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 13 February 2020

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed in Zurich, Switzerland, on 13 February 2020,

by Johan Van Gaalen (South Africa), DRC Judge

on the claim presented by the player,

Diogo Jorge Rosado, Portugal

represented by Mr Gonçalo Almeida

as Claimant

against the club,

CD Primeiro de Agosto, Angola

represented by Mr Sven Demeulemeester

& Mr Gauthier Bouchat

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 28 December 2016, the Portuguese player, Mr Diogo Jorge Rosado (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the Angolan club, CD Primeiro de Agosto (hereinafter: the club or the Respondent) valid as from 1 January 2017 until 31 October 2017.

2. According to the contract, the Claimant was entitled, inter alia, to receive from the Respondent the following remuneration:

a) A monthly salary of USD 15,000;

b) “match bonuses, of National Champion and Angola Cup Winner, in accordance with the Club’s Rewards Regulations”;

c) “A signing-on fee in the amount of USD 150,000” to be paid in instalments as follows:

- USD 15,000, payable on 28 December 2016;

- USD 15,000, payable on 31 January 2017;

- USD 30,000, payable on 31 March 2017;

- USD 30,000, payable on 31 May 2017;

- USD 30,000, payable on 31 July 2017;

- USD 30,000, payable on 30 September 2017.

3. In addition, according to art. 5 of the contract, the Claimant was entitled to receive the following benefits:

- “Medical assistance and medicines;

- Housing;

- Car during the term of the contract;

- One flight ticket Luanda-Lisbon route”.

4. On 2 February 2018, the Claimant lodged a claim against the Respondent in front of FIFA and requested the payment of the total amount of USD 265,000, plus 5% interest p.a. as from the relevant due dates, amount broken down as follows:

- USD 105,000, as “outstanding signing-on fees” due on 31 January 2017, 31 May 2017, 31 July 2017 and 30 September 2017, respectively;

- USD 110,000 as “outstanding salaries” for the months of March, April, May, June, July, August, September and October 2017;

- USD 50,000 as “bonus for having won the 2017 Angolan Championship”.

5. In addition, the Claimant also requested an “extra financial compensation as a result of [the Respondent]’s serious and continuous contractual breaches during the Protected period, in a minimum amount corresponding to 3 contractual monthly salaries, i.e. USD 45,000”.

6. The Claimant maintained that the Respondent failed to comply with its financial obligations despite the contract having been “entirely fulfilled”. In particular, the Claimant affirmed that the Respondent only paid the amount of USD 85,000, in particular “the signing-on fee instalments contractually established to be paid on 28 December 2016 (USD 15,000) and on 31 March 2017 (USD 30,000) as well as USD 10,000 (USD 5,000 paid in cash and another USD 5,000 by bank deposit) around June 2017 and finally USD 30,000 (in December 2017) as partial salaries”. In this context, the Claimant affirmed that “the amount of USD 255,000 remained outstanding to date”.

7. In its reply to the claim, the Respondent admitted that “it has not transferred to the player some wages and prizes” and explained that “with the oil crisis, access to foreign exchange and international transfers became restricted, and the Respondent Club pledged to make the efforts with banks to meet its commitments”.

8. More in particular, the Respondent held that the amount of AOA [Angolan Kwanza] 46,147,000 had been “deposited in national currency to the [Claimant]’s bank account”, amount which according to the Respondent “already include the value of the match prizes and the amount of the National Champion prize that was fixed by the [Respondent]’s board in AOA 1,500,000 and not USD 50,000 that the Claimant claims without any foundation”.

9. In his replica, the Claimant underlined that the Respondent only submitted untranslated documentation to the file and confirmed “in good faith” that, on 16 March 2018, the Respondent paid an additional amount of USD 15,000. In this regard, the Claimant requested that such amount be deducted from the total amount initially claimed and affirmed being still entitled to the amount of USD 250,000.

10. Moreover, the Claimant requested that the Respondent be sentenced to pay to him “a contribution in the amount of CHF 5,000 towards the legal expenses incurred by the latter with the current procedure”.

11. Furthermore, the Claimant stressed that according to the contract, all the amounts due had to be paid to him in USD currency and affirmed that he never agreed to be paid in AOA currency. Moreover, the Claimant explained that “any payments eventually made to the Claimant in AOA would have lacked any utility since not only such currency has no international value but also due to the fact that he was entitled to free nutrition and accommodation, as well as match bonuses in AOA (AOA 150,000 per each match played in the starting eleven or AOA 75,000 per each match played as a substitute) allowing him to cover his daily expenses in Angola”. Moreover, the Claimant pointed out that the Respondent’s “alleged bank difficulties to access foreign currency and namely USD has been an excuse repeatedly used by the Respondent in order to try to justify its several contractual breaches”.

12. With regard to the alleged bonus for having won the 2017 Angolan Championship, the Claimant reiterated that the Respondent did not provide him with its “Internal Rewards’ Regulations”.

13. What is more, the Claimant stated that, contrary to the allegations of the Respondent that the amount of AOA 46,147,000 had been paid to him, he only received in his Angolan bank account the amount of AOA 38,000,000. The Claimant further underlined that he is acting “in good faith” considering that the Respondent did not carry to the file any proof of payment in this regard. In this context, the Claimant affirmed that he is “obviously willing to return to the Respondent the amount of AOA 38,000,000, which was wrongly paid into his bank account, immediately once the latter provides him with its bank account details”.

14. In its duplica, the Respondent affirmed that “it was agreed that the amounts receivable under [the player]’s contracts would be deposited by the club sponsor in national currency to their banking accounts”.

15. The Respondent reiterated that it paid the amount of AOA 46,650,000 to the player. In this regard, the Respondent held that “since the player is now willing to return the money deposited in his account in national currency as soon as he executes the operations all amounts in debt will be settled by bank transfer to the account indicated by the player”.

16. The parties further exchanged several correspondence after the closure of the investigation-phase.

17. On 4 June 2018, the Respondent indicated that it had paid to the Claimant an additional amount of USD 156,450, which according to the Respondent, corresponds to i) the “remaining wages and gloves (USD 150,000)” and ii) “prizes of National Champion Attributed (AOA 1,500,000 – USD 6,450)”. Furthermore, it requested from the Claimant the reimbursement of “the value in national currency of AOA 52,400,000”.

18. The Claimant, for his part, acknowledged having received from the Respondent the amount of USD 156,450 “regarding part of his remuneration (USD 150,000 instead of USD 200,000 which was due) and part of his bonus for having won the 2017 Angolan Championship (USD 6,450 instead of USD 50,000 which was due)”. In this regard, and considering all the payments recently made by the Respondent, the Claimant affirmed being still entitled to the amount of USD 50,000 “due as outstanding remuneration” and USD 43,550 “due as bonus for having won the 2017 Angolan Championship”.

19. Furthermore, the Claimant declared that he “will gladly return the amounts received in Kwanzas immediately once the Respondent pays the aforementioned total amount, including the respective default interest at the rate of 5% p.a. and the relevant contribution towards his expenses within the present procedure”.

20. On 2 November 2018, the Respondent submitted several payment receipt for a total amount of USD 215,000 as follows:

- USD 15,000 on 6 March 2017;

- USD 5,000 on 19 May 2017;

- EUR 12,500 (USD 15,000) on 29 November 2017;

- EUR 12,500 (USD 15,000) on 29 November 2017;

- EUR 12,250 (USD 15,000) on 14 March 2018;

- USD 150,000 on 4 June 2018.

21. Furthermore, the Respondent sustained that the player acknowledged having received the amount of USD 85,000 and that “it appears that the player received from the club the total amount of USD 300,000 plus AOA 68,471,050”.

22. Moreover, the Respondent held that the contract does not contain any provision regarding an alleged guaranteed bonus of USD 50,000 in case of winning the championship and requested the Chamber to reject the Claimant’s claim and requested the reimbursement of the total amount of AOA 68,471,050.

23. After having been invited to provide his comments on the payment provided by the Respondent, the Claimant maintained his position and explained that the payment receipts provided by the Respondent had already been acknowledged by him and that the Respondent “is trying to wrongly convince the Chamber that these payments are new payments and not part of the USD 85,000 effectively paid as remuneration during the validity of the contract, so that they are wrongly counted twice”.

24. Consequently, the Claimant claimed to be entitled to the outstanding amount of USD 50,000 (i.e. USD 265,000 minus USD 15,000 and USD 150,000) “due as outstanding remuneration” as well as the amount of USD 43,550 (i.e. USD 50,000 minus USD 6,450) “due as outstanding bonus for having won the 2017 Angolan Championship”.

25. Furthermore, the Claimant stated that the Respondent never submitted any proof of payment that it paid to him the amount of AOA 68,471,050 and declared “in good faith” that the “extra amount paid into the Claimant’s Angolan bank account in Angolan Kwanzas was only of AOA 38,000,000” and that he “is willing to return such amount which is completely useless to him since he does not live in Angola and never goes there”.

II. Considerations of the Dispute Resolution Chamber (DRC) judge

1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 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 January 2020), he was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a Portuguese player and an Angolan club.

3. 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 200,000.

4. 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 (editions January 2018, June 2018, June 2019, October 2019 and January 2020), and considering that the present claim was lodged on 2 February 2018, the January 2018 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

5. 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 the 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.

6. First, the DRC judge noted that the Claimant and the Respondent entered into an employment contract valid as of valid as from 1 January 2017 until 31 October 2017, in accordance with which the player was entitled to receive, inter alia, a salary in the total amount of USD 150,000, payable in ten monthly instalments of USD 15,000.

7. Subsequently, the DRC judge took note that the Claimant, at first, asked to be awarded the payment of the total amount of USD 265,000, plus 5% interest p.a. as from the relevant due dates, amount broken down as follows:

- USD 105,000, as “outstanding signing-on fees” due on 31 January 2017, 31 May 2017, 31 July 2017 and 30 September 2017, respectively;

- USD 110,000 as “outstanding salaries” for the months of March, April, May, June, July, August, September and October 2017;

- USD 50,000 as “bonus for having won the 2017 Angolan Championship”;

- USD 45,000 as “extra financial compensation as a result of [the Respondent]’s serious and continuous contractual breaches during the Protected period”.

8. Moreover, the DRC judge noted that Claimant, through the proceedings, acknowledged the payment of (i) USD 15,000 and (ii) USD 150,000 and requested that such amounts shall be deducted from the total amount claimed, affirming that he is still entitled to the amount of USD 50,000, corresponding to the outstanding salaries, as well as the “bonus for having won the 2017 Angolan Championship”.

9. The DRC judge also took note that the Claimant acknowledged the payment of AOA 38,000,000 and declared that he is “willing to return to the Respondent the amount of AOA 38,000,000, which was wrongly paid into his bank account”.

10. With regard to the payment in AOC and, consequently, the pertinent currency stipulated between the parties, the DRC judge acknowledged the Claimant’s argument that according to the contract, all the amounts due had to be paid to him in USD currency and that he never agreed to be paid in AOA currency.

11. Equally, the DRC judge took note of the reply of the Respondent, acknowledging that “some wages and prizes” have not been paid. After the amendment of the Claimant’s request, the DRC Judge noted the Respondent’s request to reject the claim.

12. Moreover, the DRC judge noted that the Respondent allegedly paid the amount of AOA 68,471,052. In this context, the DRC judge acknowledged the Respondent’s argument, that it was agreed that the respective payments “would be deposited by the club sponsor in national currency to their banking accounts”.

13. On another note, the DRC judge observed the Respondent’s argument that the contract does not contain any provision regarding an alleged guaranteed bonus of USD 50,000 in case of winning the championship. The DRC judge further noted that according to the Respondent, the value of the match prizes and the amount of the National Champion prize were “fixed by the [Respondent]’s board in AOA 1,500,000 and not USD 50,000 that the Claimant claims without any foundation”.

14. That said, the DRC judge considered the positions of the parties and the documentation provided. In view of the above, in particular taking into account that the total value of the contract is USD 300,000 and the fact that the player acknowledged having only received (i) USD 85,000; (ii) USD 15,000 and (iii) USD 150,000. As a result, the DRC judge understood that, in principle, the Claimant’s request is limited to the amount of USD 50,000 (i.e. 300,000-85,000-15,000-150,000).

15. In relation to the aforementioned amount, the Single Judge observed that, during the course of the investigation, the Respondent did not prove that the remaining amount of USD 50,000, as requested by the Claimant, was settled. As a result, the Single Judge had no other option than to assume that said amount of USD 50,000 remained as outstanding.

16. In view of the above, the DRC judge decided consequently that, in accordance with the general legal practice of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of USD 50,000, corresponding to the outstanding salaries.

17. In addition, the DRC Judge wished to refer to the alleged bonus “bonus for having won the 2017 Angolan Championship”, as requested by the Claimant.

18. The DRC judge observed in this matter that the alleged bonus of USD 50,000 “for having won the 2017 Angolan Championship”, was not stipulated in the contract, but in “Club’s Rewards Regulations”. In this context, the DRC Judge noted the Claimant was not able to provide the Respondent’s rewards regulations “since such document was never provided to him, despite the amount having been verbally settled between the parties”.

19. In view of the above, and referring 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 burden of proof”, the DRC judge considered the evidence on file and established that there is no contractual stipulation regarding bonuses, Moreover, the DRC Judge noted that the Claimant did not provide any evidence in support of his allegations that the amount of USD 50,000 was due to him. Therefore, the DRC judge considered that this part of the claim shall be rejected.

20. Furthermore, the DRC Judge wished to refer to the issue concerning payments in local currency, AOA, noting that (i) the Respondent argued that it paid AOA 68,471,050 to the Claimant and (ii) the Claimant acknowledged having received the amount of AOA 38,000,000.

21. In this regard, and before entering into the consideration of said payments the DRC judge recalled that the contract provides for the payment in USD and in this context, the DRC judge established that – given to lack of evidence provided by the club as to the contrary – the payments should have been, indeed, in USD.

22. As a result, considering that (i) the Respondent failed to submit any valid proof of payment that it paid the amount of AOA 68,471,050 to the Claimant and that (ii) the Claimant admitted having received the amount of AOA 38,000,000, the DRC Judge deemed it to be reasonable to establish that the Claimant shall return the amount, as it appears to have been paid without any contractual basis.

23. In addition, taking into consideration the date of expiry of the contract, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. as from 31 October 2017, until the date of effective payment.

24. The DRC judge rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

25. The DRC judge concluded its deliberations by rejecting any further claim lodged by the Claimant.

III. Decision of the Dispute Resolution Chamber (DRC) judge

1. The claim of the Claimant, Diogo Jorge Rosado, is partially accepted.

2. The Respondent, CD Primeiro de Agosto, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of USD 50,000, plus 5% interest p.a. as from 31 October 2017 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.

4. In the event that the amount due plus interest in accordance with point 2. above is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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.

6. The Claimant has to reimburse to the Respondent, within 30 days as from the date of notification of this decision, the amount of AOA [Angolan Kwanza] 38,000,000.

7. In the event that the aforementioned sum is not reimbursed by the Claimant within the stated time limit, 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 related to the appeal procedure:

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. 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