F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision8 March 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Stefano Sartori (Italy), member
Pavel Pivovarov (Russia), member
Muzammil bin Mohamed (Singapore), member
on the matter between the player,
Player A, from country A
as Claimant
and the club,
Club C, from country C
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 4 July 2016, the player A, from country A (hereinafter: the player or Claimant) and the Club C, from country C (hereinafter: the club or Respondent) concluded an employment agreement (hereinafter: the contract), valid from 4 July 2016 until 31 May 2020.
2. According to article 6 of the contract, the player was entitled to receive inter alia the following amounts:
For the 2016/2017 season:
10 monthly payments of EUR 225,000 each for the period between August 2016 and May 2017, due on the 25th day of each month;
an ‘attendance fee’ of EUR 15,000 net, for ‘every official match consisting of the country C League Matches, UEFA Champions League and UEFA Europa League Matches’;
a sign-on fee of EUR 1,750,000, due on 1 August 2016.
3. Article 5.h of the contract contains the following clause: ‘The player is obliged to obey Regulations of the club, to be determined/will be determined and may be altered by the club at any time. The player hereby accepts to obey disciplinary sanctions, to be applied by the club against himself in case any contrary actions against the said disciplinary instructions. The player gives his consent in advance to the club for setting off the player’s finalized disciplinary sanctions from his salary’.
4. Article 5.m of the contract inter alia holds the following clause: ‘In case that the player is in breach of his obligations above and such breach also constitutes as the violation of the Disciplinary Regulations of the Club the following shall apply: The club shall fine the player the penal set forth in the Disciplinary Regulations […]’.
5. Moreover, on 11 August 2016, the player signed a delivery receipt, acknowledging that the club provided him with its ‘Professional Football Team 2016/2017 Season Disciplinary Regulations’ (hereinafter: the Disciplinary Regulations).
6. The Disciplinary Regulations inter alia contain the following clauses: ‘5. Players, Coaching Staff and members of the Medical team shall endeavour their best efforts so that the above mentioned persons act in compliance worthily with the dignity, reputation, name and greatness resulting from the history of the club and shall be responsible for the acts and affairs of the aforementioned persons against said obligation […] 6.1.a Players shall act in compliance with the program designated by the Coaching staff and shall unexceptionally conform to the hours specified in the program. Players shall not leave the facilities before receiving the program of the following day, to be designated by the coaching staff. After the training, players are obliged to comply with the care and regeneration program set forth/designated by the coaching staff. […] 10.2 Players, coaching staff and members of medical team are not allowed to leave the city without permission from the board of the club. This is even valid for the off days. […] 12.b.1: Players, coaching staff and members of the medical team may not give interviews to either national or international print, video, audio and internet online media without the supervision of CCD as a general rule […] 14.2 The board of the club has the authority to impose a pecuniary penalty. Before exercising this authority, board may require a report from the coaching staff and when deemed necessary, it may require a verbal statement and/or an additional report’.
7. In addition, the Disciplinary Regulations contain a chapter referred to as ‘Pecuniary Penalties’, which inter alia holds the following clauses: ‘For the offences stated in article 5: excluding repetition, pecuniary penalties of minimum 25.000 and maximum 150.000 Euro and penalty of exclusion from the squad, additionally or separately […] For the offences stated in article 6: excluding repetition, pecuniary penalty of minimum 1.000 and maximum 50.000 Euro may be imposed […] 6.1.a Not complying with the training program determined by the coaching staff […] In case of absence from the training: 50.000 Euro […] 10.2 For the offences stated in article 10: excluding repetition, written warning or pecuniary penalty of minimum 2.500 and maximum 50.000 Euro and penalty of exclusion from the squad, additionally or separately 10.2 Travelling out of the city without informing the board of the club: 25.000 Euro […] For the offences stated in article 12: excluding repetition, written warning or pecuniary penalty of minimum 20.000 euro and maximum 50.000 Euro and penalty of exclusion from the squad, additionally or separately […] In case of violation of the clause B: 20.000 euro […]’.
8. On 12 April 2017, the player lodged a claim against the club in front of FIFA, requesting that the club has to be ordered to pay him the total amount of EUR 245,000, specified as follows:
EUR 225,000 as outstanding salary payment, due on 25 January 2017;
EUR 20,000 as outstanding part of the salary payment, due on 25 February 2017.
In addition, the player requests 5% interest p.a. on the abovementioned amounts as from the respective due dates.
9. In his claim, the player explains that in March 2017, the club had not paid him several amounts and that on 9 March 2017, he put the club in default for the payment of EUR 256,494.44, corresponding to EUR 250,000 as outstanding salary payments (corresponding to the full salary for January 2017 and a part of the salary for February 2017) and EUR 6,494.44 as outstanding attendance fees, providing the club a 10 days’ deadline to pay said amount.
10. Further, the player explains that on 14 March 2017, the club replied to his default letter, by providing evidence that it paid the amount of EUR 6,494.44 as attendance fee, as well as the amount of EUR 205,000 as partial payment for the month of February 2017.
11. Moreover, the player explains that the club informed him that the following penalties, in the total amount of EUR 245,000, were imposed on him:
a fine of EUR 75,000 for an alleged missed training;
a fine of EUR 150,000 for an alleged absence of the team delegation of a match of the club played on 15 December 2016;
a fine of EUR 20,000 for giving an interview without permission of the club.
12. According to the player, the reasons given by the club to apply the fines cannot be upheld because he was not given the opportunity to defend himself, the fines allegedly violated the principle of equal treatment and were disproportionate.
13. In conclusion, the player maintains that the fines have to be disregarded, and that the club is obliged to pay him the outstanding amount of EUR 245,000.
14. In its reply to the player’s claim, the club asks for the rejection of the player’s claim and explains that on 11 August 2016, the player received the club’s Disciplinary Regulations and that he acknowledged receipt of this document by signing a delivery receipt.
15. Moreover, the club explains that it validly imposed the following fines and disciplinary measures on the player:
a fine of EUR 75,000, because the player ‘went abroad without permission on 13.11.2016, and did not attend the training on 14.11.2016, at 12:00’, which is according to the club a violation of articles 6.1.a and 10.2 of the Disciplinary Regulations. Said fine was confirmed by means of a decision of the club’s board dated 18 November 2016 and notified to the player on 21 November 2016;
an exclusion from the squad, because of the player’s ‘absence from the team delegation for the match played between Club X – Club on 15 December 2016 in country C, even though he was elected in the squad and did not participate the before-said match’. The club explains that the player was requested to present a statement of defence to explain his absence, and claims to have received such a statement from the player on 19 December 2016, in which he stated that ‘he has an injury problem and has concerns about the security of the place that the match would be played’;
a fine of EUR 150,000, because the player did not submit valid reasons for his absence ‘from the team delegation for the match played between Club X – Club C on 15 December 2016 […]’. The club explains that it rejected the player’s statement of defence, as ‘the security measures were duly taken in country C ’ and the club’s doctor confirmed that the player had ’no health problem’. As a result of the foregoing, the club confirmed the fine of EUR 150,000 by means of a decision of the club’s board dated 21 December 2016 and notified to the player on 22 December 2016;
a fine of EUR 20,000, because the player ‘gave an interview for the TV program named aired on a TV station named --- on 23 December 2016 without prior consent of the club’, which according to the club is a violation of article 12.B.1. of the Disciplinary Regulations. Said fine was confirmed by means of a decision of the club’s board dated 27 December 2016 and notified to the player on 28 December 2016.
16. Furthermore, the club explains that all the above-mentioned penalties were imposed following the procedures defined in the Disciplinary Regulations, and that, based on their article 14.2, the club has no obligation to request the player’s defence for every disciplinary violation, ‘especially if the acts of the player which constitute disciplinary violation are undisputed’.
17. In addition, the club argues that, regarding the fine of EUR 150,000, it can be established that on 16 December 2016, the player was duly notified of his exclusion from the team and that he was not sanctioned twice for the same violation, as ‘disciplinary measures are distinct from pecuniary penalties’. Moreover, the club argues that the fine of EUR 150,000 was ‘just, fair and proportionate’, because of the ‘severity of the player’s offense and the aggravating circumstances’ and because of the fact that the penalty does not exceed ‘even 10% of the player’s salary’.
18. In addition, the club points out that based on article 5.h of the contract, it could validly set-off the penalties with the player’s salary. Finally, the club argues that it duly replied to the player’s letter dated 9 March 2017, by means of a letter dated 14 March 2017, in which it duly explained its reasons to impose penalties on the player.
19. In his replica, the player reiterates his previous arguments and explains that it is not acceptable for him that the three pecuniary penalties were automatically deducted from his salary, as the club even confirmed that it did not request for his defence against the imposition of these fines. Moreover, the player argues that the club confirms that an amount of EUR 245,000 is outstanding.
20. In its duplica, the club points out that it never recognized an outstanding amount of EUR 245,000, as it validly imposed several fines on the player. In this respect, the club further clarifies that based on articles 5.h and 5.m of the contract, the fines could validly be deducted from the player’s receivables.
21. Moreover, the club clarifies the amount of the fines as follows:
the fine of EUR 75,000 consists of a fine of EUR 50,000 for a missed training, based on article 6.1.a of the chapter Pecuniary Penalties of the Disciplinary Regulations, as well as a penalty of EUR 25,000 for travelling out of the city without informing the club, based on article 10.2 of the chapter Pecuniary Penalties of the Disciplinary Regulations;
the fine of EUR 150,000 is based on article 5 of the chapter Pecuniary Penalties of the Disciplinary Regulations;
the fine of EUR 20,000 is based on article 12 of the chapter Pecuniary Penalties of the Disciplinary Regulations.
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 12 April 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. 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 (editions 2016 and 2018) 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 and a club.
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 12 April 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. In this respect, the Chamber acknowledged that on 4 July 2016, the parties signed an employment contract valid between 4 July 2016 and 31 May 2020. In accordance with said contract, the player was entitled to receive, inter alia, a monthly salary of EUR 225,000. What is more, the Chamber further noted that on 24 August 2017, the player was transferred to the Club Z, from country Z and that the contract signed on 4 July 2016 between the player and the club was allegedly terminated.
6. In continuation, the members of the Chamber noted that the player alleged that in March 2017, the club failed to pay him an amount of EUR 245,000, consisting of the full salary for the month of January 2017 in the amount of EUR 225,000, as well as a part of the salary for the month of February 2017 in the amount of EUR 20,000.
7. Furthermore, the Chamber took note that the player, on 9 March 2017, had requested the club to pay him his outstanding remuneration, however that he received a reply from the club, in which it stated that several fines were imposed on him, because of alleged misbehaviour, the application of which the player fully rejects. Based on the foregoing circumstances, the player requested FIFA to be awarded the payment of EUR 245,000 as outstanding remuneration.
8. Equally, the members of the Chamber took note of the reply of the club, which confirmed that it imposed three fines, in the total amount of EUR 245,000, on the player, because the player missed a training and a match of the club and travelled out of the city without permission of the club. Furthermore, according to the club, the player gave an interview without the club’s permission. As a result of these circumstances, the club argued that it could validly impose the fines on the player, as the behaviour of the player was not in line with the club’s internal Disciplinary Regulations.
9. In this respect, taking into account the claim of the player as well as the reply of the club, the members of the Chamber acknowledged that the underlying issue in this dispute was to determine whether the validly imposed the aforementioned fines on the player and would be entitled to offset their amount against the player’s remuneration.
10. Entering into the substance of the matter, the Chamber analysed the fines imposed on the player, and started with the fine of EUR 75,000 imposed on the player on 18 November 2016, due to the alleged fact that the player left country C without permission of the club on 13 November 2016 and his consequent absence from a training session on 14 November 2016. In this respect, the Chamber first of all noted that from the information on file, it appears that the club did not request the player to present his defence as to the imposed fine, however that it unilaterally imposed the fine on the player, who thus was not in the position to defend himself. Furthermore, the Chamber emphasised that a fine amounting to the total amount of EUR 75,000 for missing just one training session and travelling out of the city without permission of the club is manifestly excessive and disproportionate and cannot be upheld. Hence, the Chamber was unanimous in its conclusion that the fine of EUR 75,000, imposed on the player on 18 November 2016 must be disregarded, due to the fact that its imposition did not follow a due process of law and that its amount is manifestly disproportionate in comparison with the alleged offense.
22. Further, as to the fine of EUR 150,000 imposed on the player on 21 December 2016, for not providing a valid reason for his absence in a match played by the club on 15 December 2016, the Chamber noted on the one hand that said fine was only imposed by the club on the player after it had requested him to present a statement of defence and after it subsequently rejected the explanation put forward by the player.
23. On the other hand, the members of the Chamber noted that said fine of EUR 150,000 was based on article 5 of the club’s internal Disciplinary Regulations, which contains a rather broad description of circumstances and actions that allows the club to impose fines in a range between EUR 25,000 and EUR 150,000 on its players. In this respect, the members of the Chamber noted that the abovementioned article does not hold a clear reference that in case the player misses a match of the club, a fine can be imposed on the player. What is more, the article only contains general guidelines for the players’ behaviour, consisting of ‘acting in compliance with the dignity, reputation, name and greatness resulting from the history of the club […]’. Moreover, it appeared to the members of the Chamber that the club decided to immediately impose the maximum fine of EUR 150,000 on the player, whereas the minimum amount corresponded to EUR 25,000.
24. Based on the foregoing, the Chamber was of the opinion that there was no clear regulatory basis for imposing the maximum fine of EUR 150,000 on the player for missing only one match. In this respect, the Chamber pointed out that the unspecific wording of art. 5 of the contract is open to a broad range of personal interpretations of what should be considered as a violation to “the dignity, reputation, name and greatness resulting from the history of the club”, while stipulating though severe consequences for such, finally leaving it to the discretion of the club to spontaneously define the situations in which a player should be fined. In addition, the Chamber emphasised that a fine amounting to the total amount of EUR 150,000, i.e. 66% of the player’s monthly salary, for missing one match is manifestly excessive and disproportionate and cannot be upheld. Hence, the Chamber decided that also the fine of EUR 150,000, imposed on the player on 21 December 2016, cannot be taken into account.
25. Finally, the Chamber turned its attention to the fine of EUR 20,000 imposed on the player on 27 December 2016, due to the alleged fact that the player had given an interview on 23 December 2016 without prior permission of the club. In this respect, from the information on file, the Chamber concluded that the player was not requested to present his defence as to the imposed fine, and that the fine was unilaterally imposed on him. Also in relation to this fine, the player was thus not granted the right by the club to submit a defence as to his alleged misbehaviour. Furthermore, the Chamber emphasised that a fine amounting to the total amount of EUR 20,000 for giving an interview is excessive and disproportionate and cannot be upheld. Hence, the Chamber was unanimous in its conclusion that the fine of EUR 20,000, imposed on the player on 27 December 2016 must be disregarded.
26. In addition to the foregoing circumstances, the Chamber deemed it vital to point out that the imposition of fines, 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.
27. In conclusion, the Chamber determined that the club could not set-off its debt towards the player by means of the various fines imposed on him and that thus the amount of EUR 245,000 is due to the player as per the contract.
28. For all the above reasons, the Chamber decided to accept the player´s claim and determined that the club must pay to the player the total amount of EUR 245,000 as outstanding remuneration.
29. In addition, taking into account the player’s request and in line with the Chamber’s longstanding jurisprudence, the Chamber decided that the club must pay to the player interest of 5% p.a. as of 26 January 2017 on the amount of EUR 225,000, as well as 5% p.a. as of 26 February 2017 on the amount of EUR 20,000.
III. Decision of the Dispute Resolution Chamber
1. The claim of Claimant, Player A, is 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 EUR 245,000, plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 26 January 2017 on the amount of EUR 225,000;
b. 5% p.a. as of 26 February 2017 on the amount of EUR 20,000.
3. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are 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
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
Encl. CAS directives