F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision29 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (the Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay), member

Wouter Lambrecht (Belgium), member

Joel Talavera (Paraguay), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 4 June 2014, the player of Country B, Player A (hereinafter: the Claimant or the player) and the club of Country D, Club C (hereinafter: the Respondent or the club) signed an employment contract (hereinafter: the contract) valid as from 1 July 2014 until 15 June 2017.

2. In accordance with to art. 4, par. 1 of the contract, the Claimant was a entitled to the following salary for the season 2014/2015:

a) EUR 400,000 on the date of signature of the contract;

b) EUR 60,000 as monthly salary, payable on the last day of each month as of 31 August 2014 until 31 May 2015.

3. Moreover, art. 4, par. 1, lit. h) of the contract provided that the Claimant was entitled to a “victory bonus for each victory in the League of Country D”.

4. On 4 October 2016, the Claimant lodged a claim in front of FIFA, requesting outstanding remuneration in the amount of EUR 240,000, corresponding to the monthly salaries for the period between February 2015 and May 2015.

5. In his claim, the Claimant explained that he did not receive the payment of the last four monthly salaries provided in the contract for season 2014/2015. Moreover, the Claimant stated that the contract “ended prematurely on May 31st 2015”.

6. In its reply, the club preliminarily contested FIFA’s jurisdiction, arguing that the National Dispute Resolution Chamber of the Football Association of Country D (hereinafter: Football Association of Country D) was the only competent body to adjudicate the Claimant’s claim. In particular, the Respondent argued that said body was competent pursuant to the Statutes of the Football Association of Country D and was compliant with the principles of equal treatment and independency.

7. As to the merits of the case, the Respondent alleged that, between October 2014 and May 2015, it made “additional payments” to the Claimant, in the total amount of EUR 172,458.01, which the Claimant omitted to deduct from the claimed amount, broken-down as follows:

a) EUR 6.916,82 on 17 October 2014;

b) EUR 4.663,00 3 November 2014;

c) EUR 1,814.33 on 28 November 2014;

d) EUR 10,555.94 on 12 December 2014;

e) EUR 8,772.86 on 19 December 2014;

f) EUR 2,659.58 on 26 December 2014;

g) EUR 60,000 on 13 February 2015;

h) EUR 1.783,31 on 13 February 2015;

i) EUR 668,45 on 13 March 2015;

j) EUR 1,334.52 on 13 March 2015;

k) EUR 60,000 on 3 April 2015;

l) EUR 5,000 on 27 April 2015;

m) EUR 2,504.17 on 30 April 2015;

n) EUR 5.785,03 on 8 May 2015.

In this regard, the Respondent submitted a copy of the relevant payment receipts, according to which “money transfer” is indicated as the title for each payment.

8. Furthermore, the Respondent alleged that the Claimant did not take part “in the training sessions” of the Respondent and, as a consequence, the Board of the club imposed a fine of 800,000 in the currency of Country D on him. Consequently, the Respondent argued that it did not have any outstanding remuneration towards the Claimant and requested the rejection of the claim.

9. In his replica, the Claimant rejected the Respondent’s arguments, but acknowledged receipt of the “additional payments” in the amount of EUR 172,458.01 from the Respondent. However, the Claimant pointed out that the aforementioned amount could not be deducted for the following reasons:

a) EUR 120,000 (cf. point 7, lit. g) and k) above) were paid by the Respondent for the months of December 2014 and January 2015, while the claimed amount referred to other monthly salaries, i.e. from February 2015 to May 2015. In particular, the Claimant submitted a list with the dates on which the Respondent paid his monthly salaries;

b) EUR 52,458.01 (cf. point 7, lit. from a) to f), h), i), j), l), m) and n)) were paid as victory bonuses, in accordance with art. 4, par. 1, lit. h) of the contract. In this regard, the Claimant indicated a list of seven matches won by the Respondent, which the bonuses allegedly referred to.

10. Furthermore, the Claimant denied having missed any training session of the Respondent without the latter’s consent and affirmed that the Respondent did not substantiate its allegations regarding the alleged fine.

11. In its duplica, the Respondent insisted on its previous arguments and pointed out that the amount of EUR 52,458.01 was not paid as a bonus payment but rather as a “salary payment”, as allegedly indicated in the relevant payment receipts (cf. point 7 above).

12. On account of the above, the Respondent acknowledged that, on the one hand EUR 187,541.99 were not paid to the Claimant as outstanding salaries for season 2014/2015 but, on the other hand, it argued that such amount was not paid “due to the fine imposed on the [Claimant]”.

13. In particular, the Respondent affirmed that the Claimant left the Respondent on 14 May 2015 and did not attend seven team’s training sessions between 13 and 22 May 2015, allegedly without any valid reason. Furthermore, the Respondent emphasised that the Claimant did not “appear” in three official matches of the club (on 16, 24 and 29 May 2015 respectively). Consequently, the Respondent argued that the Claimant breached the contract and the fine of 800,000 in the currency of Country D, allegedly “correspond to 279,000.00 - Euro”, was justified.

14. In order to prove its allegations, the Respondent presented the following documents with its duplica:

a) the decision of the club’s “presidency”, dated 25 May 2015, translated in an official language, whereby a fine of 800,000 in the currency of Country D was imposed on the Claimant. Attached to said decision are “notarial reports” of the Claimant’s alleged absences. Moreover, the decision refers to the club’s disciplinary regulations for season 2014/2015;

b) a document allegedly signed by the Claimant, whereby he acknowledged receipt of and accepted the aforementioned disciplinary regulations;

c) an alleged certificate issued on 11 November 2016, issued by the “directory of immigration administration of City E”, stating that the Claimant “went abroad by plane from City F on 14th May 2015 […]. He checked in City F on 20 May 2015 and then went abroad again on 26th May 2015 from City G”.

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 4 October 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2018), the Dispute Resolution Chamber would, in principle, be 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. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the National Dispute Resolution Chamber of the Football Association of Country D.

4. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.

5. Taking into account all the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the Regulations, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal derives from a clear reference in the employment contract.

7. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear, specific and exclusive arbitration clause in favour of the National Dispute Resolution Chamber of the Football Association of Country D.

8. In this respect, the members of the Chamber, after a thorough analysis of the contract at the basis of the dispute, were eager to emphasise that the aforementioned contract does not contain any arbitration clause.

9. Consequently, the Chamber established that the first condition in order for a body other than the DRC to be competent is not met in the present matter. Thus, the Chamber concluded that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations, to deal with the present matter as to the substance.

10. In continuation, 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 2018), and considering that the present claim was lodged on 4 October 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

11. 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.

12. First, the Chamber noted that the parties entered into an employment contract valid as of 1 July 2014 until 15 June 2017, which entitled the Claimant, for the season 2014/2015, to a signing fee of EUR 400,000 and to a monthly salary of EUR 60,000 payable on the last day of each month, starting from 31 August 2014 until 31 May 2015.

13. Furthermore, the DRC acknowledged that it was undisputed that the contract was early terminated on 31 May 2015.

14. In continuation, the DRC noted that the Claimant alleged that the Respondent breached the contract as it failed to pay him the outstanding salaries for the months of February, March, April and May 2015, for the total amount EUR 240,000.

15. Equally, the Chamber took note of the reply of the Respondent, which maintained that:

a) EUR 187,541.99 were deducted by the Respondent due to an alleged fine, in the amount of 800,000 in the currency of Country D, which it imposed on the Claimant as he allegedly did not attend certain team trainings;

b) EUR 52,458.01 were paid to the Claimant between 17 October 2014 and 8 May 2015 through the further payments indicated in point I.7., listed under lit. from a) to f),h), i), j), l), m) and n);

16. Furthermore, the DRC also duly noted that the Claimant rejected the arguments raised by the Respondent and, in particular he argued that:

a) the further payments indicated by the Respondent in the total amount of EUR 52,458.01 had been paid as victory bonuses pursuant to art. 4, par. 1, lit. h) of the contract;

b) he did not miss any training of the club without the Respondent’s consent.

17. In view of the aforementioned dissent positions of the parties, the members of the Chamber firstly referred to the basic principle of burden of proof, as established in 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 respective burden of proof.

18. In this context, as to the fine allegedly imposed on the Claimant, the Chamber recalled its long-standing jurisprudence, according to which, in principle, the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. What is more, the members of the Chamber emphasised that the Respondent did not provide any evidence that the alleged fine had been properly notified to the Claimant, let alone that the latter was given the opportunity to defend himself within the context of the alleged disciplinary proceedings. Consequently, the Chamber decided to disregard the alleged fine imposed on the Claimant and to reject the Respondent’s arguments in this regard.

19. In continuation, as to the further payments made by the Respondent, the members of the Chamber first noted that the relevant payment receipts generically mention only “money transfer(s)” as title of payment and do not refer to any victory bonuses. Moreover, the DRC stressed that art. 4, par. 1, lit. h) does not provide specific bonuses for the Claimant but, rather, undisclosed victory bonuses “for each victory in the League of Country D”.

20. Consequently, the members of the Chamber concurred that, in accordance with the principle under art. 12 par. 3 of the Procedural Rules, the Claimant did not provide enough evidence in order to prove that the aforementioned payments referred to specific victory bonuses provided in the contract.

21. Therefore, the DRC had no other option than to conclude that such payments, in the total amount of EUR 52,458.01, based on the evidence submitted by both parties, refer to salary payments and, thus, accepted the Respondent’s arguments in this regard.

22. On account of the aforementioned considerations, and considering that the Respondent did not invoke any other reason to justify the non-payment of the Claimant’s salaries, the Chamber deemed that the Respondent only paid EUR 52,458.01 out of EUR 240,000 to the Claimant and, thus, it failed to pay the due salary, in the amount EUR 187,542, without any valid reason.

23. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the Chamber concluded that the Respondent must fulfil its obligations and, consequently, is to be held liable to pay EUR 187,542 to the Claimant.

24. The members of the Chamber concluded their deliberations by rejecting any further claim of the Claimant.

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, outstanding remuneration in the amount of EUR 187,542.

4. In the event that the aforementioned amount is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA 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.

*****

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:

Omar Ongaro

Football Regulatory Director