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 7 June 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 June 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Jon Newman (USA), member

Wouter Lambrecht (Belgium), member

Pavel Pivovarov (Russia), 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 22 January 2017, the player of Country B, Player A (hereinafter: Claimant) and the club of Country D, Club C (hereinafter: Respondent), signed a “proposal agreement” by means of which the Respondent offered to the Claimant:

a) “A half year contract for the periods 2016-2017 plus one additional year if the [Respondent] promoted in League of Country D for the season 2017-2018;

b) EUR 50.000 net, from February until June;

c) A bonus of EUR 25.000 net in case the [Respondent] will promote in League of Country D for the season 2017-2018;

d) A full contract of EUR 150,000 net for the season 2017-2018, only if the [Respondent] participates in League of Country D;

e) EUR 3,000, from February until June, for car and accommodation;

f) One return ticket for Country B.”

2. The proposal agreement further indicated: “The offer is valid for 24 hours”.

3. The proposal agreement ended with the following jurisdiction clause: “Any dispute arising from or related to the present agreement will be submitted exclusively to the Court of FIFA (…)”.

4. On 27 January 2017, the Claimant and the Respondent signed a “Professional Player’s Contract” (hereinafter: contract), valid from the date of signature until 30 June 2017.

5. According to clause 4.1 of the contract, the Claimant would obtain a monthly fee of EUR 3,500 net, “paid out to the [Claimant] the latest at the end of each month”.

6. Clause 4.1 also provided that the Claimant is entitled to a Christmas bonus equal to one monthly salary, an Easter bonus equal to half a monthly salary, as well as a “Holiday benefit” equal to half a monthly salary.

7. In accordance with clause 4.2 of the contract, “the [Claimant] will receive a bonus of EUR 25,000 if the [Respondent] promotes to League of Country D. The bonus will be payable on 5 September 2017”.

8. Under clause 4.3, the Claimant obtains as “other benefits:

a) The amount of EUR 4,500 as transportation expenses payable in 5 equal instalments of EUR 900 each as from February 2017 until June 2017;

b) Monthly residence bonus EUR 4,500 payable in 5 equal instalments of EUR 900 each as from February 2017 until June 2017;

c) The amount of EUR 3,000 for car from February 2017 until June 2017;

d) One ticket with refund for Country B”.

9. According to the information contained in the Transfer Matching System (TMS), the Claimant signed an employment contract with the club of Country E, Club F, on 17 July 2017, valid from 1 July 2017 until 31 May 2018. The information found in TMS further provided that “the contract with the former club had expired”.

10. With regard to the proposal agreement, the Claimant claimed that the Respondent offered it to him on 22 January 2017 and that he signed that very same day.

11. The Claimant further highlighted that under the employment contract he would obtain a total amount of EUR 33,000. According to the Claimant, this amounts to EUR 20,000 less than the total amount of EUR 53,000 he would obtain in accordance with the proposal agreement.

12. For this reason, as per the Claimant, on 31 January 2017 the Respondent paid the Claimant an amount of EUR 20,000 via a bank transfer.

13. The Claimant further held that between 31 January 2017 and 20 June 2017 he received the following amounts:

Amount paid

Date received

EUR 5,000

15 March 2017

EUR 5,000

12 April 2017

EUR 2,991

15 May 2017

EUR 3,000

20 June 2017

14. On 26 September 2017, the Claimant’s legal representative sent a written notification to the Respondent on behalf of the Claimant requesting EUR 17,009 corresponding to outstanding salary, to be paid “within 10 days from the receipt of this communication”. In this notification, the Claimant’s legal representative described the EUR 20,000 paid on 31 January 2017 as a “signing fee”.

15. On 3 October 2017, the Respondent answered to the Claimant’s notification holding that the Claimant’s total salary amounted to EUR 33,007.08 and that he had received EUR 35,991. Consequently, as per the Respondent, the Claimant had received EUR 2,983.92 more than what was actually owed to him.

16. On 15 October 2017, the Claimant’s legal representative sent a second notification letter to the Respondent, highlighting once again that the Respondent only paid EUR 35,991 out of the EUR 53,000, and that therefore EUR 17,009 remained outstanding. The Claimant’s representative provided the Respondent another 10 days to fulfil its obligation duties.

17. On 16 November 2017, the Claimant lodged a claim in front of FIFA, requesting that the Respondent be ordered to pay him overdue payables in the total amount of EUR 17,009, plus 5% interest p.a. on the said amount as from the due date until the date of effective payment.

18. On 28 February 2018, the Respondent replied to the Claimant’s claim. It held that, for the duration of the employment contract, which expired on 30 June 2017, the Claimant was entitled to EUR 35,285.32 as follows:

a) 5 monthly salaries of EUR 5,846.72 (including travel expenses and subsistence costs), amounting to EUR 29,233.60;

b) EUR 2,218.30 as an Easter gift;

c) EUR 2,297.04 as a holiday gift;

d) EUR 1,536.38 as a Christmas gift;

19. Furthermore, the Respondent held that it also paid a return ticket to Country B for the Claimant.

20. Given that the Claimant acknowledged having received EUR 35,991 (cf. I.12-13), the Respondent argued that it does not owe the Claimant any outstanding remuneration.

21. As regards the EUR 53,000 the Claimant believed he should receive on the basis of the proposal agreement signed on 22 January 2017, the Respondent argued that this agreement seized to be valid after 24 hours, referring to the part of the agreement which read: “the offer is valid for 24 hours” (cf. I.2).

22. As a result, as per the Respondent, only the employment contract signed by the parties on 27 January 2017 is valid and binding.

23. The Respondent further refered to the discrepancies between the proposal agreement and the contract, in particular as regards the car, transportation and accommodation bonus: “Whereas the proposal agreement indicated that the [Claimant] is entitled to only EUR 3,000 bonus (…) for car and accommodation, the contract indicates that the [Claimant] is entitled to EUR 3,000 for car, EUR 4,000 for rent house and EUR 4,500 for transportation”.

24. Therefore, according to the Respondent, given the clear differences between the proposal agreement and the contract regarding the same type of remuneration, it is “proven that the initial proposal was eventually changed and what finally agreed between the two parties was finally captured in the (…) contract”.

25. In his replica, dated 23 March 2018, the Claimant argued that the contract did not substitute the proposal agreement, but that they are complementary. In this context, the Claimant once again referred to the payment of EUR 20,000 made on 31 January 2018 (cf. I.11), not stipulated in neither the proposal agreement nor the contract, but which is the exact difference between the two.

26. Moreover, the Claimant included alleged extracts of WhatsApp conversations held between a member of the Respondent and the Claimant’s advisor between 6 January and 31 January 2017.

27. As regards the Respondent’s argument that the proposal agreement was valid for only 24 hours, the Claimant held that this only indicates the deadline provided to the Claimant to sign the agreement. Given that the Claimant signed within those 24 hours, as per the Claimant, the proposal agreement entered into force adequately and became binding to both parties.

28. Finally, the Claimant referred to the jurisdiction clause included in the proposal agreement (cf. I.3), and held that once the proposal agreement was signed, it seized to be a mere proposal, but rather became an agreement of “contractual character”.

29. In its duplica, dated 13 April 2018, the Respondent stated that it remained firm in its view formulated in the reply to the claim of 28 February 2018.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 16 November 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of the 2017 and 2018 editions 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 2018) the Dispute Resolution Chamber shall adjudicate on 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 (editions 2016 and 2018), and considering that the present claim was lodged on 16 November 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 documentation contained in the file in relation to the substance of the matter. 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. In this respect, the Chamber recalled that the Claimant and the Respondent signed a proposal agreement on 22 January 2017. In this sense, the DRC acknowledged that, in accordance with the proposal agreement, the Claimant would obtain a total amount of EUR 53,000 for the duration of the employment relationship (cf. I.1).

6. The Chamber further took into consideration the part of the proposal agreement which held that “(t)he offer is valid for 24 hours” (cf. I.2).

7. Furthermore, the DRC established that on 27 January 2017, the Claimant and the Respondent signed an employment contract valid as from the date of signature until 30 June 2017. In this context, the Chamber recognised that, under the contract, the Respondent was obliged to pay the Claimant a total amount of EUR 33,000. The DRC noted that this amount of EUR 33,000 inter alia consisted of a monthly salary of EUR 3,500 net (cf. I.5), as well as “other benefits” in accordance with clause 4.3 of the contract, including travel and accommodation costs (cf. I.8).

8. Next, the Chamber took note of the fact that by the time the contract expired on 30 June 2017, the Claimant acknowledged having received from the Respondent a total amount of EUR 35,991 in five instalments of EUR 20,000, EUR 5,000, EUR 5,000, EUR 2,991 and EUR 3,000 respectively (cf. I.12-13).

9. In continuation, the Chamber recalled that by means of his claim of 16 November 2017, the Claimant requested that the Respondent be ordered to pay him overdue payables in the total amount of EUR 17,009 (cf. I.17).

10. In this context, the Chamber took note of the Claimant’s arguments, who inter alia argued that the proposal agreement and the contract were complementary (cf. I.25), and that the EUR 20,000 received on 31 January 2017 (cf. I.12) should be interpreted as a sign-on fee. The DRC further highlighted that, according to the Claimant, he was entitled to a total amount of EUR 53,000 for the duration of the contract. Therefore, as per the Claimant, given that he only received EUR 35,991 (cf. II.8), EUR 17,009 remained outstanding.

11. Similarly, the Chamber referred to the Respondent’s point of view, who held that the proposal agreement seized to be valid after 24 hours, and that, as a consequence, only the employment contract signed on 27 January 2017 was valid and binding (cf. I.21-22). The DRC further recalled that, according to the Respondent, for the duration of the employment relationship, the Claimant was entitled to a total amount of EUR 35,285.32 (cf. I.18). Finally, the Chamber took note of the Respondent’s conclusion, who argued that there was no outstanding remuneration, given that the Claimant himself acknowledged having received EUR 35,991 (cf. I.12-13).

12. In this context, the Chamber unanimously agreed that the primary issue at stake is determining whether the Claimant was entitled to a total amount of EUR 53,000 in accordance with both the proposal agreement and the employment contract, or whether the Claimant was only entitled to amounts stipulated in the employment contract. In other words, the DRC had to analyse the validity of both aforementioned documents signed by the parties.

13. First, with regard to the payment of EUR 20,000 made on 31 January 2017, the DRC established that the Respondent did not deny making this payment. Nonetheless, the Chamber pointed out that the Claimant did not provide any evidence that this payment corresponded to a sign-on fee. In this light, the Chamber was eager to emphasise that neither the proposal agreement nor the contract stipulated that the Claimant was to obtain EUR 20,000 as a sign-on fee.

14. In a similar vein, the DRC noted that the employment contract was signed before the payment of EUR 20,000 (i.e. 27 January 2017 and 31 January 2017 respectively). In other words, as per the Chamber, the employment contract was valid and binding by the time the payment of EUR 20,000 was made to the Claimant. In this context, the Chamber determined that the Claimant again failed to sufficiently demonstrate that this payment derived from the proposal agreement only, and that it should be considered a sign-on fee.

15. In addition, the DRC could not follow the Claimant’s argument that the proposal agreement and the employment contract were complementary. If this were the case, the Chamber argued, then the Claimant would, in fact, be entitled to EUR 86,000 for the duration of the contract, i.e. the amount of EUR 53,000 as stipulated in the proposal agreement, plus the amount of EUR 33,000 in accordance with the employment contract. The DRC recalled, however, that the Claimant himself never claimed that his total salary amounted to EUR 86,000.

16. In continuation, the Chamber emphasised that the employment contract was signed after the proposal agreement. In accordance with the lex posterior principle, the DRC concluded that the employment contract replaced the proposal agreement, which, after all, was only a proposal.

17. In light of the above, and bearing in mind the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, the DRC was of the unanimous opinion that the arguments raised by the Claimant regarding the continued validity of the proposal agreement cannot be considered as valid, in accordance with the jurisprudence of the Dispute Resolution Chamber and the legal principle of pacta sunt servanda.

18. As a result, the Chamber established that the Claimant was only entitled to remuneration as stipulated in the employment contract. In this sense, the DRC firstly recalled that, under the employment contract, the Claimant acknowledged being entitled to a total amount of EUR 33,000 (cf. I.11), and secondly that the Claimant admitted having received EUR 35,991 (cf. I.12-13). Consequently, the DRC concluded that by the time the employment contract between the Claimant and the Respondent expired, no payables were due to the Claimant.

19. In view of the above, the Chamber concluded that the Claimant’s claim must be rejected in full.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is rejected.

*****

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 (CAS)

Avenue de Beaumont 2

CH-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