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,
L, from country A
as “Claimant”
against the club,
Club X, from country X
as “Respondent”
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 1 July 2010, the player L from country A (hereinafter: the Claimant) and the
country X club, Club X (hereinafter: the Respondent) concluded an employment
agreement (hereinafter: the agreement), valid from 1 July 2010 until 30 May 2011,
according to which the Claimant was inter alia entitled to receive from the
Respondent a monthly salary of USD 5,000 as well as the sum of USD 10,000 as
signing on fee.
2.
On 26 August 2011, the Claimant lodged a claim with FIFA against the Respondent
requesting from the latter the payment of USD 29,800 as outstanding
remuneration, arguing that the Respondent had so far only paid him the total
amount of USD 30,200. In addition, the Claimant requested the payment of
interest as well as of an unspecified amount of expenses.
3.
In its response on 30 July 2012, the Respondent informed FIFA that “three
disciplinary measures were taken by the club against the player L for successive
breaches of its Internal Disciplinary Regulations”. In addition, the Respondent
provided FIFA with three documents dated 1 October 2010, 2 January and 29
March 2011 respectively, by means of which it had allegedly fined the Claimant
and reduced its salary. According to the relevant documents the Claimant had
been accused of having offended the coach of the Respondent on 5 January 2011,
of having been absent from the training of the Respondent without permission
between 23 and 30 January 2011 and of having “capture and shock hitting the
team’s training session by the date 03.25.2011”. Finally, the Respondent provided
FIFA with a copy of its “Regulation of internal Discipline”.
4.
In his subsequent correspondence to FIFA on 19 April 2013, the Claimant contested
the Respondent’s allegations included in the latter’s enclosures to his response. In
addition, the Claimant stressed that, in accordance with the agreement, the
Respondent was not entitled to reduce his salary.
5.
In spite of having been asked to do so, the Respondent never provided FIFA with
its final comments on the claim of the Claimant.
*****
Player L, from country A / Club X, from country X
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II.
Considerations of the Dispute Resolution Chamber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 26 August 2011. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21
par. 1 and 2 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 player and a 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 2012 and 2010), and considering that the present claim was lodged on 26
August 2011, the 2010 edition of said regulations (hereinafter: 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. In this respect,
the Chamber started by acknowledging the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
5.
To begin with, the members of the Chamber acknowledged that the parties were
contractually bound by means of an employment contract valid as from 1 July
2010 until 30 May 2011, according to which the Claimant was inter alia entitled to
receive from the Respondent a monthly salary of USD 5,000 as well as the sum of
USD 10,000 as signing on fee.
6.
Furthermore, the members of the Chamber noted that in his claim to FIFA the
Claimant had inter alia requested from the Respondent the payment of USD
29,800 arguing that the amount in question was still outstanding.
Player L, from country A / Club X, from country X
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7.
In the same context, the Chamber further observed that, for its part, the
Respondent, while not contesting that the claimed amount had not yet been paid
to the Claimant, had maintained having fined the latter for having breached
several times “its Internal Disciplinary Regulations”.
8.
Finally, the members of the Chamber took note that the Claimant had contested a
reduction of his salary.
9.
With the aforementioned considerations in mind and without entering into the
question of whether a fine against the Claimant was in casu justified or not, the
Chamber was first of all eager to emphasize that the deduction applied on the
salary of the latter by the Respondent amounted to more than 50% of the total
remuneration due to the Claimant in accordance with the agreement.
10.
Considering the above-mentioned as well as taking into account the kind of
offences which were reproached to the Claimant by the Respondent, the Chamber
deemed that the deduction applied by the Respondent on the Claimant’s salary
had to be considered disproportionate and could therefore not be considered.
Hence, the Chamber concluded that the relevant argument of the Respondent had
to be disregarded.
11.
Having determined the above-mentioned, and bearing in mind the legal principle
of pacta sunt servanda, which in essence means that agreements must be
respected by the parties in good faith, as well as considering that the Respondent
had never contested having failed to pay to the Claimant the sum of USD 29,800,
the Chamber decided that the Respondent must fulfil its obligations established in
agreement and consequently, pay to the Claimant the amount of USD 29,800 as
well as 5% p.a. on the said amount as of 26 August 2011.
12.
Finally and with regard to the claim of the Claimant related to the payment of
expenses, the Chamber pointed out that such request had not been accompanied
by any documentary evidence. Consequently and bearing in mind the content of
art. 12 par. 3 of the Procedural Rules which stipulates that the burden of proof has
to be carried by the party claiming a right on the basis of an alleged fact, the
Chamber concluded that this part of the Claimant’s claim could not be granted for
lack of proof.
13.
In view of all the above, the Dispute Resolution Chamber decided that the claim of
the Claimant is partially accepted and that the Respondent has to pay to the
Claimant outstanding remuneration amounting to USD 29,800, as well as 5%
interest p.a. on said amount as of 26 August 2011 until the date of effective
payment.
Player L, from country A / Club X, from country X
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is partially accepted.
2.
The Respondent, Club X, has to pay to the Claimant, L, within 30 days as from
the date of notification of this decision, the amount of USD 29,800, as well as 5%
interest p.a. on said amount as of 26 August 2011 until the date of effective
payment.
3.
Any further claim lodged by the Claimant, L, is rejected.
4.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
The Claimant, L, is directed to inform the Respondent, Club X, 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
Player L, from country A / Club X, from country X
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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
Deputy Secretary General
Encl: CAS directives
Player L, from country A / Club X, from country X
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