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 28 June 2015, the Player of Country B, Player A (hereinafter: the player or Claimant) and the Club of Country D, Club C (hereinafter: the club or Respondent) concluded an employment agreement (hereinafter: the contract), valid as from 18 June 2015 until 30 June 2017, as well as two annexes to said contract (hereinafter: the first annex and the second annex).

2. According to article 1 of the first annex to the contract, the player was entitled to receive inter alia the following bonus payments:

 a bonus of USD 7,000, ‘in case the club qualifies to the UEFA Europa League group stage’;

 a bonus of USD 10,000, ‘in case the club, according to the Results of the Championship of Country D, qualifies to European Cup zone’.

3. Moreover, according to article 1 of the second annex, the club was obliged to pay to the player ‘a one-time bonus’ in the amount of USD 20,000, due on 31 December 2016. Furthermore, said payment ‘is to be carried out in the national currency of Country D at the official exchange rate of the National Bank of Country D to the date of payment’.

4. On 22 November 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 59,000, specified as follows:

 USD 17,000 as outstanding bonus payments related to the 2015/2016 season, due on 1 July 2016 and specified as follows:

- USD 7,000 as bonus payment based on article 1 of the first annex, because the club finished on the 4th place in the Championship of Country D in the 2015/2016 season and qualified for the UEFA Europa League Group Stage for the 2016/2017 season;

- USD 10,000 as bonus payment based on article 1 of the first annex, because the club finished on the 4th place in the Championship of Country D in the 2015/2016 season and qualified for the European Cup Zone;

 USD 17,000 as outstanding bonus payments related to the 2016/2017 season, due on 1 July 2017 and specified as follows:

- USD 7,000 as bonus payment based on article 1 of the first annex, because the club finished on the 3rd place in the Championship of Country D in the 2016/2017 season and qualified for the UEFA Europa League Group Stage for the 2017/2018 season;

- USD 10,000 as bonus payment based on article 1 the first annex, because the club finished on the 3rd place in the Championship of Country D in the 2016/2017 season and qualified for the European Cup Zone;

 USD 20,000 as outstanding bonus payment, due on 31 December 2016;

 USD 5,000 as ‘other expenses incurred’ by the player.

In addition, the player requests 5% interest p.a. on the abovementioned amounts as from the respective due dates, as well as to impose sporting sanctions on the club.

5. In his claim, the player explains that he fulfilled his obligations under the contract until January 2017, in which month he and the club decided to terminate the contract by mutual agreement. However, according to the player, the club failed to pay him several bonus amounts he was entitled to, because the club finished on the 4th place in the Championship of Country D in the 2015/2016 season and on the 3rd place in the Championship of Country D in the 2016/2017 season.

6. Further, the player explains that on 15 September 2017, he put the club in default for the amount of USD 54,000, requesting the payment of said amount before 1 October 2017, however to no avail. What is more, in his default letter dated 15 September 2017, the player indicated that in case of non-payment, he would ‘reserve the right to apply to FIFA Judicial Bodies’.

7. In its reply to the player’s claim, the club explained that in the 2015/2016 season in Country D, the club finished in the 4th place, which resulted in qualification for the third qualifying round of the UEFA Europa League, thus, entering in the ‘zone of Eurocups’. What is more, the club explains that Club E, the club that finished on the 3rd place in the 2015/2016 season of the Championship of Country D, was excluded from participating in the ‘Eurocups’ for the 2016/2017 season by UEFA. As a result of the foregoing, the club (i.e. Club C) took over Club E’s place in the group stage of the Europa League.

8. Based on the foregoing, the club argues that the player was only entitled to the bonus amount of USD 10,000 for the 2015/2016 season, because based on the results in the 2015/2016 Championship of Country D, the club qualified to the European Cup Zone and not to the group stage of the Europa League.

9. Moreover, in relation to the bonuses claimed for the 2016/2017 season, the club explains that the contract between the parties was terminated by mutual agreement on 1 January 2017. Further, according to the club, the qualification for the group stage of the Europa League for the season 2017/2018 ‘occurred much later - after the termination of the contract with Player A. As a result of the foregoing, the club concludes that the player is in principle not entitled to the bonuses claimed for the 2016/2017 season, however it further explains that it decided to pay the bonuses ‘in proportion to the number of matches played by the player in this Championship (fourteen played out of a total of 27)’. According to the club, this would correspond to an amount of USD 8,814.31, however, because of ‘the financial capacities’ of the club, it even paid a larger sum, i.e. USD 13,973.78, to the player.

10. Furthermore, the club confirmed that the player was entitled to the bonus in the amount of USD 20,000, due on 31 December 2016.

11. In conclusion, the club argues that the player was entitled to the total amount of USD 43,973,78, consisting of:

 a bonus payment of USD 10,000 related to the 2015/2016 season;

 a bonus payment of USD 13,973.78 as bonus related to the 2016/2017 season and;

 USD 20,000 as bonus payment due on 31 December 2016.

12. In addition, the club asks for the rejection of the player’s claim, as it allegedly paid the total amount of USD 43,973.78 to the player. In this respect, the club explains that: ‘a part of the money was received by the Player A. personally, and after his dismissal, on the instructions of Player A., by the player of Club C, Player J, who, at the request of Player A, received his funds and transferred to him’.

13. In his replica, the player argues that the club received the right to participate in the Europa League Group Stage for the 2016/2017 season, because the club ended 4th in the Championship of Country D and because it lost the final of the Cup of Country D against the new champion of Country D, Club F. Therefore, the club holds that it qualified for the group stage of the 2016/2017 season of the Europa League, because of its own sport achievements, and not only because Club E was disqualified by UEFA. In conclusion, the player claims that he is entitled to the amount of USD 17,000 as bonus payments for the 2015/2016 season.

14. In relation to the bonus amounts claimed for the 2016/2017 season, the player explains that he is entitled to the claimed amount of USD 17,000. This because the contract ‘does not provide that the bonus as to the results of the championship of Country D 2016/2017 would not be paid in the event of termination of the contract’.

15. What is more, the player contests to have received the total amount of 1,250,000 or USD 43,973.78, as pointed out by the club. In this respect, the player explains that he only signed three cash warrants, the ones dated 8 November 2016, 11 November 2016 and 16 November 2016, with a total value of USD 19,378.94. Further, the player explains that said payments were connected to other bonus payments, i.e. ‘stimulation payments’ for results achieved in the Cup of Country D 2015/2016, the Europa League 2016/2017 and the Championship of Country D 2016/2017.

16. Regarding the payments mentioned in the other seven cash warrants, the player contests to have received said payments. According to the player, ‘he never gave a power of attorney to receive said amounts to any third parties’. In conclusion, the player requests that his entire claim shall be accepted.

17. In its duplica, the club points out that the only reason why it could participate directly in the group stage of the 2016/2017 season of the Europa League, was because it replaced Club E. In this respect, the club refers to clause 4.08 of the Regulations of the UEFA Europa League 2015-18 Cycle 2017/2018 season, which allegedly stipulates the following: ‘A club which is not admitted to the competition is replaced by the next best placed club in the top domestic championship of the same association, provided the new club fulfils the admission criteria’. Based on the foregoing, the club holds that the player is not entitled to the claimed amount of USD 7,000 for the 2015/2016 season as bonus for qualifying for the group stage of the 2016/2017 season of the Europa League.

18. In addition, the club argues that the bonuses payable to the player for the 2016/2017 season do not only depend on the club achieving a certain result, but also on the contribution of the player to the team. What is more, the club explains that based on labour Law of Country D, the termination of an agreement ‘stops any obligation of the parties for it for the future’. Based on this fact, the club states that the player cannot claim the entire bonus payment of USD 17,000 for the 2016/2017 season, as the contract between the parties was terminated on 1 January 2017.

19. Moreover, the club clarifies that – in addition to the three cash warrants dated 8 November, 11 November and 16 November 2016 – the player also signed the cash warrant dated 31 October 2016. The translation, however, does not mention that the player signed the document. As a result, the club holds that the player confirmed to have received the total amount of USD 23,301.13.

20. Furthermore, the club explains that all other payments were made to Player J, who received the payments on behalf of the player, and refers to a witness statement of Player J.

21. In conclusion, the club denies the player’s allegations that the payments made on 8 November 2016, 11 November 2016 and 16 November 2016 for the total amount of USD 19,378.94 were connected to ‘stimulation payments’.

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 22 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. 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 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 22 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 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 28 June 2015, the parties signed an employment contract valid between 18 June 2015 and 30 June 2017, as well as two annexes to said contract. In accordance with said contract and its annexes, the player was entitled to receive, inter alia, a bonus of USD 7,000 in case the club would qualify for the group stage of the Europa League and a bonus of USD 10,000, in case the club would qualify, based on the results in the Championship of Country D, to the “European Cup zone”. Moreover, the player was entitled to a lump sum payment of USD 20,000, due on 31 December 2016. What is more, the Chamber further noted that on 1 January 2017, the contract signed between the parties was allegedly terminated with mutual consent.

6. In continuation, the members of the Chamber noted that the player alleged that after the termination of the contract, the club failed to pay him, even after putting the club in default on 15 September 2017, a total amount of USD 59,000, consisting of USD 34,000 as outstanding bonuses, USD 20,000 as outstanding lump sum payment and USD 5,000 as ‘other expenses incurred by the payer’. Consequently, the player asked to be awarded the payment of the total amount of USD 59,000.

7. Equally, the members of the Chamber took note of the reply of the club, which asserted that the player was only entitled to the amount of USD 43,973.78 and that it had already paid said amount (1,250,000, corresponding to USD 43,973.78) to the player, by means of 10 separate payments made to the player in the period between 31 October 2016 and 27 November 2017. In consequence, the club concluded that it fulfilled all its monetary obligations towards the player and thus his claim has to be rejected.

8. With due consideration to the above, the members of the Chamber further took into account that the player did not contest that the club made 3 different payments to him in the period between 8 November 2016 and 16 November 2016, but that he only contested the nature of said payments. Moreover, the player contests to have received the amounts specified in the other 7 payments receipts submitted by the club.

9. First of all, the members of the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

10. With the aforementioned in mind, the Chamber turned its attention to the relevant clauses in the contract in relation to the bonuses in the amount of USD 34,000 claimed by the player, as well as to the results of the club in the 2015/2016 and 2016/2017 seasons, as these results determined whether the player would be entitled to the claimed bonuses.

11. In this respect, the Chamber noted that it remained uncontested between the parties that in the 2015/2016 season, the club ended on the 4th place in the Championship of Country D, and that based on this result, it was in principle entitled to take part in the qualification round of the Europa League. However, according to the player, the team that ended on the 3rd place, Club E, was not allowed to take part in the European competitions, as a result of which the club took over the direct qualification to the group stage of the Europa League. The circumstance that Club E was disqualified for playing in the European zone is confirmed by the club, which deems however that this does not entitle the player to receive the bonus for the qualification of the Group Stage of the Europa League.

12. The player, on the contrary, argues that said circumstances do entitle him to a total bonus of USD 17,000 for the 2015/2016 season, consisting of a bonus of USD 10,000 for qualification to the European Zone, and a bonus of USD 7,000 for qualification to the Group Stage of the Europa League. According to the club, which explicitly confirms that the player is entitled to the bonus of USD 10,000, the player is not entitled to the claimed bonus of USD 7,000, as the qualification to the Group Stage of the Europa League would not have occurred if Club E would not have been disqualified by UEFA, and was therefore not based on the club’s sporting performance.

13. Entering in the analyses of the respective clause, the members of the Chamber noted that only the part of the clause referring to a bonus of USD 10,000 for qualification to the European Zone, contained an explicit reference that said qualification needs to be based on the results in the Championship of Country D. For the bonus of USD 7,000 in relation to qualification for the group stage of the Europa League, no such restriction was made. As a result of the foregoing, and taking into account the wording of the relevant clauses, the Chamber established that, since the club finished 4th in the Championship of Country D in the 2015/2016 season and was later on promoted due to the disqualification of the club finishing in 3rd place, the player became entitled to a total bonus amount of USD 17,000, as the club a) qualified to the European Zone, based on its sporting performance and b) the club also qualified to the Group Stage of the Europa League.

14. Moreover, in relation to the 2016/2017 season, it remained uncontested between the player and the club that – based on the 3rd place in the Championship of Country D and the direct qualification to the Group Stage of the Europa League - the player, for the 2016/2017 season, in principle was entitled to a bonus payment in the total amount of USD 17,000. However, according to the information provided by the club and the player, as well as the information contained in the TMS, it appears that the contract between the club and the player was terminated by mutual consent on 1 January 2017. The player holds to still have been entitled to the full amount of USD 17,000, whereas the club explained that the player was only entitled to the pro rata part of the bonus of USD 17,000, amounting to USD 8,814 for playing in 14 out of the 27 games in the Championship of Country D.

15. Turning its attention to the reasoning brought forward by the player and the club, the members of the Chamber established that the contract did not hold any clauses, based on which the player could validly claim that although he only played in the first half of the season for the club, he was entitled to the entire bonus amount. Moreover, according to the Chamber’s well-established jurisprudence, bonus payments are of an undeniably variable character and uncertainty from one season to another, the Chamber could not establish beyond doubt that the player would have been entitled to entire claimed bonus of USD 17,000, as this bonus payment was also related to the results of the club in the second half of the 2016/2017 season, after the termination of the relevant contract between the parties.

16. However, on the other and, the members of the Chamber noted that the club confirmed that the player is indeed entitled to the pro rata part of the bonus amount of USD 17,000, i.e. (4/27) x USD 17,000 = USD 8,814, and that it even had paid him a higher amount, however without submitting any convincing documentary evidence in this respect. As a result of the foregoing circumstances, the Chamber established that the player was entitled to the pro rata part of the bonuses for the 2016/2017 season, i.e. to the amount of USD 8,814, corresponding to the proportion of his contribution to the club’s results in the 2016/2017 season.

17. Furthermore, the members of the Chamber noted that it remained uncontested between the parties that the player was entitled to a lump sum payment of USD 20,000, due on 31 December 2016, as the employment relationship between the parties was only terminated on 1 January 2017. Therefore, the Chamber deemed that the player was also entitled to the amount of USD 20,000, as lump sum payment.

18. In view of the foregoing, the Chamber established that the player, out of the claimed amount of USD 54,000 in relation to the bonuses, was effectively only entitled to receive a total amount of USD 45,814, consisting of a) the amount of USD 17,000 in relation to the results achieved by the club in the 2015/2016 season, b) the amount of USD 8,814 in relation to the pro rata results achieved by the club in the 2016/2017 season and c) the lump sum payment of USD 20,000, due on 31 December 2016.

19. In this context, the Chamber noted that the club was of the opinion that the player was only entitled to an amount of USD 43,973.78 (cf. point II./7. above) and that it had already paid said amount to him by means of 10 separate payments made in the period between 31 October 2016 and 27 November 2017 and noted that the club submitted various payment receipts of said payments.

20. What is more, the Chamber noted that the player – in relation to the 10 payments the club alleges to have made to him in the aforementioned period – explicitly confirms that to have received the following payments and that he signed the corresponding payment receipts, amounting to a total of USD 19,378.94:

- a payment of 200,000 (corresponding to USD 7,821.47) on 8 November 2016;

- a payment of 150,000 (corresponding to USD 5,863.94) on 11 November 2016;

- a payment of 150,000 (corresponding to USD 5,693.53) on 16 November 2016.

21. With regard to the aforementioned payments, the members of the Chamber turned their attention to the player’s argument that these payments were related to ‘stimulation payments’ and not to the match bonuses he claimed. In this respect, the Chamber noted that the player did not substantiate his defence, as he did not present any evidence in support of his position that these payments were not related to bonus payments, but rather to stimulation payments. In addition, the members of the Chamber noted that the contract did also not contain any reference to possible stimulation payments.

22. Consequently, the DRC considered that the player had not sufficiently substantiated this part of his claim to the Chamber’s satisfaction, as he did not present any conclusive documentary evidence, which could corroborate that the aforementioned payments were only related to stimulation payments and therefore could not be considered as payments of bonuses he allegedly was entitled to. As a result, the members of the Chamber were of the opinion that the three payment receipts for the above-mentioned payments, up to the total amount of USD 19,378.94, are to be regarded as a partial payment of the bonus payments. What is more, the Chamber noted that the player did not contest the currency exchange rate used by the club.

23. On the other hand, the members of the Chamber noted that the club’s allegation that it made 7 additional payments to the player, is only backed with 6 corresponding payment receipts, which were explicitly contested by the player. In this respect, the player holds that he never received the amounts mentioned in these receipts, and further argues that the payment receipts are not signed by him, but by another unknown person, Player J. In this respect, the club explains that it indeed paid the amounts mentioned in the receipts to Player J, who allegedly received said amounts on behalf of the player and would take care of transferring the relevant amounts to the player.

24. With regard to this explanation of the club, the members of the Chamber noted that the club could not substantiate its defence, or submit any documentary evidence that Player J was indeed authorised to receive the amounts on behalf of the player and/or would take care of distributing the receivables to the player. In addition, the members of the Chamber noted that, since none of these payment receipts were signed by the player, it could not be established that the player had received from the club the amounts mentioned in them. As a result, the Chamber decided that the club had not sufficiently substantiated this part of its defence to the Chamber’s satisfaction, and decided to not take into account the other 6 payment receipts which were only signed by Player J, as proof of payment of any amounts due to the player.

25. In view of all the above, the members of the Chamber concluded that the club could prove to the Chamber’s satisfaction, that it paid the player the total amount USD 19,378.04, out of the total amount of USD 45,814 he is entitled to.

26. As a result thereof, the Chamber established that the club, in relation the bonuses and the lump-sum payment claimed by the player, had failed to pay to the player the amount of USD 26,435.06.

27. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the club must fulfil its obligations as per the contract concluded with the player and, consequently, is to be held liable to pay the outstanding amount of USD 26,435.06 to the player as outstanding remuneration.

28. 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 1 January 2017 on the amount of USD 20,000, as well as 5% p.a. as of 2 January 2017 on the amount of USD 6,435.06.

29. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player is rejected.

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 26,435.06, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 1 January 2017 on the amount of USD 20,000;

b. 5% p.a. as of 2 January 2017 on the amount of USD 6,435.06.

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. 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 remittances are 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

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 / www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives