Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 January 2013,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player A, from country D
as Claimant
against the club,
Club K, from country T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 18 July 2007, Player A, from country D (hereinafter: the Claimant), and the
Club K, from country T (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from 18 August 2007 until 30 June
2009.
2.
According to the contract, the Claimant was to be remunerated as follows:
Season 2007-2008
- EUR 80,000 payable by 10 August 2007;
- EUR 90,000 paid in 10 monthly instalments of each EUR 9,000 between 30
August 2007 and 31 May 2008;
- EUR 1,500 as match appearance fee per League and Cup matches (100% if
the player plays in the first eleven, 75% if he comes on as a substitute and
50% if he is in the first 18 but does not participate).
Season 2008-2009
- EUR 80,000 payable by 10 August 2008;
- EUR 100,000 paid in 10 monthly instalments of each EUR 10,000 between 30
August 2008 and 30 May 2009;
- EUR 1,500 as match appearance fee per League and Cup matches (100% if
the player plays in the first eleven, 75% if he comes on as a substitute and
50% if he is in the first 18 but does not participate).
3. Furthermore, the Claimant and his family were entitled to 3 round tickets
from country D to country T per year and the Respondent would pay “all
expenses related to the accommodation ie. rent, electricity, internet
connection etc.” .
4. On 26 April 2010, the Claimant lodged a claim against the Respondent in
front of FIFA maintaining that the latter had not fulfilled its obligations
under the contract. According to the Claimant, he was paid the following
salaries for the season 2007/2008:
Player A, from country D / Club K, from country T
2/12
5.
Payments
due in
EUR
80,000
9,000
Dates
payments
due
10/08/2007
31/08/2007
Payments
made (EUR)
9,000
9,000
9,000
9,000
9,000
9,000
9,000
9,000
9,000
170,000
30/09/2007
31/10/2007
30/11/2007
31/12/2007
31/01/2008
29/02/2008
31/03/2008
30/04/2008
31/05/2008
8,715
8,723.66
7,712.31
8,660.15
7,225.44
8,657.44
8,085.33
8,676.69
8,679.52
165,135.54
80,000
9,000 (cash)
Dates
payments
made
14/08/2007
Beginning of
September
2007
08/10/2007
9/11/2007
18/12/2007
23/01/2008
04/03/2008
25/03/2008
30/05/2008
30/05/2008
30/06/2008
Deductions
from salary
(EUR)
285
276.34
287.69
339.85
1,774.56
342.56
914.67
323.31
320.48
4,864.46
Hence, the Claimant maintains that for the 2007/2008 season he was paid the
total amount of EUR 165,135.54 instead of EUR 170,000, thereby indicating that:
- EUR 2,689.23 was legitimately deducted for additional flight tickets, and
- EUR 2,175.23 was illegitimately deducted relating to the rent.
6.
In this respect, the Claimant outlined that the Respondent did not agree with
the apartment he had chosen and provided him with another apartment chosen
by the Respondent. The Claimant argued this was a breach of the contract and
added that the Respondent refused to pay more than USD 2,000 for the
apartment and made illegitimate deductions of the deficit, totalling EUR
2,175.23.
7.
Furthermore, according to the Claimant, he was paid the following salaries for
the season 2008/2009:
Player A, from country D / Club K, from country T
3/12
Payments
due in
EUR
80,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
180,000
8.
Payments made
(EUR)
Dates payments
made
80,000
8,605
10,000
10,000
7.864,90
10,000
8,001
15,000
5,000
No payment
No payment
154.470,90
08/08/2008
19/09/2008
22/10/2008
24/11/2008
17/12/2008
21/01/2009
17/03/2009
11/05/2009
21/05/2009
-
Hence, for the 2008/2009 season, the Claimant asserts to have been paid a total
of EUR 154,479.90 instead of EUR 180,000, thereby indicating that:
-
9.
Dates
payments
due
10/08/2008
31/08/2008
30/09/2008
31/10/2008
30/11/2008
31/12/2008
31/01/2009
28/02/2009
31/03/2009
30/04/2009
31/05/2009
The amount of EUR 1,395 was legitimately deducted for flight tickets;
The amount of EUR 4,134.10 (EUR 2,135.10 + EUR 1,999) was
illegitimately deducted relating to flight expenses;
The amount of EUR 20,000 for the salaries of April and March 2009
was not paid at all.
Moreover, the Claimant stated that he was involved in 31 matches in the
2008/2009 season, 26 as a starter, 2 as a participating sub and 3 as a nonparticipating sub. However, instead of receiving the amount of EUR 43,500, the
Claimant only received EUR 41.246,70, leaving a balance of EUR 2,253.30.
10. Equally, the Claimant indicated that he was promised a promotion bonus of
currency of country T 40,000 in the event that the Respondent would be
promoted to the country T First division, which it did at the end of the
2008/2009 season. In this respect, the Claimant enclosed a witness statement of
himself to prove that such promotion bonus had been agreed upon.
11. Therefore, the Claimant initially claimed the amount of EUR 48,002.63 from the
Respondent plus interest “at the prevailing daily rate that FIFA determines”,
calculated as follows:
- EUR 26,309.33 in respect of the monthly salaries for the 2007/2008 and
2008/2009 seasons;
Player A, from country D / Club K, from country T
4/12
- EUR 2,253.30 for appearance bonuses in matches during the 2008/2009
season;
- EUR 19,440 (40,000 currency of country T) for the unpaid promotion bonus.
12. Furthermore, the Claimant requested to increase the above-mentioned amount
by a factor of 2 as a compensation for the numerous breaches of contract
during the protected period as well as to impose sporting sanctions on the
Respondent. Equally, the Claimant requested that the Respondent would pay
the Claimant’s legal expenses.
13. In its reply to the claim, the Respondent stated that no matter can be addressed
if more than two years have elapsed since the facts arose. Therefore, in relation
to the Claimant’s request to be paid the amount of EUR 2,175.23, the Claimant
can only claim the amount of EUR 643.79 relating to the salary payments of 30
April 2008 and 31 May 2008.
14. Furthermore, the Respondent states that the Claimant omitted to mention that
two additional payments were made:
- EUR 1,000 in cash;
- Currency of country T 5,400 (EUR 3,000) to his country T bank account.
In this respect, the Respondent submitted a receipt dated 18 July 2007 for the
amount of EUR 1,000 as well bank statements for the payment of the amounts
of currency of country T 1,800 and currency of country T 2,600, paid on 17 and
24 September 2007 respectively.
15. As to the accommodation, the Respondent asserts that the Claimant approved
the apartment and was informed of the rent of USD 2,000. The Respondent
explained that the Claimant insisted to stay in the apartment and agreed to
“pay the balance up to USD 500 per month”. Therefore, the Respondent
deemed that it could make “legitimate deductions of the deficit (of between
EUR 250 to EUR 400 depending on the prevailing exchange rate at the time)
from the player’s monthly salary totalling EUR 2,175.23”.
16. As for the 2008/2009 season, the Respondent stated that:
a) By September 2008, the Claimant and his family were already in overexpenditure of flight tickets and therefore the amount of EUR 1,395 was
legitimately deducted. Also, the amount of EUR 4,134.10 was legitimately
deducted in this respect, outlining that the Claimant himself confirmed
that he was already in over-expenditure of flight tickets;
b) As to the salaries of April and May 2009, the Claimant’s family made an
over-expenditure of flights tickets of EUR 17,500 and provided a statement
of travel agency provided that the Respondent paid the amount of
Player A, from country D / Club K, from country T
5/12
currency of country T 37,943 to it. Therefore, the Respondent held that this
amount should be set off and the claim for outstanding salary has to be
rejected in full;
c) As to the outstanding appearance bonuses, the Respondent indicated it
paid the amount of EUR 33,250 as well as currency of country T 17,831
(according to the Respondent, corresponding to EUR 10,000), totalling the
amount of EUR 43,250, which corresponds to the total amount the
Claimant was entitled to;
d) As to the promotion bonus, the Respondent held that such bonus was not
stipulated in any contract or agreement nor was it promised to the
Claimant orally.
17. In conclusion, the Respondent stated that the conditions for set-off of the
respective debts are clearly satisfied and the Respondent has no debt
whatsoever towards the Claimant.
18. In his replica, the Claimant stressed that there is no right for the Respondent to
set-off its debt since i) it makes no submissions that shows that any of the
alleged payments were required to be paid back to the Respondent by the
Claimant, and ii) even if the facts of the payments alleged by the Respondent to
the Claimant are accepted, the Respondent has not demonstrated any basis on
which the Claimant is a debtor in respect of these payment. The Respondent has
therefore failed to satisfy the conditions established in the country S Code of
Obligations.
19. Furthermore, the Claimant stated that:
a) The Respondent’s failure to pay only crystallised on 30 June 2009. Hence,
all payments have been timeously claimed for;
b) As to the payment of currency of country T 5,400, the Claimant accepts
that such amount was paid, however, it did not constitute a salary
payment, but represented the ‘win bonuses’ which were not provided for
in the contract;
c) As to the EUR 1,000 payment, this was an “additional gratuitous payment”
outside of the contract;
d) As to the accommodation, art. 5.11 of the contract clearly stipulated that
the Respondent would pay all expenses related to the accommodation.
Therefore, no deductions can be accepted in this respect;
e) As to the flight costs, the Claimant states that only the additional flights
are repayable and accepts that the sum of currency of country T 10,970.72
was repayable to the club. However, given that three deductions were
made from the Claimant’s salary in September, December and March 2008
(EUR 1,395 + EUR 2,135.10 + EUR 1,999), effectively cancelling this debt,
Player A, from country D / Club K, from country T
6/12
the Claimant requested that the amount of EUR 20,000 for the months of
April and May 2009 are paid to him with interest;
f) As to the appearance bonus, all the payments made in currency of country
T are payments relating to win bonuses, which are an entirely separate
matter. The payments of the appearance bonuses were in EUR, the dates
of the currency of country T payments do not correspond to the due dates
of the appearance bonuses and, thus, the list of payments for win bonuses
falls outside the contract and therefore cannot be considered as a set off;
g) As to the promotion bonus, the club implicitly accepted that it is common
practice in football for clubs to pay a bonus to players in the event that a
team achieves promotion; discussions took place between the Claimant
and the Respondent and it was understood that the Respondent would
pay the Claimant the amount of currency of country T 40,000.
20. On account of all the above, the Claimant amended his initial claim to EUR
46,557.39, calculated as follows:
- EUR 4,864.46 in respect of the unpaid salary for the 2007/2008 season;
- EUR 20,000 for the Respondent’s failure to pay the salaries of April and
May 2009;
- EUR 2,253.30 for the unpaid appearance bonuses for the season 2008/2009;
- EUR 19,440 for the unpaid promotion bonus.
21. In its duplica, the Respondent reiterated that the Claimant has no claim for
unpaid salary and bonuses:
- Regarding the season 2007/2008, the Claimant amended his claim from
EUR 2,175.23 to EUR 4,864.46. The Claimant’s new claim for EUR 2,689.23 is
time-barred;
- The Claimant may only have a claim for the payments due on 30 April and
31 May 2008 in the amount of EUR 643.79, however, the Claimant
acknowledges receipt of the amount of EUR 1,000 and currency of country
T 5,400. Therefore, for the season 2007/2008 there is no outstanding debt
whatsoever to the Claimant;
- The payments of EUR 1,000 and currency of country T 5,400 are salary
payments and not “win bonuses”, the Claimant was not entitled to any
separate payments outside the contract;
- As to the April and May 2009 salaries, the Respondent reiterated that the
Claimant made an over-expenditure of flight tickets in the amount of EUR
17,500, which has to be set off against the Claimant’s wages;
- As to the alleged outstanding appearance bonuses, the Respondent held
that indisputably paid the Claimant the amounts of EUR 33,250 and “old
currency of country T 16,931” totalling the amount of EUR 43,250.
Therefore, the Respondent owes no money for appearance bonuses to the
Claimant;
Player A, from country D / Club K, from country T
7/12
- There is no promotion bonus stipulated in the contract, nor was it ever
promised to the Claimant.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 26 April 2010. Consequently, the previous edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 3 of the 2012 edition 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 (edition 2012), 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 country D Player and a country T club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (editions 2009, 2010 and 2012), and considering that the present claim
was lodged on 26 April 2010, the 2009 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The
members of the Chamber started by acknowledging that, on 18 July 2007, the
Claimant and the Respondent had concluded an employment contract valid as
from 18 August 2007 until 30 June 2009.
5.
In this regard, the members of the Chamber duly noted that after the expiry of
the contract, the Claimant lodged a claim in front of FIFA claiming that the
Respondent had not complied with its obligations in full under the contract
and, therefore, requested that the Respondent would pay him the amount of
EUR 46,557.39, consisting of the following amounts:
- EUR 4,864.46 in respect of the unpaid salary for the 2007/2008 season;
Player A, from country D / Club K, from country T
8/12
- EUR 20,000 for the Respondent’s failure to pay the salaries of April and
May 2009;
- EUR 2,253.30 as appearance bonuses for the season 2008/2009;
- EUR 19,440 for the promotion bonus.
6.
In continuation, the Chamber took due note of the arguments put forward by
the Respondent, which contested that the Claimant was entitled to any
payments, alleging that i) the amounts claimed by the Claimant for the
2007/2008 season could not be considered since these payments were timebarred, ii) the promotion bonus had never been promised to the Claimant, iii)
the appearance bonuses had already been paid, and iv) the remaining
payments were to be set off against the over-expenditure of the flight tickets.
7.
Firstly, the members of the Chamber turned to the request of the Claimant in
relation to his alleged outstanding salaries for the 2007/2008 season. In respect
of these two salary payments, the Chamber first of all referred to art. 25 par. 5
of the Regulations which, inter alia, stipulates that the DRC shall not hear any
case subject to the regulations if more than two years have elapsed since the
event giving rise to the dispute.
8.
In continuation, the Chamber took note that the Claimant’s claim was lodged
on 26 April 2010 and that, consequently, it could not consider any salary
payment that, in accordance with the contract, had fallen due before 26 April
2008. Therefore, the Chamber decided that any requests of the Claimant in
relation to alleged outstanding payments before 26 April 2008 must be
declared barred by the statute of limitations in application of art. 25 par. 5 of
the Regulations.
9.
On account of the above, the Chamber noted that, in relation to the 2007/2008
season, it could only examine the alleged non-payments of the salaries that fell
due on 30 April 2008 and 31 May 2008. In this respect, the Chamber
acknowledged that the Respondent had only paid the amounts of EUR
8,676.69 and EUR 8,679.52, where the Respondent should have paid twice the
amount of EUR 9,000 as per the employment contract. At the same time, the
Chamber duly noted that the Respondent argued that it had paid the
additional amounts of EUR 1,000 and currency of country T 5,400 and that,
therefore, any outstanding amounts in relation to the 2007/2008 season had
been covered.
10.
After analysing the payment receipts of the amounts of EUR 1,000 and
currency of country T 5,400, the Chamber noted that these amounts were paid
in July and September 2007 and that, therefore, they could not correspond to
the salaries that fell due in April and May 2008. In view of the foregoing, the
Chamber concluded that the Respondent had not proven that it had indeed
Player A, from country D / Club K, from country T
9/12
paid the Claimant the remaining part of his salaries for April and May 2008
and that, thus, in accordance with the legal principle of pacta sunt servanda,
the Respondent has to fulfill its obligations as per employment contract.
Therefore, the DRC decided that the Respondent is liable to pay the Claimant
the amounts of EUR 323.31 and EUR 320,48 corresponding to the remaining
parts of the salaries of April and May 2008.
11.
In continuation, the Chamber examined the Claimant’s request for the
outstanding salaries for April and May 2009, both corresponding to an amount
of EUR 10,000. The DRC duly noted the arguments put forward by the
Respondent in this respect, but was of the unanimous opinion that the
statements of the Respondent and the travel agency were, in itself, not
conclusive to establish that such salaries were no longer due. The Chamber
pointed out that from the documentation provided it was not able to establish
i) which exact amount was to be considered as the over-expenditure and ii) to
which exact amount the player was still entitled. What is more, the Chamber
noted that the Respondent had already deducted an amount from the
Claimant’s salary as over-expenditure of flight tickets, which had been
accepted by the Claimant.
12.
In view of the above, and referring to the principle of the burden of proof
contained in art. 12 par. 3 of the Procedural Rules, the Chamber decided that it
had not been proven by the Respondent that it had already fulfilled its
obligations in connection with the salary payments that fell due in April and
May 2009.
13.
Furthermore, in relation to the match appearance bonuses for the season
2008/2009, the Chamber noted that the Respondent had paid the amount of
EUR 33,250 to the Claimant as well as the amount of currency of country T
17,891. The Chamber stressed however that, applying the relevant exchange
rate, the amount of currency of country T 17,891 corresponded to EUR 8,300
only and not, as indicated by the Respondent, to EUR 10,000. Since it was
undisputed between the parties that the total amount due as match
appearance bonuses for the 2008/2009 season amounted to EUR 43,250, the
Chamber established that the amount of EUR 1,700 was still outstanding.
14.
Finally, the Chamber turned its attention to the claim of the Claimant
regarding the alleged promotion bonus. The Chamber noted that no such
promotion bonus had been implemented in the employment contract. Equally,
the Chamber, once more referring to the principle of the burden of proof,
deemed that the Claimant had not proved to the satisfaction of the Chamber
that he was indeed entitled to said promotion bonus. As a result, the Chamber
decided to reject this part of the Claimant’s claim.
Player A, from country D / Club K, from country T
10/12
15.
Taking into consideration all the previous considerations, the members of the
Chamber concurred that the Respondent was liable to pay the total amount of
EUR 22,343.79 to the Claimant. As to the Claimant’s claim to multiply this
amount by 2, the Chamber saw no legal or regulatory basis for such request
and consequently rejected such request.
16.
In addition, taking into consideration the Claimant’s claim and the Chamber’s
constant jurisprudence in this respect, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on the amount of 22,343.79 as from 26
April 2010 until the date of effective payment.
17.
Furthermore, in relation to the Claimant’s request for sporting sanctions, the
Chamber pointed out that the present matter only involved a claim for
outstanding remuneration and outlined that sporting sanctions can only be
imposed in cases regarding the early termination of a contract, as clearly
established by art. 17 of the Regulations.
18.
Lastly, the DRC held that the Claimant’s claim for legal expenses is rejected in
accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence.
19.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club K, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 22,343.79 plus 5%
interest p.a. on said amount as from 26 April 2010 until the date of effective
payment.
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
Player A, from country D / Club K, from country T
11/12
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, from country D / Club K, from country T
12/12