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 17 September 2019

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 17 September 2019,

by Jon Newman (USA), DRC judge,

on the claim presented by the player,

Martin Kayongo Mutumba, Sweden

represented by Mr Ali Khomand

as Claimant

against the club,

Rah Ahan Football Club, IR Iran

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On an unknown date, the Claimant and the Respondent (hereinafter jointly referred to as the Parties) concluded an employment contract (hereinafter: the contract), valid for the “second half of this season (2014-2015)”.

2. According to article 7 of the contract, the Claimant was entitled to receive the total amount of USD 55,000 to be paid as follows : “1.7-when the contract is signed 40% of the amount of second half of pro-league 2014-2015 which is 22/000 $ settle to account of the player immediately. The rest amount will be pay each month”.

3. On 22 May 2017, the Parties signed a settlement agreement (hereinafter: the settlement agreement) according to which the Claimant was to receive the amount of Iranian Rial (IRR) 1,000,000,000 (approximately USD 28,685), payable by cheque. No due date was specified in the settlement agreement.

4. Moreover, the settlement agreement provided that “If [the club] fails to do its commitments as mentioned (…), [the player] can complaint again in qualified organizations against [the club]”.

5. On 11 December 2017, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the payment of the outstanding remuneration of USD 50,000, as per the contract.

6. In his claim, the Claimant considered that, despite having fulfilled all his contractual obligations until the end of the season, the Respondent only paid him in the amount of USD 5,000.

7. The Claimant also explained the difficulties he faced with the Respondent as to the remittance of his passport, which was allegedly withheld by the Respondent, as well as to the issuance of a flight ticket in order to travel back to Sweden.

8. Finally, the Claimant underlined that the Respondent failed to abide by the settlement agreement.

9. Despite being invited to do so via the Islamic Republic Iran Football Federation (hereinafter: the IRIFF), the Respondent did not reply to the claim.

10. In this regard, it should be noted that upon FIFA’s request relating to the confirmation of the notification of the claim to the IRIFF’s affiliated club, i.e. the Respondent, the IRIFF answered on 6 September 2018, stating that “(…) statuts of the club is not specified in terms of management and as the club is in the process of being assigned to a new management which the result of the process neither notified to the federation nor answered by a responsible person, the letters remained unanswered”.

11. Furthermore, after having been asked by FIFA to clarify whether the Respondent was still affiliated, the IRIFF answered on 6 October 2018, explaining that the Respondent “(…) is still affiliated to this Federation but it is not participating in any of the competitions organized by League Organization and is not active in this sporting season”.

12. Finally, the IRIFF underlined on 24 February 2019 that the Respondent played in U-19, U-21 and U-23 categories.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether the case was time barred, as the claim, submitted on 11 December 2017, was funded on the contract concluded for the second part of the season 2014-2015. In this respect, the DRC judge acknowledged that the Parties concluded a settlement agreement on 22 May 2017, which presumably overrode the contract initially concluded. As such, the DRC judge considered that date of signature of the the claim was admissible.

2. The DRC judge also took note that the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017, hereinafter: Procedural Rules) were applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

3. Subsequently, the DRC judge referred to art. 3 par. 2 and art. 3 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), he was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a Swedish player and an Iranian club.

4. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute, the value of which does not exceed CHF 100,000.

5. In continuation, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2019), and considering that the present claim was lodged on 11 December 2017, the 2016 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

6. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, he started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant, as well as taking note of the absence of reply by the Respondent. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

7. First, the DRC judge noted that the parties entered into an employment contract valid for the second half of the season 2014-2015, according to which the Respondent undertook to pay the Claimant the total amount of USD 55,000. In this context, the DRC judge took note that the Respondent paid the amount of USD 5,000 to the Claimant.

8. Second, the DRC judge took note that the Parties signed a settlement agreement on 22 May 2017, whereby the Claimant was entitled to receive IRR 1,000,000,000, payable by cheque.

9. With the above in mind, the DRC judge acknowledged the Claimant’s prayers for relief, which consisted in the payment of the outstanding remuneration as per the contract, i.e. USD 50,000.

10. In these circumstances, the DRC judge decided that the subsequent agreement concluded between the Parties, i.e. the settlement agreement, was the sole binding document to take into account in the context of the present dispute.

11. In order to reach this decision, the DRC judge first stated as a reminder that the legal effect of a settlement agreement is to establish the most recent will of the parties and that unless otherwise mentioned in the settlement agreement itself, any prior agreement between the parties becomes null and void. In the case at hand, the DRC judge noted that the settlement agreement did not contain any clause as regards the survival of the contract.

12. In view of the above, the DRC judge considered that the contractual basis of the claim was the settlement agreement, and not the contract as argued by the Claimant.

13. Accordingly, the DRC judge decided that the claim of USD 50,000 based on the contract must be rejected.

14. This said, the DRC judge emphasised the binding effect of the settlement agreement, according to which the Respondent undertook to pay the Claimant in the amount of IRR 1,000,000,000.

15. In this respect, the DRC judge acknowledged the Claimant’s position that the Respondent failed to abide by the settlement agreement and noted in this regard that the Respondent failed to provide any element attesting to the payment of the agreed amount.

16. At this point, the DRC judge referred to the second sentence of art. 9 par. 3 of the Procedural Rules, according to which “(i)f no statement or reply is received before the time limit expires, a decision shall be taken upon the basis of the documents already on file”. In view of the absence of reply from the Respondent, the DRC judge established that he would take a decision based on the arguments and documents provided by the Claimant only.

17. With the above in mind, the DRC judge considered that he had no other option than to conclude that no payment had been made in favour of the Claimant pursuant to the settlement agreement.

18. The DRC judge further noted that the settlement agreement did not mention a due date for the payment of the relevant amount. This said, the DRC judge took into account the timeline of the contractual relationship between the Parties, i.e. the second part of the season 2014/2015, and considered that it was fair and reasonable for the Claimant to expect the payment of the amount stipulated in the settlement agreement on or about 22 May 2017. According to the Claimant, the said amount remains outstanding up until today.

19. In view of the foregoing, the DRC judge decided that the Respondent must pay to the Claimant outstanding remuneration in the amount of IRR 1,000,000,000, within 30 days as from the notification of this decision. The Claimant did not request any interest.

20. Furthermore, the DRC judge pointed out that in the event that the aforementioned sum 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

21. Finally, the DRC judge established that any further claim lodged by the Claimant was rejected.

III. Decision of the DRC judge

1. The claim of the Claimant, Martin Kayongo Mutumba, is partially accepted.

2. The Respondent, Rah Ahan Football Club, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of IRR 1,000,000,000.

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 aforementioned sum 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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 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. 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.

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 DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer