F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision9 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 November 2017,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stijn Boeykens (Belgium), member

Tomislav Kasalo (Croatia), member

Mario Gallavotti (Italy), member

Joel Talavera Zárate (Paraguay), member

Daan de Jong (the 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

1. On 21 August 2014, the Player of Country B, Player A (hereinafter: Claimant) and the Club of Country D, Club C (hereinafter: Respondent), signed an employment contract (hereinafter: the contract), valid as from 24 August 2014 until 30 June 2018, as well as an “attachment 1” to the contract.

2. According to art. 7.1 of the contract, the Claimant was entitled to receive, inter alia, a monthly salary of 166,667, payable “every half month (not later than on 25th of the month under review as an advance payment and the remaining part – not later than on 10th of each month following the month under review)”.

3. Art. 2.1 of the attachment 1 to the contract stipulates that the “Types and incentive premium rates to be paid to [the Claimant] as a player of the main team of [the Respondent] in addition to the monthly salary per the Employment Agreement”.

4. According to art. 2.1.1 of the attachment 1 to the contract, if the Claimant “fulfils his obligations per the employment agreement in a proper way is to be paid a monthly incentive premium, which, in the aggregate with the monthly salary per the Employment Agreement, makes up 11.494 (…) Euros, i.e. the amount of monthly incentive premium shall be calculated as follows: the sum 11.494 (..) Euros less the sum resulting after division of the sum 166.667 (Football Player’s monthly salary) by the official rate of the Central Bank of Country D Currency of Country D/Euro on the last day of the month under review”.

5. Art. 2.1.2 of the attachment 1 to the contract established that “If upon the results of the current sporting season in Championship E [the Respondent] gets the right to participate in the Championship F in the next sporting season, the amount of the monthly incentive premium indicated in Clause 2.1.1. above will be increased by 74.713 (…) Euros from the beginning of the Championship F in question”.

6. The same provision further specified that “if upon the results of the current sporting season in the Championship F [the Respondent] retains the right to participate in the Championship F in the next sporting season, the amount of the monthly incentive premium indicated in clause 2.1.1 above, subject to its possible increase in accordance with clause 2.1.2 above, will remain unchanged, i.e. it (this amount) will make up 86.207 Euros; otherwise, i.e. if upon the results of the current sporting season in the Championship F [the Respondent] forfeits the right to participate in the Championship F in the next sporting season, the amount of the [Claimant]’s monthly incentive premium will be decreased to the amount indicated in Clause 2.1.1. above from the date of ending of the Championship F in the current sporting season”.

7. In addition, art. 2.3 of the attachment 1 to the contract provided that “all Euro payments are to be made in Currency of Country D in accordance with the rate of the Central Bank of Country D, Currency of Country D/Euro on the last day of the month under review”.

8. According to art. 2.4 of the attachment 1 to the contract, “all the above mentioned incentive premiums are to be paid (…) every month – not less than on 10th of each month following the month under review, if another payment’s term of any of the incentive premiums isn’t fixed above”.

9. On 28 April 2017, the Claimant put the Respondent in default of payment of the amount of EUR 129,310.50, corresponding to salaries and incentives allegedly due as from 1 January 2017 to 15 February 2017.

10. On 29 May 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the payment of outstanding remuneration in the amount of 250,000 and EUR 129,310.50, corresponding to his salaries and incentives allegedly due as from 1 January 2017 until 15 February 2017, as well as interest as follows:

 5% p.a. on EUR 86,207 as of 10 February 2017;

 5% p.a. on 166,667 as of 10 February 2017;

 5% p.a. on 43,103.50 as of 10 March 2017;

 5% p.a. on 83,333.50 as of 10 March 2017.

11. The Claimant argued that, at the moment he signed the contract with the Respondent, the latter was participating in the Football National League of Country D. Therefore, pursuant to art. 2.1.1 of the attachment 1 to the contract, back then he was entitled to the minimum amount of monthly incentives, i.e. EUR 11,494. However, the Claimant explained that, given that the club had been promoted to the Premier League of Country D for the football season 2015/2016, pursuant to art. 2.1.2. of the attachment 1 to the contract, as of July 2015, he was entitled to the higher monthly incentive of EUR 86,207. The Claimant further specified that the aforementioned sums were to be considered in addition to his monthly salary entitlement of 166,667.

12. The Respondent, for its part, submitted its position on the Claimant’s claim after the closure of the investigation into the present matter.

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 stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 29 May 2017. Consequently, the DRC concluded that the 2017 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 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 DRC 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 DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations (edition 2016) and considering that the present claim was lodged in front of FIFA on 29 May 2017, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: the 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, the members of 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. In this respect, the DRC acknowledged that, according to the contract signed by the parties on 21 August 2014, the Claimant was entitled to a monthly salary of 166,667. In addition, according to the attachment 1 to the contract, the Claimant was entitled to receive monthly incentive payments as follows: (i) a minimum incentive payment which, together with the monthly salary, brought the monthly remuneration up to EUR 11,494 and (ii) in case the Respondent was promoted to the Championship F for the season 2015/2016, an incentive payment which, together with the monthly salary, brought the monthly remuneration up to EUR 86,207.

6. The members of the Chamber further noted that the attachment 1 to the contract specified (i) that the Claimant’s monthly remuneration would remain EUR 11,494 in case the Respondent did not achieve the promotion to the Championship F for the season 2015/2016 and (ii) that the amount of EUR 86,207 would constitute the Claimant’s monthly remuneration in case the Respondent was promoted to the Championship F for the season 2015/2016 and retained the right to participate in such league in the following season.

7. In continuation, the members of the Chamber noted that, according to the Claimant, the Respondent was promoted to the Championship F for the season 2015/2016 and that, therefore, as of July 2015, he was entitled to receive the higher monthly incentive payment of EUR 86,207 in addition to his Salary in Currency of Country D according to the contract. Consequently, the Claimant held that his outstanding dues as from 1 January 2017 until 15 February 2017 amounted to 250,000 and EUR 129,310.50.

8. Furthermore, the DRC noted that the Respondent had been given the opportunity to reply to the claim submitted by the Claimant, but that it presented its response in this respect after notification of the closure of the investigation into the present matter. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard, the DRC decided not to take into account the reply of the Respondent.

9. In addition, as a consequence of the preceding consideration, the DRC established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant.

10. Having said this, the Chamber firstly pointed out that, in accordance with art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this respect, the members of the Chamber noted that the Claimant did not submit evidence that the Respondent was promoted to the Championship F for the season 2015/2016, nor that it had maintained this alleged position in the 2016/2017 season. Consequently, the DRC concluded that the Claimant failed to submit evidence demonstrating that the contractual condition in order for the Claimant to receive EUR 86,207 as monthly incentive payment instead of the amount of EUR 11,494 was in fact fulfilled.

11. In continuation, the members of the Chamber noted that, according to the attachment 1 to the contract, the Claimant was to be paid the monthly incentive payment in the aggregate with the monthly Salary in Currency of Country D provided for in the contract. In other words, the DRC pointed out that the wording of art. 2.1.1 in combination with art. 2.1.2 of the attachment 1 to the contract set forth that the Claimant’s total monthly remuneration – in case the Respondent did not achieve the promotion to the Championship F – was of EUR 11,494, this sum being inclusive of the part of his salary expressed in Currency of Country D.

12. As a result, the Chamber agreed to reject the Claimant’s argument that he was entitled to a monthly incentive payment of EUR 86,207 in addition to the Salary in Currency of Country D as per the contract and decided on the basis of the documentation on file that the Claimant was entitled to receive EUR 11,494 on a monthly basis for the period between 1 January 2017 and 15 February 2017.

13. On account of the aforementioned considerations and the documentation on file, and bearing in mind that art. 2.3 of the attachment 1 to the contract does not provide for a clear exchange rate as well as that no documentation relating to any such exchange rate was presented, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 17,241 for the period as from 1 January 2017 until 15 February 2017.

14. Consequently, the DRC decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the amount of EUR 17,241 to the Claimant.

15. In addition, taking into account the Claimant’s claim, the Chamber decided to award the Claimant interest of 5% p.a. as of the day following the day on which the relevant payments fell due in accordance with the attachment 1 to the contract.

16. The Chamber concluded its deliberations in the present matter by rejecting any further claim of the Claimant.

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 17,241, plus 5% interest p.a. until the date of effective payment as follows:

a. on EUR 11,494 as of 11 February 2017;

b. on EUR 5,747 as of 11 March 2017.

3. In the event that the aforementioned sum plus interest is 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.

4. Any further claim lodged by the Claimant is rejected.

5. 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 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