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, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 6 July 2011, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the contract) valid as from the date of
signature until 30 December 2013.
2.
According to the contract, the Claimant was entitled to receive from the
Respondent a monthly salary of USD 40,000.
3.
Moreover, clause 7.5.1 of the contract provided as follows: “[the Respondent]
shall pay bonus to [the Claimant] according to the match appearance rate of [the
Claimant]. For a winning USD 3,000 per match, for a draw USD 1,000 per match.
Exceeds 30 minutes, less 45 minutes, which is calculate as 45 minutes. [the
Respondent] will pay 50% bonus to [the player], less 30 minutes, [the Respondent]
will pay bonus calculate on playing minutes to [the player], play 75 minutes, will
calculate as 90 minutes, [the Respondent] will pay 100% bonus to [the player],
exceeds 45 minutes and less 75 minutes, [the Respondent] will pay 60% bonus to
[the player], match lost has no bonus”.
4.
In addition, clause 8.1 of the contract stated that “[the Respondent] will pay to
[the Claimant] three round trip economy class air tickets (country D – country B)
per season. Air ticket (economy class) is in [The Respondent’s] account (…) If [the
Claimant] buys the air ticket by himself. [the Respondent] shall pay [the Claimant]
agreement of price of air ticket signed by and between [the Respondent] and
airline company”.
5.
On 29 February 2012, the Claimant, the Respondent and the club from country D,
Club E concluded a loan agreement for the temporary transfer of the Claimant
from the Respondent to Club E as “from 1/3/2012 until 31/10/2012, totally 8
months”.
6.
According to clause D of the loan agreement, “[Club E] promised that it will
execute the salary and treatment that [the Claimant] has signed with [the
Respondent], included monthly salary 4000 dollars after tax (totally 8 months
320000 dollars), apartment, flight ticket medical treatment and insurance, etc.
and his bonus according to [Club E’s] offer for [the Claimant]”.
7.
On 5 December 2013, the Claimant lodged a claim against the Respondent in
front of FIFA requesting, inter alia, as follows:
i. USD 40,000 for his salary of November 2012;
ii. USD 6,000 as bonuses in accordance with clause 7.5.1 of the
contract;
Player A, from country B / Club C, from country D
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iii. USD 7,500 for flight tickets in accordance with clause 8.1 of the
contract.
iv. 5% interest p.a. on all the amounts as from “the date of the
termination of the contract until the date of effective payment”.
8.
In particular, the Claimant explained that the contract between the Respondent
and him was “cancelled by the parties’ mutual agreement via negotiations”. In
this respect, the Claimant stressed that at the moment of the termination of the
contract the Respondent owed him his salary of November 2012.
9.
Furthermore, the Claimant argued that, in view of clause 7.5.1 of the contract, the
Respondent owed him USD 6,000 in bonuses for the matches against “Club W
(25/08/12), Club X (08/09/12), Club Y (02/09/12), Club Z (28/10/12)”.
10.
In continuation, the Claimant stressed that, as per clause 8.1 of the contract, the
Respondent needs to reimburse him the flight tickets he had to buy for him and
his family in the amount of USD 7,500. In this respect, the Claimant enclosed an
invoice of a travel agency dated 29 March 2012.
11.
In its reply to the claim, the Respondent argued that on 29 February 2012 the
parties reached an agreement for the loan of the Claimant to Club E as from “1
MAR 2012” until “31 Oct 2012”. In this respect, the Respondent argued that “In
this loan period all the payment is covered by [Club E] and in the three parties
agreement point 7 is specified if [the Claimant] and club [Club E] occurrence
economic disputes, there is nothing to do with [the Respondent]”.
12.
In his replica, the Claimant stressed that the Respondent did not provide any
evidence that the amounts claimed by him were actually paid.
13.
In its duplica, the Respondent stated that “We have pay to [the Claimant’s]
November in 2013 salary, amount of 40000 USD, No wage arrears” and that “[the
Claimant] demanded $6000 win bonus, There is no relationship with us, based on
[the Claimant] was player in Club E (country D) at that time…”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also 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 5 December 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 of the 2012 and 2014 editions of the Procedural Rules).
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 and 2 in
2.
Player A, from country B / Club C, from country D
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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 from country B and a club from country
D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (editions 2012 and 2014), and considering that the claim was lodged in
front of FIFA on 5 December 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, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
First of all, the DRC acknowledged that the Claimant and the Respondent had
concluded an employment contract valid as from 6 July 2011 until 30 December
2013, according to which the Claimant was entitled to a monthly salary of USD
40,000.
6.
Moreover, the Chamber noted that it was undisputed that on 29 February 2012,
the Claimant was loaned form the Respondent to Club E as of 1 March 2012 until
31 October 2012.
7.
Having said this, the Chamber took note of the position of the Claimant, who
stresses that the Respondent failed to pay him his salary of November 2012,
bonuses in the amount of USD 6,000 as well as flight tickets in the amount of USD
7,500.
8.
The Chamber further noted that, on its part, the Respondent rejected the claim
since “In this loan period all the payment is covered by [Club E] and in the three
parties agreement point 7 is specified if [the Claimant] and club [Club E]
occurrence economic disputes, there is nothing to do with [the Respondent]”, and
sustained that “We have pay to [the Claimant’s] November in 2013 salary, amount
of 40000 USD, No wage arrears. [The Claimant] demanded $6000 win bonus,
There is no relationship with us, based on [the Claimant] was player in Club E
(country D) at that time…”
At this point, the DRC wished to recall the general legal principle set forth in art.
12 par. 3 of the Procedural Rules which stipulates that any party claiming a right
9.
Player A, from country B / Club C, from country D
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on the basis of an alleged fact shall carry the burden of proof. In casu, the
Respondent bears the burden to prove that it actually paid to the Claimant his
salary of November 2012.
10.
With the above-mentioned consideration in mind, the members of the Chamber
were of the unanimous opinion that the Respondent did not provide any kind of
evidence in support of its defence and that, therefore, it could not be established
that the latter party had paid to the Claimant his salary of November 2012. As a
consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the employment
contract concluded with the Claimant and hence, is to be held liable to pay to the
Claimant the outstanding amount of USD 40,000.
11.
In continuation and with regard to the Claimant's request for interest, the
Chamber decided to award the latter party interest on said amount at the rate of
5% p.a. as from 5 December 2013.
12.
In continuation, and as to the Claimant’s claim for outstanding bonuses, the DRC
wished to highlight that the dates of the matches on which the Claimant based
this part of his claim were 25 August 2012, 2 September 2012, 8 September 2012
and 28 October 2012, i.e. while the Claimant was on loan with Club E. Therefore
and, while referring to clause D of the loan agreement, the Chamber came to the
conclusion that the Respondent was not responsible to cover the Claimant’s
bonuses born from matches which took place on the above-specified dates and
thus, this part of the claim is rejected.
13.
Furthermore, the Chamber referred to the Claimant’s claim of flight tickets and, in
this respect, it took note that the invoice of the relevant flight ticket provided by
the Claimant is dated 29 March 2012, i.e. when he was already on loan with Club
E. Therefore and while applying the rationale of the previous paragraph, the
Chamber decided to reject this part of the claim.
14.
Finally, the DRC concluded its deliberations by stating 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 C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of USD 40,000 plus 5% interest
p.a. as from 5 December 2013 until the date of effective payment.
Player A, from country B / Club C, from country D
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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.
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 A, from country B / Club C, from country D
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