Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Rus s ia), member
Daan de Jong (the Netherlands ), member
on the claim presented by the player,
Play er 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 cas e
1.
On an unspecified date, the Player of Country B, Player A (hereinafter: the
Claimant), and the Club of Country D, Club C (hereinafter: the Respondent),
signed an employment contract valid as from 28 August 2016 until 15 July 2017.
2.
The employment contract presented by the Claimant bears handwritten
financial entitlements in an unintelligible currency. According to art. 2 of said
contract, the Claimant was entitled to a no better defined 85,000, payable in
instalments as follows: 50% “of the contract amount […] at the final ratification
of the contract”, 25% in “monthly salaries at the end of each month” and 25%
“at the end of the league”.
3.
The employment contract uploaded in the Transfer Matching System
(hereinafter: TMS), valid as from 28 August 2016 until 15 July 2017, establishes
that the Claimant was entitled to USD 80,000 payable in 3 instalments as
follows: 40% “at the final ratification of the contract”, 30% “at the end of the
first phase of the football league” and 30% at the “end of the league”, which,
according to the TMS, in the relevant season was 30 June 2017.
4.
On 27 March 2017, the Claimant lodged a claim against the Respondent in front
of FIFA, requesting to be paid the total amount of USD 45,000, allegedly
corresponding to the second and the third instalments of his total
remuneration.
5.
The Claimant argued that the Respondent had only paid USD 42,500,
corresponding to the first instalment of his remuneration. Furthermore, the
Claimant argued that, notwithstanding the various attempts to get in touch
with the Respondent’s management, he was not able to receive the claimed
amount.
6.
In reply to the claim, on 5 June 2017, the Respondent asked that the Claimant’s
financial request be rejected, as the Claimant had allegedly received from the
Respondent more than what was due to him.
7.
More in particular, the Respondent acknowledged the contract presented by
the Claimant, but argued that, according to art. 2 of the employment contract,
the Claimant was entitled to receive a total remuneration in the amount of
85,000,000, payable as follows: a) 50% of the total amount (i.e. 42,500,000) at
the signing of the contract, b) 25% of the total amount (i.e. 21,500,000) in ten
equal monthly salaries at the end of each month and c) 25% of the total
amount (i.e. 21,500,000) at the end of the Premier League of Country D,
allegedly coincident with the natural expiry of the contract.
8.
In this respect, the Respondent explained that, at the time of its reply to the
claim, the Claimant was entitled to receive the total amount of 60,714,281,
Player A, Country B/ Club C, Country D
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consisting of 50% of the value of the contract plus the monthly salaries as from
December 2016 until May 2017.
9.
Moreover, the Respondent argued that, by means of 5 different payments
totalling 62,500,000 it had fulfilled its obligations towards the Claimant, having
allegedly paid him more than he was entitled to. More in particular, the
Respondent pointed out that it had fulfilled its obligations through the
following payments: a) 1,300,000 on 16 September 2016; b) 53,950,000 on 25
September 2016; c) 5,000,000 on 4 May 2017; d) 250,000 on 15 May 2017 and e)
2,000,000 on 1 June 2017.
10.
The Claimant sent his replica after the expiry of the time limit set by FIFA.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter at
stake. In this respect, the DRC took note that the present matter was submitted
to FIFA on 27 March 2017. Consequently, the DRC concluded that the 2017
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 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 2018) the DRC is competent to deal with the matter at stake,
which concerns an employment–related dispute with an international
dimension between an Player of Country B and a Club of Country D.
3.
Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and par.
2 of the Regulations (edition 2018) and considering that the present claim was
lodged in front of FIFA on 27 March 2017, the 2016 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 DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. In this respect, the Chamber started by acknowledging all the abovementioned 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
Player A, Country B/ Club C, Country D
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evidence, which it considered pertinent for the assessment of the matter at
hand.
5.
In particular, the Chamber recalled that in accordance with art. 6 par. 3 of
Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or
evidence generated or contained in the TMS.
6.
In this respect, first and foremost, the Chamber observed that the Claimant
submitted a contract bearing handwritten financial entitlements and referring
to a remuneration in an unintelligible currency. The DRC further noted that the
Respondent, while acknowledging the contract presented by the Claimant,
argued that the total remuneration due to the Claimant was 85,000,000 rather
than USD 85,000, i.e. a lower amount. In light of the fact that the contract
submitted by the Claimant is ambiguous with regards to his entitlements and
given the different interpretation that the parties gave of it, the members of
the Chamber decided to take into account the contract contained in the TMS in
order to properly assess the case at stake.
7.
Having said that, the DRC acknowledged that, according to said contract signed
by the parties on an unspecified date and valid as from 28 August 2016 until 15
July 2017, the Claimant was entitled to a total remuneration of USD 80,000
payable in 3 instalments as follows: 40% “at the final ratification of the
contract”, 30% “at the end of the first phase of the football league” and 30%
at the “end of the league”.
8.
The members of the Chamber further noted that, according to the information
contained in the TMS, the 2016/2017 football season in Country D ended on 30
June 2017.
9.
In continuation, the members of the Chamber noted that, according to the
Claimant, the Respondent had failed to remit him the salaries he was entitled
to, having paid, by the time he had lodged the claim, only USD 42,500, allegedly
corresponding to the first instalment of his remuneration set out in the contract
he presented along with his statement of claim.
10.
On the other hand, the members of the Chamber noted that the Respondent,
for its part, argued that, by means of 5 different payments totalling 62,500,000,
it had fulfilled its obligations towards the Claimant, allegedly paying him more
than he was entitled to at that time.
11.
More specifically, the DRC took note that the Respondent pointed out that it
had fulfilled its obligations through the following payments: a) 1,300,000 on 16
September 2016; b) 53,950,000 on 25 September 2016; c) 5,000,000 on 4 May
2017; d) 250,000 on 15 May 2017 and e) 2,000,000 on 1 June 2017.
Player A, Country B/ Club C, Country D
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12.
Having said that, the Chamber considered important to bear in mind art. 12 par.
3 of the Procedural Rules, in accordance with which any party claiming a right
on the basis of an alleged fact shall carry the burden of proof. In this respect,
the Chamber noted that the 5 payment receipts submitted by the Respondent in
both original and translated version carried the Claimant’s signature and referred
to “payments for the 2016-17 season”. Consequently, the DRC concluded that the
Respondent had provided sufficient proof of payment of 62,500,000, i.e. the
approximate amount of USD 52,450, to the Claimant at the time of its reply to
the claim on 5 June 2017.
13.
It follows from the above that, out of the total amount of USD 80,000 that the
Claimant was contractually entitled to for the season 2016/2017, by early June
2017, the Claimant had received from the Respondent remuneration in the
approximate amount of USD 52,450.
14.
At this point, the Chamber noted that the Claimant’s replica was submitted
after expiry of the time limit set by FIFA. Consequently, i n application of art. 9
par. 3 of the Procedural Rules, the Chamber decided not to take into account the
Claimant’s late submission.
15.
On account of all of the aforementioned considerations, the Chamber
established that the Respondent failed to remit the Claimant’s remuneration in
the total amount of USD 27,550.
16.
Consequently, the DRC decided that, in accordance with the general legal
principle of “pacta sunt servanda”, the Respondent is liable to pay the amount
of USD 27,550 to the Claimant.
17.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 27,550.
3.
In the event that the aforementioned sum is not paid by the Respondent within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of
the aforementioned time limit and 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 m otiv ated decis ion (legal remedy):
According to art. 58 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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
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