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 21 September 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 September 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Johan van Gaalen (South Africa), member

Pavel Pivovarov (Russia), member

Mohamed Al Saikhan (Saudi Arabia), 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 20 July 2015, 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 the date of signature until the end of the season 2015/2016.

2. According to art. 4 of the contract, the Claimant was entitled to a total salary of USD 360,000, payable as follows:

- 20% as sign-on fee;

- 80% in ten monthly instalments, as from 22 August 2015.

3. Moreover, pursuant to art. 8 of the contract, the Respondent committed to pay bonuses to the Claimant, depending on the club’s results. In particular, inter alia:

- USD 5,000 “for [the club] passing the 1/8 final in ACL” (art. 8-4 of the contract);

- USD 700 for each match won by the club (art. 8-8 of the contract).

4. On 24 August 2016, the Claimant put the Respondent in default for the payment of USD 135,600 as outstanding salaries and bonuses and requested the payment within the following 10 days.

5. On 18 January 2017, the Claimant lodged a claim in front of FIFA against the Respondent for outstanding remuneration, requesting the payment of USD 135,600 for outstanding salaries and bonuses, plus the following:

- USD 13,560 as “penalty fee”, corresponding to 10% of the aforementioned outstanding amount;

- 5% interest p.a. as of 24 August 2016;

- 5% of the “final condemnation”, as legal fees.

6. In his claim, the Claimant alleged that the Respondent did not pay him four out of ten instalments provided in the contract, which were due on 22 February, March, April and May 2016 respectively. Moreover, the Claimant affirmed that he was entitled to USD 20,400 for the following bonuses:

- USD 5,000 for the club reaching “the round of 16 of Asia Champions League (item 8-4 of the Contract)”;

- USD 15,400 for twenty-two matches allegedly won by the club between 30 July 2015 and 20 May 2016, pursuant to art. 8-8 of the contract.

7. The club replied to the claim only after the closure of the investigation-phase by the FIFA Administration, affirming that, due to alleged absences of the player from training sessions, it deducted the amount of USD 72,000 from the Claimant’s receivables. However, the Respondent also acknowledged a debt of USD 23,637 towards the Claimant.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the 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 18 January 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, par. 2 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 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. 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 2016), and considering that the present claim was lodged on 18 January 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. First, the Chamber noted that the parties entered into an employment contract valid as from 20 July 2015 until the end of the season 2015/2016, which entitled the Claimant to a total salary of USD 360,000, plus bonuses depending on the club’s results.

6. In continuation, the members of the Chamber took note that the Claimant requested the payment of USD 135,600, plus 5% interest p.a. as of 24 August 2016, for outstanding salaries and bonuses, corresponding to: i) the monthly salaries as from February until May 2016 and, ii) in the amount of USD 20,600, the bonuses provided in the contract for the club reaching “the round of 16 of Asia champions League” and for the won matches.

7. Equally, the members of the Chamber observed that the Respondent submitted its reply to the claim only after notification of the closure of the investigation of the matter at hand. As a result, in line with art. 9 par. 3 and 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 and established that, in accordance with art. 9 par. 3 and 4 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.

8. With the above in mind, the members of the Chamber took note that, according to the documentation provided by the Claimant, the Respondent failed to pay him USD 135,600, plus 5% interest p.a. as of 24 August 2016, for outstanding salaries and bonuses.

9. Furthermore, the DRC took note that the Claimant requested the payment of a “penalty fee” of USD 13,560, as well as 5% of the “final condemnation”, as legal fees.

10. In relation to the above-mentioned requests, the members of the Chamber recalled that, according to the contract, the Claimant was entitled to a total salary of USD 360,000, payable as follows: 20% as sign-on fee and 80% in ten monthly instalments, starting on 22 August 2015.

11. In addition, the members of the Chamber noted that, as specified in the contract, the Claimant was entitled to bonuses depending on the club’s results, such as USD 5,000 “for [the club] passing the 1/8 final in ACL” and USD 700 for each match won by the club.

12. In this respect, the Chamber recalled the basic principle of the burden of proof, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In particular, the members of the Chamber concluded that, with reference to the claimed outstanding bonuses, the Claimant did not fully substantiate his claim with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, the Claimant did not provide any supporting documentation in order to substantiate that the said bonuses were effectively due by the Respondent in the light of the club’s results. Consequently, the DRC decided to reject this part of the Claimant’s claim.

13. On account of the aforementioned and, in particular in view of the considerations made above, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant outstanding salaries in the total amount of USD 115,200, corresponding to his salaries for the period between February and May 2016.

14. In continuation, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant 5% interest p.a. on the above-mentioned amount as requested, as of 24 August 2016.

15. Furthermore, as to the claimed “penalty fee”, the member of the Chamber deemed it appropriate to point out that the aforementioned request by the Claimant had no contractual or regulatory basis and, thus, rejected the Claimant’s claim in this regard.

16. In addition, as regards the claimed legal fees, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal fees.

17. Finally, 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 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 USD 115,200 plus 5% interest p.a. as from 24 August 2016 until the date of effective payment.

3. In the event that the aforementioned sum plus interest is not paid by the Respondent 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 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

Encl: CAS directives