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 19 April 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 19 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Takuya Yamazaki (Japan), member

Tomislav Kasalo (Croatia), member

Daan de Jong (The Netherlands), member

Abu Nayeem Shohag (Bangladesh), 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 4 February 2015, the player from country B, Player A (hereinafter: the Claimant) and the club from country D, Club C (hereinafter: the Respondent), signed a “Professional Player Contract” (hereinafter: contract), valid from the date of the signature until 31 December 2016.

2. According to article 2, paragraph 1, of the contract, the Claimant was entitled to receive the total amount of EUR 324,000 net “in the currency of Country D countervalue” as follows:

a. 24 monthly instalments in the amount of EUR 10,000 net “in the currency of Country D countervalue in the period January 2015 – December 2016”;

b. 4 instalments in the amount of EUR 21,000 net “in the currency of Country D countervalue” to be paid on 15 April 2015; 15 December 2015; 15 April 2016; and 15 December 2016.

3. Article 5, paragraph 3, of the contract stipulates that “(t)he [Respondent] shall provide the [Claimant] sports, medical and therapeutic care, free of charge. If in the performance of his obligation hereunder the [Claimant] sustains injury or professional illness that prevents him from fulfilling his obligations under the contract for a longer period or permanently, the [Respondent] shall perform its obligations towards the [Claimant] in the amount of 100% in accordance with [Respondent] regulations and this contract.”

4. On 5 November 2015, the Claimant sustained a serious knee injury during a football match, after which surgery was necessary. According to the Claimant, the Respondent decided that the Claimant was to undergo surgery at a clinic in Italy. The Claimant held that he resumed his footballing activity on 1 May 2016.

5. On 7 February 2017, the Respondent contacted the Claimant via email as regards outstanding debt to the Claimant. The Respondent admitted inter alia that it owed the Claimant a total amount of EUR 101,833 and that it unilaterally changed “the payout date, if that’s okay, on 5 October 2017”.

6. On 31 March 2017, the Respondent paid the Claimant 9,336,929.99, which, per the Claimant, amounts to EUR 75,317.

7. On 5 May 2017, the Players’ Union of Country D wrote on behalf of the Claimant to the Respondent and requested it to pay the remaining debt.

8. On 23 May 2017, the Respondent replied to the letter from the Players’ Union of Country D and explained that on 8 March 2017 it was told by the Ministry of Finance and Tax Administration of Country D that it had “to make payment of outstanding liabilities at the expense of income tax of the taxpayer [the Claimant], in the total amount of currency of Country D 1,570,947.77. As per said decision [the Respondent] was obliged to act, and it was done so.” The Respondent’s letter further established that the overall expenses related to the Claimant’s medical costs due to his knee injury amounted to EUR 13,500. In this regard, the Respondent held that it “has never brought a (…) decision to bear the costs of said operations (…) and that, in the books of [the Respondent], the cost of the operation was by a mistake credited at the expense of [the Respondent]. [The Respondent] adopted the decision (…) that the costs of the operation ought to be borne by [the Claimant].” The Respondent ended the letter by claiming “that there are no disputed issues between [the Claimant] and [the Respondent]”.

9. On 19 October 2017 the Claimant put the Respondent in default. He requested that the Respondent pay him, within 10 days from the receipt of the letter, the following:

a. “The amount of 1,478,368 on behalf of unfounded deductions based on a decision for forced collection due to tax obligations;

b. The amount of EUR 13,500 for a knee surgery;

c. The amount of EUR 10,000 on behalf of therapeutic care that was not provided to [the Claimant] and the expenses were paid by [the Claimant]”.

10. On 3 November 2017 the Claimant lodged a claim in front of FIFA and requested the following:

a. The amount of EUR 13,500 for the operation of front ligaments “with 5% interest starting from 31 December 2016”;

b. The amount of EUR 10,000 for therapeutic care paid by the Claimant “with 5% interest starting from 31 December 2016”;

c. The amount of 1,478,368 “on behalf of the tax that the Respondent with no legal basis reduced from the income of [the Claimant], with 5% interest rate starting from 31 December 2016”.

11. In his claim, the Claimant argued that the Respondent had to comply with Article 5, paragraph 3, of the contract, and provide the Claimant sports, medical and therapeutic care free of charge. Instead, the Respondent deducted the operation costs of EUR 13,500 from the Claimant’s income without a legal basis.

12. As regards the Respondent’s claim that it was obliged by the tax authorities of Country D to pay tax in the amount of currency of Country D 1,570,947.77 on the Claimant’s behalf, the Claimant argued that the decision by the tax authorities of Country D of 8 March 2017 (cf. I.8) was received 2 months and 8 days after the contract with the Claimant expired. Moreover, he was unaware of any tax return and seriously doubts the validity of the decision of the tax authorities of Country D.

13. Furthermore, the Claimant held that the contract stipulates net earnings (cf. I.2) and maintained that the Respondent did not have a legal basis to deduct tax payments from the Claimant’s income.

14. The Claimant ended his claim by stating that the Respondent “did not provide to [the Claimant] therapeutic care and did not care about the recovery of [the Claimant] although it is undeniable that [the Claimant] was injured (…) [The Claimant] himself paid all therapeutic costs in the amount of EUR 10,000 because he was forced to pay in order to recover from such a serious injury”.

15. Despite being invited to provide a reply to the Claimant’s claim, the Respondent failed to provide its reply.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber, DRC or deciding body) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 3 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. article 21 of the 2017 and 2018 editions 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 Dispute Resolution Chamber shall adjudicate on an employment-related dispute with an international dimension, between a player from country B and a club from 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 (edition 2018), and considering that the present claim was lodged on 3 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 documentation contained in the file in relation to the substance of the matter. 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 continuation, the Chamber first acknowledged that the Claimant and the Respondent signed an employment contract on 4 February 2015, which expired on 31 December 2016.

6. Furthermore, the DRC recalled that the Claimant lodged a claim against the Respondent in front of FIFA on 3 November 2017, maintaining that the Respondent has overdue payables towards the Respondent as follows:

a. The amount of EUR 13,500 for the operation of front ligaments;

b. The amount of EUR 10,000 for therapeutic care paid by the Claimant;

c. The amount of 1,478,368 “on behalf of the tax that the Respondent (…) reduced from the income of [the Claimant]”.

7. However, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. Consequently, the Chamber established that the primary issue at stake in this matter is determining which amount, if any, remained outstanding after the contract expiry.

10. Taking into account the Claimant’s breakdown of his claim (cf. I.10), the deciding body agreed that the alleged outstanding remuneration is to be separated in, on the one hand, remuneration relating to the costs derived from the Claimant’s knee injury, and on the other hand, outstanding remuneration related to the allegedly unfounded tax reductions made by the Respondent.

11. First, with regard to the alleged outstanding remuneration relating to the costs derived from the Claimant’s knee injury, the DRC turned to article 5, paragraph 3, of the employment contract, which reads: “The club shall provide the player medical care free of charge”. Consequently, the Chamber concluded that this provision is to be interpreted as meaning that the Respondent bears the costs of the medical care it provides to the Claimant.

12. As a consequence, the deciding body determined that the amount of EUR 13,500 relating to the operation costs (cf. I.8) could not be withheld by the Respondent from the Claimant’s salary. Thus, the Chamber established that this amount is still due to the Claimant.

13. Next, as regards the EUR 10,000 claimed by the Claimant regarding the therapeutic care that he received, the DRC recollected that the documentation provided by the Claimant consisted of an invoice with the description: “Individual Training to strengthen muscles and muscle recovery for [the Claimant] from 18-11-2015 until 20-01-2016. Payment (…) within 7 days of receipt.”

14. However, the Chamber also noted that the Claimant did not provide any evidence, such as bank receipts, that could demonstrate that he actually paid this amount. Moreover, the deciding body again referred to article 5, paragraph 3, of the employment contract, and recalled that only medical care provided by the club is free of charge. In this case, it was the Claimant’s own choice to get the treatment elsewhere and on his own account. Consequently, the Chamber concluded that the amount of EUR 10,000 related to therapeutic costs are not to be reimbursed to the Claimant.

15. Second, with regard to the outstanding remuneration requested by the Claimant related to allegedly unfounded tax reductions by the Respondent, the Chamber recalled that under article 2, paragraph 1, of the employment contract, the Claimant’s salary is net “in the currency of Country D countervalue” (cf. I.2). The DRC established therefore, that even if the public tax authorities ordered the Respondent to pay “outstanding liabilities at the expense of income of [the Claimant]” (cf. I.8), it is still the responsibility of the Respondent to pay this amount, given that the employment contract stipulated a net salary. Thus, the Chamber determined that the Respondent cannot deduct the amount of 1,478,368 from the Claimant’s outstanding salary. As a consequence, the amount of currency of Country D 1,478,368 is due to the Claimant.

16. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s pending remuneration in the total amount of EUR 13,500 and 1,478,368 in the currency of Country D.

17. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 13,500 and 1,478,368 in the currency of Country D.

18. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 13,500, as well as 5% p.a. on the amount of 1,478,368 in the currency of Country D, as of the day following the day on which said instalments fell due, i.e. 1 January 2017.

19. Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by 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 EUR 13,500, plus 5% interest p.a. as from 1 January 2017 until the date of effective payment.

3. The Respondent, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of 1,478,368 in the currency of Country D, plus 5% interest p.a. as from 1 January 2017 until the date of effective payment.

4. In the event that the amounts due plus interest to the Claimant in accordance with the above-mentioned points 2. and 3. are 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.

5. Any further claim lodged by the Claimant is rejected.

6. 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 (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