F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision25 January 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 January 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), 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 an unspecified date, 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 valid as from 28 August 2016 until 15 July 2017.

2. The employment contract presented by the Claimant bears handwritten financial entitlements in an unintelligible currency. According to art. 2 of said contract, the Claimant was entitled to a no better defined 85,000, payable in instalments as follows: 50% “of the contract amount […] at the final ratification of the contract”, 25% in “monthly salaries at the end of each month” and 25% “at the end of the league”.

3. The employment contract uploaded in the Transfer Matching System (hereinafter: TMS), valid as from 28 August 2016 until 15 July 2017, establishes that the Claimant was entitled to USD 80,000 payable in 3 instalments as follows: 40% “at the final ratification of the contract”, 30% “at the end of the first phase of the football league” and 30% at the “end of the league”, which, according to the TMS, in the relevant season was 30 June 2017.

4. On 27 March 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting to be paid the total amount of USD 45,000, allegedly corresponding to the second and the third instalments of his total remuneration.

5. The Claimant argued that the Respondent had only paid USD 42,500, corresponding to the first instalment of his remuneration. Furthermore, the Claimant argued that, notwithstanding the various attempts to get in touch with the Respondent’s management, he was not able to receive the claimed amount.

6. In reply to the claim, on 5 June 2017, the Respondent asked that the Claimant’s financial request be rejected, as the Claimant had allegedly received from the Respondent more than what was due to him.

7. More in particular, the Respondent acknowledged the contract presented by the Claimant, but argued that, according to art. 2 of the employment contract, the Claimant was entitled to receive a total remuneration in the amount of 85,000,000, payable as follows: a) 50% of the total amount (i.e. 42,500,000) at the signing of the contract, b) 25% of the total amount (i.e. 21,500,000) in ten equal monthly salaries at the end of each month and c) 25% of the total amount (i.e. 21,500,000) at the end of the Premier League of Country D, allegedly coincident with the natural expiry of the contract.

8. In this respect, the Respondent explained that, at the time of its reply to the claim, the Claimant was entitled to receive the total amount of 60,714,281, consisting of 50% of the value of the contract plus the monthly salaries as from December 2016 until May 2017.

9. Moreover, the Respondent argued that, by means of 5 different payments totalling 62,500,000 it had fulfilled its obligations towards the Claimant, having allegedly paid him more than he was entitled to. More in particular, the Respondent pointed out that it had fulfilled its obligations through the following payments: a) 1,300,000 on 16 September 2016; b) 53,950,000 on 25 September 2016; c) 5,000,000 on 4 May 2017; d) 250,000 on 15 May 2017 and e) 2,000,000 on 1 June 2017.

10. The Claimant sent his replica after the expiry of the time limit set by FIFA.

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 27 March 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 2018) the DRC is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between an 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 2018) and considering that the present claim was lodged in front of FIFA on 27 March 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 particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

6. In this respect, first and foremost, the Chamber observed that the Claimant submitted a contract bearing handwritten financial entitlements and referring to a remuneration in an unintelligible currency. The DRC further noted that the Respondent, while acknowledging the contract presented by the Claimant, argued that the total remuneration due to the Claimant was 85,000,000 rather than USD 85,000, i.e. a lower amount. In light of the fact that the contract submitted by the Claimant is ambiguous with regards to his entitlements and given the different interpretation that the parties gave of it, the members of the Chamber decided to take into account the contract contained in the TMS in order to properly assess the case at stake.

7. Having said that, the DRC acknowledged that, according to said contract signed by the parties on an unspecified date and valid as from 28 August 2016 until 15 July 2017, the Claimant was entitled to a total remuneration of USD 80,000 payable in 3 instalments as follows: 40% “at the final ratification of the contract”, 30% “at the end of the first phase of the football league” and 30% at the “end of the league”.

8. The members of the Chamber further noted that, according to the information contained in the TMS, the 2016/2017 football season in Country D ended on 30 June 2017.

9. In continuation, the members of the Chamber noted that, according to the Claimant, the Respondent had failed to remit him the salaries he was entitled to, having paid, by the time he had lodged the claim, only USD 42,500, allegedly corresponding to the first instalment of his remuneration set out in the contract he presented along with his statement of claim.

10. On the other hand, the members of the Chamber noted that the Respondent, for its part, argued that, by means of 5 different payments totalling 62,500,000, it had fulfilled its obligations towards the Claimant, allegedly paying him more than he was entitled to at that time.

11. More specifically, the DRC took note that the Respondent pointed out that it had fulfilled its obligations through the following payments: a) 1,300,000 on 16 September 2016; b) 53,950,000 on 25 September 2016; c) 5,000,000 on 4 May 2017; d) 250,000 on 15 May 2017 and e) 2,000,000 on 1 June 2017.

12. Having said that, the Chamber considered important to bear in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this respect, the Chamber noted that the 5 payment receipts submitted by the Respondent in both original and translated version carried the Claimant’s signature and referred to “payments for the 2016-17 season”. Consequently, the DRC concluded that the Respondent had provided sufficient proof of payment of 62,500,000, i.e. the approximate amount of USD 52,450, to the Claimant at the time of its reply to the claim on 5 June 2017.

13. It follows from the above that, out of the total amount of USD 80,000 that the Claimant was contractually entitled to for the season 2016/2017, by early June 2017, the Claimant had received from the Respondent remuneration in the approximate amount of USD 52,450.

14. At this point, the Chamber noted that the Claimant’s replica was submitted after expiry of the time limit set by FIFA. Consequently, in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account the Claimant’s late submission.

15. On account of all of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 27,550.

16. 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 USD 27,550 to the Claimant.

17. 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, outstanding remuneration in the amount of USD 27,550.

3. In the event that the aforementioned sum 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.

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.

*****

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