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 9 May 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 May 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Eirik Monsen (Norway), member

Pavel Pivovarov (Russia), member

Todd Durbin (USA), 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 13 January 2016, the Player of Country B, Player A (hereinafter: the player or the Claimant), and the Club of Country D, Club C (hereinafter: the club or the Respondent), concluded an employment contract (hereinafter: the first contract), valid “for the remaining duration of the football season 2015-2016”.

2. Clause III of the first contract established that “the contract value is 4000€ net.” In addition, said article provides that “The Club takes over the apartment rent, whereas other obligations are to be paid by the Player (electricity, water, elevator).”

3. Subsequently, on an unspecified date, the player and the club signed another employment contract (hereinafter: the second contract) valid “for the duration of the football season 2016-2017”.

4. According to art. III a) of the second contract, the player was entitled to a net monthly salary of EUR 4,000. Article III b) of the second contract further stipulates that the club “takes over payment of the player’s apartment during the contract term. All other additional expenses (electricity, water, elevator, building maintenance, etc.) shall be paid by the Player.”

5. By correspondences dated 26 October 2017 and 4 March 2018, the player put the club in default of payment of the amount of EUR 28,000 for outstanding salaries, giving the club a deadline of 10 days in order to remedy the default.

6. On 2 November 2018, the player lodged a claim against the club before FIFA asking to be awarded the amount of EUR 28,000 for outstanding remuneration, corresponding to his monthly salaries of April 2016, May 2016, and as from January 2017 until May 2017 (EUR 4,000 each), plus 5% interest p.a. as from “the moment that each salary and has become due until their effective payment.”

7. In his claim, the player explained that, despite having fulfilled his contractual obligations as well as having put the club in default twice, the latter did not reply nor fulfilled its financial obligations towards him.

8. In its reply to the player’s claim, the club first argued that it provided the player with accommodation and that, according to the contract, the player was responsible for other expenses and damages in connection with said accommodation. In this regard, the club affirmed that it imposed a fine of EUR 540 on the player.

9. Furthermore, the club alleged that it had discussed with the player about the penalties related to the non-fulfilment of the club’s objectives. In this respect, the club presented a letter, dated 23 March 2016, which it allegedly sent to the player and confirmed that the club retained one monthly salary to the player for “failure of the target set by the Club C”.

10. In support of its reply, the club also submitted two accounting documents, which allegedly outlined all the deductions made by the club on the player’s remuneration. In addition, the club stressed that, pursuant to said documents, it paid the player the amount of EUR 12,734 on 21 January 2016, allegedly corresponding to “3 monthly payments”, as well as the amount of EUR 21,200 on 1 December 2016.

11. In his replica, the player rejected the club’s argumentations and insisted on his initial claim.

12. In fact, the player denied having been responsible for any damage or expense for the accommodation.

13. Moreover, the player underlined that the alleged payment fulfilled by the club does not refer to the amount he is requesting in the present claim.

14. What is more, the player stressed that the letter dated 23 March 2016 submitted by the club “has been fabricated”, since it mentioned another letter dated 3 July 2016. In this regard, the player affirmed that the club never informed him about its decision to sanction him during the term of the contract.

15. Finally, the player emphasised that, nevertheless, the penalty imposed on the player for not meeting the club’s objectives shall be considered null and void as players cannot be sanctioned based on their performance.

16. Despite having been invited to do so, the club did not present any comments to the player’s replica.

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 November 2018. Consequently, the 2018 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. 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 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 (edition June 2018), and considering that the present claim was lodged on 2 November 2018, the June 2018 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 aforementioned facts as well as the arguments and documentation submitted by the parties. 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. First of all, the Chamber acknowledged that, on 13 January 2016, the Claimant and the Respondent signed a first employment contract valid as from its date of signature until 31 May 2016, in accordance with which the Claimant was entitled to a monthly salary of EUR 4,000.

6. In addition, the DRC noted that, on an unspecified date, the parties signed a second employment contract, valid “for the duration of the football season 2016-2017”, according to which the Claimant was entitled to receive a monthly salary of EUR 4,000. As regards to the contractual duration, the Chamber took into account that, according to the information available in the TMS, the relevant football season in Country D started on 21 August 2016 and ended on 31 May 2017.

7. Moreover, the members of the Chamber further took note of the content of art. III lit. b) of the second contract, according to which the Respondent agreed to pay for the Claimant’s accommodation but that “additional expenses” such as “electricity, water, elevator, building administration, etc.” were payable by the Claimant.

8. Moreover, the members of the Chamber took into account that, by means of two correspondences respectively dated 26 October 2017 and 4 March 2018, the Claimant put the Respondent in default of the amount of EUR 28,000 for outstanding salaries.

9. The Chamber then acknowledged that, on 2 November 2018, the Claimant lodged a claim before FIFA against the Respondent requesting outstanding remuneration in the total amount of EUR 28,000, corresponding to his monthly salaries of April 2016, May 2016, and as from January 2017 until May 2017. In his claim, the Claimant argued that, despite having rendered his services and having put the Respondent in default twice, the latter did not comply with its financial obligations towards him.

10. At this stage, the Chamber first referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. Considering that the claim of the Claimant was lodged in front of FIFA on 2 November 2018 only, the Chamber concluded that it could not enter into any claim for salaries that fell due prior to 2 November 2016.

11. Taking into account the previous consideration, the DRC concluded that the Claimant’s request in the total amount of EUR 8,000, corresponding to his monthly salaries of April 2016 and May 2016, is barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

12. In continuation, the members of the DRC observed that, for its part, the Respondent held that it had imposed a fine on the Claimant, in relation to an alleged damage to the accommodation, in the amount of EUR 540. What is more, the Chamber took note that the Respondent submitted a letter dated 23 March 2016, allegedly sent to the Claimant, by means of which it imposed a penalty of one monthly salary “due to failure to reach the target set by [the club]”.

13. At this stage, taking into account the diverging positions of the parties, the members of the Chamber determined that the main issue at stake consisted in assessing whether the Respondent had to pay the requested amounts to the Claimant, or if it had valid reasons not to.

14. In this regard, the Chamber went on to analyse the fine as well as the penalty imposed on the Claimant by the Respondent. As regards the fine, the Chamber first of all noted that article III b) of the second contract (cf. point I.4.) is rather vague and unclear in particular regarding the payment of expenses in the event of damage. What is more, the DRC took note that the Respondent did not provide any evidence regarding the alleged damage to the accommodation, nor that it notified the alleged fine to the Claimant.

15. Moreover, in relation to the penalty imposed on the Claimant, the DRC referred to the letter dated 23 March 2016 presented by the Respondent, allegedly sent to the Claimant. In this regard, the DRC noted that the Claimant deemed the aforementioned letter as “fabricated”, in particular considering that he was never informed by the Respondent of such decision to penalise him. In this respect, the members of the Chamber duly considered that the Respondent did not submit evidence that it transmitted the contested letter to the Claimant.

16. Consequently, on account of the aforementioned considerations and bearing in mind the principle enshrined in art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC concluded that the aforementioned argumentations of the Respondent had to be rejected.

17. Furthermore, and in any case, the Chamber wished to point out that, in accordance with its longstanding jurisprudence, the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players.

18. In continuation, the members of the Chamber took into consideration the two accounting documents submitted by the Respondent (cf. point I. 10.), which allegedly outlined the calculation of the Claimant’s remuneration. Entering into the analysis of said documentation, the DRC underlined that (i) the amount of EUR 12,734, allegedly remitted to the Claimant on 21 January 2016, appears to be related to the season 2015/2016 and that (ii) the amount EUR 21,200, allegedly paid on 1 December 2016, seems to correspond to salaries for the period of time prior to the aforementioned date of payment.

19. In view of the above, the DRC concluded that the above-mentioned accounting documents presented by the Respondent do not constitute conclusive evidence that the monthly salaries due to the player for the period between January and May 2017 were indeed paid.

20. For all the above reasons, and as the Respondent did not present any other argumentations, the Chamber decided to partially accept the player’s claim and determined that the Respondent, in accordance with the general legal principle of pacta sunt servanda, must pay him the total amount of EUR 20,000 in concept of outstanding remuneration.

21. 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. as of the respective due dates until the date of effective payment.

17. 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.

18. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban 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.

19. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts 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.

20. Finally, the Chamber recalled that the above-mentioned ban 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, insofar as it is admissible.

2. The Respondent, Club C, has to pay to the Claimant outstanding remuneration in the amount of EUR 20,000, plus 5% interest p.a. until the date of effective payments, as follows:

a. as of 1 February 2017 on the amount of EUR 4,000;

b. as of 1 March 2017 on the amount of EUR 4,000;

c. as of 1 April 2017 on the amount of EUR 4,000;

d. as of 1 May 2017 on the amount of EUR 4,000;

e. as of 1 June 2017 on the amount of EUR 4,000.

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

4. 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 amount mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. 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).

6. In the event that the amount due plus interest in accordance with point 2. above is 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 amount is 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).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. 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.

*****

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

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives