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 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Eddi Gabriel Hernandez Padilla, Honduras,

represented by Mr Alfonso Leon Lleo

as Claimant

against the club,

Zobahan FC, IR Iran

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On an unspecified date, the Honduran player, Eddi Gabriel Hernandez Padilla (hereinafter: Claimant) concluded an employment contract (hereinafter: the contract) with the Iranian club Zobahan FC (hereinafter: Respondent), valid as from 22 June 2018 until 31 December 2018.

2. In accordance with Article 3 of the contract, the Claimant was entitled to a total amount of USD 102,000, as follows:

a) USD 17,000 on 23 July 2018;

b) USD 17,000 on 23 August 2018;

c) USD 17,000 on 23 September 2018;

d) USD 17,000 on 23 October 2018;

e) USD 17,000 on 23 November 2018;

f) USD 17,000 on 31 December 2018.

3. On 14 August 2019, the Claimant informed the Respondent in writing that a total amount of USD 34,000, corresponding to the monthly salaries due on 23 November 2018 and 31 December 2018 respectively, were still outstanding, providing the Respondent until 26 August 2019 to remedy the default.

4. On 26 August 2019, the Claimant lodged a claim against the Respondent for outstanding remuneration, requesting the amount of USD 34,000 corresponding to the monthly salaries due on 23 November 2018 and 31 December 2018 respectively, plus 5% interest p.a. over said amount as from the respective due dates.

5. The Claimant further requested that the Respondent pay the procedural costs.

6. In reply to the Claimant’s claim, the Respondent held that it had complied with all its contractual obligations, and the no amounts were outstanding to the Claimant.

7. Firstly, the Respondent referred to the four payment confirmations it submitted, and argued that it made the following payments the Claimant:

a) USD 17,000 on 28 July 2018;

b) USD 17,000 on 1 October 2018;

c) USD 17,000 on 3 November 2018;

d) USD 34,000 on 12 December 2018.

8. Furthermore, the Respondent stated that on 12 December 2018, the Claimant signed a “Payment Clearance”, by which it terminated the employment relationship and which inter alia stipulated that he has “fully received each and every part of the salary payment of my contract […] and all debts of the [Respondent] to me have been totally paid”.

9. By means of his replica, the Claimant referred to the “Payment Clearance”, and contested having signed said document, arguing that said signature was forged.

10. Moreover, the Claimant held that “said sort of waiver by the employee at the time of entering into an allegedly legitimate termination agreement is forbidden under Swiss law, as the [CAS] duly reminded in [para. 67 of] CAS 2016/A/4852”.

11. As such, the Claimant reiterated his request of outstanding remuneration in the amount of USD 34,000, but slightly amended his specification of claim, as follows:

a) USD 17,000 as “outstanding payments stipulated in the Employment Contract”;

b) USD 17,000 as “an additional penalty […] over the Respondent as per having forged a document”.

12. In response to the Claimant’s additional comments, the Respondent highlighted that in the CAS award referred by the Claimant, “the employer terminates the contract with the employee unilaterally and prior to the term of the contract. However, in the current case, the parties enter into a mutual termination before the end of the contract term or in other words the two sides have ended the contract before the end of the contract”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 26 August 2019. 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 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 2019), 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 Honduran player and an Iranian club.

3. Furthermore, 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 Player, and considering that the present claim was lodged on 26 August 2019, the June 2019 edition of said regulations (hereinafter: the 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. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well as the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the DRC acknowledged that the parties had signed an employment contract, valid as from 22 June 2018 until 31 December 2018.

7. Moreover, the DRC noted that on 26 August 2019, the Claimant lodged a claim against the Respondent claiming outstanding remuneration in the amount of USD 34,000.

8. In continuation, the Chamber noted that, for its part, the Respondent argued that no amounts were outstanding to the Claimant, referring to the alleged four payments made to the player in the total amount of USD 85,000 (cf. I.7), as well as the document entitled “Payment Clearance”, by means of which the Claimant allegedly acknowledged that the employment contract was terminated on 12 December 2018 and by means of which he allegedly acknowledged having received “each and every part of the salary payment of of my contract […] and all debts of the [Respondent] to me have been totally paid” (cf. I.8).

9. However, the Chamber recalled that the Claimant contested having signed the document entitled “Payment Clearance”, arguing that said signature was forged.

10. Given the above, the Chamber established that the primary issue at stake is to determine as to whether the matter was indeed amicably settled between the parties by means of the “Payment Clearance”and thus, whether the Claimant had consequently waived his right to claim outstanding remuneration and compensation vis-à-vis the Respondent.

11. In this regard, the DRC elucidated that all the payment confirmations provided by the Respondent contained both the Respondent’s and the Claimant’s signature, as well as the Claimant’s alleged fingerprint. Moreover, the Chamber referred to the document entitled “Payment Clearance”, and acknowledged that said document also included the Claimant’s signature and fingerprint.

12. In continuation, the Chamber determined from the Claimant’s replica that he did not dispute having received the amount of USD 85,000, as stipulated in the four payment receipts (cf. I.7). As a result, the DRC did not call into question the validity and authenticity of the payment receipts.

13. Notwithstanding the above, the Chamber took into consideration the Claimant’s comments regarding the “Payment Clearance”, arguing that he never signed said document.

14. In this respect, and in relation to the argument of the Claimant that he did not sign the document entitled “Payment Clearance”, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).

15. In this context, the DRC was of the opinion that no convincing documentation, or any form of evidence, was provided by the Claimant, which could support his allegation that he did not sign the document entitled “Payment Clearance”. As such, the members of the Chamber, after making reference to art. 12 par. 3 and par. 6 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 and the evidence shall be considered with free discretion respectively, concluded that the Claimant did not prove beyond doubt that the Respondent forged the Claimant’s signature on the above-mentioned document. Consequently, the DRC decided that the Claimant’s allegations in this regard cannot be accepted.

16. Therefore, the DRC unanimously agreed that it saw no reason to question the authenticity and/or validity of the document entitled “Payment Clearance”.

17. In light of all of the above, and in particular bearing in mind the fact the DRC concluded that the document entitled “Payment Clearance” was valid, the Dispute Resolution Chamber decided that the Claimant had waived his rights to claim any financial benefits and that, as a result, it must reject the claim put forward by the Claimant in its entirety.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Eddi Gabriel Hernandez Padilla, is rejected.

*****

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