Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 31 August 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Theo v an S eggelen (Netherlands), member
Wouter Lam brecht (Belgium), member
Todd Durbin (USA), member
Takuy a Yam azaki (Japan), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 27 July 2014, the player of Country B, Player A (hereinafter: the player) and
the club of Country D, Club C, according to information of the Football
Association of Country D as from 29 August 2017 known as Club C (hereinafter:
the club), signed an employment contract, valid as from 21 July 2014 until 30
June 2015 (hereinafter: the contract).
2.
According to article 4 of the contract, the player was entitled to receive, inter
alia, a monthly salary of USD 37,500, payable as follows:
USD 18,000 as ‘basic salary’;
USD 9,500 as a ‘differential allowance’;
USD 10,000 as a ‘living allowance’.
3.
Moreover, article 4 stipulates the following: ‘All remunerations and payments
stated in article (4) of this contract will be relating to the percentage of
participation of player in league championship as per minutes from the
beginning of first match after registration of player till the last official match of
season 2014 to 2015’.
4.
Article 5 of the contract holds the following clause: ‘The [club] shall undertake
to provide an economy class air ticket to the [player], his wife and a number of
(1) economy air class tickets for his children when coming to start the work
contract (Country B– Country D – Country B)’.
5.
Article 6 of the contract contains the following clause: ‘The [club] shall undertake
to provide a furnished suitable accommodation to [player]’.
6.
According to article 7 of the contract, the player is further entitled to ‘a suitable
means of transport (made in Country E) to be handled to the [player] by official
receipt from the [club] and the car will be under custody till the expiry or
termination of this contract’.
7.
Article 7 of the contract further contains the following clauses: ‘[…] The [club]
shall provide the [player] with a copy of the Football Association of Country D
and Club C Regulations. The [club] shall provide the [player] with suitable
environment and training. The [club] shall provide the [player] with trainers and
the technical and administrative bodies that assist the player on training and
developing his technical and physical skills. The necessary medical treatment for
the [player] and his family in governance hospitals (Country D).’
8.
Article 12 of the contract inter alia stipulates the following: ‘The two parties shall
endeavour to settle their disputes of executing this contract in amicable manner
and in case of failure they have to refer the same to the association’s specialized
committees or the FIFA, and none of the two parties shall have the right to refer
disputes to civil or labour courts or adhere to its laws or that of any other judicial
or arbitration bodies. The Disputes Settlement Chamber on Football Association
of Country D only shall review the disputes arising between the Club C and the
professional player about the interpretation and execution of this contract. […]
Player A, Country B / Club C, Country D
2 / 21
The excuses and personal circumstances shall be subject to appreciation of the
first party and the Player’s Status and Shifting Committee on the Football
Association of Country D only’.
9.
Article 13 of the contract inter alia contains the following clauses: ‘[…] When a
decision was issued stopping the player from playing because of bad or nonsportive behaviour, getting disciplinary penalty or committing a crime punished
by law, the [club] shall have the right to take all legal procedures and to apply
and impose all penalties as per the applicable regulations of Club C and the
association. The [club] shall have the right to deduct the amounts resulting from
such penalties from the player’s salary or allowances for the benefit of the bodies
imposing the same. […] The [club] shall have the right to take any decisions and
impose penalties against the [player] as per the rules of Club C and especially first
time disciplinary regulations when breaching any of the obligations stipulated
for in Club C regulations or in this contract or in case he committed one of the
breaches stipulated for in the Football Association regulations or the Organizing
body of football Leagues of Country D or any of the following breaches without
limitation: […] 2. Delay / absence from attending training, camps and matches
[…] 5. Bad conduct, non-adherence to sportsmanship, indecent dealing with his
colleagues or the club administrative and technical bodies or others or any of the
match officials or the public’.
10.
Article 15 par. 16 of the contract stipulates: ‘In case the player name is not in the
official reports of the league games for one month 25% shall be deducted from
his monthly salary’.
11.
On 22 April 2016, the player lodged a claim before FIFA against the club, claiming
the total amount of USD 275,694.37, specified as follows:
Outstanding remuneration in the amount of USD 222,311.73, broken down as
follows:
USD 160,288.92, plus 5% interest p.a. as of 30 June 2015, as outstanding part
of monthly salaries the player was entitled to in the period between 21 July
2014 and 30 June 2015. The player explains that in said period, he was entitled
to the amount of USD 425,806.45, calculated as follows:
- (EUR 37,500/31 x 11) for the period between 21 July until 31 July 2014,
and;
- 11 x EUR 37,500 for the period between August 2014 and June 2015.
The player further acknowledges to have received the amount of 974,664 in
the currency of Country D (according to the player USD 265,517.53, cf. point
I./16. below);
USD 27,246.26, plus 5% interest p.a. as of 4 January 2016, as costs related to
the club’s obligation to provide him with an accommodation, as per article 6
of the contract cf. point I./17. below);
Player A, Country B / Club C, Country D
3 / 21
USD 9,821.26, plus 5% interest p.a. as of 4 January 2016, as costs related to
the club’s obligation to provide him with transportation as per article 7 of the
contract (cf. point I./18. below);
USD 22,691.32, plus 5% interest p.a. as of 4 January 2016, as costs related to
the club’s obligation to provide him with a ‘suitable environment and
training’, as well as ‘trainers and the technical and administrative bodies that
assist the player on training and developing his technical and physical skills’,
as per article 7 of the contract;
USD 2,263.61, plus 5% interest p.a. as of 4 January 2016, as costs related to
the club’s obligation to provide him with medical treatment as per article 7
of the contract (cf. point I./19. below).
Additional compensation in the amount of USD 53,382.64, as follows:
USD 22,691.32 as compensation and interest for ‘non-pecuniary damage’;
USD 22,691.32 as compensation and interest for ‘career damage’;
USD 8,000 as ‘legal costs’.
Additionally, the player requests for 5% interest p.a. as from 4 January 2016 on
the aforementioned amounts of compensation.
12.
In his claim, the player explains that on 1 September 2014, he suffered a muscle
injury and that he underwent a radio scan. According to said medical
examination, it turned out that the player was injured and needed to recover.
13.
After he suffered said injury, the player holds that the club imposed the
following sanctions on him, because he had missed several training sessions
and/or medical treatments:
14.
-
a reduction of his salary for September 2014 with 10% (i.e. USD 3,750),
imposed on 8 September 2014;
-
a reduction of his salary for September 2014 with 10% (i.e. USD 3,750),
imposed on 18 September 2014;
-
a reduction of his salary for September 2014 with 15% (i.e. USD 5,625),
imposed on 19 September 2014.
Further, the player argues that in a match he played against Club F, on an
unspecified date, he again suffered an injury. As a result, on 20 September 2014,
he again underwent a medical examination, which results showed that the
player was again injured and that he needed to take rest. However, according to
the player, the club excluded him from the first team and sent him a training
program, which he needed to follow in the period between 24 and 30 September
2014.
Player A, Country B / Club C, Country D
4 / 21
15.
16.
In addition, the player explains that as from September 2014, he never
participated in a collective training session anymore, but that until the end date
of his contract, 30 June 2015, he went to the club’s stadium to train individually
in order to fulfil his contractual obligations. In this respect, the player referred
to the following circumstances, that should prove that he was forced to train
alone and that the club did not fulfil its contractual obligations towards the
player:
-
the club did not register the player with the Football League in the Country
Din the first half of the 2014/2015 season and as a result, it was not possible
for the player to play in official league matches in said period. The player
states that the club only registered him on 18 January 2015, in order to be
available in the second half of the season;
-
he was forbidden to enter the main dressing room and had to change in a
separate room;
-
he was instructed to train, daily between 6.00 am and 8.00 am and 18.00 pm
and 20.00 pm with a youth coach of the club;
-
at the end of September 2014, he was forced to return the car the club had
provided to him, without receiving a new one (cf. point I./18. below);
-
at the end of September 2014, he was forced to leave the hotel room, the
club had booked for him and his family. As a result, between 29 September
2014 and 5 June 2015, the player was forced to pay for an accommodation
himself, as the club only provided him with a non-suitable accommodation
(cf. point I./17. below)
-
the club never reimbursed his medical costs and never provided him with
adequate medical assistance;
-
during the period in which he was forced to train alone, the club
systematically imposed fines on him for alleged disciplinary misbehaviour, as
a result of which the player did not receive at least 60% of the salaries he was
entitled to (cf. from point I./16. below).
In relation the claimed salaries, the player explains that in the period between 2
October 2014 and 15 June 2015, he received the total amount of 974,664 in the
currency of Country D, as follows:
75,238 in the currency of Country D paid on 2 October 2014;
68,813 in the currency of Country D paid on 21 October 2014;
68,813 in the currency of Country D paid 8 December 2014;
85,328 in the currency of Country D paid on 28 December 2014;
71,565 in the currency of Country D paid on 11 January 2015;
103,218 in the currency of Country D paid on 2 March 2015;
96,338 in the currency of Country D paid on 28 March 2015;
133,863 in the currency of Country D paid on 3 April 2015;
Player A, Country B / Club C, Country D
5 / 21
133,863 in the currency of Country D paid on 5 May 2015;
137,625 in the currency of Country D paid on 15 June 2015.
17.
In relation to the accommodation costs, the player explains that he himself had
to pay the total amount of 99,948 in the currency of Country D, according to the
player corresponding to USD 27,246.26, for accommodation, since the club did
not pay him any of the contractually agreed ‘living allowance’).
18.
With regard to the amount claimed as costs related to the club’s obligation to
provide him with transportation, the player explained that he himself had to pay
the total amount of 36,070 in the currency of Country D, corresponding to USD
9,821.26 for car rental, since the club failed to provide him with the contractually
agreed ‘suitable means of transport’. Moreover, the player states that the club
requested him to pay the amount of 29,000 in the currency of Country D
(corresponding to USD 7,896.63), because the car had to be repaired.
19.
Regarding the amounts claimed as reimbursement of medical treatment, the
player explained that he himself had to pay the total amount of 8,350 in the
currency of Country D, corresponding to USD 2,263.61 for medical costs, since the
club failed to provide him with the contractually agreed ‘medical treatment’. In
this respect, the player provided 7 documents referred to as ‘outpatient cash
invoice’, based on which it can be concluded that in the period between 1
September 2014 and 2 February 2015, the player underwent medical
examinations in the Hospital located in Country D for the total amount of
8,350.18 in the currency of Country D.
20.
With respect to the imposed fines, the player explains that – in addition the fines
imposed on him in September 2014 (cf. point I./13. above, in the total amount of
USD 13,125) - in the period between 7 October 2014 and 22 April 2015, another
21 fines were unilaterally imposed on him by the club, specified as follows:
-
15 fines for absence or late arrival on training sessions, in the total amount
of USD 44,250;
-
6 fines for alleged bad professional behaviour, in the total amount of USD
43,125.
21.
The player concludes that the club imposed fines in the amount of USD 100,500
on him, without having a valid reason to do so.
22.
In this respect, the player explains that he does not agree with the fines imposed
on him, since from the medical report on 20 September 2014, it was clear that he
was injured and he needed to rest. Furthermore, the player explains that as from
20 September 2014, the club excluded him from the collective training sessions
as well as the dressing room and that he was forced to train alone or with the
club’s youth team. Moreover, the player argues that based on the Labour Code
of Country B, it is forbidden to make deductions to salaries mentioned in the
Collective Bargaining Agreement of Country B or to impose pecuniary sanctions
on a player.
Player A, Country B / Club C, Country D
6 / 21
23.
In addition, the player holds to have put the club in default on 29 October 2014,
requesting the club to fulfil its contractual duties, and on 28 November 2014, for
the outstanding amount of USD 124,820.12, however to no avail. After the expiry
of the contract on 30 June 2015, the player sent two further default letters, dated
respectively 12 October 2015 and 4 January 2016, however according to the
player also to no avail.
24.
In its reply to the claim of the player, first of all the club contests FIFA’s
competence to deal with the matter at hand, as based on article 12 of the
contract, the case should have been dealt with by the Dispute Resolution
Chamber of the Football Association of Country D (hereinafter: ‘the NDRC of
Country D’), which deals with cases regarding the interpretation of the contract
(cf. point I./8. above). Further, the club states the labour law of Country D shall
apply to the contract, and that disputes regarding excuses and circumstances
shall be submitted to the ‘Committee of Player’s Status and Transfer in the
Football Association of Country D’.
25.
The club further refers to article 6. par. b. of the aforementioned regulations,
which stipulates: ‘The provisions of International Regulation shall be applied on
national disputes and the disputes which one of the parties is foreigner if the
foreign party accept the same’.
26.
Furthermore, the club asks for the rejection of the claim, as the power of
attorney of the player is dated 27 April 2016 and the claim was sent to FIFA
already on 22 April 2016.
27.
As to the substance, the club mentions that it replied to the player’s default letter
dated 29 October 2014 (cf. point I./23. above), by means of a letter dated 30
October 2014, denying the player’s allegations. Moreover, the club states that
also on 13 October 2014, 4 November 2014 and 6 March 2015, it replied to the
letters the player sent to the club.
28.
Furthermore, the club argues that as per article 4 of the contract, the player’s
salary was linked to the percentage of matches played by the player and that in
case of no performance, the player’s salary could be reduced by 25% (cf. point
I./10. above). In view of the fact the player never played in official matches for
the club and that the total contractual value amounts to 1,541,408 in the
currency of Country D (or USD 420,000), the club had the right to deduct USD
105,000 from the total contractual value.
29.
Further, the club states that it actually paid the player the amount of 1,113,389
in the currency of Country D (or USD 303,375) and that it imposed fines in the
total amount of 449,108 in the currency of Country D (or USD 122,373) on the
player. Subsequently, the club explains that all fines imposed on the player were
legal and that based on the Regulations of the Football Association of Country
D, it cannot deduct more than 50% of the player’s salary, which it never did while
imposing the fines.
Player A, Country B / Club C, Country D
7 / 21
30.
With respect to the salary for July 2014, the club explains that the player was
only entitled to receive his agreed salary as from 21 July 2014, and therefore not
for the whole month of July 2014. In this respect, and because the player
allegedly left the Country D on 27 July 2014 and only joined the club’s training
camp in Country G on 2 August 2014, he is only entitled to his salary for 6 days
in July 2014, i.e. 27,525 in the currency of Country D.
31.
Based on the foregoing, the club concludes that it has no outstanding debts
regarding the salary payments towards the player.
32.
Regarding the costs for accommodation, the club explains that it provided the
player with temporary residence in a hotel room in the Hotel of Country D, which
is located approximately 30 kilometres from the club’s premises. The club further
holds that, on 24 August 2015, it arranged a new apartment for the player and
his family, also located approximately 30 kilometres from the club’s premises, as
well as that on 24 August 2014, it paid the amount of 53,130 in the currency of
Country D (or USD 14,476) to the player for ‘leasing a new accommodation to
the player and his family’. According to the club, the player could stay in the
hotel until his new apartment was ready, however, at the end of September
2014, when the apartment was ready and the club informed the player about
the address, he refused to move to the apartment. Further, the club states that
on 13 October 2014, it sent a final notice to the player, informing him that he
had to move to the new apartment.
33.
With respect to the transportation costs as per article 7 of the contract, the club
explains that it provided the player with a car made in Country E and that it has
no further obligations to pay the player any other costs in this respect. In reply
to the rental receipts submitted by the player in this respect, the club states that
these are receipts are ‘fabricated, not original, non-attested by the body who
rented the car at all’ and/or related to fines, traffic violations or cars the player
rented on his own initiative.
34.
In relation to the medical costs, the club argues that it is not its responsibility to
pay these costs to the player, as it fulfilled all its contractual obligations. In this
respect, the club explains that the player underwent medical examinations on 30
and 31 August 2014 in the ‘private Hospital’ located in Country D. Further, the
club holds that the player was ‘only alleging an injury’, in order ‘to escape from
training’, as a result of which several fines were imposed on him (cf. point I./20.
above). In addition, the club held that it ‘deals fairly’, as on 3 November 2014, it
gave the player medicines and some days of rest, when the player submitted a
sickness certificate. However, according to the club, on 7 November 2014, the
player refused to return to the training, despite being fully recovered. Moreover,
the club contests the validity of the medical reports submitted by the player (cf.
points I./12. and I./14. above). In addition, the club states that despite the player’s
allegation that the club forced to train him on 17 and 18 September 2014, from
the documents he submitted (cf. point I./12. and I./14. above), it can be seen that
the club tried to provide him medical treatment, which he however refused.
Player A, Country B / Club C, Country D
8 / 21
35.
Furthermore, the club holds that player was excluded from the first team of the
club, because of his ‘low physical level’, the fact that ‘he travel outside the State’
and ‘the large number of problems made by him’. In addition, the club argues
that as from 24 September 2014 until 12 February 2015, it provided the player
with training programs. Also, the club explains that the player played in 13
friendly games of the club. With respect to the player’s allegations that he was
not allowed into the premises of the club, the club explains that the player did
not provide ‘definition his fingerprint in the device’ in order to register his start
of the training, but that he was seen ‘jumping over the wall of the northern side
in front of all the players of football School and players of other stages’.
36.
Subsequently, the club argues that the player – despite being in the Country D –
inter alia used the excuse of having to request a visa in Country H, to miss a
couple of training sessions.
37.
In conclusion, the club holds that the compensation claimed by the player cannot
be granted, as he did not suffer ‘serious damage’. As a result, the club asks for
the rejection of the claim of the player.
38.
In his replica, the player refers to the fact that article 12 of the contract also refers
to FIFA as being the competent body, therefore, the clause not being exclusive.
As a result, the player concludes that FIFA is competent to deal with the matter
at hand.
39.
In addition, the player explains that based on the documents submitted by the
club, as well as article 124 of the Regulations of Status and Transfer of Players of
the Football Association of Country D, it can be noted that there is no fair
representation between clubs and players before the NDRC of Country D, as it
not clear who elects the members of the NDRC of Country D representing the
players and because of the fact the in the Country D, there does not exist a
players’ association affiliated to FIFPro.
40.
Furthermore, the player first of all states that it is a fact that there is a valid
power of attorney, even more because the player was provided with a deadline
until 27 May 2016 by the FIFA Administration to complete his claim, and that the
allegations of the club in this respect cannot be upheld.
41.
As to the substance, the player explains that there are discrepancies between the
amount the club holds to have paid and the amount the player actually received.
For instance, the club holds to have paid to him the amount of 1,113,389 in the
currency of Country D, but submitted payments receipts only amounting to
1,092,289 in the currency of Country D. In this respect, the player explains that
the documents submitted by the club only prove that the club ordered to make
payments up to the amount of 1,092,289 in the currency of Country D, however
that it cannot be proven that these amounts were effectively paid on the player’s
bank account. In addition, the player adds that on top of the amounts explained
in his claim (cf. point I./11. above), he also received 4 cash payments of 5,000 in
the currency of Country D each, respectively on 27 July, 17 August, 20 August
and 26 August 2014.
Player A, Country B / Club C, Country D
9 / 21
42.
As a result, the player explains that in the period between 27 July 2014 and 15
June 2015, he received the amount of 20,000 in the currency of Country D in cash
and the amount of “994,664”in the currency of Country D by bank payments,
according to the player corresponding to the total amount of USD 270,793.22.
Further, the player reiterates that he was entitled to the total amount of USD
425,806.45 and that fines in the total amount of USD 100,500 were imposed on
him. Based on the foregoing, the player states that salaries in the amount of at
least USD 54,513.23 (i.e. USD 425,806.45 minus USD 270,793.22 minus USD
100,500) remained outstanding and are not contested by the club.
43.
In addition, the player disputes that the fines were validly imposed on him by
the club and/or that the club could validly deduct 25% of his receivables, based
on the argument that he did not play in official matches of the club (cf. point
I./10. above). In this respect, the player holds that the clause in art. 15 par. 16 of
the contract is potestative and abusive, and further refers to the Labour Code of
Country B, which considers pecuniary sanctions in relation to salary payments
prohibited. Further, the player holds that the fines cannot be upheld, since he
tried to do everything possible to fulfil his contractual obligation to practice and
to train, however the club tried to prevent him from training, by excluding him
from the team.
44.
Moreover, the player contests having left the Country D in July 2014 as alleged
by the club and further points out that he always remained at the disposal of the
club. Finally, the player contests the credibility of the declaration of the club’s
security guards, as these cannot be impartial. In conclusion, the player holds that
the fines in the total amount of USD 100,500 cannot be upheld.
45.
Furthermore, the player reiterates his initial claims and arguments, and refers to
the following circumstances:
-
regarding the club’s obligation to provide him with an apartment, the player
holds that only on 13 October 2014, after several requests of the Hotel of
Country D to the player that he had to leave, the club provided him with the
address details of the new apartment. The player holds that this apartment
was not suitable, since it was located in a dangerous location and far away
from the training grounds, as well as that it was ‘faible surface’ (free
translation in English: low surface);
-
in relation to the car the club was obliged to provide to him, the player
explains that after his injury, he was forced to return the car he received from
the club. Moreover, the player explains that he returned the car in good
condition and that, therefore, he cannot be forced to pay for reparations of
the car (cf. point I./18. above). Also, the player holds that all the receipts he
submitted in this respect are valid and that he was forced to pay the total
amount of USD 9,821.62 in order to have a car at his disposal;
-
with regard to his claim for damages suffered because the club did not
provide him with training or technical assistance, the player explains that he
Player A, Country B / Club C, Country D
10 / 21
was not allowed to train with a ball, that he also received training from the
goalkeeper coach and that the club did not provide him with a professional
environment to fulfil his contractual duties. Moreover, the player explains
that on 7 October 2014, the club tried to force him to sign a document by
means of which 20% of his salary would be deducted, because he allegedly
drove too fast, which he refused to do;
-
regarding the medical costs, the player holds that although he was injured
(cf. points I./12., I./13. and I./14. above), the club did not provide him with
medical assistance and tried to force him to train. As a result the player was
forced to go to another medical specialist, in order to treat his injury. The
player concludes that the receipts he submitted to his claim are detailed
specifications of actual costs, and that these costs have to be reimbursed by
the club.
46.
In its duplica, the club reiterates that the matter at hand should be submitted to
the NDRC of Country D and that Labour Law of Country D shall apply. Further,
the club explains that the NDRC of Country D meets the ‘standards of law of
dispute resolution chamber affiliates to FIFA’.
47.
As to the substance, the club explains that it paid the player the amount of
1,113,389 in the currency of Country D, corresponding to USD 303,375, consisting
of bank payments in the amount of 1,092,289 in the currency of Country D and
cash payments in the amount of 21,100 in the currency of Country D.
Furthermore, it claims to have deducted the amount of USD 122,273 from the
player’s remuneration, because of ‘disciplinary irregularities’.
48.
In addition, the club explains that the player in his calculations forgot to add to
the total amount he received from the club the salary of June 2015, paid on 1
July 2015 and amounting to USD 37,500 or 137,625 in the currency of Country D.
49.
Moreover, the club explains that on an unspecified date in September 2014, it
booked a flight for the player’s wife with a value of USD 1,100, but that the
player’s wife did not take said (unspecified) flight. As a result, the club explains
that for the month of September 2014, it validly deducted an amount of 1,100
in the currency of Country D from the player’s receivables. In this respect, the
club provided a copy of an undated document, singed by the player and
confirming that an amount of 1,100 in the currency of Country D would be
deducted from his the player’s salary.
50.
In conclusion, the club states that the player ‘has completely denied his
participation in the first team in official matches’, and that it ‘did not impose any
penalty without a violation made by player’.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter at
Player A, Country B / Club C, Country D
11 / 21
hand. In this respect, it took note that the present matter was submitted to FIFA
on 22 April 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 and 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016) the Dispute Resolution Chamber is, in principle, 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.
However, the Chamber acknowledged that the club contested the competence
of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that
any dispute arisen between the parties should be submitted to the Dispute
Resolution Chamber of the Football Association of Country D (NDRC of Country
D).
4.
The Chamber equally noted that the player rejected such position and insisted
on the fact that FIFA had jurisdiction to deal with the present matter, firstly
because article 12 of the contract explicitly mentions that he can bring his case
to FIFA and, secondly since the deciding bodies of the NDRC of Country D do not
respect the principle of equal representation of players and clubs and cannot
provide for fair proceedings.
5.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle
of equal representation of players and clubs, has been established at national
level within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the members of the Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
Chamber referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
6.
In view of the foregoing, while analysing whether it was competent to hear the
present matter, the Dispute Resolution Chamber considered that it should, first
and foremost, analyse whether the employment contract at the basis of the
present dispute contained a clear arbitration clause.
7.
Having said this, the members of the Chamber turned their attention to article
12 of the contract, which stipulates the following: ‘The two parties shall
endeavour to settle their disputes of executing this contract in amicable manner
and in case of failure they have to refer the same to the association’s specialized
Player A, Country B / Club C, Country D
12 / 21
committees or the FIFA, and none of the two parties shall have the right to refer
disputes to civil or labour courts or adhere to its laws or that of any other judicial
or arbitration bodies. The Disputes Settlement Chamber on Football Association
of Country D only shall review the disputes arising between the Club C and the
professional player about the interpretation and execution of this contract. […]
The excuses and personal circumstances shall be subject to appreciation of the
first party and the Player’s Status and Shifting Committee on the Football
Association of Country D only’.
8.
In view of the aforementioned clause, the members of the DRC were of the
opinion that article 12 of the employment contract does not make clear
reference to one specific national dispute resolution chamber in the sense of art.
22 lit. b) of the aforementioned Regulations and even provides for the possibility
of lodging a contractual dispute in front of FIFA. Therefore, the members of the
Chamber deem that said clause can by no means be considered as a clear
arbitration clause in favour either of the national deciding bodies, i.e. the
Disputes Settlement Chamber on Football Association of Country D or the
Player’s Status and Shifting Committee on the Football Association of Country D,
and, therefore, cannot be applicable.
9.
Having established that the first criterion for the recognition of the competence
of a national decision-making body is not fulfilled in the present matter, the
Chamber deemed unnecessary to examine any further points, which would need
to be assessed before concluding to the competence of a national deciding body.
10.
In view of the above, the Chamber established that the club’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that
the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the substance.
11.
Subsequently, 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 Players
(edition 2016), and considering that the present claim was lodged on 22 April
2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
12.
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.
13.
In this respect, the Chamber acknowledged that on 21 July 2014, the parties
signed an employment contract valid between 21 July 2014 and 30 June 2015. In
accordance with said contract, the player was entitled to receive, inter alia, a
monthly salary of USD 37,500, divided in an instalment of USD 18,000 as ‘basic
Player A, Country B / Club C, Country D
13 / 21
salary’, an instalment of USD 9,500 as a ‘differential allowance’ and an instalment
of USD 10,000 as a ‘living allowance’.
14.
In continuation, the members of the Chamber noted that the player alleged that
until 30 June 2015, the day when the contract expired, the club failed to pay him
salaries in the amount of USD 160,288.92 out of the total amount of USD
425,806.45 he was entitled to. Also, the player indicated that several amounts
related to accommodation allowance, medical expenses and transportation costs
had remained unpaid. Moreover, the player holds that the club caused damages
to him, as it failed to provide him with professional training, which also caused
moral damages. Consequently, the player asked to be awarded with the total
amount of USD 275,694.37.
15.
Equally, the members of the Chamber took note of the reply of the club, which
rejected the player’s allegations and asserted that as per the signed contract, the
player was in principle entitled to receive the total amount of USD 420,000.
Furthermore, the club alleged that it paid the player the total amount of
1,113,389 in the currency of Country D (or USD 303,375), and referred to various
payment receipts submitted in this respect. Moreover, the club pointed out that
it validly imposed fines in the total amount of 449,108 in the currency of Country
D (or USD 122,373) on the player. In consequence, the club concluded that it
fulfilled all its contractual obligations towards the player and asked for the
rejection of his claims.
16.
With due consideration to the above, the members of the Chamber first of all
focused on the question as to which amount the player was entitled to receive
under the pertinent contract. The player deems that he is entitled to the amount
of USD 425,806.45, whereas the club explains that because the player only joined
the club’s training camp in Country G on 2 August 2014, he is only entitled to
salary for 6 days in July 2014, i.e. 27,525 in the currency of Country D.
17.
In this respect, as the parties agreed upon a monthly salary of USD 37,500 and
because the contract was valid between 21 July 2014 and 30 June 2015, without
making any further reservations for eventual deductions because the player
could - allegedly - not yet render his services as from the start of the contract,
the Chamber was of the opinion that the player in principle is entitled to the full
salary for this period. As it result, the Chamber concluded that the player is
entitled to the pro rata part of salary for 11 days in July 2014, i.e. USD 13,306, as
well as 11 monthly salaries of USD 37,500 for the period between August 2015
and June 2015, therefore, to the total amount of USD 425,806.
18.
Moreover, the members of the Chamber recalled the basic principle of burden of
proof, as stipulated 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.
19.
In this context, the Chamber noted that while the player in his claim alleged to
have received from the club USD 265,517.54 (i.e. USD 425,806.45 minus USD
160,288.92), the club in its reply states having paid him the total amount of
Player A, Country B / Club C, Country D
14 / 21
1,113,389 in the currency of Country D (or USD 303,375), consisting of 1,092,289
in the currency of Country D as per bank transfer and 21,100 in the currency of
Country D as cash payments. In support of its argumentation, the club provided
the DRC with a copy of 8 bank documents, stating the transfer of the total
amount of 1,092,289 in the currency of Country D from its bank account to that
of the player and with 4 documents referred to as “receipt voucher”, all signed
by the player, stating that the total amount of 20,000 in the currency of Country
D was paid in cash to him.
20.
Furthermore, the Chamber noted that, in his replica, the player acknowledged
having received the amount of 994,664 in the currency of Country D per bank
transfer and 20,000 in the currency of Country D in cash (cf. point I./42 above).
He further claims that, the club might have provided evidence that it ordered
the transfer of the amount of 1,092,289 in the currency of Country D to his bank
account, but that such documentation does not prove the actual receipt of this
amount by him (cf. point I./41 above).
21.
At this point, the Chamber deemed it appropriate to clarify that, in the present
case, the club bore the burden of proving either the payment of the player’s
salaries or that it had a valid reason for not having done so. In this respect, the
DRC noted that the club indeed provided consistent evidence of the payment of
the amount of 1,092,289 in the currency of Country D by bank transfer to the
player. The latter, however, claims that such documentation, consisting of bank
statements displaying the transfer of the aforementioned amount from the
club’s to the player’s bank account, does not prove its actual payment. In this
respect, the Chamber deemed that the club duly complied with its burden of
proving the payment of the player’s remuneration, to the amount of 1,092,289
in the currency of Country D. In view of such evidence, the player bears the
burden of proving that the aforementioned amount was, in spite of the bank
confirmation, not credited to his account. In this respect, the DRC deemed that
the player was not able to provide any proof of his allegation and consequently
overturn the evidence provided by the club. Thus, the Chamber was of the
opinion that the club provided consistent evidence that the amount of 1,092,289
in the currency of Country D was paid to the player by bank transfer.
22.
In continuation and still bearing in mind the principle of burden of proof, the
Chamber also noted that on the one hand the club claims having paid the player
the further amount of 21,100 in the currency of Country D in cash. On the other
hand, the Chamber noted that the player acknowledged having received the
total amount of 20,000 in the currency of Country D in cash and that the “receipt
vouchers” provided by the club as evidence amount equally to 20,000 in the
currency of Country D. Consequently, the Chamber concluded that it was
undisputed by the parties and duly evidenced that an additional amount of
20,000 in the currency of Country D was also paid by the club to the player.
23.
Subsequently, the Chamber took note that the club also stated that it was
entitled to deduct an amount of 1,100 in the currency of Country D from the
player’s remuneration for the month of September 2014, in relation to a flight
ticket not used by his wife, which had apparently been purchased by the club for
Player A, Country B / Club C, Country D
15 / 21
the amount of USD 1,100. In this respect, the club submitted a copy of an
undated document, signed by the player and confirming that an amount of 1,100
in the currency of Country D would be deducted from his salary. The Chamber
further noted that the player did not contest the deduction of the amount of
1,100 in the currency of Country D from his salary of September 2014.
Consequently, the DRC concluded that the club satisfactorily bore the burden of
proving that such amount could validly be deducted from the remuneration due
to the player.
24.
As a result of all the foregoing, the members of the Chamber concluded that the
club submitted documentary evidence and therefore could prove that it paid to
the player an amount of 1,092,289 in the currency of Country D by bank transfer
plus 20,000 in the currency of Country D in cash, totalling 1,112,289 in the
currency of Country D, and that it was in fact allowed not to pay him the amount
of 1,100 in the currency of Country D, as per the “agreement” reached by the
parties in this respect. The Chamber also calculated that the amount of 1,112,289
in the currency of Country D corresponded to approximately USD 302,452.
25.
Subsequently, the Chamber focused its attention in the analysis of the fines
imposed by the club on the player due to his alleged unprofessional behaviour
and the missing of training sessions and/or medical examinations, which the club
alleges to be a valid reason not to have paid part of the remuneration due to the
player as per the contract. Although the player and the club do not seem to agree
on the exact amount which was deducted because of the fines, i.e. the club
argues that it deducted USD 122,273 as fines, whereas the player holds that the
amount of USD 100,500 was deducted from his receivables, the Chamber decided
to take into account the amount of USD 100,500, as based on the documentary
evidence on file, it could for sure be established that this amount was deducted
from the player’s receivables.
26.
Regarding the 18 fines, imposed on the player during the validity of the contract
in relation to missed training or missed medical examinations, in the total
amount of USD 57,375 (as per point I./13. and I./20. above), the Chamber noticed
that from the contents of said fines, it appeared that the club unilaterally
imposed these fines on the player, without giving him the chance to appeal said
fines.
27.
Moreover, the members of the Chamber were of the opinion that the club did
not sufficiently substantiate this part of its response to the Chamber’s
satisfaction, as it did not present any conclusive documentary evidence, which
could corroborate that the player indeed missed several trainings or medical
examinations. What is more, the player submitted an extensive overview of
documentary evidence, pictures and explanations as to when and how he
fulfilled his contractual obligations, basically stating that, after sustaining a
severe injury, he was forced to train alone for a period of approximately 10
months. However, regardless of the foregoing remarks, the Chamber emphasised
that 18 fines, amounting to the total amount of USD 57,375, which is almost 15%
of the total value of the contract, for allegedly missing several training sessions
is excessive and disproportionate and cannot be upheld.
Player A, Country B / Club C, Country D
16 / 21
28.
As to the fine imposed on the player for alleged unprofessional behaviour, the
Chamber pointed out that a player cannot be fined for alleged poor performance
or bad behaviour, as this a consequence drawn from a purely unilateral and
subjective evaluation of the club. Thus, the Chamber emphasised that said
circumstances cannot, by any means, be considered as a valid reason to reduce a
player’s salary or fine a player. Hence, the Chamber considered that by fining the
player based on an alleged bad behaviour, the club acted in an abusive manner.
29.
Hence, the Chamber was unanimous in its conclusion that the 18 fines imposed
on the player because of alleged missed trainings and medical examinations, in
the total amount of USD 57,375, as well as the 6 fines imposed by the club
because of alleged bad behaviour, in the total amount of USD 43,125, must be
disregarded.
30.
Furthermore, and in any case, the Chamber wished to point out that the
imposition of a fine, or any other available financial sanction in general, shall not
be used by clubs as a means to offset outstanding financial obligations towards
players.
31.
In conclusion, the Chamber determined that the club could not offset its debt
towards the player by means of the various fines imposed on him and, thus, the
fines in the amount of at least USD 100,500 had to be disregarded.
32.
Finally, the Chamber analysed the club’s argument that based on art. 15 par. 16
of the contract, it could validly deduct 25% of the total contractual value,
because the player never played in official matches for the club. In relation to
this clause, the members of the Chamber first of all noted that the fines imposed
by the club, according to the player, amount to USD 100,500 out of a total
contractual value of USD 425,806. Such amount adds up to almost 25% of the
total contractual value, and therefore, the Chamber deemed it necessary to
analyse the contents of article 15 par. 16 of the contract.
33.
In view of the foregoing, and regardless of whether the fines could have been
imposed on the player in order to reach the 25% of his remuneration as per
article 15 par. 16 of the contract, the Chamber wished to point out that the
decision of lining-up of a player for a match is normally left fully to the discretion
of the club. As such, the player had no influence on the question of whether or
not he would be fielded in a specific number of matches in the relevant season.
34.
In this context, the members of the Chamber highlighted that, in general,
potestative clauses, i.e. clauses that contain obligations the fulfillment of which
is conditional upon an event that one party entirely controls, can in general not
be applied, since they limit the rights of the other contractual party in an
excessive manner and lead to an unjustified disadvantage of the latter towards
the other.
35.
Along those lines, the members of the Chamber agreed that article 15 par. 16 of
the contract cannot be taken into consideration due to its potestative nature.
Player A, Country B / Club C, Country D
17 / 21
Indeed, as previously mentioned, the club totally controlled the fielding of the
player and, therefore, only the club was in a position to influence the fact
whether the player would be entitled to the full value of his contract, or only to
75% of it. Having taken into account the previous considerations, the Chamber
decided that the club could not validly deduct 25% of the total value of the
contract, and as such, was liable to pay the player the full value of it in the
amount of USD 425,806.
36.
In view of all the above, the members of the Chamber concluded the club could
prove at the Chamber’s satisfaction, that it paid the player the total amount of
USD 302,452, whereas the player was entitled to receive the total amount of USD
425,806. Taking into account the fines in the total amount of USD 100,500 had
to be disregarded and that the club could not deduct 25% of the total value of
the contract as per art. 15 par. 16 of the contract, the Chamber concluded that
the player is entitled to receive the amount of USD 123,354 as outstanding
salaries from the club.
37.
With respect to the claim for reimbursement of medical costs, the Chamber
recalled that the player requested that the club be ordered to reimburse the
medical expenses he alleges having incurred in the Country D, in the amount of
USD 2,263.61. The player presented several receipts of medical treatments in
respect to this part of his claim, issued by a hospital in the Country D and in the
amount of 8,350.18 in the currency of Country D.
38.
In this regard, the Chamber noted that the medical expenses seem to have
occurred during the duration of the contract and that these costs occurred in the
Country D, the country where the club is located. In this respect, the Chamber
took into account that the contract does include a clause – clause 7 –, on the basis
of which the club is liable for providing the player necessary medical support.
39.
Bearing in mind the principle of burden of proof, the Chamber noted that the
player pointed out that the club did not provide him with medical treatment, as
a result of which he was forced to pay himself medical expenses in the amount
of 8,350.18 in the currency of Country D. Moreover, the player submitted
evidence that he incurred medical expenses in a hospital in Country D, whereas
the club failed to submit evidence that it indeed provided the player with the
necessary medical assistance, as per article 7 of the contract.
40.
In view of the foregoing, and in accordance with the principle of pacta sunt
servanda, the Chamber decided that the club is liable to reimburse the medical
expenses incurred by the player in the amount of 8,350.18 in the currency of
Country D. In this regard, the Chamber was eager to emphasise that, in
accordance with its well-established jurisprudence in this respect, it cannot grant
any outstanding amounts in USD, as the player had only submitted invoices
specified in currency of Country D, based on which the Chamber concluded that
said expenses were apparently paid in currency of Country D by the player.
Furthermore, the contract did not provide for a specification as to in which
currency eventual medical expenses would be reimbursed.
Player A, Country B / Club C, Country D
18 / 21
41.
Turning its attention to the player’s claim for the reimbursement of
accommodation costs in the amount of USD 27,246.26, in relation to an alleged
failure of the club to provide the player with suitable accommodation, the
Chamber noted that it remained undisputed between the parties that the club
provided the player with a hotel room in the Hotel of Country D, which was paid
for by the club, until 13 October 2014. Furthermore, the members of the
Chamber noted that the amount claimed by the player, effectively corresponds
to an extended stay in the hotel for the period between 29 October 2014 and 4
June 2015.
42.
On the other hand, the Chamber noted that the club, for its part, submitted
documentary evidence that it paid for the hotel room in the Hotel of Country D,
because the apartment it wanted to provide the player with, was not yet ready.
Moreover, the club submitted documents, based on which it can be concluded
that as from the end of September 2014, it provided the player with an
apartment, which was finished by then, and that on 13 October 2014, it sent the
player a final notice, urging him to move to the apartment. For his part, the
player confirms that the club provided him with an apartment, however,
indicating that said apartment did not meet the minimum requirements.
43.
In view of the foregoing, the Chamber noted that the club paid for a hotel until
at least 13 October 2014, and that it further fulfilled its contractual obligation as
per article 6 of the contract to offer the player accommodation. On the other
hand, the members of the Chamber noted that the player did not submit
corroborating documentary evidence, that the apartment did not meet certain
minimum requirements and that he therefore could validly refuse said
apartment. As a result of the foregoing, the Chamber decided to reject the part
of the player’s claim related to the reimbursement of accommodation costs.
44.
With respect to the amount claimed as transportation costs, the members of the
Chamber noted that the player acknowledged to have received a car from the
club, but that at the end of September 2014, he was allegedly forced to return
said car the club had provided him with. Based on the information on file, the
Chamber noted however that the player did not substantiate these allegations
and did not submit any documentary evidence in this connection (cf. art. 12 par.
3 of the Procedural Rules). Moreover, in the absence of any monetary value in
the contract relating to the car, and considering the fact that it remained
uncontested by the parties that the club provided a car to the player, the
Chamber had to reject the player’s claim amounting to USD 9,821.26, relating to
transportation costs.
45.
Moreover, the Chamber focused its attention on the amount of USD 22,691.32,
claimed by the player as costs related to the club’s failure to provide him with
training, education and development of technical and physical skills, as per
article 7 of the contract. In this regard, the Chamber deemed it appropriate to
point out that this request, had no legal or regulatory basis. In addition, based
on the information on file, the Chamber noted that the player did not submit a
specification of the amount of USD 22,691.32, and no monetary value was
included in the contract relating to receiving training and education from the
Player A, Country B / Club C, Country D
19 / 21
club. As the player also failed to submit any evidence that could lead to a
specification of the costs allegedly incurred, the Chamber decided to reject this
part of the claim.
46.
Subsequently, the DRC analysed the request of the player to receive the amount
of USD 22,691.32 as compensation and interest for ‘non-pecuniary damage’ and
the amount of USD 22,691.32 as compensation and interest for ‘career damage’.
In this regard, the Chamber deemed it appropriate to point out that also this
request of the player had no legal or regulatory basis. Moreover, the player did
not submit any corroborating evidence that demonstrated or quantified any
damage allegedly suffered. As a result, the Chamber decided to reject this part
of the player’s claim.
47.
In addition, as regards the claimed amount of USD 8,000 as ‘legal costs’, the
Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding jurisprudence, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the players request relating to legal
expenses.
48.
As a result of all the foregoing, the Chamber established that the club, in the
2014/2015 season, had failed to pay to the player the amount of USD 123,354, in
relation to salary payments under the contract concluded between the parties
on 21 July 2014, as well as the amount of 8,350.18 in the currency of Country D,
in relation to the reimbursement of medical expenses.
49.
Consequently, and in accordance with the general legal principle of pacta sunt
servanda, the club must fulfil its obligations as per the contract concluded with
the player and, consequently, is to be held liable to pay the outstanding amounts
of USD 123,354 and 8,350.18 in the currency of Country D to the player.
50.
In continuation, taking into account the player’s request for interest and the
constant practice of the Chamber, the members of the Chamber decided that the
Claimant is entitled to receive interest at the rate of 5% p.a. on the amount of
USD 123,354 as of 30 June 2015 until the date of effective payment, as well as
5% p.a. on the amount of 8,350.18 in the currency of Country D as of 4 January
2016 until the date of effective payment.
51.
Finally, the Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the player is rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
Player A, Country B / Club C, Country D
20 / 21
3.
The Respondent, Club C (formerly known as Club C(Club C)), has to pay to the
Claimant, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of USD 123,354, plus 5% interest p.a.
as from 30 June 2015 until the date of effective payment.
4.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, the reimbursement of medical expenses in the
amount of 8,350.18 in the currency of Country D, plus 5% interest p.a. as from 4
January 2016 until the date of effective payment.
5.
In the event that the aforementioned sums in accordance with the abovementioned numbers 3. and 4. plus interest are 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
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*******
Note relating to the m otiv ated decis ion (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
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
Player A, Country B / Club C, Country D
21 / 21
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
22 / 21