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 8 December 2013, 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 January 2014 until 31 December 2015, i.e. for season 2014 and for season 2015.

2. According to the contract, the Claimant was entitled to the following salary:

“1. In season 2014, the salary of the player begins at 14,000 US Dollars (or approximately 420,000 in the currency of Country D).

1.1 If the player can reach 12 goals or more in 19 matches of League of Country D when the first half of season 2014 ends, the salary of the player will be increased to 20,000 US Dollars (or approximately 600,000 in the currency of Country D).

1.2 In case the player cannot reach 12 goals in 19 matches of League of Country D when the first half of season 2014 ends, the salary of the player will be decreased to 10,000 US Dollars (or approximately 300,000 in the currency of Country D).

1.3 At the end of season 2014, in case that the player is in the condition 2.1, if the player can reach 15 goals or more for all the matches of League of Country D in season 2014, the salary of the player will be increased to 13,000 US Dollars (or approximately 390,000 in the currency of Country D).

2. In season 2015, the salary of the player will begin follow these conditions:

- the salary of the player will begin at 20,000 US Dollars (or approximately 600,000 in the currency of Country D) if the player already meet the requirements of Condition 1.1

- the salary of the player will begin at 13,000 US Dollars (or approximately 390,000 in the currency of Country D) if the player is in condition 1.3

- the salary of the player will begin at 10,000 US Dollars (or approximately 300,000 in the currency of Country D) if the player fails to meet the requirements of all conditions from season 2014”.

3. Pursuant to art. 3 of the contract, the Respondent committed to provide the player with “house and car”.

4. Moreover, according to art. 4 of the contract, the Claimant was entitled to “300 US Dollars (or approximately 9,000 in the currency of Country D) for winning, goal and assist bonuses”.

5. Furthermore, pursuant to art. 5 of the contract, the Claimant was entitled to the following sign-on fee:

“in season 2014 […] 40,000 US Dollars (or approximately 1,200,000 in the currency of Country D) within 10 December 2014.

5.1 If the player can reach at least 15 goals for season 2014, the player will receive 60,000 US Dollars (or approximately 1,800,000 in the currency of Country

D) in season 2015. In case the player cannot reach 15 goals in season 2014, the player will receive 40,000 US (or approximately 1,200,000 in the currency of Country D) within January 2015”.

6. On 27 May 2016, the Claimant put the Respondent in default for the payment of the amount of USD 15,339, allegedly corresponding to his salary of December 2015, to bonuses related to matches played between November and December 2015 and to the rent of a house for three months, until the month of December 2015.

7. On 3 October 2016, the Claimant lodged a claim in front of FIFA against the club for outstanding remuneration, requesting the payment of USD 15,339 plus 5% interest, broken down as follows:

a) USD 13,334 as outstanding salary for the month of December 2015;

b) USD 1,500 for bonuses in accordance with art. 4 of the contract, related to three matches allegedly played between November and December 2015. In particular, the Claimant provided a list of such matches and of the bonuses allegedly due for the “winning, goal and assist bonuses” pursuant to art. 4 of the contract;

c) USD 505 as accommodation allowance for the period between October and December 2015.

8. In his claim, the Claimant affirmed that, as of the month of August 2014, the Respondent “voluntarily” increased the player’s salary from USD 14,000 to USD 20,000 pursuant to art. 1.1 of the contract. However, according to the Claimant, for the month of December 2015 it made a payment of USD 6,666 only. In particular, in order to corroborate his allegation, the Claimant submitted some undated payment statements issued by the Respondent, some of which indicate a salary of 420,000 in the currency of Country D and six of them of 600,000 in the currency of Country D.

9. The Respondent replied that, as of August 2014, it increased the salary of the Respondent not pursuant to art. 1.1 of the contract, but rather because the player allegedly asked the club for financial support, as he was apparently facing “some financial and family problem”. In particular, the Respondent maintained that the Claimant scored 9 goals in the first half of 2014 season and, pursuant to art. 1.2 of the contract, as of August 2014 he would have been entitled to a salary of USD 10,000 if the Respondent had not accepted his request. As a consequence of the above, the Respondent concluded that, for the season 2014, it overpaid the Claimant by USD 60,000 (6 months with a monthly salary of USD 20,000 instead of USD 10,000). In this respect, the Respondent submitted its list of the matches played and of the goals scored by the player during the seasons 2014 and 2015. According to such list, the player scored 8 goals in the first half of the season 2014.

10. Moreover, the Respondent maintained that the Claimant scored 18 goals during the entire 2014 season and argued that, pursuant to art. 1.3 of the contract, he would have been entitled to a monthly salary of USD 13,000 at the beginning of the 2015 season. Nonetheless, the Respondent stated that, as the player allegedly requested to maintain the salary at USD 20,000 also for the season 2015 “because of the same problems”, the Respondent and the Claimant made a “special agreement” by means of which the club accepted to pay him a salary of USD 20,000 for the first ten months of the season 2015 and of USD 11,666 and USD 6,666 for the months of November and December 2015 respectively.

11. In particular, the Respondent argued that the lower salary for the last two months depended on the possible lack of the League of Country D matches during such months and by the higher salary previously received by the Claimant. As a consequence of the above, the club concluded that, for the season 2015, it overpaid the player by USD 70,000 (i.e. 10 months with a monthly salary of USD 20,000 instead of USD 13,000).

12. In his replica, the Claimant denied having requested any salary increase or having concluded any special agreement with the club. Moreover, the Claimant argued that the salary increase occurred as of July 2014 and derived from an offer made by the club’s president, which the Claimant accepted, according to which the condition under art.1.1 would have been considered as met if the player had scored 10 goals in the first half of season 2014. In this regard, the Claimant emphasized having met such condition and, as evidence, submitted news taken from the web indicating that, in addition to the 8 goals listed by the club in its reply, in the first half of season 2014 he scored further 3 goals.

13. The Claimant further argued that the condition under art. 1.1 was met and, pursuant to art. 2 of the contract, he was entitled to a salary of USD 20,000 also for the season 2015.

14. Furthermore, the Claimant argued that the clauses of the contract stipulating a salary decrease depending on the player performance were invalid. Hence, the Claimant rejected the Respondent’s allegations according to which he was entitled to a lower salary for the second half of the season 2014 and for the entire 2015 season.

15. In continuation, the Claimant argued that the Respondent acknowledged that the “conditions set out in the contract” were met as, for the season 2015, it paid him a sign-on fee of USD 60,000, pursuant to art. 5.1 of the contract.

16. In its duplica, the Respondent recalled its previous arguments and maintained that the player had scored only 7 goals in the first 19 matches of League of Country D of season 2014. In particular, the Respondent insisted that the condition under art. 1.1 of the contract was not met and the Claimant received more than what he was entitled to according to the contract.

17. Moreover, the Respondent stressed that no agreement had been concluded between the Respondent and the Claimant for the amendment of the condition under art. 1.1 of the contract.

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 3 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 2016 – hereinafter: Regulations), 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 3 October 2016, 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, on 8 December 2013, the Claimant and the Respondent entered into a contract, valid as from 1 January 2014 until 31 December 2015, i.e. for season 2014 and season 2015.

6. In this context, the members of the Chamber noted that, according to the contract, the Claimant was entitled to:

- for season 2014, a monthly salary of USD 14,000, to be increased to the amount of USD 20,000 upon the condition that “the player can reach 12 goals or more in 19 matches of League of Country D when the first half of season 2014 ends”;

- for season 2015, a monthly salary of USD 20,000, provided that the player met the aforementioned condition.

7. Moreover, the members of the Chamber took note that both the parties acknowledged that the Respondent paid the following salaries to the Claimant: i) USD 20,000 as of the month of August 2014 during the entire season 2014 and the first ten months of season 2015; ii) USD 6,666 for the month of December 2015.

8. In continuation, the Chamber noted that the Claimant requested the payment of USD 13,334 for the monthly salary of December 2015, bonuses pursuant to art. 4 of the contract in the amount of USD 1,500 and an accommodation allowance in the amount of USD 505 for the period between October and December 2015.

9. Equally, the DRC took note of the position of the Respondent, which contested that the Claimant was entitled to the requested outstanding salary and maintained that the salary of the player was increased to USD 20,000 in August 2014 because the club accepted the alleged Claimant’s request of increase due to “financial and family problem”. However, the Respondent affirmed that the player and club eventually concluded a “special agreement”, whereby the Claimant accepted a decrease of his monthly salary to USD 11,666 for November 2015 and to USD 6,666 for December 2015.

10. In view of the aforementioned dissent positions of the parties, the members of the Chamber firstly referred to 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. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that, in view of the fact that it was undisputed that the Claimant received a monthly salary of USD 20,000 as from August 2014 until October 2015, it was up to the Respondent to prove that, for the month of December 2015, the Claimant was entitled only to the amount of USD 6,666.

11. Having stated the above, the members of the Chamber concurred that the Respondent did not substantiate his allegations, as it did not present any evidence in respect of the “special agreement”, by means of which the Claimant allegedly accepted to receive a salary of USD 6,666 only, for the month of December 2015. The DRC felt comforted with its conclusion considering that as of August 2014 until October 2015 the conduct of the parties clearly demonstrates that the Claimant was entitled to a salary of USD 20,000.

12. On account of the aforementioned considerations, the DRC concluded that, since that the parties set the player’s salary at USD 20,000 on August 2014 and the Respondent had not been able to prove its argumentation that the parties had beforehand agreed on a salary of USD 6,666 only for the month of December 2015, the Respondent had to pay the Claimant the remaining outstanding amount. As a consequence, the members of the Chamber concurred that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations and, consequently, is to be held liable to pay the outstanding salary in the amount of USD 13,334, as requested by the Claimant.

13. In continuation, as to the claim for outstanding match bonuses as per art. 4 of the contract, taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had presented sufficient documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. The members of the Chamber were comforted with such conclusion by the fact that the information presented by the Respondent with regard to the relevant matches played by the player with the club confirmed that the requested match bonuses were indeed due.

14. Consequently, bearing in mind the aforementioned considerations, the Chamber decided that the Respondent, in addition to the outstanding salary of USD 13,334, shall also pay the Claimant outstanding match bonuses in the amount of USD 1,500.

15. Furthermore, as to the requested accommodation allowance, the members of the Chamber emphasised that, according to the relevant clause in the contract, i.e. art. 3, the Respondent only committed to provide the Respondent with “house and car”. Consequently, in the absence of any monetary value in the contractual condition relating to an accommodation and of any documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to reject this part of the Claimant’s claim.

16. In view of the above, the DRC concluded that it could be established that the Respondent had failed to pay the Claimant the agreed outstanding salary in the amount of USD 13,334 and bonuses in the amount of USD 1,500. Thus, in accordance with the general legal principle of pacta sunt servanda, the Respondent is to be held liable to pay the total amount of USD 14,834 to the Claimant.

17. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the total outstanding amount due by the Respondent, i.e. USD 14,834, as of 1 January 2016, until the date of effective payment.

18. Finally, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant 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, the amount of USD 14,834 plus 5% interest p.a. as from 1 January 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 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