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 17 September 2016, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as from September 2016 until May 2017.

2. In accordance with the contract, the Claimant was entitled to receive from the Respondent, inter alia, the total amount of 10,480. This amount corresponds to:

- 6,300 payable in 9 monthly salaries of 700 each;

- 850 as travelling tickets;

- 2,250 as accommodation allowance payable in 9 monthly instalments of 250;

- 1,080 as travelling allowance payable in 9 monthly instalments of 120 each.

3. On 14 June 2017, the Claimant put the Respondent in default of the amount of USD 17,600. By means of said correspondence, the Claimant asked the Respondent the following:

- to pay, within the following ten days, the amount of USD 17,600 as “unpaid wages corresponding to the months of September 2016, October 2016, November 2016, December 2016 and May 2017”;

- to comply with its obligation to provide him with “specialized medical treatments for the healing of his injury”.

4. In August 2017, the Claimant sent three different letters to the Football Association of Country D (hereinafter: the Football Association E), asking the latter to provide him with a copy of the contract.

5. On 16 October 2017 the Claimant lodged a claim against the Respondent, asking FIFA to “condemn the [Respondent] […] to pay to the [Claimant] the amount of 17,600 USD as unpaid wages corresponding to the months of September 2016, October 2016, November 2016, December 2016 and May 2017, more interests since the date of the interpellation until full payment”. In addition, the Claimant asked FIFA to “condemn the [Respondent] to pay a compensation for the medical treatment costs and moral damages and emotional distress suffered by the [Claimant], in the additional amount of 15,000 USD, which totals the amount of 32,600 USD”.

6. In this regard, despite the Claimant being unable to provide a copy of the relevant contract, he affirmed that “the [Respondent] were obliged to pay to the [Claimant] a monthly salary of 3,500 USD”.

7. Moreover, the Claimant declared that he “suffered a serious injury during the contract period” and that “the [Respondent] has never worked for the medical and urgent treatments of the claimant´s serious injury”. In particular, the Claimant affirmed having suffered from: “bone trauma, edema and other things which make him mark and order a medical examination”.

8. On 27 January 2018, the Respondent replied to the claim by submitting the following documents:

- a copy of the original employment contract in Arabic, along with its translation into English;

- the Arabic version of a document titled “Cheque Cashing Statement” (hereinafter also referred to as: the clearance document) along with its translation into English;

- a copy of the last check dated 17 September 2017, which amounts to 1,350;

- a bank statement showing the cashing of the check.

9. More in particular, the clearance document – which contains the alleged signature and fingerprint of the Claimant – reads as follows: “[The Claimant] […] has received […] one thousand three hundred fifty [Currency of Country D], cheque No. 66, withdrawn from […] “Investment Bank” as May 2017 salary and accommodation allowance of May 2017”. Moreover, the clearance document also contains an epigraph titled “Acknowledgment”, in which it is stated that: “[The Claimant], do hereby acknowledge that I have received all my financial entitlements from [the Respondent] and I do not claim any other financial amounts or have the right to so”; “I do hereby acknowledge that the [Respondent] is acquitted as I have received all the aforementioned financial amount of the contract made between me and the Club which expires on 31/05/2017”.

10. In his replica, the Claimant reiterated the position expressed with his claim and contested all the documents presented by the Respondent, maintaining that the clearance document is “a misrepresented document as the [Claimant] has never signed any discharge”; arguing that “The only thing […] signed is the discharge from the last month that the [Respondent] paid” and that “The [Claimant] signed a paper written in Arabic, and the [Respondent] officials told [him] that the document was only speaking of the last month´s discharge”. The Claimant further declared that “the document that the respondent [Respondent] attaches […] is more written, because the club responsible´s wrote, by hand, what they wanted in that document, and after the [Claimant]´s signature”.

11. Furthermore, the Claimant acknowledged having received the salary corresponding to the last month, but argued that “the months related to the outstanding wages […] have no check and there isn´t any proof of payment for the simple reason […] that the outstanding months […] were not paid”. The Claimant continued arguing that “the copy of the last cheque and the bank statement only proves that the player received one month, and not the outstanding salaries”. In addition, the Claimant asked the Respondent to submit the receivables corresponding to the alleged outstanding salaries.

12. In its duplica, the Respondent declared, inter alia, that the clearance document was signed in the presence of Agent F, the Claimant’s agent, who allegedly speaks fluently Arabic and English. The Respondent further stated that it explained the content of the clearance document to the Claimant and that his argumentation is contradictory since, on the one hand, he admits that he has signed the discharge of the last monthly salary (May 2017) and, on the other hand, he claims that the Respondent did not pay his salary of May 2017.

13. Moreover, the Respondent declared that the discharge of the salary corresponding to May 2017 implies that the Claimant has also received his previous salaries. The Respondent stated that the Claimant signed and fingerprinted the financial clearance document twice: “first of which was to acknowledge receipt of a check of May salary […] and second of which is to acknowledge receipt of entitlements”.

14. The Respondent further declared that: “The [Claimant]´s claim that the financial clearance has a printed part and a handwritten part is incorrect, as the clearance and the acknowledgement of receipt were handwritten in front of the [Claimant] […]”.

15. The Respondent provided an original version of the clearance document after having been requested to do so by the FIFA administration. The Claimant, after having been requested to provide a copy of the financial clearance that he may have in his possession, stated that “he doesn´t have any copy of that document, because the document in cause is a misrepresented document as the [Claimant] has never signed that discharge and that document”.

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 16 October 2017. Consequently, the edition 2017 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the 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 edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter at hand. 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 16 October 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the 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 acknowledged that the parties to the dispute had signed an employment contract valid as from September 2016 until May 2017. In this respect, first and foremost, the DRC took into account the original employment contract produced by the Respondent with its reply to the claim, in accordance with which the Claimant was entitled to receive from the latter, inter alia, the following amounts: (i) 6,300 payable in 9 monthly instalments of 700 each; (ii) 850 as travelling tickets; (iii) 2,250 as accommodation allowance payable in 9 monthly instalments of 250; (iv) 1,080 as travelling allowance payable in 9 monthly instalments of 120 each.

6. In continuation, the members of the DRC noted that, according to the Claimant, during the employment relationship, the Respondent had failed to remit to him salaries in the amount of USD 17,600, allegedly corresponding to the months of September, October, November and December 2016, as well as May 2017. Moreover, the members of the Chamber observed that the Claimant requested compensation for medical treatment and “moral damages and emotional distress” for the additional amount of USD 15,000.

7. Furthermore, the DRC took note that the Respondent, for its part, claimed that the parties had signed a clearance document in the presence of the Claimant’s agent, by means of which the Claimant: (i) “acknowledge[d] receipt of a check of May salary” and (i) “acknowledge[d] receipt of entitlements”.

8. With regards to the above, the DRC observed that the Respondent produced a copy of the said clearance document containing two signatures and two sets of fingerprints of the Claimant. Moreover, the Chamber observed that the said document comprised two separate declarations from the Claimant:

a. one reading as follows: “[The Claimant] […] has received […] one thousand three hundred fifty [Currency of Country D], cheque No. 66, withdrawn from […] “Investment Bank” as May 2017 salary and accommodation allowance of May 2017”;

b. and one, titled “Acknowledgment”, reading as follows: “[The Claimant], do hereby acknowledge that I have received all my financial entitlements from [the Respondent] and I do not claim any other financial amounts or have the right to so”; “I do hereby acknowledge that the [Respondent] is acquitted as I have received all the aforementioned financial amount of the contract made between me and the [Respondent] which expires on 31/05/2017”.

9. In this respect, the DRC further observed that the Claimant maintained that he only signed the “discharge” concerning the monthly salary of May 2017 but he did not waive his entitlement to the rest of the alleged outstanding salaries. Moreover, the members of the Chamber took into account that the Claimant maintained that the document in question was written in Arabic and allegedly concerned only a waiver of the salary of May 2017. The members of the DRC further observed that, according to the Claimant, the Respondent had added a second part to the clearance document concerning the rest of his salaries at a later stage, after he had put his signature on it.

10. In light of the foregoing, the members of the DRC considered that the underlying issue in the present dispute, considering the parties’ position, was to determine as to whether or not the said clearance document had been validly concluded in its entirety, i.e. comprising the waiver of any financial entitlements deriving from the employment relationship at stake.

11. First of all, the members of the DRC took into account the Claimant’s argument that he “signed a paper in Arabic, and the [Respondent] officials told the [Claimant] that the document was only speaking of the last month’s discharge”. In this respect, the members of the Chamber deemed it fit to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. Consequently, the Chamber concluded that such argument could not be upheld.

12. The foregoing having been established, the members of the Chamber turned their attention to the Claimant’s argument that the clearance document is “a misrepresented document as the player has never signed any discharge”.

13. In this respect, the members of the DRC deemed it important to firstly recall that, according to the DRC’s well established jurisprudence, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones concerning falsified signature of documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

14. However, the members of the DRC took into account that the Respondent produced an original specimen of the clearance document signed twice by the Claimant and bearing two sets of his fingerprints. In this respect, the Chamber noted that, on the one hand, the Claimant argued that he had only signed the part of the said document which referred to his waiver of the salary of May 2017, claiming that the rest, i.e. the part referring to the rest of his salaries, had been added by the Respondent at a later stage. On the other hand, the members of the DRC noted that the Claimant expressly admitted being unable to produce the original version of the different, allegedly narrower, clearance document that he claimed he had signed.

15. In other words, the DRC, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, observed that the Claimant failed to provide evidence that he had signed only a document concerning his waiver of May 2017.

16. Consequently, the DRC concluded that, in accordance with the principle of the burden of the proof, the Claimant did not prove that he had signed a different waiver than the one produced by the Respondent and, thus, that the said clearance document had not been validly concluded between himself and the Respondent in its entirety.

17. On account of the above, and considering that – by signing the said clearance document – the Claimant waived his entitlement to any outstanding salaries, the DRC rejected his claim in that respect.

18. That said, the members of the DRC analysed the Claimant’s request of an additional amount of USD 15,000 regarding “medical costs and moral damages”. Concerning the medical costs, the DRC observed that there was no contractual stipulation entitling the Claimant to the said costs and the latter had not been able to provide any evidence corroborating his requests.

19. Lastly, with regards to the compensation for moral damages, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no legal or regulatory basis and it underlined that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered.

20. On account of the above, and considering that – by signing the said clearance document – the Claimant waived his entitlement to any outstanding salaries, the DRC concluded that his claim had to be rejected.

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 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 / www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives