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 (did not participate in the deliberations)

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

arisen between the parties

I. Facts of the case

1. On 10 June 2014, 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 Club C), signed an employment contract (hereinafter: the contract) valid as from its date of signature until 30 June 2017.

2. In accordance with to art. 8.1 of Schedule 2 of the contract, the Claimant was entitled to a weekly salary of 50,000, “payable by monthly instalments in arrear”.

3. Furthermore, according to art. 8.3 of Schedule 2 of the contract, the Claimant was entitled to personal bonuses and, inter alia, to a sign-on fee of 1,950,000, payable in three annual instalments of 650,000 each on the following dates respectively: 30 June 2014, 31 July 2015 and 31 July 2016. In addition, the Claimant was also entitled to collective bonuses as detailed in the “Club C Incentive Schedule”, enclosed to the contract under Schedule 3.

4. Pursuant to its art. 21, the contract “shall be governed and construed in accordance with Law of Country D”.

5. On 20 January 2016, the player, his agent and the club’s representatives (Director E, club’s Director of Player Recruitment, and Secretary F, club’s Secretary) had a meeting at the club’s premises (hereinafter: the meeting) in view of the imminent player’s transfer to the Club of Country G, Club H (hereinafter: Club H). In this respect, according to the information contained in the Transfer Matching System, Club C and Club H signed an agreement for the transfer of the player on 20 January 2016 and, on 21 January 2016, the player signed an employment contract with Club H.

6. On 21 January 2016, while he was in City J, the Claimant received from the Respondent a document containing an agreement (hereinafter: the waiver) whereby Club C and the player acknowledged that the latter had negotiated a new employment contract with Club H and that he “has agreed to sign this agreement taking into account any remaining and/or future monies due to him by Club C under the [contract]”. This document was signed by the player.

7. In particular, according to waiver, the Claimant and the Respondent agreed that, as of 21 January 2016, “the player shall:

1. Agree to waive all and any claims for outstanding, or remaining monies arising under the terms of the [contract], including waiving his entitlement to receive the final instalment of a signing-on fee payment due on 31st July 2016, and the Club C Incentive Schedule at the date immediately prior to [21 January 2016];

2. Agree to waive his entitlement to receive any bonus payment that may become payable under Club C’s Incentive Schedule for season 2015-2016; and

3. Agrees that this waiver represents the full and final settlement of all and any claims for outstanding, remaining and/or future monies arising under the terms of the [employment contract] and Incentive Schedule”.

8. On 3 February 2016, the Claimant, through an e-mail sent to the Respondent, requested the payment of the salary for 20 days of January 2016. In particular, he maintained that, during the meeting, it was agreed that the player would waive the last instalment of the sign-on fee, however that he remained entitled to his pro-rata salary for the month of January 2016.

9. On 5 February 2016, the Claimant reiterated his previous request for payment.

10. On the same date, the Club C’s secretary replied that the waiver provided that no further payment was due to the player. In particular, he stated that “this was the instruction from our Owner, which was duly agreed and signed by [the player]”.

11. On 12 February 2016, the Claimant sent another e-mail to the Respondent, requesting again the payment allegedly agreed during the meeting.

12. On 13 February 2016, the Claimant requested to Club C’s president the payment of his salary for the period between 1 and 21 January 2016.

13. On the same date, the president replied to the player that “we gave you a 625 sign on in July for a year, we should have got half of that back. Sorry”.

14. On 16 March 2016, the Claimant put the Respondent in default for the payment of his salary for the period from 1 to 21 January 2016, requesting the payment within seven days.

15. On 21 March 2016, the Respondent replied claiming again that the Claimant waived his right to the requested salary by signing the waiver and, consequently, it rejected his request.

16. On 4 October 2016, the Claimant lodged a claim in front of FIFA, requesting outstanding remuneration in the amount of 129,032, for the period between 1 and 21 January 2016, plus 5% interest p.a. as of 22 January 2016. In addition, the Claimant requested sporting sanctions on the Respondent.

17. In his claim, the Claimant affirmed that, during the meeting held on 20 January 2016, the player and Club C orally agreed that the latter would have paid the salary for the period of January, when the player rendered his services. Furthermore, the Claimant alleged that, on 21 January 2016, he signed the waiver after having being informed by the Respondent that such document reflected the terms of the agreement reached during the meeting. In particular, according to the player, this information was delivered via a phone call from Club C’s director of recruitment to the player’s agent. Moreover, the player supported such allegation by submitting a witness statement from his agent and an affidavit signed by himself.

18. In continuation, the Claimant emphasised that the waiver expressly referred to the final instalment of the sign-on fee and to the bonuses set out in the “Club C Incentive Schedule” only, but not to his monthly salary for the month of January 2016.

19. Moreover, according to the Claimant, the generic reference, contained in the waiver, to ”any and all claims” was vague and unclear and, thus, pursuant to the principle of interpretation of the contract contra proferentem, it should lead to the conclusion that there was no waiver of the salary claimed by the player.

20. Furthermore, the Claimant argued that the parties’ intention ought to be considered when interpreting the contract, in accordance with the Swiss law. In view of the above, the Claimant affirmed that the failure to expressly mention the salary of January 2016 in the waiver implied that the parties did not mean to include it in their agreement.

21. In addition, the Claimant emphasised that he had a basic knowledge of the English language and such circumstance prevented him from fully understanding the content of the waiver, which he signed when he was, allegedly alone, in City J on 21 January 2016. Consequently, he averred that he signed the waiver only on the basis of the alleged outcome of the meeting held the day before.

22. Finally, the Claimant maintained that the Respondent acted in bad faith, and the way the waiver was drafted together with its conduct after its signature aimed at deceiving the player.

23. In its reply to the claim, the Respondent denied the sequence of events set out in the player’s claim and maintained that the Claimant, by signing the waiver, waived to all the outstanding and remaining sums provided in the contract, included the salary for the month of January 2016.

24. In particular, the Respondent stated that it did not inform the Claimant, or his agent, that the waiver reflected the terms and conditions allegedly agreed at the meeting. Moreover, the Respondent pointed out that no agreement had been reached during the aforementioned meeting on 20 January 2016. In this regard, the Respondent, in support of such allegation, submitted a statement confirming said lack of agreement signed by its secretary and its director of recruitment.

25. As to the player’s arguments, the Respondent first held that the principle of the interpretation of the contract contra proferentem was not applicable, as the waiver was clear in referring to any remaining / future sums due under the contract, i.e. salary for the month of January 2016 included.

26. In continuation, the Respondent argued that, pursuant to art. 21 of the contract, Law of Country D was applicable, in accordance with which the parties’ intention and pre-contractual conduct are not relevant for the interpretation of a contract. Furthermore, even alternatively considering Swiss law as applicable, the Respondent affirmed that there was no evidence of any further agreement reached between the player and Club C before the waiver’s execution.

27. In his replica, the Claimant insisted on his previous arguments and pointed out that the waiver did not indicate any choice of law by the parties. Consequently, he argued that Law of Country D was not applicable to the dispute. Moreover, the player also argued that, even alternatively considering Law of Country D as applicable, the parties’ intention would have been relevant in the interpretation of the contract (i.e. the waiver).

28. Furthermore, the Claimant alleged that clause 3 of the waiver referred only to the future claims related to the sign-on fee and to the Club C Incentive Schedule, which the waiver enumerated in the previous clause 1 and 2.

29. In its duplica, the Respondent reiterated its previous arguments. In particular, it reaffirmed that no oral agreement had been reached by the parties during the meeting on 20 January 2016 and the waiver was the only agreement concluded between them.

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 4 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, 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 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. 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 2018) and considering that the present claim was lodged on 4 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 DRC 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 Claimant and the Respondent concluded an employment contract valid as from 10 June 2014 until 30 June 2017.

6. The members of the Chamber also observed that, on 21 January 2016, the Claimant signed the waiver which, inter alia, “represents the full and final settlement of all and any claims for outstanding, remaining and/or future monies arising under the terms of the [contract]”.

7. With the above in mind, the members of the DRC took note that the Claimant requested the payment of part of the remuneration for the month of January 2016, alleging that, during a meeting held with the representatives of the Respondent on 20 January 2016, the Claimant and the Respondent agreed that he was entitled to the monthly salary limited to the period during which he rendered his services to Club C, in January 2016. Moreover, he alleged that he signed the waiver on 21 January 2016 upon the Respondent’s confirmation that such document reflected the terms of the agreement allegedly reached the day before and, furthermore, he affirmed that his limited knowledge of the English language prevented him from fully understanding the content of the waiver.

8. Finally, the Claimant argued that the waiver could not be taken into account as it was not specifically referring to the outstanding salary for the month of January 2016.

9. The Dispute Resolution Chamber equally took due note of the fact that the Respondent, on its part, maintained that no agreement had been reached with the Claimant during the meeting on 20 January 2016 and denied having confirmed the content of this alleged agreement to the Claimant before he signed the waiver. Moreover, the Respondent pointed out that the waiver was clear in referring to all the outstanding and remaining sums, the salary for the month of January 2016 included.

10. In view of the aforementioned dissent positions of the parties, the members of the DRC agreed that the underlying dispute in the present matter was to determine the legal effects of the waiver signed on 21 January 2016 as well as the existence of an alleged oral agreement reached between the parties. In doing so, the DRC 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.

11. As to legal effects of the waiver, the members of the Chamber first recalled that such document represented “the full and final settlement of all and any claims for outstanding, remaining and/or future monies arising under the terms of the [contract]”. With the above in mind, the members of the DRC were of the unanimous opinion that the document signed by the player on 21 January 2016 was clear, specific and unambiguous in including any claim for outstanding remuneration. Consequently, the DRC concluded that the Claimant, by signing the document on 21 January 2016 waived, inter alia, to claim any amount in respect to his outstanding remuneration for the month of January 2016 from the Respondent.

12. In continuation, the members of the Chamber went to analyse the Claimant’s allegation that he had concluded an oral agreement with the Respondent on 20 January 2016. In this context, the members of the Chamber emphasised that the Claimant, in order to corroborate his allegation, only submitted statements released by he himself and by his agent. What is more, the members of the Chamber noted the same statements were presented by the player also in order to demonstrate that the Respondent had confirmed him the content of such alleged agreement before he signed the waiver.

13. On account of the aforementioned considerations, the members of the Chamber came to the unanimous conclusion that, as the Claimant based his allegation solely on the basis of his statements and those of his agent, he did not provided the DRC with conclusive evidence that the alleged agreement had been indeed reached between the Claimant and the Respondent on 20 January 2016.

14. Finally, as to the Claimant’s argument that his allegedly limited knowledge of the English language prevented him from fully understanding the content of the waiver, the members of the Chamber deemed important to point out that, pursuant to the long-standing jurisprudence of the DRC, any party signing a document of legal importance without knowledge of its precise content does so on its own responsibility. Consequently, the Chamber concluded that such argument could not be upheld.

15. Consequently, on account of the aforementioned considerations, the members of the DRC concluded that, in accordance with the waiver he signed on 21 January 2016, the player is not entitled to the claimed outstanding remuneration. Thus, the members of the Chamber concluded their deliberations by rejecting the claim of the Claimant.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Player A, is rejected.

*****

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