Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 January 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Damir Vrbanovic (Croatia), member
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
on the claim presented by the player,
Player W, from country N
as Claimant
against the club,
Club A, from country S
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 11 January 2009, Player W, from country N (hereinafter: the Claimant), and
Club A, from country S (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid for four years as from the day of
signing i.e. for the years of 2009, 2010, 2011 and 2012.
2.
Article 1 of the contract established that the Claimant was entitled to receive
the amount of USD 400,000 per year as “down payment”, as well as a salary in
the amount of USD 10,000 per month, resulting in a total amount of USD
520,000 per year for the Claimant.
3.
On 26 February 2013, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting outstanding salaries in the total amount of USD
795,000 plus a “legal interest as from 10 January 2010”, indicating that he had
received the following amounts:
USD 520,000 in the first year;
USD 320,000 in the second year (USD 200,000 plus USD 10,000 per
month);
USD 320,000 in the third year (USD 200,000 plus USD 10,000 per month);
USD 125,000 in the fourth year (USD 40,000 plus USD 85,000 in monthly
salaries).
4.
On 4 March 2013, after having been requested by FIFA to specify on which
dates the relevant payments allegedly fell due, the Claimant requested the
amount of USD 795,000, according to the following breakdown:
USD 400,000 as the down payment due for the year 2011, i.e. the third
year;
USD 360,000 as part of the down payment due for the year 2012, i.e.
the fourth year;
USD 35,000 as outstanding salaries for three and a half months of the
year 2012.
5.
In addition, the Claimant requested moral damages in the amount of USD
40,000 and legal costs in the amount of USD 15,000.
6.
In this respect, the Claimant explained that during the first two years of the
contract, he received all the amounts as established in the contract, however in
the third year of contract he only received his salaries and not the down
payment of USD 400,000. In the fourth year he only received the amount of
USD 40,000 as down payment and the sum of USD 85,000 as salaries.
Player W, from country N / Club A, from country S
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7.
On account of the above, the Claimant sent an e-mail to the Respondent on 30
January 2013, requesting the outstanding amounts to be paid by the
Respondent within a deadline of 8 days. According to the Claimant, the
Respondent did not reply to such e-mail.
8.
In response to the Claimant’s claim, the Respondent declared that the Claimant
had, throughout the term of the contract, “severely violated his employment
obligations”. In this regard, the Respondent explained that it had to fine the
Claimant as follows: (i) on 5 July 2009 with the amount of USD 25,000, for not
attending the mid-season training camp; (ii) on 20 February 2010 with the
amount of USD 25,000, for not attending the pre-season training camp; and
(iii) on 15 July 2011 with the amount of USD 50,000, for not attending the midseason training camp. Furthermore, the Respondent declared that on 20
November 2009, it sanctioned the Claimant with a fine in the sum of USD
70,000 because he was “under the criminal prosecution caused by severe
violation of the country S law, i.e. driving in an aggressive and dangerous
manner under the elevated influence of alcohol”. According to the
Respondent, the above-mentioned four fines, in the total amount of USD
170,000, were deducted from the Claimant’s salaries and were duly notified to
the Claimant and the country S Football Association, not having received any
objection from the Claimant in this respect.
9.
Moreover, the Respondent pointed out that according to the country S tax
regulations, the Claimant is subject to the payment of 10,7% tax for the down
payment and to the payment of 25% tax for the salaries, for every year of
contract. These taxes, according to the Respondent, are directly deducted by
the employer from the employee’s remuneration.
10.
In this regard, the Respondent highlighted that the amounts provided for as
remuneration in the contract are gross amounts. Therefore, according to the
Respondent, the total value of the contract is USD 1,453,398 net and not USD
2,080,000 as considered by the Claimant.
11.
Hence, according to the Respondent, after deducting the taxes and the fines
from the amounts established in the contract, the Claimant was entitled to a
full remuneration in the amount of USD 1,283,398. Consequently, as the
Claimant acknowledges to have received the amount of USD 1,285,000 during
the term of the contract, the Respondent deemed it had paid an excess of USD
1,605 to the Claimant “which actually should be returned to the account of the
Respondent”.
12.
In addition, the Respondent explained that, between 19 September 2010 and
15 June 2011, the Claimant was loaned to the Club B, from country L, and
Player W, from country N / Club A, from country S
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therefore the Respondent did not have any financial obligations towards the
Claimant during that period of time.
13.
Finally, the Respondent also referred to art. 25 par. 5 of the Regulations on the
Status and Transfer of Players alleging that the non-payment of the salaries
and down payment for the year 2010 are time-barred.
14.
Based on all the above, the Respondent requested the dismissal of the
Claimant’s claim.
15.
The Claimant submitted his replica to the Respondent’s arguments and firstly
pointed out that the sanctions of the Respondent were not signed by him and,
therefore, should not be taken into account, as they were imposed in violation
of his right to be heard by the Respondent’s management. Moreover, the
Claimant referred to the 2010 edition of the Respondent’s internal regulations
and stressed its chapter 7, paragraph 33.2, which establishes: “those who are
involved in administrative or financial offenses or offenses pertaining to honor
and honesty, the Committee shall have the right to execute the following: a)
suspension; b) deprival of all or some of the privileges such as imposing a fine
not exceeding $ 5,000; c) […]”. Thus, the Claimant rejected the deduction of
USD 170,000 as sanctions, for being contrary to the Respondent’s internal
regulations.
16.
Additionally, the Claimant asserted his right to request the amounts
established in the contract, without having to deduct taxes from them. The
Claimant as well pointed out that for the first year, he received the full
amounts as per the contract, which was enough evidence that the amounts
established in the contract where to be paid without deduction of taxes.
17.
Equally, the Claimant deems that his claim is not time-barred since his requests
concern the period of time between January 2011 and December 2012.
18.
In view of the above, the Claimant reiterated his initial petitions and rejected
the request of the Respondent to return the amount of USD 1,605 as excess.
19.
In its duplica, the Respondent argued that it was fully entitled to apply all the
sanctions to the Claimant because, according to it, the “violations committed
by the player are not of administrative or financial character. The Claimant
severely violated the discipline established within the Respondent’s club” and,
thus, the limit of USD 5,000 for the fines does not apply, leaving the
Respondent the full discretion to decide on how to sanction the Claimant.
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20.
Moreover, the Respondent declared that its obligation was only to notify the
Claimant about the sanctions to be imposed, which it did, and that the
Claimant never expressed any disagreement against the decisions of the
Respondent.
21.
Finally, the Respondent repeated that it had the obligation to pay the taxes to
the country S government by deducting them at the source and pointed out
that “it is obvious that in the absence of opposite provisions in the
employment contract with the Respondent, the remuneration due for services
rendered is paid with all taxes included”.
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 February 2013. Consequently, the 2012 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 par. 2 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 shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, the Chamber analysed which edition of the Regulations on
the Status and Transfer of Players should be applicable as to the substance of
the matter. In this respect, it referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (edition 2012), and, on
the other hand, to the fact that the present claim was lodged in front of FIFA
on 26 February 2013. Therefore, the DRC concluded that the 2012 edition of
the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations), is applicable to the matter at hand as to the substance.
4.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the Chamber entered into the substance
of the matter. In doing so, it started by acknowledging the abovementioned
facts of the matter as well as the documentation contained in the file.
However, the Chamber emphasised that in the following considerations it will
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refer only to the facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
5.
In this respect, the members of the Chamber acknowledged that the parties
had signed a valid employment contract on 11 January 2009 in accordance
with which the Respondent would pay the Claimant an amount of USD
400,000 per year as “down payment” as well as a salary in the amount of USD
10,000 per month, resulting in the Claimant being entitled to a total amount
of USD 520,000 per year.
6.
The DRC then turned to the complaint of the Claimant, who initially
maintained that the Respondent had failed to pay him part of the “down
payments” for the years 2010, 2011 and 2012 as well as three and a half
monthly salaries during the last year of the contract, corresponding to a total
outstanding amount of USD 795,000. Later on, upon request, the Claimant
specified that the Respondent had only paid him USD 120,000 in 2011 and USD
125,000 in 2012, again coming to a total amount of outstanding remuneration
corresponding to USD 795,000.
7.
Considering that the Claimant had provided conflicting information in relation
to which payment obligations remained unpaid, the DRC concluded that it first
of all had to establish which were the payment dates for the amounts
allegedly still outstanding. In this respect, the Chamber concluded that in his
initial claim the Claimant had indicated that in the year 2010 and 2011 he had
only received USD 320,000 per year whilst explicitly confirming that the
remaining amount of USD 200,000 for the down payment of 2010 and 2011
had not been paid. The Chamber noted that it was only after the request for a
specification that the Claimant amended the payment dates. In view of the
foregoing, the Chamber came to the unanimous conclusion that part of the
USD 795,000, i.e. an amount of USD 400,000 was in fact claimed in relation to
the down payments for the years of 2010 and 2011. The Chamber is comforted
in its conclusion by the default communication sent by Claimant to the
Respondent on 30 January 2013, in which he equally indicated that for the
years 2010 and 2011 the amount of USD 200,000 was still outstanding.
8.
At this point, the members of the Chamber referred to art. 25 par. 5 of the
Regulations, according to which, inter alia, the Dispute Resolution Chamber
shall not hear any case subject to the said Regulations if more than two years
have elapsed since the event giving rise to the dispute. The present claim
having been lodged in front of the DRC on 26 February 2013 and the down
payments falling due at the beginning of each year of the contract, being in
January 2010 and January 2011, the members of the Chamber determined that
the petition regarding the down payments for 2010 and 2011 was lodged in
Player W, from country N / Club A, from country S
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front of the DRC outside this two years’ period of time. These specific requests
of the years 2010 and 2011 are, thus, barred by the statute of limitations in
accordance with art. 25 par. 5 of the Regulations.
9.
Subsequently, the members of the Chamber went on to deal with the
Claimant’s claim for the year 2012, i.e. the claimed amount of USD 395,000,
and noted that the Respondent, in its statement of defence, did not contest
the allegations of the Claimant regarding the non-payment of his
remuneration. However, the Respondent stated that it had imposed several
fines on the Claimant and, in consequence, it had deducted the total sum of
such fines, in the amount of USD 170,000, from the Claimant’s salaries.
Furthermore, the DRC took note that the Respondent alleged an additional
deduction of the Claimant’s salaries due to taxation.
10.
Regarding the imposition of fines by the Respondent, the DRC wished to
highlight the fact that there were four sanctions effectively imposed by the
Respondent on the Claimant in 2009, 2010 and 2011. In this respect, the
members of the Chamber highlighted that such fines were not related to the
season 2012 and can, therefore, not be deducted from the salary of the year
2012.
11.
Moreover, the DRC turned its attention to the argument put forward by the
Respondent regarding a further deduction from the Claimant’s salaries due to
taxation. To this end, the members of the DRC analysed the contract and
confirmed that it did not contain any reference to a possible tax deduction
from the salaries. The Chamber also noted that the salaries that the Claimant
did receive were in the amounts established in the contract, without any tax
deduction. Consequently, the DRC concluded that there is no legal basis in the
contract that could justify a tax deduction from the Claimant’s salaries.
12.
In view of the above, the DRC concluded that it could be established that the
Respondent had failed to pay to the Claimant part of the amounts agreed
upon between the parties in the agreement dated 11 January 2009. As a
consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the contract
concluded with the Claimant and, consequently, is to be held liable to pay the
outstanding amount of USD 395,000 to the Claimant.
13.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a.
on the amount of USD 395,000 until the date of effective payment as follows:
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a.
b.
c.
d.
e.
5% p.a. as of 11 January 2012 on the amount of USD 360,000;
5% p.a. as of 1 October 2012 on the amount of USD 5,000;
5% p.a. as of 1 November 2012 on the amount of USD 10,000;
5% p.a. as of 1 December 2012 on the amount of USD 10,000;
5% p.a. as of 1 January 2013 on the amount of USD 10,000.
14.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of USD 40,000. In this regard,
the Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that
demonstrated the damage suffered or its quantity.
15.
In addition, as regards the claimed legal expenses, the Chamber referred to
art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished 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
Claimant’s request relating to legal expenses.
16.
The DRC concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player W, is accepted, insofar as it is admissible.
2.
The Respondent, Club A, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of USD 395,000 plus 5%
interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
3.
5% p.a. as of 11 January 2012 on the amount of USD 360,000;
5% p.a. as of 1 October 2012 on the amount of USD 5,000;
5% p.a. as of 1 November 2012 on the amount of USD 10,000;
5% p.a. as of 1 December 2012 on the amount of USD 10,000;
5% p.a. as of 1 January 2013 on the amount of USD 10,000.
If the aforementioned sum plus interest is not paid by the Respondent within
the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
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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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player W, from country N / Club A, from country S
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