F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 25 October 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 October 2018,

in the following composition:

Geoff Thompson (England), Chairman

Stefano La Porta (Italy), member

Muzammil Bin Mohamed (Singapore), member

Tomislav Kasalo (Croatia), member

Joaquim Evangelista (Portugal), member

on the claim presented by the player,

Player A, from country A,

as Claimant

against the club,

Club B, from country B,

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 20 August 2014, the player, Player A, from country A (hereinafter: the Claimant), and the club, Club B, from country B (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid for the football seasons 2014/2015 and 2015/2016. The contract further established the termination date of 31 May 2016.

2. As per clause 4A. of the contract, the Claimant was entitled to receive from the Respondent salary payments totaling EUR 1,300,000 for the 2014/2015 season.

3. In accordance with clause 4B. of the contract, the Claimant was to obtain a total salary of EUR 1,200,000 for the 2015/2016 season, to be paid in 12 monthly instalments of EUR 100,000 each as of June 2015, payable by the 25th day of the next month.

4. According to clause 5.1 of the contract, the Claimant was inter alia entitled to receive “until 25th August of each year (2014 and 2015), USD 40,000 to cover costs for home and car expenses”.

5. In addition, in accordance with clause 5.2 of the contract, the Respondent undertook to pay the additional amount of EUR 100,000 per season to the Claimant if he would play more than 40 minutes in 25 or more matches for the country B Toto Super League.

6. According to clause 5.4 of the contract, “if [the Respondent] does not fulfil its financial responsibilities about salary and other obligations for more than 90 days, [the Claimant] will warn [the Respondent] in a written form with an official paper from notary and gives [the Respondent] 30 days more to fulfil the mentioned obligations. If [the Respondent] does not fulfil its obligations during 30 days after receiving written notice, [the Claimant] has right to rescind the contract.”

7. As per clause 5.10 of the contract, “(p)layers of this contract by the signing of the “Club (…) Disciplinary and Arbitration Regulations” a copy of the read receipt, that penalty regulations no objection, whether the Club’s board decision and the club’s Football Discipline and Punishment Ordinance to comply with the declaration, and has committed to accept. Within the contract period, the Club Football Discipline and Arbitration Ordinance should give the player the player’s first accumulated or overdue fines will be deducted from the receivables are entitled to cut. Players agree and undertake to advance these issues”.

8. By letter dated 10 May 2016, the Claimant put the Respondent in default of payment of the amount of EUR 400,000, corresponding to the monthly salaries due as from January until April 2016.

9. On 2 June 2016, amended on 2 October 2017, the Claimant lodged a claim against the Respondent in front of FIFA and requested to be awarded EUR 614,000 and USD 40,000, plus 5% interest p.a. as of the respective due dates, as follows:

a) EUR 14,000 corresponding to the salary due in December 2015;

b) EUR 100,000 corresponding to the salary due in January 2016;

c) EUR 100,000 corresponding to the salary due in February 2016;

d) EUR 100,000 corresponding to the salary due in March 2016;

e) EUR 100,000 corresponding to the salary due in April 2016;

f) EUR 100,000 corresponding to the salary due in May 2016;

g) EUR 100,000 corresponding to the salary due in June 2016;

h) USD 40,000 corresponding to accommodation costs and car expenses.

10. In its reply, the Respondent referred to clause 5.4 of the contract and held that for the duration of the contract, it had paid the Claimant EUR 2,384,800 and USD 43,460. In other words, as per the Respondent, EUR 115,200 remained outstanding.

11. In this context, the Respondent provided the following table:

12. The Respondent further argued that the Claimant created problems and that he had missed three training sessions on 25, 26 and 27 April 2016.

13. According to the Respondent, on 28 April 2016, it sent an official warning to the Claimant via a notary public, indicating that by missing three training sessions, he had violated inter alia the employment contract. The warning letter further referred to notary public reports and stated that the Claimant should immediately fulfil his contractual obligations, otherwise the employment contract would be unilaterally terminated and “[the Claimant] will be fined within seven days from the date of expire of the given period”.

14. The Respondent further referred to a letter dated 25 May 2016, by which it informed the Claimant by notary public that, notwithstanding the warning sent to him on 28 April 2016, he “had not respected [his] contractual obligations within the grace period (…) and the fact that [he] had not fulfilled [his] obligations has been established in the Determination Report dated 13 May 2016”.

15. This letter further stated that, on the basis of clause 5.10 of the employment contract, the Respondent had decided to impose several fines upon the Claimant for a total amount of EUR 398,000, which were to be deducted from his receivables.

16. Consequently, the Respondent requested that the claim be dismissed.

17. With his replica, the Claimant amended his claim by adding the salary for May 2016, which fell due on 25 June 2016, that is, after he had lodged his claim in front of FIFA, as well as a request for 5% interest p.a. on the outstanding amounts as from the respective due dates.

18. The Claimant added that the evidence of payment of his salaries presented by the Respondent does not relate to the period of time during which he received no payments from the Respondent, i.e. December 2015 until May 2016.

19. The Claimant failed to understand the Respondent’s reference to clause 5.4 of the employment contract, and held that it was never his intention to terminate the contract, stressing that he continued to fulfil his obligations to the Respondent.

20. The Claimant further denied that he had been absent during three training sessions and provided an “official statement” written and signed by the Claimant in support. He held that he was never notified by the Respondent that a fine was imposed on him.

21. With regard to the alleged fines, the Claimant held that he was not able to identify the grounds or calculation by which the Respondent reached the amount of EUR 398,000, highlighting that the Respondent failed to provide evidence in this respect. Furthermore, as per the Claimant, in any event, the amount deducted from the Claimant’s salary through these fines was disproportionate.

22. Moreover, the Claimant failed to understand why the Respondent waited nearly a month (i.e. until 25 May 2016) to impose a fine upon him for allegedly missing three training sessions in April 2016.

23. In its duplica, the Respondent argued that the Claimant was “constantly having problems” and that “most of the time he went to his home country and was late”.

24. The Respondent further held that, on 13 May 2016, a notary public determined that on that day between 11:00 and 12:00 the Claimant was absent from training.

25. Consequently, as per the Respondent, it had no choice but to impose several fines upon the Claimant on 25 May 2016 highlighting that the fine imposed corresponds to “only % 6,5” of the total contractual value.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 2 June 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 of 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 and a club.

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 2 June 2016, the 2016 edition of the 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 and arguments as well as the documentation on file. 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 recalled that the Claimant and the Respondent signed an employment contract on 20 August 2014, which expired on 31 May 2016.

6. In this regard, the DRC noted that the Claimant lodged a claim against the Respondent in front of FIFA maintaining that the Respondent still owes him the amounts of EUR 614,000 and USD 40,000 on the basis of the employment contract.

7. Conversely, the Chamber took into account that the Respondent argued that it owed the Claimant only EUR 115,200 bearing in mind all the payments it had made to the Claimant as well as the fact that fines in the total amount EUR 398,000 had been imposed on the Claimant, which, according to the Respondent, were to be deducted from the Claimant’s receivables.

8. In continuation, the members of the Chamber noted that the Claimant, for its part, rejected the Respondent’s argument relating to the said fine alleging, inter alia, that the amount is disproportionate and that the Respondent failed to provide evidence so as to identify the grounds or calculation by which it determined the amount.

9. Bearing in mind the arguments put forth by the Claimant and the Respondent, as well as the content of the employment contract, the DRC deemed that the first issue to be analysed was to determine as to whether the Respondent’s argument regarding the deduction of fines in the amount of EUR 398,000 from the Claimant’s receivables can be accepted.

10. In this regard, the Chamber recalled that, according to the Respondent, the Claimant had missed three training sessions on 25, 26 and 27 April 2017. While referring to art. 9 par. 1 of the Procedural Rules, the Chamber noted that, in this regard, the Respondent had presented documents drafted in the language of country B without translation into an official FIFA language. Moreover, the DRC noted that the Respondent had sent the Claimant a warning on 28 April 2016, followed by a letter on 25 May 2016 which inter alia stated that, on the basis of clause 5.10 of the employment contract, it had imposed the above-mentioned fines upon the Claimant.

11. In this context, the DRC acknowledged the content of clause 5.10 of the contract (cf. number I./7. above).

12. However, the Chamber observed that the so-called “Club (…) Disciplinary and Arbitration Regulation”, as stipulated in said clause, was never provided by the Respondent in its submissions. In other words, based on the documents on file, or lack thereof, the Chamber could not construe under what conditions the Respondent could sanction the Claimant, nor determine the range of sanctions the Respondent had at its disposal, for the alleged indiscipline of the Claimant.

13. In addition, the DRC noted that the Claimant appears to have been warned only on 28 April 2016 by the Respondent regarding his alleged indiscipline and possible sanctions. Furthermore, the DRC observed that, prior to the imposition of the sanctions, it appears that the Claimant was not invited to be heard on his alleged disciplinary breaches, and therefore it cannot be established whether his right to a fair proceeding was respected.

14. Furthermore, the Chamber unanimously agreed that, in any case, fines amounting to EUR 398,000, which in this case is nearly the equivalent of four monthly salaries, must be considered excessive and disproportionate.

15. Consequently, the DRC concluded that the fines imposed by the Respondent on the Claimant, and which the Respondent claimed should be deducted from the Claimant’s receivables, shall be disregarded in their entirety.

16. Having established the above, the Chamber then proceeded to determine the amount of outstanding remuneration, if any, still due to the Claimant by the Respondent. In this context, and basing itself on the employment contract, the DRC thus established that for the entire duration of the contract the total amounts of EUR 2,500,000 and USD 80,000 should have been paid by the Respondent to the Claimant in respect of salary and home and car expenses, respectively.

17. In continuation, the Chamber referred to the table provided by the Respondent (cf. number I./11. above) and observed that the amounts allegedly paid by the Respondent in relation to monthly salaries and home and car expenses equal the totals of EUR 1,886,000 and USD 43,460, respectively. In this regard, the Chamber pointed out that the table presented by the Respondent also includes payments apparently made to the Claimant on the basis of the bonus due under clause 5.2 of the contract, which obviously cannot be taken into consideration as a salary payment.

18. In this light, the DRC further noted that the Claimant did not contest that the EUR payments referred to in said table corresponding to the monthly salaries were made to him. In fact, the difference between the total contractual salary due to the Claimant and the EUR 1,886,000 included in the said table in relation to salary payments equals the amount of EUR 614,000 claimed by the Claimant as outstanding salaries. As a result, the Chamber established that the amount of EUR 614,000 pertaining to monthly salaries remains unpaid by the Respondent.

19. Moreover, the Chamber also noted that the Claimant did not deny having received the amount of USD 43,460 with respect to the contractual home and car expenses.

Therefore, and given that the Claimant was contractually entitled to USD 80,000, while not disputing that he had received USD 43,460, the DRC established that an amount of USD 36,540 relating to the housing and car allowances remains outstanding.

20. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the amounts of EUR 614,000 and USD 36,540.

21. 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 amounts of EUR 614,000 and USD 36,540.

22. 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 614,000, as well as 5% p.a. on the amount of USD 36,540, as of the day following the day on which each of the respective instalments fell due.

23. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amounts of EUR 614,000 and USD 36,540, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

a. 5% p.a. on the amount of USD 36,540 as from 26 August 2015;

b. 5% p.a. on the amount of EUR 114,000 as from 19 May 2016;

c. 5% p.a. on the amount of EUR 100,000 as from 26 February 2016;

d. 5% p.a. on the amount of EUR 100,000 as from 26 March 2016

e. 5% p.a. on the amount of EUR 100,000 as from 26 April 2016;

f. 5% p.a. on the amount of EUR 100,000 as from 26 May 2016;

g. 5% p.a. on the amount of EUR 100,000 as from 26 June 2016.

3. In the event that the amounts plus interest due to the Claimant 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.

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 (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