Labour Disputes
Texto da decisão
REF FPSD-7258
Decision of the
Dispute Resolution Chamber
passed on 6 February 2023
regarding an employment-related dispute concerning
the player Furdjel Robby Narsingh
BY:
Alejandro ATILIO TARABORELLI (Argentina)
CLAIMANT:
Furdjel Robby Narsingh, the Netherlands
Represented by Yakub Kizilkaya
RESPONDENT:
FC Ararat Armenia, Armenia
Represented by Ashot Kyureghyan
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I. Facts of the case
1.
In 2019, the Dutch player, Furdjel Robby Narsingh (hereinafter: the Claimant or the player) and
the Armenian club, FC Ararat Armenia (hereinafter: the Respondent or the club) entered into
an employment relationship. The parties signed 4 contracts to govern such relationship:
a. Protocol
i. Dated: 23 June 2019;
ii. Under the Protocol, the parties accepted that both the employment contract
and the IR Agreement (infra) were an integral part of the employment
relationship with the parties, and that in case the club failed to pay the
remuneration to the player, he could terminate the employment
relationship in accordance with the Regulations on the Status and Transfer
of Players (RSTP) and resort to the FIFA Dispute Resolution Chamber (DRC);
iii. The Protocol reads that the remuneration of the player regarding the IR
Agreement is AMD 3,772,487.
b. Employment contract
i. Dated: 24 June 2019;
ii. Term: 24 June 2019 to 30 June 2021;
iii. Salary: AMD 240,000 net, payable by the 15th day of the following month.
c. Contract for Use of personal non-property rights (hereinafter: IR agreement)
i. Dated: 24 June 2019;
ii. Term: as long as the employment contract was valid;
iii. Remuneration: AMD 3,880,000 monthly net, payable by the 15th day of the
following month.
d. Letter of assurance
i. Undated;
ii. Unilaterally signed by the club;
iii. Conditions: “Please be advised that the payments are calculated based on the
exchange rate of Central Bank of RA. In case if the exchange rate at the time of
the payment would differ from the current exchange rate more than 5 percent,
the recalculation of the amount set by the contract would be undertaken. The
exchange rate (USD)/AMD) as of 22/06/19 is 447.”
2.
On 9 September 2021, the player’s agent wrote to the club as follows:
“I hope you are doing fine. So, we spoke about the salary of Furdjel in the last months of his first
contract with Ararat- Armenia. Because the exchange rate went up Furdjel received less money
in dollars then we agreed upon (see assurance about exchange rates below in mail from Eduard
and also in attachment). You also spoke with him about this personally this summer.
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At the time of signing the exchange rate was 477 and we agreed for a margin of 5%. So when
the exchange rate went above 500.85 the salary payment in AMD would be recalculated. I believe
that in some of his last months in season 2019/2020 the exchange rate was above 500.85. Can
you let us know when the club is planning to make these additional AMD payments? I can send
you an overview of the total amount that he received less, I believe its around €2-3000 dollars in
total.”
3.
On the same date, the club wrote back as follows:
“Hope you are fine. The first payment equivalent to 1.000$ was already done on 04.09.2021.
Upon availability the rest of the money will also be paid in the near future. Hope on your
understanding regarding the situation.”
II. Proceedings before FIFA
4.
On 12 August 2022, the player filed a claim against the club before FIFA (hereinafter: the First
Claim), regarding outstanding remuneration in connection with an ulterior employment
relationship between the parties (2021).
5.
On 29 August 2022, the FIFA general secretariat invited the Respondent to provide its position
as to the First Claim until 13 September 2022.
6.
On 30 August 2022, the player filed the claim at hand against the club (hereinafter: the Second
Claim).
7.
On 8 September 2022, the FIFA general secretariat invited the Respondent to provide its
position as to the Second Claim until 28 September 2022.
8.
On 13 September 2022, the Respondent, while citing the reference number of both the Frist
Claim and the Second Claim, filed a petition requesting that the First Claim and the Second
Claim be merged in line with art. 21 of the Procedural Rules Governing the Football Tribunal,
together with a statement of defense.
9.
On the same date, the FIFA general secretariat wrote to the parties and clarified that art. 21
of the Procedural Rules Governing the Football Tribunal did not apply to the matter and
invited the Respondent to confirm if its statement of defense applied to both proceedings,
which it subsequently did.
10. A brief summary of the position of the parties is detailed in continuation. For the sake of
good order and because the parties multiple times referred to both the First and the
Second Claim, the Single Judge of the Dispute Resolution Chamber (hereinafter: Single
Judge) underlined that the below refers only to what is relevant to the Second Claim.
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a. Position of the Claimant
11. The Claimant lodged a claim against the Respondent in front of FIFA and requested payment
of AMD 899,351 as outstanding remuneration, together with 5% p.a. interest as from the
respective due dates.
12. In his claim, the player explained that in line with the assurance letter, the club was supposed
to make payment taking into consideration the exchange rates between the USD and AMD.
He explained as follows:
“At the time of signing the contracts between the parties in 2019, the exchange rate was 477 and
the parties agreed for a margin of 5% - which is 500.85. Therefore, when the exchange rate went
above 500.85 the salary payment in AMD would be recalculated. In the last 7 months of the
player’s contracts, the currency rate was above 500.85. Therefore, this is the calculation for the
additional payments:
His normal salary would be = 4.120.000 AMD / 477 = $8.637, 3165618449 per month.
As the exchange rate his AMD salary payments should have been = $8.637, 3165618449 x 500,85
= 4.326.000 AMD per month.
The difference in AMD that the player received less was thus = 4.326.000 AMD - 4.120.000 AMD
= 206.000 AMD per month.
As a result, the player still needs to get an additional payment of 206.000 AMD per month x 7
months = 1.442.000 AMD in total
On 03.09.2021 Ararat made an additional payment of 493.640 AMD (1000 USD). This payment
has been confirmed by the club (Annex-5).
On 03.12.2021 Ararat made a payment of 48.999 AMD (100 USD). On the same that the player
was also paid 200 USD for the cup game match.
In total right now the player still needs to receive 1.442.000 - 493.640 - 48.999 = 899.351 AMD.
The club confirmed that they had already started compensation for this currency difference.
However, they have not made any payment until the date of this claim.”
13. No evidence of the exchange rates alleged by the player was filed.
b. Position of the Respondent
14. In its reply, the club recalled the lengthy relationship of the parties since 2019 and argued first
of all that based on the multiple contracts signed between them, Armenian law should apply.
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15. Secondly, it stated that the Letter of Assurance should be null and void in accordance with
Armenian Currency Law. On a subsidiary basis, the club referred to the Swiss Code of
Obligations (SCO) and argued that because the said letter is unilaterally issued, it cannot be
deemed as a contract and therefore is devoid of any legal value.
16. The club went on to present several receipts attaining to the parties’ lengthy relationship and
argued that it had made several payments to the player, and those regarding the 2019-2021
contractual relationship had all been paid.
17. The club asked the claim to be dismissed.
c. Rejoinder of the player
18. The player reiterated that the Letter of Assurance is valid and therefore the amounts should
be paid as requested.
19. In this opportunity, no evidence of the exchange rates alleged by the player was filed.
d. Final comments of the Respondent
20. The club emphasized as follows:
“The other statement of the Claimant is to that the letter of assurance is valid as it does not
impose any obligations on the Player. Such statement is completely false. The obligation of the
Player is directly related to the compliance with the corresponding employment relations with
the Club in order to receive salary and the letter of assurance should be evaluated in conjunction
with the rest of the documents related to the employment. Such interpretation of article 13 of
the SCO is unacceptable as by such application of the law, the players throughout of the world
must sign only the page of the contracts, where they have only direct obligation towards the
club, like performing, training, etc. Such narrow interpretation cannot be accepted as it clearly
jeopardizes the contractual relations and contract law entirely within the industry. The wide
interpretation of the afore-referred article should be applied in the light of conjunction of all the
documents regulating the employment relations. Moreover, the aforementioned letter of
assurance is to be accepted as an OFFER as stated in the initial response. Once again, we refer
to the argumentation of its invalidity, stated in the initial response of the Respondent.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was presented to FIFA on 30
August 2022 and submitted for decision on 6 February 2023. Taking into account the
wording of art. 34 of the October 2022 edition of the Procedural Rules Governing the
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Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
22. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of
the RSTP (October 2022 edition), the DRC is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Dutch player and an Armenian club.
23. Subsequently, the Single 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 RSTP (October 2022 edition), and considering that the present claim was
lodged on 30 August 2022, the July 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
24. In this respect, the Single Judge did notice the argumentation of the club with respect to
the applicable law, and that per Armenian Law (or Swiss Law) there were no amounts due
to the player in that the Letter of Assurance was devoid of validity.
25. To this end, the Single Judge recalled that when deciding a dispute before the DRC, FIFA’s
regulations prevail over any national law chosen by the parties. In this regard, the main
objective of the FIFA regulations is to create a standard set of rules to which all the actors
within the football community are subject to and can rely on.
26. In the Single Judge’s view, this objective would not be achievable if the DRC (or the Football
Tribunal) would have to apply the national law of a specific party on every dispute brought
to it. It is in the interest of football that the amounts payable under a contract are based
on uniform criteria rather than on provisions of national law that may vary considerable
from country to country. Therefore, the Single Judge found that it is not appropriate to
apply the principles of a particular national law to the issue at stake but rather the
Regulations, general principles of law and, where existing, the Chamber’s well-established
jurisprudence.
27. For the sake of completeness, the Single Judge underlined, for example, the cases of
dismissal notice periods in favour of the employer (i.e., clubs) of only a couple of days
included in some mandatory national (labour) laws, cases in which, in general and
according to the extensive and firm case law of the Chamber, the time limits set out in
the Regulations, and not the former, are considered in the disputes before FIFA.
28. Consequently, the Single Judge confirmed that that FIFA regulations and jurisprudence
and not Armenian Law (or Swiss Law) applies as to the substance of the dispute.
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b. Burden of proof
29. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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. Likewise, he stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
c. Merits of the dispute
30. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single 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.
i. Main legal discussion and considerations
31. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for
outstanding remuneration.
32. According to the player, the club failed to remit part of his remuneration, which the club
contests on the basis of the applicable law in that the Letter of Assurance would not be
valid. As the argument as to the applicable law has been dismissed, the Single Judge
deemed that the position of the Respondent could not be followed.
33. Additionally, the Single Judge highlighted that conversely to the position of the
Respondent, the Letter of Assurance amounts to a debt confession/promise from the club
to the player, and therefore the lack of signature is irrelevant, for its content is of a
unilateral nature by itself. Consequently, the Single Judge confirmed that the Letter of
Assurance is entirely valid.
34. Having so found, the Single Judge moved to the issue of the club’s failure to pay the
player’s remuneration and outlined that in the case at hand the Respondent bore the
burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties.
35. Nonetheless, the Single Judge noted that the evidence provided by the Respondent
(namely the payment receipts) are not entirely translated and do not properly identify the
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beneficiary of such payments. Consequently, he confirmed that the club’s position should
be disregarded insofar in line with art. 13 par. 5 of the Procedural Rules, as well as art. 13
par. 1 and 3 of the same diploma, which respectively state:
“1. Any submission to FIFA shall be made in English, Spanish, or French. Any submission to FIFA
not made in one of the aforementioned languages will be disregarded.
(…)
3. Any type of evidence may be produced. A chamber has ultimate discretion as to the weight it
gives to evidence. All the evidence upon which a party intends to rely must be filed in the original
language and, if applicable, translated into English, Spanish or French.”
36. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge was of the opinion that player would in principle be entitled to
the amounts claimed. However, with reference to the conditions under the Letter of
Assurance, the payments would be due in case of fluctuation of the exchange rate
between the AMD and the USD more than the figure established therein, to balance out
the effects of the same fluctuation.
37. The player argued that this was the case. However, in spite of this, he failed not only but
twice to present the corroborating evidence to demonstrate the same fluctuation.
38. Therefore, because no evidence of the exchange rate has been filed, the Single Judge
found that the player has failed to meet his burden of proof, insofar as it is impossible to
establish that the amounts are correctly calculated. Consequently, the claim of the player
was entirely rejected.
d. Costs
39. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, he decided that no procedural costs were to be
imposed on the parties.
40. Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
41. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Furdjel Robby Narsingh, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, 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 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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