Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 January 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Zola Percival Majavu (South Africa), member
on the claim presented by the player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 24 August 2010, the Player of Country B, Player A (hereinafter: the
Claimant), and the Club of Country D, Club C (hereinafter: the Respondent),
entered into an employment contract (hereinafter: the contract) valid as from
23 August 2010 until 30 June 2013.
2.
On 22 June 2011, the Claimant and the Respondent signed a document
(hereinafter: the termination agreement), by means of which both parties
acknowledged the termination of the contract and established that the
Respondent had to pay the Claimant the amount of EUR 36,800.
3.
According to the termination agreement: “After the payment of the
mentioned amount, [the Claimant] declares that he has received all amounts
due [the Respondent] and has not; neither will have any financial claims
towards [the Respondent]”.
4.
The termination agreement did not establish a due date for payment.
5.
On 21 June 2013, the Claimant lodged a claim against the Respondent before
FIFA, requesting the payment of the total amount of EUR 41,800 plus interest,
made up of:
EUR 36,800 corresponding to the outstanding amount set in the
termination agreement;
EUR 5,000 corresponding to “sporting damages incurred as a
consequence of the end of the link between them”.
6.
In addition, the Claimant requested sporting sanctions to be imposed on the
Respondent and legal expenses to be awarded.
7.
According to the Claimant, the Respondent has failed to pay the amount due
as established in the termination agreement.
8.
In its response to the claim, the Respondent rejected the Claimant’s arguments,
stating that the people of the current management of the Respondent were
informed by the former owners that all outstanding amounts had been paid to
the Claimant. The Respondent held that the fact that it received its license
from the Licensing Committee of the Football Union of Country D proves that
the corresponding amount was paid to the Claimant.
9.
Furthermore, the Respondent stated that the request of EUR 5,000 for sport
damages by the Claimant should be considered irrelevant, null and void, as the
Player A, Country B / Club C, Country D
2/6
termination agreement was signed on mutual consent, and the Claimant
understood the consequences of this act.
10.
In his replica, the Claimant repeated his position, arguing that the Respondent
did not provide any proof of payment and that the fact that the Respondent
was given a license by the Football Union of Country D only enabled the
Respondent to compete but did not rule over the payment or non-payment of
the amount in dispute.
11.
Despite having been invited to do so, the Respondent did not present its final
comments on the replica of the Claimant, although it was informed that, in
absence of a reply, the Dispute Resolution Chamber would take a decision on
the basis of the information and evidence at disposal.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 21 June 2013. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2012; hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the 2012 and 2014 editions 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 2014), 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 of Country B and a Club of
Country D.
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
Claimants (editions 2012 and 2014), and considering that the present claim was
lodged on 21 June 2013, the 2012 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. In this
Player A, Country B / Club C, Country D
3/6
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
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 and first of all, the DRC acknowledged that following the
conclusion of an employment contract, the Claimant and the Respondent had
concluded an agreement on 22 June 2011, by means of which both parties
acknowledged the termination of the contract and established that the
Respondent would pay to the Claimant the amount of EUR 36,800.
6.
It was considered by the Chamber that the Claimant contacted FIFA on 21 June
2013, indicating that the Respondent had not fulfilled its obligations as
established in the termination agreement. Therefore, the Claimant requested
to be paid the alleged outstanding amount of EUR 36,800, plus an amount of
EUR 5,000 corresponding to “sporting damages”, as well as interest. In
addition, the Claimant requested an unspecified amount for legal expenses
and sporting sanctions to be imposed on the Respondent.
7.
Subsequently, the DRC noted that the Respondent, in its defence, rejected the
Claimant’s allegations, arguing that all outstanding amounts had been paid to
the Claimant.
8.
In relation to the argument raised by the Respondent, the Chamber recalled
the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof.
9.
In this context, the Dispute Resolution Chamber noted that the Respondent
did not provide any documentation in support of its allegations.
10.
Consequently, the Chamber considered that the Respondent had not
sufficiently substantiated its defence, as it did not present any conclusive
documentary evidence which could corroborate that the amount established in
the termination agreement was paid to the Claimant.
11.
In view of all the above and, in particular, taking into account that the
Respondent failed to discharge its burden of proof, the DRC decided that, in
accordance with the general legal principle of pacta sunt servanda, the
Respondent must fulfil its contractual obligations towards the Claimant and is
to be held liable to pay the Claimant the amount of EUR 36,800.
Player A, Country B / Club C, Country D
4/6
12.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of compensation as of the date on which the claim was lodged, i.e., 21
June 2013 until the date of effective payment.
13.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for “sporting damages” in the amount of EUR 5,000. 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.
14.
Moreover, 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.
15.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by rejecting any further claim of the Claimant.
*****
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 36,800 plus 5% interest p.a. on said amount as from 21 June
2013 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 the
FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
5/6
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 article 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 A, Country B / Club C, Country D
6/6