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 7 March 2019

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 March 2019,

in the following composition:

Geoff Thompson (England), Chairman Stijn Boeykens (Belgium), member Tomislav Kasalo (Croatia), member Daan de Jong (Netherlands) member Elvis Chetty (Seychelles), 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 15 January 2017, 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 valid, in accordance with its clause 2, “for one and a half season”, i.e. from 2 January [2017] until 30 June 2018.

2. According to clause 3 of the contract, the Claimant was entitled to a monthly remuneration in the amount of EUR 7,000. In this respect, the aforementioned clause further detailed that the Claimant would receive 5 instalments between 15 March 2017 and 15 July 2017, as well as 10 instalments between 15 September 2017 and 15 June 2018.

3. On 15 October 2018, the Claimant lodged a claim against the Respondent in front of FIFA asking that the latter be ordered to pay to him outstanding remuneration in the amount of EUR 77,000, corresponding to his salaries payable between 15 July 2017 and 15 June 2018, excluding the month of August 2017 (i.e. 7,000*11), plus 5% interest p.a. as from the due dates.

4. In addition, the Claimant requested the imposition of sanctions against the Respondent.

5. Moreover, the Claimant considered that the Respondent should bear the payment of the costs of the proceedings as well as of his legal fees in the amount of EUR 10,000.

6. Within this context, the Claimant explained that, on 13 September 2018, he sent a default notice to the Respondent, requesting the payment of the total amount of EUR 77,000, corresponding to his salaries payable between 15 July 2017 until 15 June 2018, and granting 10 days to the latter in order to remedy its default.

7. In its reply, the Respondent explained that the Claimant “was absent” and travelled to his country of origin against its will, “due to the fact that in the previous day of his flight to Country B he was injured in the head and had to go to the hospital.” Subsequently, and according to club, the Claimant was injured once again while playing for his national team.

8. In this respect, the Respondent stated that “for months” it tried to “acknowledge his whereabouts and health condition and no information was given.”

9. In addition, the Respondent explained that it tried to resort “to the Clubs’ Protection System FIFA, having in mind that the injury occurred when [the Claimant] was at his National Team service”, but that it obtained no response in this regard.

10. In his replica, the Claimant insisted in his claim, and explained that “the Respondent perfectly knew about the Claimant's condition and whereabouts” and stated that, on 5 February 2018, the Respondent and his intermediary scheduled a meeting.

11. Moreover, the Claimant considered that he cannot be blamed or made responsible for any behaviour of the national federation of Country B. In the opinion of the Claimant, the non-response by the Federation of Country B cannot justify the non-payment of the salaries from the Respondent.

12. In addition, and concerning the "FIFA protection System", the Claimant considered that this argument is not relevant and cannot be used as an excuse in order not to pay his salary.

13. Furthermore, the Claimant stated that, on 1 May 2018, he received a communication from the Respondent’s president with, inter alia, the following contents:

“After the injury that, unfortunately, in October 2017, created a break in your career, [the Respondent] never tried to disconnect from your professional life (…) we have never officially received any request to assume whatever type of responsibilities, including salaries. We were therefore convinced (and thought to be legitimately convinced) that the Federation of Country B had insured the Claimant. (…) in this way, we would like to mention that [the Respondent] is indisputably available to fulfil all the salary responsibilities that are legitimately demanded of it (..)”

14. Finally, the Claimant underlined that the Respondent did not deny the existence of the debt.

15. As final comments, the Respondent insisted in its previous position and explained that it "wants to reach a financial agreement with the [Claimant]".

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 15 October 2018. Consequently, the 2018 edition 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 2018 edition 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. The competence of the Chamber having been established, 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. 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 matter was submitted to FIFA on 15 October 2018, the June 2018 edition of the aforementioned regulations (hereinafter: the 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 in relation to the substance of the matter. 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, in accordance with its clause 2, “for one and a half season”, i.e. from 2 January [2017] until 30 June 2018, and that the Claimant lodged a claim against the Respondent, maintaining that the latter failed to pay him outstanding remuneration in the amount of EUR 77,000, corresponding to his salaries payable between 15 July 2017 and 15 June 2018, excluding the month of August 2017 (i.e. 7,000*11).

6. In reply to the Claimant’s request, the Chamber noted that the Respondent asserted that that the Claimant “was absent” and travelled to his country of origin against its will “due to the fact that in the previous day of his flight to Country B he was injured in the head and had to go to the hospital.” The Chamber further noted that the Respondent stated that “for months” it tried to “acknowledge [the Claimant’s] whereabouts and health condition and no information was given.”

7. However, in relation to the aforementioned assertions, the Chamber recalled the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

8. In application of the aforementioned basic principle, the Chamber observed that the Respondent failed to provide any evidence in support of its allegations. As a result, the Chamber concluded that it could only presume the validity of the Claimant’s request as to the outstanding salaries, which is grounded in the employment contract concluded between the parties.

9. Moreover, the Chamber noted that the Respondent did not fundamentally contest the existence of the aforementioned debt, but rather provided a set of explanations on why it was apparently not settled.

10. For the sake of completeness, the Chamber further noted that, in accordance with its longstanding jurisprudence, a potential injury is not a valid reason for a club to withhold or delay the payment of a player’s remuneration, and that a professional football club is expected to previously assess the risks of a possible injury by, for instance, obtaining a functioning insurance scheme for a player.

11. As a result, the Chamber concluded that, as of 9 July 2018, the Respondent failed to pay without any valid justification the Claimant’s his salaries between 15 July 2017 and 15 June 2018, excluding the month of August 2017 (i.e. 7,000*11)

12. Therefore, in application of the principle of pacta sunt servanda, the Chamber established that the Respondent must pay the amount of EUR 77,000 to the Claimant as outstanding salaries.

13. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Claimant must pay to the Claimant interest of 5% p.a. on the outstanding remuneration as from the due dates.

14. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

15. Furthermore, taking into account the aforementioned considerations, 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.

16. 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.

17. 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.

18. 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.

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

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 outstanding remuneration in the amount of EUR 77,000, plus interest calculated as follows:

- 5% interest p.a. as of 16 July 2017 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 September 2017 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 October 2017 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 November 2017 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 December 2017 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 January 2018 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 February 2018 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 March 2018 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 April 2018 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 May 2018 over the amount of EUR 7,000 until the date of effective payment;

- 5% interest p.a. as of 16 June 2018 over the amount of EUR 7,000 until the date of effective payment.

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 amounts mentioned under point 2. above.

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

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amounts are 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 (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:

Emilio García Silvero

Chief Legal Officer

Enclosed: CAS directives