Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 18 February 2016, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mario Gallavotti (Italy), member Johan van Gaalen (South Africa), member Mohamed Al-Saikhan (Saudi Arabia), member Eirik Monsen (Norway), member on the claim presented by the player, D, from country A, as Claimant against the club, Club X, from country X, as Respondent regarding an employment-related contractual dispute arisen between the parties.

2 I. Facts of the case 1. On 4 February 2012, the player D, from country A (hereinafter: the Claimant), and the Club X, from country X (hereinafter: the Respondent), signed an employment contract and two additional Schedules valid until 30 June According to the contract the player s employment with the club began on 18 January In accordance with article of Schedule 2 to the employment contract, the Claimant was inter alia entitled to receive annual remuneration as a basic wage of 2,000,000 payable in monthly instalments from 4 February 2012 until 30 June Furthermore, the contract provides that 5,000 shall be paid for every time the Claimant is named in the starting line-up and 2,500 each time he is named as a substitute and enters the field of play. 3. Article of Schedule 2 of the employment contract provides for the payment of an Additional Loyalty Bonus of 786,046 payable as follows: a. 186,046 on 26 February 2012; b. 200,000 on 26 September 2012; c. 200,000 on 26 September 2013; d. 200,000 on 26 September On 7 January 2013, the Claimant, the Respondent and Club Y, from country Y (hereinafter: Club Y) concluded a loan agreement valid until 30 June On 5 January 2013, the Claimant signed an employment contract with Club Y valid from 4 January 2013 until 30 June On 7 January 2013, the Claimant and the Respondent signed an amendment to the contract, the terms of which provide that article will read as follows with regard to the basic wage 2,000,000 (Two million) per annum payable by monthly instalments in arrear from 4th February 2012 to 30th June 2015, save that for the period commencing 4 January 2013 and ending 30th June 2013, the Player s Basic Wage shall be 720,000 in total. 6. The amendment also provides for the insertion of a new paragraph (named: Additional Loyalty Bonus ) the [Respondent] will pay to the player a loyalty bonus of 140,000 (one hundred and forty thousand) payable on 26th July This is a once only payment and will be paid on the due date subject to the [Claimant] still being in the employment of the club on such due date. 7. On 1 July 2013, the Claimant was loaned to the Club Z, from country Y (hereinafter: Club Z) from 1 July 2013 until 30 June 2014; no loan compensation fee was due. The loan agreement provides in its clause 6 that the [Claimant] shall be paid by Club Z a remuneration package agreed between the [Claimant] and Club Z for the duration of Player D, from country A / Club X, from country X 2/10

3 the loan period. For avoidance of doubt Club Z shall bear the cost of any bonus payments it may make to the [Claimant]. Club Z shall only be liable for payments falling due under the terms of the remuneration package Club Z has agreed with the [Claimant] and shall not be liable for any agreement (if any) between [the Respondent] and the [Claimant]. 8. On 11 July 2013, the Respondent informed the Claimant that as a result of his loan to Club Z (cf. point I.7 above) it will bring forward the payment date of the additional loyalty bonus referred to in the contract amendment of 140,000, originally due on 26 July 2013 (cf. point I.6 above), to 1 July 2013 and you will receive the payment in your July salary. 9. On 11 September 2014, the Claimant formally put the Respondent in default via fax and registered post of the outstanding bonus plus pertinent interest at a rate of 5% per annum and requesting that the payment be made before 22 September In this default notice, the Claimant alleges he sent a previous default notice on 27 November On 4 March 2015, the Claimant lodged a claim before FIFA against the Respondent asking that he be paid the Additional Loyalty Bonus payable on 26 September 2013 in the amount of 200,000 in accordance with article of the employment contract (cf. point I.3.c. above) plus 5% interest p.a. as of that 26 September 2013, and that the contract and the amendment be considered terminated due to the Respondent s breach. 11. The Claimant asserts that the Additional Loyalty Bonus, as per the amendment (cf. point I.6 above), was to be paid in addition to the other loyalty bonuses, notably the one due on 26 September 2013, as per the employment contract (cf. point I.3.c above) as a result of his reduced salary between 4 January 2013 and 30 June 2013 (cf. point I.5 above) whilst on loan with Club Y. The Claimant claims he would not have accepted the reduced salary had this not been the case. He further notes that the wording used in the amendment clearly goes to show that the Respondent was intent on adding clause (cf. point I.6 above) to the contract and not amending clause (cf. point I.3 above) otherwise it would have used different wording, as it had done in amending clause (cf. point I.5 above). 12. In this regard, the Claimant claims that the Respondent had agreed that Club Z would pay the Claimant s basic wage, and that the Respondent would allegedly take charge of the Additional Loyalty Bonuses for the duration of the loan in light of article inserted in the contract. 13. The Claimant claims that Club Z offered to pay the basic salary of the Claimant in the total amount of EUR 1,800,000 (approx.1,537,740) resulting in an approximate loss of 500,000 for the Claimant. Adding the Additional Loyalty Bonus of 200,000 of the Player D, from country A / Club X, from country X 3/10

4 contract, the Claimant would still be losing 300,000 compared to his base wage with Respondent and therefore negotiated in view of receiving the Additional Bonus of the contract of 140,000 in addition. Under these conditions, the Claimant would only lose 160,000 and with separate participation bonuses, he would undoubtedly manage to further mitigate his losses. 14. The Claimant asserts that the letter of 11 July 2013 (cf. point I.8 above) makes a clear distinction between the Additional Loyalty Bonus of 200,000 of the employment contract due on 26 September 2013 and the Additional Bonus of 140,000 of the amendment. 15. In continuation, the Claimant notes that the season prior to the litigious one, the Claimant was loaned to another Club Y, from country Y, during which time the Respondent and Club Y, from country Y had come to an agreement whereby the Respondent would pay part of the salary of the Claimant. The Claimant asserts that he understood that the loan to Club Z would be made under similar circumstances, in this case adding the Additional Loyalty Bonus of the amendment to the Additional Loyalty Bonus of the contract. He claims he agreed to the loan to Club Z on the understanding that the Respondent would be acting in good faith and make the necessary arrangements for the Claimant to receive nearly all of the salary owed to him under the terms of his contract with the Respondent. 16. The Claimant asserts that the loan agreement was negotiated between Club Z and the Respondent without the intervention of the Claimant, thereby making any uncertainty or lack of clarity the fault of the Respondent, in particular mentioning the legal principle of in dubio contra stipulatorem. 17. Without being able to provide the transfer agreement between the Respondent and Club Z, the Claimant asserts that he is certain that the Respondent, even when the Claimant was on loan, would always have to respect all contractual obligations and pay all Additional Loyalty Bonuses as prescribed in the contract and that said contract is not suspended, although the Respondent alleges it was in an dated 14 May 2014 sent to a representative of the Premier League (cf. point I.14 above). 18. In its reply, the Respondent asserts that it was happy to loan the Claimant to Club Y if it didn t cost the Respondent anything, yet there was a shortfall in the Claimant s salary of 280,000. In order to accommodate the loan of the Claimant, the Respondent and Club Y agreed to halve such a shortfall and came to an agreement with each party (cf. points I.5 and I.6 above). There was no such agreement, however, in relation to the loan of the Claimant to Club Z. 19. The Respondent further states that it was when the Claimant knew that his contract would be suspended from 1 July 2013, that his agent contacted the Respondent by e- mail on 10 July 2013 enquiring as to how the Claimant would receive the payment of Player D, from country A / Club X, from country X 4/10

5 140,000 due on 26 July 2013 as per the amendment to the contract. The Respondent states that this was when a written agreement was reached (cf. point I.8 above) in order to bring forward the payment to the 11st July 2013 under the following unwritten conditions: The Respondent and the Claimant understood that their employment contract was suspended; That therefore the Claimant was not entitled to payments from the Respondent during the period of the loan; and of course not entitled to the Additional Loyalty Bonus provided for in the contract; That there could have been or should have been an express deal that it would be payable, which is not the case; And that there was a written agreement modifying the employment contract so as to permit the Respondent to pay the Additional Bonus of 140,000 before the employment contract was suspended (cf. points I.5 and I.6 above). 20. The Respondent notes that the claim is based on the Additional Loyalty Bonus due to be paid on 26 September 2013 as per the employment contract (cf. point I.3.c. above), which was owed under the terms of the employment contract which was suspended for the duration of the loan. As the Claimant did not return from loan and made the temporary transfer with Club Z permanent, effective on 1 July 2014, the Respondent claims that the employment contract with him was then (at that point) terminated. 21. Furthermore, the Respondent claims that the burden of proof lies with the Claimant to determine that, notwithstanding the suspension of the contract, the Respondent had agreed to pay the Additional Loyalty Bonus due under clause of Schedule 2 of the contract. 22. The Respondent finally contests that it was the party that sought to loan the Claimant, and any implication that a club representative had agreed anything with the Claimant. 23. In his replica, the Claimant states that it is clear that Club Z was willing to pay his salaries but did not accept to be held liable for the payment of bonuses signed between the Respondent and the Claimant, which is why the parties added to the loan agreement with Club Z an article 6 (cf. point I.7 above). The Claimant claims that this proves that all other agreements remained valid, notably with regard to the payment of 26 September 2013 provided for in art of Schedule 2 of the contract and that this clause eradicates any doubt regarding the alleged fact that the Respondent should pay the bonuses and not Club Z; adding that it is also very clear from the wording of the employment contract and its amendment. 24. The Claimant reiterates that the attitude of the Respondent indicated that he would be loaned to Club Z under similar conditions to his loan to Club Y and that the burden of Player D, from country A / Club X, from country X 5/10

6 proof lies with the Respondent to determine that the parties had agreed to neglect the obligation of the payment of the Additional Loyalty Bonus of 26 September 2013 as per article of Schedule 2 of the employment contract. 25. The Claimant also claims that if the Respondent hadn t intended on paying the 200,000 bonus, then it would have been made explicitly clear. He states that the obligation to pay the Additional Loyalty Bonus is established in the contract, the amendment and the loan agreement with Club Z, and that nowhere is it explicitly cancelled or nullified, adding that the Respondent hasn t proved that it was. 26. The Claimant alleges that the Respondent has not managed to prove that the terms of the original contract signed between the Respondent and the Claimant were suspended, and claims that, quite to the contrary, article 6 of the loan agreement (cf. point I.7 above) shows that the Respondent was conscious that it still had to pay the Additional Loyalty Bonus of 26 September 2013 as per art of Schedule 2 of the contract. 27. In its final comments, the Respondent maintains that the agreement was that Club Z would be responsible for the Claimant s salaries and benefits for the duration of the loan, and never sought to argue that it was up to Club Z to pay the Additional Loyalty Bonus. 28. The Respondent reiterates that all obligations under the employment contract, in particular that of having to pay the Additional Loyalty Bonus, were suspended and therefore extinguished as a consequence of the Claimant s loan and subsequent permanent transfer and that no such obligation was transferred to Club Z under the loan agreement or otherwise. 29. The Respondent disputes that article 6 of the loan agreement (cf. point I.7 above) was only inserted in the loan agreement because Club Z allegedly knew of the existence of a parallel agreement between the Claimant and the Respondent. This does not constitute conclusive proof that an agreement was made for the payment of the Additional Loyalty Bonus of article of the contract, is mere conjecture, and the Claimant does not submit any evidence in this regard. The Respondent adds that the inclusion of if any demonstrates that Club Z only sought extra protection against unforeseen liabilities, notably, because as far as the Respondent was aware, Club Z were not made aware of any other obligations apart from the salary. The inclusion of this term does not cause any prejudice to it, given that the employment contract would be suspended as a consequence of the loan agreement. 30. The Respondent reasserts its comments from its original reply, adding that no evidence proving the continued existence of the obligations was presented. The Respondent adds that the payment of the Additional Loyalty Bonus of 140,000 as per art was not added to safeguard its rights in the [Claimant] in particular because the loan Player D, from country A / Club X, from country X 6/10

7 agreement contained a clause providing for an option for the automatic permanent transfer of the player, the club therefore had nothing to gain from making such a payment. 31. The Respondent concludes by stating that the employment contract was suspended in light of the loan agreement and that no evidence was presented to prove that the employment contract was still in force. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber ) 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 4 March Consequently, the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2014; 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions 2014 and 2015) 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 player from country A and a club from country X. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA s letter dated 12 February 2016 by means of which the parties were informed of the composition of the Chamber, the Deputy Chairman Thomas Grimm refrained from participating in the deliberations in the case at hand, as the Deputy Chairman Thomas Grimm has the same nationality as the Claimant. 4. 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 Players (edition 2015), and considering that the present claim was lodged on 4 March 2015, the 2014 edition of said regulations (hereinafter: the Regulations ) is applicable to the matter at hand as to the substance. 5. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter and started by acknowledging the aforementioned facts and documentation contained in the file as well as carefully considering the arguments submitted by the parties involved in the present dispute. Player D, from country A / Club X, from country X 7/10

8 6. In this regard, the Chamber took due note that the Claimant and the Respondent had signed an employment contract valid between February 2012 and June 2015, which inter alia provided for an annual payment of 200,000 due on 26 September 2013 (cf. point I.3.c above). The members of the Chamber also took note that on 7 January 2013 (cf. point I.4 above), the Claimant was loaned to Club Y until 30 June 2013 and that on 1 July 2013 the Claimant was loaned to Club Z until 30 June 2014 (cf. point I.7 above). 7. In addition, the Chamber noted that on the same day, i.e. 7 January 2013, the Respondent and the Claimant had signed an amendment to the employment contract with the Respondent and agreed to modify art , related to the basic wage of the Claimant (cf. point I.5 above). Furthermore, by means of the amendment, the Claimant and the Respondent had agreed to include an additional clause in their employment contract which states the [Respondent] will pay to the player a loyalty bonus of 140,000 (one hundred and forty thousand) payable on 26 th July This is a once only payment and will be paid on the due date subject to the player still being in employment of the club on such due date (cf. point I.6 above). 8. The DRC took note that on 11 July 2013, the Respondent informed the Claimant that as a result of the Claimant s loan to Club Z, the payment date of the payment due on 26 th July 2013 would be brought forward to 1 July 2013 (cf. point I.8 above). 9. The members of the Chamber noted that the Claimant considered that he was owed 200,000 due on 26 September 2013 as per the employment contract, in addition to the payment of 140,000 which was paid on 11 July In continuation, the Chamber took note that the Respondent rejected the claims of the Claimant on the basis that as the Claimant was temporarily transferred to another club, the effects of the contract linking the Claimant to the Respondent were suspended for the duration of said temporary transfer. In addition, the members of the Chamber took due note that the Respondent, in bringing forward the payment due on 26 July 2013 to 11 July 2013, had anticipated that had this not been done the Claimant would not have received said payment as it would no longer have been contractually provided for in light of the suspension of the employment contract linking the Respondent to the Claimant. 11. In view of the diverging arguments of the parties, the Chamber deemed that the main issue of the present dispute consisted in establishing whether the Claimant was indeed entitled to receive the payment of 200,000 on 26 September 2013 (cf. point I.3.c above), in spite of the fact that this payment fell due during the period in which the Claimant was on loan with Club Z, from 1 July 2013 until 30 June The DRC sought to highlight that the rights and obligations deriving from an employment contract binding a player to his club of origin are as a general rule suspended when a professional is transferred on a temporary basis to another club, unless explicitly and expressly provided for. Player D, from country A / Club X, from country X 8/10

9 13. Furthermore, 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 from an alleged fact shall carry the respective burden of proof. In this context, the Chamber pointed out that in the present case the burden of proof lies on the Claimant, which needs to provide the DRC with substantial evidence of the legal document which allegedly entitles him to receive from the Respondent the payment of the 200,000 scheduled for 26 September 2013, while being on loan with Club Z. 14. In this respect, the Chamber noted that the Claimant claims: a. that he had understood, in part as a result of the alleged attitude of the Respondent, that the loan agreement made with Club Z (cf. point I.7 above) would be signed under circumstances similar to the loan previously signed with Club Y (cf. point I. 4 above). In this regard, the members of the Chamber agreed from the documentation presented that there was no indication that there was any connection in the negotiation of each of the successive loans. This notwithstanding, the Chamber was eager to emphasise that a party signing a document bearing legal consequences without knowledge of its precise content, as a general rule, does so with personal responsibility. In this respect and in relation to the argument of the Claimant that he had believed he was signing the loan to Club Z under the same conditions as the loan agreement with Club Y, the DRC recalled that according to the legal principle of burden of proof (cf. point II.13 above) any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Consequently, the members of the Chamber concluded that the Claimant was unable to substantiate or demonstrate his allegation. b. that any obligation deriving from the employment contract which was not to be performed would have to explicitly be provided for by the Respondent, and dully informed to the Claimant. A contrario, the Chamber reiterated that the rights and obligations deriving from an employment contract binding a player to his club of origin are as a general rule suspended when a professional is transferred on a temporary basis to another club, unless explicitly and expressly provided for. The Chamber concluded that the obligation to perform the litigious payment was not explicitly provided for in the same manner as had been negotiated for the Claimant s loan to Club Y (cf. points I.5 and I.6 above). 15. The members of the Chamber acknowledged that no other line of argumentation or substantiating evidence was presented providing for the payment of any contractual instalments during the period the Claimant was to be on loan with Club Z. 16. In this regard, the members of the Chamber noted that the Claimant was unable to demonstrate that he and the Respondent had explicitly agreed that the payment due on 26 September 2013 would remain payable despite the Claimant being temporarily transferred to another club. 17. In conclusion, in light of the absence of substantial evidence pertaining to the alleged agreement that the payment was due on 26 September 2013, and that consequently Player D, from country A / Club X, from country X 9/10

10 there is no contractual basis for the claims of the Claimant, the Chamber decided to reject the claim of the Claimant in its entirety. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Player D, is rejected. ***** Note relating to the motivated decision (legal remedy): According to art. 67 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Marco Villiger Deputy Secretary General Encl. CAS directives Player D, from country A / Club X, from country X 10/10