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 11 July 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 from the date of signature until 30 June 2014.

2. On 29 January 2014, the parties concluded an “Agreement” (hereinafter: the termination agreement), which “is considered as A Final Release and discharge of the [Respondent]’s duties toward the [Claimant] as per the Employment Contract”, and according to which “The [Claimant] undertakes not to claim the [Respondent] or any other parties for any further dues except the payment mentioned in clause 2 para (a,c and d)”.

3. As per art. 2 lit. a) of the termination agreement, the Respondent agreed to pay the Claimant the amount of USD 400,000 as follows:

 USD 100,000 due on 3 February 2014;

 USD 300,000 due on 15 March 2014.

4. According to art. 2 lit. c) and d) of the termination agreement, the Respondent undertook to pay the player the following bonuses:

 USD 15,000 in the event the Respondent wins the Cup E of the

season 2013-2014;

 two matches of the Tournaments F won by the Respondent, in

which the Claimant participated in.

5. On 29 April 2014, the Claimant submitted a claim against the Respondent in front of FIFA, completed on 2 September 2016, requesting the following payments, plus 5% interest p.a. as of 15 March 2014:

 USD 400,000 as foreseen in art. 2 lit. a) of the termination agreement;

 If any, the bonuses under art. 2 lit. c) and d) of the termination agreement.

6. In this respect, the Claimant explained that considering the failure of the Respondent to pay his salary under the employment contract and in view of the interest of a third club in the Claimant’s transfer, the parties decided to sign the relevant termination agreement. However, the Claimant held that, despite the said termination agreement, the Respondent did not pay him the agreed amount on the agreed due dates.

7. In its response to the claim, the Respondent sustained that the Claimant’s claim was prescribed since it considered that more than two years had elapsed between the events giving rise to this dispute – i.e. the alleged due dates of 3 February 2014 and, respectively, 15 March 2014 – and the submission of the relevant claim on 2 September 2016. The Respondent further underlined that the agent’s correspondence sent on 29 April 2014 could not constitute the Claimant’s claim, which should be considered as being explicitly lodged on 2 September 2016.

8. In particular, the Respondent emphasised that, in his letter sent on 29 April 2014, the alleged agent of the Claimant never indicated that he was legally representing the Claimant as he did not submit any power of attorney together with his letter sent on that date. The Respondent deemed that the mere fact that the agent mentioned in his letter that, allegedly, there were also some payments due to the Claimant, cannot automatically imply that the agent would have lodged a claim on behalf of the Claimant.

9. In view of the aforementioned, the Respondent requested the Claimant’s claim to be inadmissible.

10. Furthermore, as to the substance of the case, the Respondent entirely rejected the Claimant’s claim “for the sake of good order”.

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 29 April 2014. Consequently, the 2012 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 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 29 April 2014, the 2012 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, and before entering the substance of the matter, the Chamber reverted to the argument of the Respondent, according to which the present matter is barred by the statute of limitations. In this regard, the members of the Chamber referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute. Bearing in mind the aforementioned, and taking into account the documentation on file, the DRC considered that the present claim had been lodged in front of the DRC on 29 April 2014, albeit completed on 2 September 2016, and that the event giving rise to the dispute was the respective payment due on 3 February 2014 and 15 March 2014. Consequently, the members of the Chamber had to reject the argument of the Respondent and confirmed that the present petition was lodged in front of the DRC within the said two-year time limit. The matter is thus not barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

5. Having established the aforementioned, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case as well as the documentation on file. However, the DRC 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.

6. In this respect and in a first instance, the DRC acknowledged that, on 11 July 2013, the Claimant and the Respondent had concluded an employment contract valid as of the date of signature until 30 June 2014.

7. Equally, the DRC took note that, on 29 January 2014, the parties had concluded an agreement regarding the termination of the contract and, in particular, agreed upon the payment of the total amount of USD 400,000, payable in two instalments, respectively of USD 100,000 due on 3 February 2014 and of USD 300,000 due on 15 March 2014.

8. In continuation, the DRC observed that the Claimant alleged that the Respondent had failed to pay him the relevant amount of USD 400,000 as per the termination agreement. Equally, the Chamber took note that the Respondent solely rejected the Claimant’s claim pertaining to its substance.

9. At this stage, the members of the DRC deemed it fit to recall the content 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.

10. Bearing in mind the above, the Chamber concurred that the Respondent did not provide any reasons, or documentary evidence, pertaining to the non-payment of the amount foreseen in the termination agreement signed with the Claimant.

11. Therefore, the Chamber decided that in accordance with the general legal principle of pacta sunt servanda, the Respondent was liable to pay to the Claimant the amount of USD 400,000, as set forth in the termination agreement.

12. In continuation and with regard to the Claimant's request for interest, as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the Claimant an interest of 5% p.a. on the amount of USD 400,000 as follows:

 5% p.a. as of 15 March 2014 on the amount of USD 100,000;

 5% p.a. as of 16 March 2014 on the amount of USD 300,000.

13. With regard to the Claimant’s request pertaining to bonuses, the DRC referred to art. 12 par. 3 of the Procedural Rules and decided to reject said request insofar as the Claimant did not substantiate this part of the claim.

14. Finally, the DRC concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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, the amount of USD 400,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 15 March 2014 on the amount of USD 100,000;

b. 5% p.a. as of 16 March 2014 on the amount of USD 300,000.

4. In the event that the amount foreseen plus interest is not paid within the stated time limit by the Respondent, 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.

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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