DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 1 febbraio 2019 • Stagione sportiva: 2018/2019

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 1 February 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 1 February 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Johan van Gaalen (South Africa), member

Stefano La Porta (Italy), 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 between the parties

I. Facts of the case

1. On 16 July 2015, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid from 20 July 2015 until 31 May 2018.

2. As per the contract, the Claimant was entitled to receive from the Respondent inter alia the following net remuneration:

Season 2015/2016:

- “between August 2015 – May 2016: monthly 75.000 Euro x 10 = 750.000. The minimum wage for the player is included within the monthly payment. Payments are settled on 30th day of each month”;

- a bonus in the amount of EUR 50,000 in case the Claimant “makes total 20 official games in the first eleven in season 2015-2016” and “another 50.000,00 Euro” if the Claimant “makes total 30 official games in the first eleven”;

Season 2016/2017:

- “between August 2016 – May 2017: monthly 80.000 Euro x 10 = 800.000. The minimum wage for the player is included within the monthly payment. Payments are settled on 30th day of each month”;

- a bonus in the amount of EUR 50,000 in case the Claimant “makes total 20 official games in the first eleven in season 2016-2017” and “another 50.000,00 Euro” if the Claimant “makes total 30 official games in the first eleven”;

Season 2017-2018:

- “between August 2017 – May 2018: monthly 85.000 Euro x 10 = 850.000. The minimum wage for the player is included within the monthly payment. Payments are settled on 30th day of each month”;

3. In addition, the contract provided for the Claimant to receive from the Respondent the monthly amount of 2,500, as rental allowance.

4. On 6 August 2018, the Claimant lodged a claim with FIFA against the Respondent for breach of contract and requested from the latter the payment of the total amount of EUR 516,846.75, corresponding to his last six months of salary for the 2017-2018 season under the contract, i.e. the total amount of EUR 510,000 (6 x EUR 85,000), plus EUR 6,846.75, corresponding to 15 months of rental allowance as per the contract, i.e. 37,500 (15 x 2,500).

5. In addition, the Claimant requested the payment of 5% interest p.a. “until the date of effective receipt by the Claimant of the amount eventually determined by the Tribunal” and the payment of the sum of EUR 10,000 as “compensation related to the Claimant’s attorneys and other expenses”.

6. According to the Claimant, the Respondent never proceeded with the payment of the aforementioned amounts although he had allegedly requested the latter to do so.

7. In its response dated 21 September 2018, the Respondent rejected the claim of the Claimant in its entirety.

8. In this respect, the Respondent maintained having made some payments to the Claimant and provided FIFA with five alleged bank receipts for the sum of EUR 85,000 each, written in language of Country D only.

9. Equally, the Respondent accused the Claimant of having de facto stopped rendering his services to the Respondent on 15 December 2017, when he flew to Country B to undergo a “Lumber discectomy operation”.

10. According to the Respondent, the Claimant “wanted to be treated in his homeland and returned to his country, he stayed in Country B for a long time, after which the contract of the footballer with Club C [i.e. the Respondent] ended on 31.05.2018. In sort the footballer [i.e. the Claimant] did not offer any football service to Club C from December until the end of the season in 2017-2018 season. The football player’s discomfort is not related to football activity and it is not a discomfort or disability caused by the playing football. It is a common disorder seen in many people who do not have any interest in football or sport.”

11. As evidence, the Respondent inter alia provided a copy of an email dated 18 January 2018, allegedly addressed to the Claimant, in which it is mentioned the following: “Mr Player A; we kindly notify you that your necessary healthy controls will be carried out by healthcare team Club C, so you have to come to Club C as of date of 30.01.2018”.

12. In view of all the aforementioned, the Respondent deemed that the claim of the Claimant had to be rejected.

13. In the alternative, the Respondent requested “the Board to consider that the footballer did not provide any services to Club C in the 2017-2018 season due to the aforementioned illness; and that this illness is not due to any fault or negligence on Club C’s side, did not occur due to football activities, and to take into account these facts when making a decision and demand for a discount in that case”.

14. In his replicadated 16 October 2018, the Claimant reiterated the contents of his claim and contested the allegations of the Respondent, arguing that the latter had never objected to his wish to be treated in Country B. As to that, the Claimant provided two WhatsApp messages dated 9 and 10 December 2017 respectively, allegedly received from the coach and the doctor of the Respondent, in which it is inter alia mentioned that he would go to Country B to be treated.

15. Furthermore, the Claimant alleged having returned to Country D on 30 January 2018.

16. In continuation, the Claimant referred to previous decisions of the Dispute Resolution Chamber and pointed out that even if a player is injured, his club has to comply with its obligations as per the relevant employment agreement between them.

17. Asked about its final position on the matter at hand, the Respondent failed to provide FIFA with a reply.

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 6 August 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 June 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. 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 (editions 2017 and 2018), and considering that the present claim was lodged on 6 August 2018, the June 2018 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. The Chamber, however, 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 acknowledged that the parties had signed an employment contract on 16 July 2015, valid from 20 July 2015 until 31 May 2018, the financial terms of which are recalled in point I.2. above.

6. In continuation, the members of the Chamber noted that, in his claim to FIFA, the Claimant had accused the Respondent of having failed to pay him his last six months of salary for the 2017-2018 season, i.e. the total amount of EUR 510,000 as well as 15 months of rental allowance, i.e. the total amount of 37,500, because had been injured.

7. Equally, the Chamber took note of the fact that, due to the aforementioned, the Claimant deemed being inter alia entitled to claim from the Respondent the payment of his relevant outstanding salaries as well as the mentioned outstanding rental allowances.

8. In the same context, the Chamber further remarked that, for its part, the Respondent had contested the claim of the Claimant, arguing that it had made several payments to the latter and alleging that the Claimant had stopped working on 15 December 2017 to fly to Country B to undergo surgery and refused to return to be treated in Country D.

9. In view of all the aforementioned and to begin with, considering the allegation of the Respondent that it would have made several unspecified payments to the Claimant, the Chamber recalled that, in accordance with the basic principle of burden of proof, which is stipulated in art. 12 par. 3 of the Procedural Rules, a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

10. In the same context, the DRC was eager to emphasize that, as per art. 9 par. 1 lit. e) of the Procedural Rules all documents of relevance to the dispute need to be submitted to FIFA in the original version and, if applicable, translated into one of the official FIFA languages (i.e. English, Spanish, French or German).

11. With the aforementioned considerations in mind, the DRC pointed out that the only evidence in support of the allegation that it would have made several unspecified payments to the Claimant provided by the Respondent in Language of Country D only and was not accompanied by a translation into one of the official languages of FIFA.

12. As a result of the above and considering the content of 9 par. 1 lit. e) and art. 12 par. 3 of the Procedural Rules, the DRC established that the Respondent had failed to provide adequate evidence supporting the allegation that it would have made several payments to the Claimant. Hence, the DRC ruled that such allegation of the Respondent could not be taken into account when deciding on the matter at stake.

13. In continuation and turning its attention to the assertion of the Respondent that no payment was due to the Claimant after 15 December 2017 because the latter had left the country to be treated in Country B for an injury, the DRC referred to its well-established jurisprudence in accordance with which an injury or health condition of a player cannot be considered as a valid reason to cease the payment of the player’s remuneration or to terminate an employment relationship. From the Chamber’s point of view it is the club’s responsibility to secure the continuation of payment of remuneration in such cases, possibly by means of an adequate insurance.

14. What is more, the DRC recalled that in his replica to FIFA on 16 October 2018, which had remained uncontested by the Respondent as the latter had failed to provide its final position in the dispute at stake, the Claimant had alleged having returned to Country D on 30 January 2018.

15. Because of the aforementioned and in particular taking into account the lack of the Respondent’s reply to the allegation of the Claimant that he would have returned to Country D on 30 January 2018, the DRC came to the conclusion that it had to be assumed that the Claimant had indeed returned to Country D on 30 January 2018.

16. In view of all of the aforementioned, the Chamber decided that the Respondent had no valid reasons to stop paying the Claimant’s remuneration as per the contract.

17. Considering all of the above and in accordance with the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the DRC established that in order to fulfil its obligations established in the contract, the Respondent, has to pay to the Claimant the amount of EUR 510,000, corresponding to his last six months of salary under the contract, i.e. six times the amount of EUR 85,000 as well as the sum of 37,500, corresponding to the outstanding rental allowance, i.e. 15 times the amount of 2,500.

18. In addition and as to the Claimant’s request related to the payment of interests on the aforementioned amounts, the DRC, in accordance with its well-established jurisprudence decided that the Respondent has to pay to the Claimant 5% interest on the amount of EUR 510,000 as of 6 August 2018 until the date of effective payment, and on the amount of 37,500 as of 6 August 2018 until the date of effective payment.

19. Finally and with regard to the claimed legal fees allegedly incurred, 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. As a result, the DRC decided to reject the Claimant’s request relating to the reimbursement of the legal expenses allegedly incurred.

20. In conclusion, for all the above reasons, the Chamber decided that the claim of the Claimant is partially accepted and the Respondent has to pay to the Claimant EUR 510,000 plus 5% interest p.a. as of 6 August 2018 until the date of effective payment as well as 37,500 plus 5% interest p.a. as of 6 August 2018 until the date of effective payment.

21. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

22. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods.

23. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

24. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

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 the amount of EUR 510,000 plus 5% interest p.a. as of 6 August 2018 until the date of effective payment.

3. The Respondent has to pay to the Claimant the amount of 37,500 plus 5% interest p.a. as of 6 August 2018 until the date of effective payment.

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

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2 and 3 above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2 and 3 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due plus interest in accordance with points 2 and 3 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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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

www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal and Compliance Officer