Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 January 2014,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player N, from country F
as Claimant
against the club,
Club A, from country L
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 28 September 2010, Player N, from country F (hereinafter: the Claimant), and
Club A, from country L (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from the date of signature until the
end of the 2010/2011 season. According to the country L Football Federation, the
2010/2011 season started on 15 September 2010 and was suspended on 15
February 2011, due to the start of the civil unrest in country L.
2.
According to art. 3 of the contract, the Respondent undertakes to pay the
Claimant the total amount of USD 100,000, payable as follows:
- USD 50,000 payable upon receipt of the International Transfer Certificate
(ITC);
- USD 50,000 as remuneration, payable in equal instalments of USD 5,000.
3.
By means of his correspondence dated 2, 18 June 2012 and 21 July 2013,
addressed to the country L Football Federation, the Claimant put the Respondent
in arrears for the payment of outstanding salaries in the amount of USD 35,000,
to be paid by the Respondent within 15 days as from the date of receipt of said
correspondence.
4.
As the aforementioned correspondence remained unanswered, the Claimant
terminated the contract in writing on 9 August 2011.
5.
On 29 July 2013, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the payment of the amounts of USD 35,000 and EUR
10,000, broken down as follows:
- USD 35,000 in outstanding salaries for January to July 2011 (7 x USD 5,000);
- EUR 5,000 as compensation for the delay in payment;
- EUR 5,000 legal fees.
6.
In his arguments, the Claimant claims that in spite of his reminders, his salary for
the months of January to July 2011 remained unpaid by the Respondent.
7.
In its response, the Respondent claims to have paid the Claimant the amount of
USD 50,000 upon receipt of his ITC as well as three monthly salaries each one in
the amount of USD 5,000. In relation to these three monthly salaries, the
Respondent submitted copies of three undated receipts, in their original
language only, each in the amount of USD 5,000.
8.
In addition, the Respondent claims that the Claimant abandoned the club before
the start of the civil unrest in country L, without previous notice, breaching
therefore art. 3 par. 12 of the contract (“Second party [the player] shall be
committed not to travel abroad unless approved in written from the
Player N, from country F / Club A, from country L
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administration of the club”). In this regard, the Respondent provided a copy of
an undated document issued by its management board, according to which the
Claimant “did not attend the team exercises this evening has been shown that
the player travelled to country F without the knowledge of the technical,
administrative and leave the keys to the apartment”.
9.
The Respondent further states that, due to the civil turmoil in country L, all other
players received only 60% of the value of their contracts and did not claim the
outstanding remuneration.
10.
Finally, the Respondent maintains having had to bear the costs of the Claimant’s
accommodation after his departure, amounting to currency of country L 15,000,
corresponding to approximately USD 12,241.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted
to FIFA on 29 July 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 and par. 3 of the Procedural Rules).
2.
In continuation, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural
Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
(edition 2012; hereinafter: the Regulations), he was competent to adjudicate on
an employment-related dispute with an international dimension, between a
country F player and a country L club.
3.
At this point, the DRC judge stated that prior to deliberating on the substance of
the matter he must verify whether the competent FIFA body would be able to
deal with the present affair or not for formal reasons.
4.
In particular, the DRC judge referred to art. 25 par. 5 of the Regulations (edition
2012), in connection with the Procedural Rules, which stipulates that the
decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the facts leading to the dispute arose and that the application
of this time limit shall be examined ex officio in each individual case.
5.
Subsequently, the DRC judge took note of the fact that the event giving rise to
the dispute was the alleged non-payment of the Claimant’s remuneration for the
months of January to July 2011. In addition, the Chamber observed that the
claim of the Claimant was lodged on 29 July 2013.
Player N, from country F / Club A, from country L
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6.
Furthermore, the DRC judge observed that the contract at the basis of the
present dispute does not stipulate any specific due date for the Claimant’s
monthly remuneration and that, therefore, it should be considered that such
remuneration is payable on the last day of each month.
7.
Bearing in mind the foregoing and, in particular, the contents of art. 25 par. 5 of
the FIFA Regulations, the DRC judge observed that the Claimant’s request for
remuneration for the months of January to June 2011 was time-barred as it was
lodged more than two years after the date on which each of the relevant salaries
fell due. Thus, the DRC judge concluded that this part of the Claimant’s claim is
to be considered as affected by prescription and, thus, shall be considered
inadmissible.
8.
Having established that the Claimant’s claim of 29 July 2013 is partially
admissible, the DRC judge went on to analyse which regulations were applicable
as to the substance of the matter. In this respect, he confirmed that, in
accordance with art. 26 par. 1 and 2, and art. 29 of the 2012 edition of the
Regulations, and considering that the claim was lodged on 29 July 2013, the 2012
edition of said Regulations was applicable to the matter at hand as to the
substance.
9.
His competence and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In doing so, he started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. However, the DRC 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.
10.
In this respect, the DRC judge acknowledged that it was undisputed by the
parties that, on 28 September 2010, the Claimant and the Respondent signed an
employment contract valid as from the date of signature until the end of the
2010/2011 season, in accordance with which the Claimant was entitled to receive
the amounts detailed in point I.2. above.
11.
Subsequently, the DRC judge noted that, on the one hand, the Claimant claims
that, in spite of his reminders dated 2, 18 June 2012 and 21 July 2013, the
Respondent failed to pay his remuneration for the month of July 2011, inter alia.
Thus, on 9 August 2011, the Claimant terminated the contract with the
Respondent in writing.
12.
The DRC judge further noted that, on the other hand, the Respondent claims
that the Claimant left the club before the start of the civil unrest in country L,
breaching therefore art. 3 par. 12 of the contract (cf. point I.8. above). In
Player N, from country F / Club A, from country L
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addition, the Respondent claims that due to the civil turmoil in country L all
players of the club received only 60% of the value of their contracts.
13.
Having established the aforementioned, the DRC judge deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
allegations of the Respondent, was to determine whether the Claimant’s request
for outstanding remuneration, insofar as it is admissible, could be upheld.
14.
For the sake of good order, the DRC judge 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.
15.
Still bearing in mind the aforementioned principle, the DRC judge noted that in
the present case the Respondent bore the burden of proof regarding the
Claimant’s remuneration for the month of July 2011.
16.
In this respect, the DRC judge noted that the Claimant has provided copies of his
letters addressed to the Respondent on 2, 18 June 2012 and 21 July 2013,
reminding it of the existence of unpaid remuneration for the months of January
to July 2011.
17.
Subsequently, the DRC judge observed that the only documentary evidence
provided by the Respondent in this regard are receipts, not translated into an
official language of FIFA, regarding the payment of three unspecified monthly
salaries.
18.
At this point, the DRC judge referred to art. 9 par. 1 lit. e) of the Procedural Rules
which stipulates that all documents of relevance to the dispute shall be
submitted in the original version as well as translated into one of the official
FIFA languages, i.e. English, Spanish, French and German.
19.
In this context, the DRC judge noted that, in spite of having been made aware of
the contents of the aforementioned provision, the Respondent did not provide a
translated version of the documents enclosed to its submission into one of the
official FIFA languages. In view of the foregoing, the DRC judge decided that he
could not take into account the relevant documents provided by the Respondent.
20.
As to the documentary evidence presented in English, i.e. the document issued
by the Respondent’s management board regarding the allegedly unauthorized
absence of the Claimant at training (cf. point I.8. above), the DRC judge observed
that such document was undated and did not make any explicit reference to a
specific period of time, during which the Claimant would have been absent.
Therefore, the DRC judge decided that said document could not be considered as
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a legitimate basis to justify the Respondent’s failure to pay the Claimant’s
monthly remuneration.
21.
Consequently, the DRC judge considered that the Respondent had not
sufficiently substantiated its defence, as it did not present any conclusive
documentary evidence to corroborate its allegations.
22.
Consequently, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfill its obligations as per the employment
contract concluded with the Claimant and, consequently, is to be held liable to
pay the outstanding remuneration to the latter in the amount of USD 5,000,
corresponding to his salary of July 2011.
23.
The DRC judge further decided that the Claimant’s claim for legal fees is
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
respective longstanding jurisprudence of the Dispute Resolution Chamber.
24.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player N, is partially accepted, insofar as it is
admissible.
2.
The Respondent, Club A, is ordered to pay to the Claimant, Player N, the amount
of USD 5,000 as outstanding remuneration within 30 days as from the date of
notification of this decision.
3.
If the aforementioned amount is not paid within the above-mentioned time
limit, an interest rate of 5% p.a. will apply on said amount as of expiry of the
above-mentioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a formal
decision.
4.
Any further claims lodged by the Claimant, Player N, are rejected.
5.
The Claimant, Player N, is directed to inform the Respondent, Club A,
immediately and directly of the account number to which the entire remittance
is to be made and to notify the DRC judge of every payment received.
Player N, from country F / Club A, from country L
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*****
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 DRC judge:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
Player N, from country F / Club A, from country L
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