F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 29 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 January 2020,

in the following composition:

Geoff Thompson (England), Chairman

Daan de Jong (The Netherlands), member

Alexandra Gomez Bruinewood (Uruguay), member

on the claim presented by the player,

Angella Gabriele, Italy

represented by Mr Fabio Giotti

as Claimant

against the club,

Royal Charleroi SC, Belgium

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. The Italian player, Angella Gabriele (hereinafter: the player or the Claimant) was transferred on a temporary basis from the Italian club Udinese Calcio S.p.A to the Belgium club, Royal Charleroi SC (hereinafter: the club or the Respondent) for the season 2018/2019 .

2. On 30 August 2018, the player concluded an employment contract (hereinafter: the contract) with the club, valid as from signature until 30 June 2019.

3. According to clause 6 of the contract, the club accepted to pay the player a gross monthly salary of EUR 7,500, a gross sign on fee of EUR 900,000 to be paid in 10 monthly instalments, as well as bonuses per match as follows (art. 6 par. 2 of the contract):

« Prime par match victoire Noyau A si titulaire: 3.000€

Prime par match victoire Noyau A si réserviste: 1.500€

Prime par match nul Noyau A si titulaire: 1.000€

Prime par match nul Noyau A si réserviste: 500€ »

4. The player was also entitled to receive certain benefits (company car, apartment, group insurance). Art. 6 par. 5 of the contract, governing the insurance group, provides the following: “(…) La rémunération de référence est le total des rémunérations fixes et variables déterminées dans le contrat de travail (…)”.

5. On 30 August 2018, i.e. same day the contract was signed, the Parties also signed another agreement (hereinafter: the agreement) according to which the club confirmed that by 30 June 2019, i.e. expiry date of the contract, the player “will be received (if he stays all the season in Charleroi) a net total amount of remuneration equal to 500.000€ fund pension not included.

6. On 8 August 2019, the player sent a default letter to the club, granting a ten-day deadline to make the payment of EUR 62,982.98 “net reported on a gross basis with any taxes to Sporting Du Pays De Charleroi”.

7. On 21 August 2019 in response to the default letter of 8 August 2019, the club replied to the player, asserting that he received the total net remuneration of EUR 511’468,99 for the season 2018/2019.

8. On 20 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration requesting the total amount of EUR 62,982.98“plus interest reported on a gross basis with any taxes to Sporting Du Pays De Charleroi, or in the alternative the sum that Dispute Resolution Chamber will ascertain”.

9. According to the Claimant, pursuant to the agreement signed between the Parties on 30 August 2019, he should receive a total net amount of remuneration equal to EUR 500,000 during the term of the contract, i.e. until 30 June 2019, if he stayed at the club for the whole season.

10. According to the player, the Parties concluded the agreement at his request, in order to ensure that the fixed net amount of EUR 500,000 would be paid to him during the term of the season, “plus bonuses if due”. In other words, the player considers that the bonuses should not be taken into account when calculating the fixed remuneration as “(t)he obligations declared by the Respondent before the start of the official sporting activity were necessarily related to the fixed net remuneration because it was the only obligation that the Club could guarantee and arrange/order at that time because the payment of any variable remuneration it depended only of the future performance of the Player in relation to which the Club could not guarantee anything.”.

11. This said, the Claimant claimed to have only received a total net amount of EUR 478,267.02 over the course of the season 2018/2019, including EUR 41,250 net as bonuses (as per art. 6 par. 2 of the contract). As evidence, the Claimant provided ten payment slips dated from October 2018 to July 2019.

12. In his claim, the Claimant made the following subtraction to calculate the total amount the club paid him as remuneration pursuant to the agreement: EUR 478,267.02 (total net amount received) – EUR 41,250 (amount paid by the Respondent as bonuses) = EUR 437,017.02.

13. The Claimant therefore considered that only EUR 437,017.02 out of the EUR 500,000 have been paid by the Respondent as “remuneration” and requests the payment of the outstanding remuneration in the amount of EUR 62,982.98 net.

14. Finally, the player asks that all the costs of the proceedings be borne by the club.

15. In its reply, the Respondent held that the Claimant received a total net salary of EUR 511,468.99 over the season 2018/2019. As evidence, the Respondent provided its letter to the Claimant dated 21 August 2019. The Respondent also claimed that said amount is confirmed by the club’s “payroll journal entries”.

16. According to the Respondent, the “Claimant falsely relies on the fact that the generic term of “remuneration” as used in Respondent’s Declaration dated 30 August 2018 should be regarded as fixed salary”.

17. The Respondent mentions that the rationale for its commitment to pay at least EUR 500,000 over the duration of the contract is “to guarantee to the player a total amount of take-home pay out of the remuneration package as provided in the Agreement (Article 6: INDEMNITÉ), namely, fixed monthly gross fee, variable gross fee, signing-on gross bonus, advantages; the group insurance (assurance de groupe), poorly translated to English as “fund pension”, being excluded”.

18. Finally, the Respondent asked that all the costs of the proceedings be borne by the Claimant.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the 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 20 August 2019. 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. article 21 of the 2018 and 2019 editions 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 (2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Italian player and a Belgian club.

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. 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 2020) and considering that the present claim was lodged in front of FIFA on 20 August 2019, the June 2019 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, and entering into the substance of the matter, the Chamber started 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 first acknowledged that the Claimant and the Respondent signed an employment contract valid, as from 30 August 2018 until 30 June 2019, in accordance with which the Claimant was entitled to a gross monthly salary of EUR 7,500, a gross sign on fee of EUR 900,000 to be paid in 10 monthly instalments and diverse match bonuses. The DRC took note that the contract entitled to Claimant to further benefits such as a car, apartment, insurance.

6. The Chamber further recalled that on the same day, i.e. 30 August 2018, the Claimant and the Respondent signed the agreement in accordance with which, the Claimant was entitled to receive “a net total amount of remuneration equal to EUR 500,000 fund pension not included”.

7. The Chamber then reviewed the claim of the Claimant who requested outstanding remuneration in the total amount of EUR 62,982.98 plus interest, as he considered that pursuant to the agreement, for the season 2018/2019 he was entitled to the total remuneration of EUR 500,000 but deemed to have received less.

14. The Chamber took note that according to the Claimant, he received the total amount of EUR 478,267.02 for the relevant season, including EUR 41,250 as bonuses. The DRC took note that the Claimant provided his monthly payslips for the relevant period.

15. Consequently, the DRC understood that the Claimant was of the opinion that out of EUR 500,000 that should have been paid to him only EUR 437,017.02 had been paid to him as remuneration and the bonuses paid to him should not be considered as remuneration and therefore should have been paid on top of the EUR 500,000 of the agreement.

16. The member of the DRC then observed that the Respondent held that the Claimant received for the relevant season the net remuneration of EUR 511,468.99

17. In this respect, and in the view of the diverging opinions of the parties, the members of the Chamber was to determine whether or not the Claimant had received all the amounts that were due to him by the Respondent in accordance with the contract and the agreement.

18. In this respect, the Chamber recalled that in accordance with the contract, the Claimant was entitled to a monthly gross monthly remuneration of EUR 7,500 (“indemnité mensuelle fixe brut”) as well as to a sign on fee of gross EUR 900,000 and bonuses also mentioned in gross amounts.

19. The Chamber further recalled that in accordance with the agreement, the Claimant was entitled to received “a net total amount of remuneration equal to EUR 500,000 fund pension not included”.

20. With this in mind, the DRC was of the opinion that it had to assess what should be included in the “net total amount of remuneration” and more precisely, what was the net amount of remuneration payable and paid to the Claimant by the Respondent.

21. In this respect, the Chamber took note that the Claimant was of the opinion that this net amount of remuneration could not include the bonuses as the amount of EUR 500,000 provided in the agreement was foreseeable, while bonuses were not.

22. In this regard, the Respondent held that the Claimant received EUR 511,468.99 basing itself on the Respondent’s payroll journal entries.

23. In view of the above, the Chamber emphasized that in accordance with the legal principle of the burden of proof, which is a basic principle in every legal system, a party deriving a right from an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules).

24. In this regard, the Chamber observed the different evidence provided by the Claimant and the Respondent. The Claimant provided his payment slips (“Fiche de paie”) for the duration of the contract. The Respondent provided its payroll journal entries for the duration of the contract.

25. In this regard, the Chamber observed that the argumentation of the Claimant was to argue that the net receivable (“net à recevoir”) provided in the payslip was to be taken into account minus any bonuses also provided in the payslip.

26. While the Chamber noted that the Respondent took into account the amount of the “totalisation net” which included some of the benefits such as the rent, the car and more, included in the contract.

27. Taking notes of the argumentations of the parties and the documentation on file, the Chamber found it pertinent to assess the spirit of the agreement and the will of the parties when drafting and signing such agreement. In this regard, the Chamber was of the opinion that when drafting the agreement, the parties wanted to determine a minimum remuneration that the Claimant was supposed to receive for the duration of the contract. By that, the Chamber understood that this remuneration was to be a reflection of the actual monies received by the Claimant. Taking this into account and observing both the payslips provided by the Claimant and the payroll journals provided by the Respondent, the Chamber found it pertinent to take into account the amounts provided in the net receivable (net à payer/net à recevoir) section.

28. With this in mind, the Chamber also decided that, contrary to the argumentation of the Claimant, bonuses provided in the payslips, should not be deducted from the net receivable, but should also be counted.

29. Taking all of the above into account, the Chamber determined that the Claimant had received for the duration of the contract, the total net amount of EUR 478,267.02. Consequently and in view of the wording of the agreement which provided for a “net total amount of remuneration equal to EUR 500,000”, the DRC was of the firm opinion that some amounts were still outstanding and due to the Claimant by the Respondent.

30. The Chamber subsequently that the Claimant should be entitled to the balance between EUR 500,000 and EUR 478,267.02. With these considerations in mind, the DRC concluded that, in accordance with the general legal principle of pacta sunt servanda, EUR 21,732.98 should be awarded to the Claimant as outstanding remuneration.

31. 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 date of claim, i.e. 20 August 2019 until the date of effective payment as the Claimant did not provide sufficient elements to calculate the respective due dates.

32. 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.

33. Furthermore, taking into account the consideration under number II./3. above, the DRC 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.

34. In this regard, the DRC 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.

35. Therefore, bearing in mind the above, the Chamber 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.

36. 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

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

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III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Angella Gabriele, is partially accepted.

2. The Respondent, Royal Charleroi SC, has to pay to the Claimant outstanding remuneration in the amount of EUR 21,732.98, plus 5% interest p.a. as from 20 August 2019 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 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.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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