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 14 September 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 September 2018,

in the following composition:

Geoff Thompson (England), Chairman

Jerome Perlemuter (France), member

Elvis Chetty (Seychelles), member

Stefano Sartori (Italy), member

Takuya Yamazaki (Japan), member

on the matter between the player,

Player A, Country B,

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 22 June 2015, 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 the club) signed an employment contract (hereinafter: the contract) valid as from its date of signature until 21 June 2019.

2. According to art. 7 of the contract, the Claimant was entitled to a monthly salary of 166,667, to be paid half on the 25th day of each month and half on the 10th day of the following month.

3. On 22 June 2015, the Claimant and the Respondent also signed the “Attachment 1 to the Employment Agreement dated June 22, 2015” (hereinafter: the Attachment).

4. Article 2 of the Attachment stipulates the following:

“2.1 Types and incentive premium rates to be paid to [the Claimant] as a player of the main team of the club in addition to the monthly salary per the employment agreement.

2.1.1. [the Claimant] who fulfils his obligations per the employment agreement in a proper way is to be paid a monthly incentive premium, which, in the aggregate with the monthly salary per the employment agreement, makes up 33.525 (thirty-three thousand five hundred twenty-five) Euros, i.e. the amount of the monthly incentive premium shall be calculated as follows: the sum 33.525 (thirty-three thousand five hundred twenty-five) Euros less the sum resulting after division of the sum 166.667 ([Claimant’s] monthly salary) by the official rate of the Central Bank of Country D, Currency of Country D/Euro on the last day of the month under review.

[…] 2.3. All Euro payments are to be made in in accordance with the rate of the Central Bank of Country D, Currency of Country D/Euro on the last day of the month under review.

Pursuant to art. 2.4 of the Attachment, the aforementioned monthly incentive premium was payable on the 10th day of the following month.

Furthermore, “2.5. The named amounts of the incentive premiums […] include all taxes payable by [the Claimant] (who is recognized) as a taxpayer), which (the taxes) must be calculated, withheld and transferred by Club (that is recognized as a tax agent) to the Budget System of Country D in accordance with the Legislation of Country D.

2.6. Parties acknowledge that according to the Tax Legislation of Country D [Claimant’s] incomes per the present Attachment are taxable at the rate of 13% (thirteen percent) after the [Claimant] receives a work permit by the Federal Migratory Service of Country D as a highly qualified specialist”.

5. On 17 August 2017, the Claimant sent a letter to the Respondent, requesting the payment, within 10 days, of outstanding remuneration in the amount of “approximately Euros 47,000”, for the contractual period until the end of January 2017, when he was allegedly transferred to the Club of Country E, Club F. In particular, the Claimant claimed that the Respondent did not pay him the incentive premiums set out in the Attachment to the contract entirely.

6. On 31 August 2017, the Respondent sent a letter to the Claimant, by means of which it rejected his requests. In particular, the Respondent pointed out that the contract had been terminated by mutual agreement on 30 January 2017 and, on the same date, the club and Club F had concluded an agreement for the transfer of the player.

7. On 20 September 2017, the player lodged a claim in front of FIFA against the club for outstanding remuneration, requesting “EUR 47,179 (3,039,110.84 in accordance with the rate of the Central Bank of Country D, Currency of Country D/Euro on 31 January 2017)”, corresponding to his outstanding remuneration until the end of January 2017.

8. In his claim, the Claimant affirmed that, for the period between June 2015 and January 2017, he was entitled to a remuneration in the total amount of 40,671,553.73, but received 37,631.655,38 only. In this context, the Claimant submitted a list indicating the dates and the amounts of every payment he allegedly received from the Respondent, together with the relevant bank receipts.

9. More specifically, the Claimant maintained that he was entitled to a monthly remuneration in the amount of EUR 33,525, composed of the sum between the monthly salary provided in the contract and the incentive premium set out in art. 2 of the Attachment.

10. Moreover, in order to support his argumentation, the Claimant submitted the following table indicating, inter alia, the payments he was allegedly entitled to for the period between 22 June 2015 and January 2017:

Furthermore, the Claimant submitted copy of the exchange rates of foreign currencies (including Euro) against the Currency of Country D, “printed out on 25 October 2017 from the official website of the Central Bank of Country D for “each last day of the month” in the period between June 2015 and January 2017, which match the information contained in column 6 of the table above.

11. Despite having been invited by the FIFA administration to do so, the club did not reply to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the 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 20 September 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are 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 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 20 September 2017, 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 Chamber 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 employment relationship between the Claimant and the Respondent was governed by a contract valid as from 22 June 2015 until 21 June 2019, which was terminated at the end of January 2017.

6. In continuation, the Chamber acknowledged that, on 20 September 2017, the Claimant lodged a claim against the Respondent in front of FIFA, alleging that, on that date, the amount “EUR 47,179 (3,039,110.84 in accordance with the rate of the Central Bank of Country D, Currency of Country D/Euro on 31 January 2017)”, corresponding to his outstanding remuneration until the end of January 2017, was outstanding.

7. In this context, the Chamber first referred to art. 25 par. 5 of the Regulations, according to which 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 20 September 2017 only, the Chamber found that it could not enter into any claim for remuneration that fell due prior to 20 September 2015.

8. Taking into account the previous consideration, the Chamber preliminarily concluded that the Claimant’s request for the remuneration accrued until the date of 20 September 2015 was barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

9. In continuation, the members of the Chamber took note that, according to the contract and its Attachment, the player’s monthly remuneration was composed of a monthly salary indicated in Currency of Country D and by an incentive premium agreed in euros however payable in Currency of Country D. In this regard, the DRC acknowledged that, as stipulated under art. 2 of the Attachment (cf. point I.4. above), the sum of the player’s monthly salary and incentive premium amounted to EUR 33,525 per month. Thus, the members of the Chamber concurred that the Respondent had to pay the Claimant a monthly remuneration corresponding to the aforementioned amount, in Currency of Country D.

10. Furthermore, the DRC observed that, in his claim, the Claimant argued that the amounts paid by the Respondent in Currency of Country D did not cover the amounts contractually agreed in euros. In particular, the player claimed that, pursuant to the applicable exchange rate, the conversion from euros to Currency of Country D resulted in outstanding remuneration due.

11. Subsequently, the Chamber observed that the Respondent, for its part, failed to present its response to the claim of the player, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

12. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

13. In view of the aforementioned considerations, in respect of the question as to whether or not the amounts paid by the Respondent in Currency of Country D corresponded to the amounts contractually agreed in euros, the members of the Chamber 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. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the Claimant to prove that the amounts paid by the Respondent in Currency of Country D did not cover the amounts contractually agreed in euros.

14. Having stated the above, the members of the Chamber noted that the Claimant presented a detailed description of the exchange rates which were applicable to each monthly payment and, what is more, submitted documentation issued by the Central Bank of Country D confirming that the exchange rates applied by the Claimant were, in fact, correct.

15. On account of the aforementioned considerations, the DRC concluded that, the Claimant proved, to the Chamber’s comfortable satisfaction, that the amount paid by the Respondent in Currency of Country D did not correspond to the amount contractually agreed.

16. As a consequence, the members of the Chamber concurred that, in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations. However, the DRC also recalled that the remuneration accrued until the date of 20 September 2015 was barred by the statute of limitations and, consequently, concluded that the Respondent is to be held liable to pay the Claimant the outstanding remuneration accrued as of the date of 21 September 2015.

17. On account of the aforementioned considerations and taken into account that, according to the Claimant, he did not receive outstanding remuneration in the amount of 3,039,110.84 for the period between 22 June 2015 until the end of January 2017, the members of the Chamber concluded that, for the period between 21 September 2015 and the end of January 2017, the Claimant did not receive the pro rata amount of 2,719,203.

18. Consequently, the members of the Chamber unanimously decided that the Claimant is entitled to receive from the Respondent outstanding remuneration in the amount of 2,719,203.

19. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

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, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of 2,719,203.

3. In the event that the aforementioned amount is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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 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