC, after a thorough examination of the certified translation of the NDRC Regulations of the Football Federation of Country D provided in the matter at hand, noted that it can be established from its art. 6.3 that the Chairman and deputy Chairman of the NDRC of the Football Federation of Country D are chosen by the Board of Directors of the Football Federation of Country D only, and not by a consensus by and between the player and club representatives as illustrated by art. 3 par. 1 of the NDRC Regulations. Moreover, the members of the Chamber noted that in accordance with art. 6.5 of the NDRC Regulations of the Football Federation of Country D it appears that Board of Directors of the Football Federation of Country D also appoints the player representatives. Therefore, the player representatives are not appointed from a pool of “between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro”, i.e. the appointment of player representatives is not in line with art. 3 par. 1 of the NDRC Regulations.

8. Therefore, the Chamber was unanimous in its conclusion that the NDRC of the Football Federation of Country D does not respect the principle of equal representation of players and clubs.

9. As a consequence of the above-mentioned elements, the Chamber agreed that it could not be concluded that the NDRC of the Football Federation of Country D is indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs.

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 the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the substance.

11. Subsequently, 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 (editions 2015 and 2016), and considering that the present claim was lodged on 10 November 2015, the 2015 edition of the 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 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

13. In this respect, the Chamber acknowledged that on 31 January 2015, the parties signed an employment contract valid as of 1 February 2015 until 30 June 2015, in accordance with which the Claimant was entitled to receive the total amount of USD 500,000 for the duration of said contract, amount that corresponds to USD 250,000 as a sign-on fee “due on the date of the ITC issue”, and USD 50,000 as monthly salary to be paid by the end of each month. The DRC took note that according to the information contained in TMS, the relevant ITC was issued on 2 February 2015.

14. In this context, the members of the DRC analysed the claim lodged by the Claimant, and underlined that the Claimant held that USD 350,000 remains unpaid, amount that corresponds to the sign-on fee and his salaries of May and June 2015 as stipulated in the abovementioned contract.

15. It was duly noted by the DRC that the parties signed a second contract on 1 August 2015 valid until 31 May 2016. However, it was observed that the basis of the present dispute, as confirmed by the Claimant, is only the first contract signed between the parties.

16. Equally, the Chamber took note of the reply of the Respondent as to the substance of the claim, in which it held, concerning the alleged outstanding sign-on fee that it “has refuted the claimant’s allegation concerning the request of the signing fee amounting to USD 250,000, which is an incentive sum paid when [the Claimant] joined [the Respondent] at the very beginning of the employment contract in the presence of his agent”.

17. Furthermore, although the Respondent acknowledged that the Claimant’s salaries of May and June 2015 in fact remain unpaid, the DRC observed that the Respondent argued that a deduction of USD 10,000 shall be made on the acknowledged outstanding amounts, in connection with a decision from the Football Confederation of Continent F, wherein the Claimant was sanctioned with a fine of USD 10,000, which the Respondent sustained having paid on his behalf. In this regard, the Respondent has clarified that a fine corresponding to USD 10,000 was imposed on both the Claimant and the Respondent itself regarding the same match and provided a copy of the respective decisions by the Football Confederation of Continent F, as well as proof of payment of the respective fines.

18. The Claimant, on his part, contested the right of the Respondent to make such deduction and rejected that USD 10,000 should be deducted from his claimed outstanding amounts.

19. After analysing the opposed positions of the parties, the Chamber concluded that the underlying issue in the matter at hand as to the substance is to establish if the sign-on fee has been in fact paid or not in accordance with the terms of the first contract, and if the Respondent is indeed entitled to deduct USD 10,000 from the acknowledged outstanding salaries of the Claimant corresponding to the months of May and July 2015.

20. In view of the above, the members of the DRC turned their attention to the assertion of the Respondent that the sign-on fee had been “paid when [the Claimant] joined [the Respondent] at the very beginning of the employment contract in the presence of his agent”. In this respect, the DRC recalled the contents of 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 and took note that the Respondent did not submit any evidence supporting its allegation. Therefore, the DRC concluded that such reasoning could not be followed. Consequently, the Respondent’s argument that the sign-on fee corresponding to USD 250,000 had been previously paid cannot be upheld.

21. Subsequently, the members of the DRC turned to the divergent opinion of the parties in respect to the alleged right of the Respondent to deduct USD 10,000 in respect to a disciplinary fine of USD 10,000 imposed on the Claimant by the Football Confederation of Continent F, which the Respondent sustained to have paid on the Claimant’s behalf. In this framework, the Chamber deemed it necessary to examine the documentation provided by the Respondent in support of its position.

22. With this in mind, the Chamber noted that the disciplinary decision of the Football Confederation of Continent F dated 19 May 2015, by means of which USD 10,000 was imposed as a fine on the Claimant, does not impose an obligation to the Respondent to pay this amount. Furthermore, the DRC noted that there is no evidence on file that the Football Confederation of Continent F had urged the Respondent to pay the Claimant’s respective fine in the first place. Following this line of reasoning, the DRC concluded that the Respondent had paid the USD 10,000 fine imposed on the Claimant by the Football Confederation of Continent F at its own discretion. Subsequently, the Chamber analysed the contents of the first contract and confirmed that there is no contractual clause that foresees that in case a fine is imposed on the Claimant by a competent body, the Claimant would have to reimburse said amount in case the Respondent covers it. As such, without an explicit urge from the confederation to pay the respective fine in the first place and in the absence of a contractual basis regarding the reimbursement of a paid fine, the DRC deemed that the Respondent is not allowed to deduct the amount of USD 10,000 from the Claimant’s outstanding remuneration.

23. As a result thereof, the Chamber established that the Respondent had failed to pay to the Claimant the amount of USD 350,000, in relation to the sign-on fee and salary payments of May and June 2015.

24. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, therefore, is to be held liable to pay the outstanding amount of USD 350,000 to the Claimant.

25. In addition, taking into account the Claimant’s request, as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payments, i.e. as of the day following the day on which the relevant payments fell due, until the date of effective payment, as calculated by 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 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 USD 350,000.

4. Within the same deadline, the Respondent has to pay to the Claimant interest as follows:

- 5% p.a. over the amount of USD 250,000 as from 6 February 2015 until the date of effective payment;

- 5% p.a. over the amount of USD 50,000 as from 1 June 2015 until the date of effective payment;

- 5% p.a. over the amount of EUR 50,000 as from 1 July 2015 until the date of effective payment.

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

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 art. 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