F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 17 May 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 May 2018,
in the following composition:
Geoff Thompson (England), Chairman
John Bramhall (England), member
Stijn Boeykens (Belgium), member
Philippe Diallo (France), member
Jérôme Perlemuter (France), 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 3 July 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from 3 July 2016 until 30 May 2017.
2. According to article 4 of the employment contract, the Claimant was entitled, inter alia, to receive a monthly salary of USD 13,636, payable “at the end of every Gregorian month”. Furthermore, the same article stipulates the following: “in the end of the contract, the second party [i.e. the Claimant] shall receive an amount of USD 15,000”.
3. By means of a letter dated 8 March 2017, the Claimant put the Respondent in default of payment of “USD 13,600 representing 3 months of salaries from December 2016 until February 2017” as well as of payment of USD 15,000, corresponding to “the fee of signature planned for May 2017”, granting the Respondent a deadline to pay of 8 days. The Claimant further asked the Respondent “to stop immediately the high negative pressure and the inhuman constraints against his person”. In accordance with said letter, the Claimant affirmed that he “is victim of grave unbearable racist insults, harassment and discrimination on behalf of the leaders of the clubs” and that “since July 2016, [he] has never benefited from a residence permit which would have allowed him to make his family come and to open a bank account”.
4. On 14 March 2017, the Respondent replied to the Claimant’s letter of 8 March 2017 and stated that he “refuses to cash the cheques as usual” and asked the latter to provide it with a bank account in order to make the payment. Furthermore, the Respondent noted that it had made an application for the Claimant’s residence permit “which takes time”. Finally, the Respondent stated that the Claimant got involved in a fight with another player and that it decided “to sanction both players with disciplinary fees by cutting 40% from their salary for two months”. The Respondent further argued that the Claimant missed trainings from 10 January 2017 until 20 January 2017 “because he was in Country E without any excuse” and that it decided “to cut 50% from his salary for two months according to the Bylaws of the club”.
5. By means of two letters dated 15 May 2017 and 17 May 2017, the Claimant put the Respondent in default of payment of USD 54,544 corresponding to his monthly salaries of February, March, April and May 2017, as well as of payment of USD 15,000, corresponding to “the end of contract fees eligible on May 31th”. The Claimant also order the Respondent to issue an “exit permit” in order for him to leave the country. The Claimant affirmed having been pressured and to have endured sever abuse from the Respondent and that the latter “decided to cut several months of salaries without any explanation and any chance to let the player express his opinion on this situation”. Furthermore, the Claimant sustained that his absence was only due to the Respondent’s incapacity to grant him a working permit for the duration of the contract and underlined that the sanctions imposed on him are disproportional.
6. On 4 June 2017, the Claimant signed a document (hereinafter: the document of 4 June 2017), in which it is stated the following: “I [the Claimant] confirm that I receive from the club my full entitlements (all my due) under this contract, which end 30/05/2017 also undertake not to ask the club or any other party any entitlements due to the end of this contract”.
7. On 15 August 2017, the Claimant lodged a claim before FIFA, asking that the Respondent be ordered to pay to him the following amounts, plus 5% interest p.a. as from 30 May 2017:
a. USD 17,044, corresponding to his outstanding salaries for the months of February, March, April and May 2017 minus the sum of USD 37,500, which was paid by the Respondent on 4 June 2017;
b. USD 15,000, corresponding to the bonus fee payable on 31 May 2017, as stipulated in the contract;
c. USD 13,636 as “compensation”, corresponding to an additional monthly salary;
d. USD 500,000 as compensation because of the Respondent’s violent conduct towards the Claimant.
8. According to the Claimant, the Respondent decided “on December 2016, January and February 2017”, to “cut several monthly salaries” due to his alleged misconduct. The Claimant further claimed that he was banned from the squad and had to train alone and that the Respondent tried to isolate the Claimant and forced him to leave the country.
9. The Claimant sustained that he suffered from serious psychological distress after the Respondent forced him to attend a training session in May 2017 although all his teammates were allegedly on holidays during that time. Furthermore, the Claimant explained that he had never received a working visa while he was under contract with the Respondent and that consequently, on 17 May 2017, he had to put the Respondent in default of payment and had to order the Respondent to issue an “exit permit” in order for him to leave the country.
10. In addition, the Claimant stated that after several weeks of psychological pressure from the Respondent, he had been forced to sign the document of 4 June 2017. In this regard, the Claimant acknowledged having received on that same day two cheques in the amount of USD 30,500 and USD 7,000 but claimed that the Respondent only partially covered its debts.
11. By means of its letter dated 5 October 2017, FIFA invited the Respondent to provide its position to the claim lodged by the Claimant within 20 days as of receipt of said correspondence by DHL. In accordance with the DHL tracking report on file, the Respondent received said correspondence on 17 October 2017.
12. On 16 November 2017, the Respondent’s submission was received, i.e. after the time limit set by FIFA to reply to the claim had expired.
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 15 August 2017. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2017 edition; 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 (2018 edition) 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 (2016 and 2018 editions), and considering that the present claim was lodged on 15 August 2017, 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. The members of the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid as from 3 July 2016 until 30 May 2017, in accordance with which the Respondent would pay the Claimant a monthly salary of USD 13,636 for the duration of the contract as well as an amount of USD 15,000, payable “in the end of the contract”.
6. The Chamber equally noted that on 4 June 2017, i.e. after the expiration of the contract, the Claimant acknowledged having received two cheques in the amount of respectively USD 30,000 and USD 7,000. Moreover, the DRC acknowledged that, on that same day, the Claimant signed a document containing a declaration in accordance with which the Claimant admitted having received all his dues and entitlements from the Respondent under the contract.
7. Furthermore, the members of the DRC noted that on 15 August 2017, the Claimant lodged a claim against the Respondent maintaining that said declaration was signed by him under pressure from the Respondent and in order to be released by the latter. Therefore, the Claimant argued that the Respondent only partially covered its debts by paying him the total amount of USD 37,000 and claimed to be owed the remaining outstanding remuneration in the total amount of USD 32,044, as well as the total amount of USD 513,636 as compensation due to the Respondent’s alleged violent conduct towards him.
8. Subsequently, the DRC observed that the Respondent, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 6 November 2017, taking into account that the time limit set by FIFA was within 20 days as of receipt of its correspondence dated 5 October 2017 by DHL, and in accordance with the DHL tracking report on file, said correspondence was received by the Respondent on 17 October 2017. In fact, the reply of the Respondent was only received on 16 November 2017. As a result, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, it shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.
9. In this respect, and in relation to the argument of the Claimant that he was forced to sign the document of 4 June 2017, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
10. In this context, the DRC took into account that the Claimant submitted pictures of him allegedly training on his own as well as a video, in which he explained that the Respondent allegedly cut the water in his apartment, in support of his allegation that he had been isolated by the Respondent and that he had been coerced, by the latter, into signing the above-mentioned document.
11. Having duly taken note of the aforementioned documentation presented by the Claimant, the members of the Chamber, after making reference to art. 12 par. 3 and par. 6 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 the evidence shall be considered with free discretion respectively, concluded that such documentation presented by the Claimant did not prove beyond doubt that the Respondent coerced the Claimant into signing the above-mentioned document. Consequently, the DRC decided that the Claimant’s allegations in this regard cannot be accepted.
12. Furthermore, the DRC was eager to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility.
13. In light of all of the above, and in particular bearing in mind the fact that on 4 June 2017 the Claimant signed a document by means of which the Claimant waived any claim he might have or have had against the Respondent, and had also received from the Respondent the total amount of USD 37,500, the Dispute Resolution Chamber decided that it must reject in its entirety the claim put forward by the Claimant.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
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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
e-mail: info@tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives