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 20 April 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 April 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mohamed Mecherara (Algeria), member

Leonardo Grosso (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 between the parties

I. Facts of the case

1. On 24 January 2016, the Player of Country B, Player A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent), signed an employment contract valid as from the date of signature until 30 June 2016 as well as a “Schedule” (hereinafter together referred to as contract).

2. According to the contract, the Claimant was entitled to receive a remuneration of EUR 650,000, payable in instalments as follows:

- EUR 160,000 “on signing”;

- EUR 150,000 due on 1 March 2016;

- EUR 85,000 due on 1 April 2016;

- EUR 85,000 due on 1 May 2016;

- EUR 85,000 due on 1 June 2016; and

- EUR 85,000 due on 30 June 2016.

3. Moreover, the Claimant was entitled to the following bonuses:

- USD 2,000 “For win any match in League (League of Country D)”;

- USD 100,000 “League of Country D”;

- USD 50,000 “Cup E of Country D”;

- USD 20,000 “Cup F of Country D”.

4. On 26 August 2016, with a subsequent amendment on 12 September 2016, the Claimant lodged a claim against the Respondent before FIFA, asking to be awarded payment of the following monies:

- the last three instalments of EUR 85,000 each, respectively due on 1 May 2016, 1 June 2016 and 30 June 2016;

- USD 10,000 as bonuses regarding five matches won between January and June 2016 in the amount of USD 2,000 each.

Moreover, the Claimant requested interest in the rate of 5% p.a. on the amounts claimed as from the respective due dates as well as the amount of EUR 5,000 as extrajudicial costs and “payment of the costs of the current proceedings”.

5. According to the Claimant, the Respondent failed to pay the monthly instalments established in the contract in the total amount of EUR 255,000 as well as bonuses regarding five matches won by the Respondent. The Claimant presented internet extracts regarding the relevant matches which, according to the Claimant, entitled him to receive the bonuses claimed.

6. In addition, the Claimant requested FIFA to intervene on the basis of art. 12bis of the Regulations on the Status and Transfer of Players as well as to impose sanctions on the Respondent.

7. In this regard, the Claimant alleged having put the Respondent in default of payment on two occasions. In this respect, the Claimant provided a copy of a default notice dated 17 August 2016 addressed to the Respondent, containing the Respondent’s address as well as indicating that it was also remitted per e-mail and fax, in which the Claimant gave the Respondent seven days within which to remedy the alleged default.

8. Subsequently, on 31 August 2016, the Claimant allegedly put the Respondent again in default, setting on this occasion a ten days’ time limit for the Respondent to remedy the alleged default. In this regard, the Claimant also submitted a copy of the relevant default notice dated 31 August 2016 addressed to the Respondent, containing the Respondent’s address and indicating that it was also remitted per e-mail.

9. The Respondent replied to the claim affirming, on a preliminary basis, that it did not receive the Claimant’s default notices “in writing”, as established in art. 12bis par. 3 of the Regulations on the Status and Transfer of Players. In this respect, the Respondent referred to jurisprudence of the Court of Arbitration for Sport (CAS) as well as to Swiss Law, according to which “a contract – or an offer – is deemed to be made “in writing”, when it is signed with the original signature of the party or the parties that are contractually bound by the document”, and held that the Claimant failed to demonstrate that he addressed the default notices to the Respondent “in compliance with the criteria aforementioned quoted and as such, the former did not carry the burden of the proof”.

10. Moreover, the Respondent held that the Claimant did not prove having participated in the League matches in order to be entitled to any bonus.

11. Regarding the alleged outstanding remuneration, the Respondent held having paid all the amounts due to the Claimant. Consequently, the Respondent sustained that it cannot be considered that the Respondent has overdue payables in the sense of art. 12 bis par. 3 of the Regulations on the Status and Transfer of Players.

12. In continuation, the Respondent stated that the Claimant did not request the imposition of sanctions on the Respondent in accordance with art. 12bis par. 4 of the Regulations on the Status and Transfer of Players and thus, FIFA has no legal grounds to impose sanctions “upon the liability of violating the extra petita doctrine”.

13. Alternatively, the Respondent requested the Dispute Resolution Chamber to confirm that the Claimant failed to put the Respondent in default in writing and, as such, no overdue payables can be established and no sanction can be imposed.

14. The Claimant submitted his replica, insisting on his claim and rejecting the Respondent’s arguments.

15. The Claimant highlighted that the default notice dated 31 August 2016 fully complied with the requirements of art. 12bis of the Regulations on the Status and Transfer of Players and that both default notices (respectively dated 17 and 31 August 2016) were allegedly sent by fax, e-mail and regular post, as mentioned in the default notices, to the same addresses as indicated in the Respondent’s website, the employment contract and the power of attorney granted to the Respondent’s lawyer within the scope of the present matter. Along with his replica, the Claimant provided a copy of emails sent on 17 and 31 August 2016 to the Respondent, in which the Claimant refers to the attachment and it is stated that the attached letter has been also sent to the Respondent per regular mail. In particular, the emails are addressed to xxx@xxx and xxx@xxx and indicate as attachment “Letter to Club C”.

16. In addition, the Claimant pointed out that the CAS jurisprudence and Swiss Law invoked by the Respondent concern the obligation of the parties to sign a contract, whilst the matter at hand concerns a letter sent by a legal representative.

17. In continuation, the Claimant rejected the Respondent’s argument that the Claimant did not discharge his burden of proof in respect of bonuses. In this respect, according to the Claimant, the participation of the Claimant in the matches was not a requirement established in the contract. However, the Claimant held that, in any case, he did participate in five matches won by the Respondent during the relevant period. In this respect, the Claimant presented internet extracts regarding his participation in the relevant matches with respect to the bonuses claimed.

18. Furthermore, the Claimant asked the Dispute Resolution Chamber to disregard the documents submitted by the Respondent as alleged proof of payment, since they are not translated into one of the four official FIFA languages. Moreover, the Claimant stated that the documents do not seem to specify the obligations they are related to. In addition, the Claimant held that the signatures indicated as his are different in the documents provided, making reference to the employment contract as well as to the power of attorney granted to his lawyer.

19. The Claimant added that the Respondent, on 30 June 2016, offered to pay him the outstanding amount of EUR 255,000 against a full and final discharge, which he refused to sign. In this regard, the Claimant provided a copy of an unsigned document named “Final Clearance”, dated 30 June 2016, bearing the Respondent’s logo, which established in its point 6. That ”The parties agreed that the club does have to pay to the player the amount of 255.000 €.”.

20. Therefore, according to the Claimant, it can be concluded that, if the Respondent had indeed paid the amounts in a timely manner and in accordance with the contract, it would not have submitted a settlement agreement to the Claimant.

21. In its duplica, the Respondent stated that it did not receive any default notice from the Claimant by any means and that thus, the Claimant failed to put the Respondent in default.

22. Regarding the email allegedly sent by the Claimant, the Respondent held that validity of warnings addressed by email are controversial and usually not accepted by FIFA as enough evidence that a party was granted the necessary chance to remedy any default. In any case, according to the Respondent, usually the parties address a copy of such warnings to the football association to avoid any doubt or misunderstanding, which the Claimant failed to do in the present dispute. In particular, the Respondent stated that the Claimant did not prove having sent the default notices via fax or post.

23. The Respondent insisted that the bonuses were only due in case the Claimant would participate in the relevant matches, since a bonus is “an extra amount of money that is given to you as a present or reward in addition to the money you are expecting”. However, the Respondent held having already paid the Claimant for four matches the Respondent won during the relevant period in the total amount of XXX 30,000 or USD 8,246. Therefore, according to the Respondent, the Claimant has no legal basis to request the bonuses.

24. On this occasion, the Respondent submitted translations of the documents it provided with its reply, which are three undated documents all named “Prizes and Remuneration for the Winners in the Club C in the League of Country D – 2015/2016” consisting of lists with amounts and the Claimant’s signatures. In the three lists, the Claimant’s signature is linked to the amount of XXX 10,000 in each list.

25. Finally, the Respondent disputed having sent the Claimant the settlement agreement presented by the latter. In particular, the Respondent affirmed that in any case, the relevant document is not signed by the Respondent and thus, it is not binding and has no relevance.

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 26 August 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 and par. 2 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 26 August 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. Having said that, the members of the DRC acknowledged that the Claimant and the Respondent had signed an employment contract and a “Schedule”, valid as from 24 January 2016 until 30 June 2016.

6. The Chamber took note that the Claimant lodged a claim against the Respondent, requesting, inter alia, to be awarded outstanding remuneration including monthly instalments and bonuses in the amounts of EUR 255,000 and USD 10,000, respectively. More precisely, the Chamber recalled that the Claimant alleged not having received the last three monthly instalments of EUR 85,000 each as well as bonuses relating to five matches won by the Respondent as established in the contract.

7. Moreover, the DRC took note that the Respondent, for its part, held having paid all the amounts due to the Claimant. As regards the bonuses, the Respondent in particular held that the Claimant did not demonstrate having participated in the matches in order to be entitled to receive any bonuses and stated having already paid the Claimant bonuses regarding four matches.

8. In this respect, the DRC recalled that the contract established that the Claimant was entitled to receive a total remuneration of EUR 650,000, divided in six instalments, the last three of which, each in the amount of EUR 85,000, fell due on 1 May 2016, 1 June 2016, and 30 June 2016, respectively. The Chamber further took into account that in accordance with the contract, the Claimant was entitled to receive a bonus payment of USD 2,000 for each League match won.

9. Having established the above, bearing in mind art. 12 par. 3 of the Procedural Rules regarding the burden of proof, the Chamber examined the documentation presented by the Respondent in its defence and concluded that the documentation submitted (cf. number I./24. above) cannot be considered evidence of payment by the Respondent of the last three instalments of EUR 85,000 each due to the Claimant in accordance with the contract.

10. Therefore, the DRC concluded that the final three contractual instalments of EUR 85,000 each in the total amount of EUR 255,000 have not been paid by the Respondent to the Claimant.

11. In continuation, the members of the DRC reverted to the Claimant’s claim related to bonuses and took note that, according to the Claimant he was entitled to five bonuses in the amount of USD 2,000 each for matches won by the Respondent.

12. The Respondent, for its part, rejected such claim and held that (i) the Claimant had not participated in the relevant League matches and thus is not entitled to receive these bonuses and (ii) it had already paid him bonuses related to four matches won by the Respondent.

13. Considering the arguments of the parties, the DRC established that it had to analyse two main questions: (a) the Claimant’s entitlement to such bonuses; and (b) the payment of such bonuses.

(a) Entitlement to bonuses

14. In this respect, the DRC recalled the terms of the contract, which establishes “Bonuses” inter alia “For win any match in League (League of Country D) 2000 $ Dollars”.

15. Taking into account the wording of the relevant clause, the DRC concluded that the only condition for the Claimant to be entitled to the relevant bonus is that the Respondent wins the relevant match.

16. At this point, the DRC again referred to art. 12 par. 3 of the Procedural Rules and stated that the Respondent had failed to demonstrate that the participation of Claimant was a requirement for the entitlement to the bonus. Furthermore, the DRC considered that the Respondent’s argument that the Claimant’s match participation was required, because a bonus is an extra amount paid as a reward, could not be sustained.

17. On the other hand, the Chamber took note that the Claimant demonstrated that the Respondent had won the five matches in the relevant league during the contractual period. Moreover, the DRC highlighted that, even if not a requirement, the Claimant even submitted evidence that he actually played in the relevant matches.

18. Finally, the DRC highlighted that the Respondent did not dispute having won the matches related to the bonuses claimed by the Claimant.

19. Therefore, the DRC decided that the Claimant was in principle entitled to receive the bonuses claimed.

20. Once this was established the DRC continued to analyse whether or not the Respondent had already paid the Claimant the bonuses requested.

(b) Payment of bonuses

21. In this regard, the DRC recalled the Respondent’s argument that it had already paid the Claimant bonuses for four matches won during the relevant period, which was rejected by the Claimant.

22. Moreover, the members of the DRC acknowledged that the Respondent submitted three documents named “Prizes and Remuneration for the Winners in the Club C in the League of Country D – 2015/2016”, containing the signature of several players, including the Claimant’s signature, which is linked to the corresponding amount of XXX 10,000 in each list.

23. After examination of the three aforementioned documents, the DRC found that the relevant lists submitted by the Respondent are undated and do not demonstrate the payment of the specific amounts claimed as bonuses by the Claimant, since the payments listed cannot be allocated to specific contractual obligations. Consequently, the DRC concluded that the Respondent had not been able to corroborate its allegation that it paid the bonuses claimed by the Claimant with sufficient documentary evidence.

24. In view of all of the above, the DRC established that the Respondent had failed to pay to the Claimant the amount of EUR 255,000 corresponding to the last three instalments of EUR 85,000 each as well as USD 10,000 as bonuses in accordance with the contract.

25. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the DRC decided that the Respondent must fulfil its obligations as per the contract concluded with the Claimant and, consequently, pay to the Claimant the amounts of EUR 255,000 and USD 10,000.

26. In addition, taking into account the Claimant’s request and the fact that the contract does not specify the due dates of the bonus payments, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the day following the day on which each of the relevant instalments fell due and 5% p.a. on the amount of USD 10,000 as of the end of the contractual period.

27. In addition, the Chamber referred to art. 18 par. 4 of the Procedural Rules, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber, as well as to its long-standing and well-established jurisprudence, and decided to reject the Claimant’s request relating to procedural costs.

28. The DRC 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 EUR 255,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 2 May 2016 on the amount of EUR 85,000;

b. 5% p.a. as of 2 June 2016 on the amount of EUR 85,000;

c. 5% p.a. as of 1 July 2016 on the amount of EUR 85,000.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 10,000 plus 5% interest p.a. as from 1 July 2016 until the date of effective payment.

4. In the event that the aforementioned amounts plus interest are 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.

5. Any further request filed by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are 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

Chief Legal & Integrity Officer

Encl. CAS directives