Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 February 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
John Bramhall (England), member
Santiago Nebot (Spain), member
on the claim presented by the player,
P, from country G
as Claimant
against the club,
Club B, from country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 4 June 2009, the player P from country G (hereinafter: the Claimant), and the Club B
from country B (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract), valid as from the date of signature until 30 June 2011.
2.
According to art. 3 par. 1 of the contract, the Claimant is entitled to receive, inter alia, a
monthly salary in the amount of EUR 6,000, payable at the latest on the 30th day of the
following month.
3.
In addition, art. 3 par. 3 of the contract establishes that “the remuneration established
in par. 1 corresponds to a net amount, and the calculation and payment of taxes and
insurances should be made by the club”.
4.
On 18 August 2011, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the payment of the total amount of EUR 50,703.33, made up
of:
- EUR 48,000 gross, corresponding to outstanding salaries for March until June 2011
(4 x EUR 6,000) plus EUR 24,000, corresponding to the amount that will allegedly be
retained by the tax authorities of country G, plus interests of 5% p.a. as from 26
July 2011;
- EUR 2,703.33 corresponding to the Claimant’s costs for medical treatments.
5.
In his claim, the Claimant points out that art. 3 par. 3 of the contract stipulates that the
remuneration established in the contract is to be considered as a net amount. In
addition, the Claimant states to be currently living in country G and, consequently,
being subject to the tax laws of that country. In this context, the Claimant claims that in
order to receive the net amount of EUR 24,000, corresponding to his salaries for March
until June 2011 and due to him by the Respondent, the latter should pay him the gross
amount of EUR 48,000.
6.
Furthermore, the Claimant claims to have been authorized by the Respondent to
undergo medical treatment in country G, the costs of which should be borne by the
Respondent. In this respect, the Claimant encloses a copy of a letter of the Respondent,
dated 10 July 2010, according to which “with this document we, Club B confirm all costs
incurred to incorporate in the treatment of player P from the medical practice Dr. X and
his partners”. In addition, the Claimant provided copies of a receipt from the Clinic of
country G, dated 28 July 2010, in the amount of EUR 877.75, and of an e-mail of Dr. X,
dated 10 May 2011, according to which the amount of EUR 1,825.58 should be paid at
the latest by the following week.
7.
By means of his correspondence dated 11 July 2011, the Claimant reminded the
Respondent of its arrears, corresponding to EUR 24,000 in outstanding salaries for April
until June 2011 and approximately EUR 3,000 regarding the reimbursement of the
Player P, from country G / Club B, from country B
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Claimant’s costs for his medical treatment. The Respondent, however, did not make the
aforementioned payments.
8.
In its response to the claim, the Respondent stated that it suspended all payments due
to the Claimant after its management established that he had not fulfilled some of his
contractual obligations.
9.
In this respect, the Respondent claims that the Football Federation of country B imposed
on him a penalty in the amount of 2,000, for “unsportsmanlike conduct during official
matches”, which were not deducted from his salaries.
10.
In addition, the Respondent claims that the Claimant should be held liable to pay the
following fines:
- 6,000, corresponding to 6 violations of the laws of the game, as per art. 20 lit. i) of
the contract;
- 12,000, corresponding to 6 violations to art. 20 lit. e) of the contract, by issuing
“statements to the press concerning his play and training without the explicit prior
consent of the club”, in particular to the of country G newspaper and thereby
damaging the reputation of the Respondent;
- 10,000, for 10 violations of art. 20 lit. j) of the contract, 1,000 for each “case of
proven undisputed disclosure before third parties and/or publishing of confidential
information that became known to him in the course of ort due to the performance
of his obligations as a football player of the club”.
11.
In addition, the Respondent claims that, by means of “Order no 15/15.05.2009” the
club’s representative established “a limit of 300 for a residence rented by one football
player”. In addition, according to such document, “Every football player may choose a
residence and pay the difference above the limit set at his own expense”. As the rent of
the apartment chosen by the Claimant amounted to 1,200, the amount of 19,950, which
exceeds the limit set by the “Order no 15/15.05.2009”, should be deducted from any
amounts due to the Claimant.
12.
Furthermore, the Respondent disputes the authenticity of the letter dated 10 July 2010,
apparently issued by it. In this regard, the Respondent claims that the person who
signed such letter was not representing the Respondent on that date, since he was not
in country B on 10 July 2011.
13.
Finally, the Respondent rejects the Claimant’s claim for the payment of the additional
amount of EUR 24,000 in order to cover alleged tax deductions in country G. According
to the Respondent, the Claimant does not submit any type of evidence regarding the
method of calculation of such amount. In addition, the Claimant’s position violates the
tax agreement between country G and country B, with the objective to avoid double
taxation. In this regard, the Respondent claims that, according to such agreement
“taxes are due and are to be paid in the State where the employment is exercised” and
Player P, from country G / Club B, from country B
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that “the due taxes and social security contributions are deducted from the
remuneration on the date of the payment of such remuneration”. Thus, the Respondent
claims that it is entitled to retain any kind of payment due to the Claimant.
14.
In his replica, the Claimant claims that the Respondent never informed him about the
existence of any pending penalties and fines, or about any disciplinary procedure
related thereto. In addition, the Claimant points out that the Respondent does not
present any evidence of the existence of such sanctions or of the calculation of their
amounts. Moreover, all of the violations mentioned by the Respondent allegedly
occurred more than two years ago, and therefore are to be considered as time-barred.
15.
In particular, the Claimant denies having disclosed any confidential information about
the Respondent, while under contract with it, which could damage in any way its
reputation. In this regard, the Claimant denies having ever given an interview to any
newspaper of country B. The interview to the country G newspaper was given as the
Claimant was no longer under contract with the club and it mentions, in general terms,
that country B football does not always function as it should and does not mention the
name of the Respondent. The Claimant claims that no interest of the Respondent was
violated by his interview and no confidential information regarding his former
employer was disclosed. Therefore, the Claimant rejects the accusations of the club
related thereto.
16.
In addition, the Claimant claims that the document “Order no 15/15.05.2009” consists of
a document issued by the Respondent unilaterally and, therefore, should not be taken
into consideration. Moreover, such a clause is not included in the contract and during
the entire duration of the contract the Respondent has paid the full amount of his rent,
never having requested the Claimant to reimburse any amounts.
17.
The Claimant further states that the document of 10 July 2010 was correctly issued by
the undersigned person, who in 2010 was indeed acting as the legal representative of
the Respondent.
18.
With regard to the payment of taxes in country G, the Claimant claims that the
Respondent could have avoided having to bear the costs of tax payments in country G if
it had paid him regularly while he was living in country B. The Claimant stresses that the
reference used for the payment of taxes is not the place where the payment was due,
but where such payments will be received. Therefore, the Claimant will be liable to pay
taxes in country G.
19.
In its final position, the Respondent maintains its previous argumentations and states
that it does not dispute the existence of unpaid salaries towards the Claimant, but
insists on the fact that the amount of 6,000 in fines should be deducted from the
amount payable to the Claimant. In addition, it claims to have duly informed the
Claimant of the imposition of such fines.
Player P, from country G / Club B, from country B
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20.
In addition, the Respondent refers to the tax agreement signed between country G and
country B, according to which “wages and other similar remuneration derived by a
resident of a Contracting States in respect of an employment shall be taxable only in
that State unless the employment is exercised in the other Contracting State. If the
employment is so exercised, such remuneration as is derived therefrom may be taxed in
that other State”.
21.
Therefore, the Respondent asserted that the Claimant’s claim should be rejected and
the latter should bear legal fees in the amount of 9,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules). The present matter was submitted to FIFA on 18 August 2011. Therefore, the
Chamber concluded that the edition 2008 of the Procedural Rules was applicable to the
matter at hand (cf. art. 21 par. 2 and 3 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
b) of the Regulations on the Status and Transfer of Players (editions 2010 and 2012;
hereinafter: the Regulations), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes 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 par. 2 of the Regulations (editions 2010 and 2012), and considering that the
present claim was lodged on 18 August 2011, the 2010 edition of said 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
Chamber entered into the substance of the matter. In doing so, 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, the members of the DRC acknowledged that it was undisputed by the
parties that, on 4 June 2009, the Claimant and the Respondent signed an employment
contract valid as from the date of signature until 30 June 2011, in accordance with
Player P, from country G / Club B, from country B
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which the Claimant was entitled to receive a monthly salary in the amount of EUR
6,000.
6.
The DRC noted that, on the one hand, the Claimant claims that, in spite of his reminder
dated 11 July 2011, the Respondent failed to pay his remuneration for the period from
March to June 2011. The Claimant states that, according to the contract, these amounts
are to be considered as net. The Claimant indicated that he was currently living in
country G, where the income tax rate allegedly amounts to 50%, and that he deems
that the Respondent should bear such costs. In addition, the Claimant claims that the
expenses related to his medical treatment were not reimbursed by the Respondent,
contrary to what had been allegedly agreed by the parties. Thus, the Claimant requests
from the Respondent the payment of the total amount of EUR 50,703.33, as detailed in
point I.4. above.
7.
The Chamber further noted that, on the other hand, the Respondent does not contest
the existence of outstanding salaries towards the Claimant, but deems that several
deductions are to be made from this amount, regarding fines imposed on the Claimant
and the difference between the maximum amount of rent payable by the Respondent
and the price of the apartment chosen by the Claimant. In addition, the Respondent
rejects the Claimant’s claim for the reimbursement of medical costs and contests the
authenticity of the document provided by the Claimant and allegedly issued by the club
in this regard (cf. point I.6. above). The Respondent further rejects the Claimant’s
request for the payment of income taxes, as this is not in line with the tax agreement
concluded between country G and country B, in order to avoid double taxation.
8.
Having established the aforementioned, the Chamber 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 and the reimbursement of medical expenses could be upheld.
9.
At this point and for the sake of good order, the DRC deemed it appropriate to remind
the parties of 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. Bearing in mind the aforementioned principle, the
DRC noted that in the present case the Respondent bore the burden of proof regarding
the payment of the Claimant’s remuneration.
10.
In this respect, the DRC noted that the Claimant has provided a copy of the
correspondence addressed to the Respondent on 11 July 2011, reminding it of the
existence of unpaid remuneration for the months from April to June 2011, as well as of
the obligation to reimburse medical costs.
11.
Furthermore, the Chamber duly noted that the Respondent does not dispute the
existence of outstanding remuneration towards the Claimant. However, the Respondent
Player P, from country G / Club B, from country B
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deems that the fines imposed on the Claimant for alleged violation of the laws of the
game and disclosure of confidential information (cf. point I.10. above), were to be
deducted from the amount owed to him. Consequently, the Respondent claimed that
there was no amount owed to the Claimant.
12.
Likewise, the DRC acknowledged that the Claimant rejected the Respondent’s
allegation that the fines were to be deducted from his receivables, pointing out that he
was never informed of and never participated in the proceedings leading to the
imposition of such fines, that no evidence in this regard was provided by the
Respondent and that its accusations against him are untrue.
13.
In this context, the Chamber concurred that the alleged fines imposed on the Claimant
by the Respondent shall be disregarded, since a) the Respondent did not provide any
evidence of an alleged violation of the laws of the game, and b) the alleged disclosure
of confidential information to the media occurred only after the expiry of the contract.
14.
In addition, and irrespective of the foregoing considerations, the DRC wished to address
the fact that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a method to set off outstanding financial
obligations towards players. Consequently, the DRC decided to reject the Respondent’s
argument in this regard.
15.
Subsequently, the Chamber focused its attention on the allegation of the Respondent,
regarding further deductions to be made to the amount due to the Claimant as
remuneration, corresponding to the payment of rent expenses by the Respondent
above the limit set in the “Order no 15/15.05.2009” (cf. point I.11. above), which the
Claimant rejects.
16.
In this regard and bearing in mind the principle of burden of proof, the Chamber noted
that the copy of the aforementioned “Order” provided by the Respondent does not
bear the signature of the Claimant, as pointed out by the latter.
17.
In addition, the members of the DRC observed that, in accordance with the allegations
of the Claimant, the employment contract signed between the parties on 4 June 2009
does not establish a limit for the payment of rent expenses. Therefore, the DRC deemed
that the Respondent could not justify having made some deductions with regard to the
Claimant’s rent.
18.
In view of the foregoing, the Chamber concluded that the Respondent was not able to
provide substantial evidence of its alleged right to make any deductions to the
outstanding remuneration due to the Claimant, regarding imposed fines or rent
expenses borne by the Respondent. Thus, the Respondent is to be held liable for the
payment of outstanding remuneration to the Claimant in the total amount of EUR
24,000, corresponding to his salaries for the months of March to June 2011, plus interest
Player P, from country G / Club B, from country B
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of 5% p.a. on said amount as from 16 July 2011 until the date of effective payment, as
requested by the Claimant.
19.
Having established the aforementioned, the Chamber began to analyse the Claimant’s
request for the reimbursement of medical costs incurred in relation to his medical
treatment in country G.
20.
In this regard and always bearing in mind the principle of burden of proof, the DRC
noted that the Claimant has provided a letter of the club dated 10 July 2010, duly
signed by its executive director and containing the Respondent’s letterhead and stamp,
according to which: “with this document we, Club B, confirm all costs incurred to
incorporate in the treatment of player P from the medical practice Dr. X and his
partners”.
21.
The Chamber further noted that the Claimant, in support of his request for
reimbursement, also provided a copy of a receipt from the Clinic in country G, dated 28
July 2010, in the amount of EUR 877.75, and of an e-mail of his physician, dated 10 May
2011, indicating that the amount of EUR 1,825.58 should be paid by the following
week.
22.
The DRC equally noted that the Respondent contested having had an obligation to bear
any medical costs incurred by the Claimant, as the signatory of the letter dated 10 July
2010 (cf. point II.22. above) was no longer representing the Respondent at the time
and, thus, such document should be considered as invalid.
23.
In view of the aforementioned allegations, the Chamber observed that the Respondent,
in fact, does not contest that the document of 10 July 2010 has indeed been issued by
the club, but only that the signatory of such document was no longer the Respondent’s
legitimate representative at the time of signature.
24.
In addition, the members of the DRC deemed that the Claimant, being in possession of
a document signed by the person who appeared to be at the time the executive director
of the club, bearing the Respondent’s letterhead and stamp, had a legitimate reason to
rely upon the validity of such document and to believe that the Respondent would bear
the costs of his medical treatment in country G. Thus, the Respondent’s allegation
regarding the alleged illegitimacy of the signatory of the document dated 10 July 2010
could not be upheld.
25.
In continuation, the Chamber focused its attention on the documentary evidence
provided by the Claimant in support of his request for reimbursement of the total
amount of EUR 2,703.33, consisting of a receipt from the Clinic in country G, dated 28
July 2010, and an e-mail of Dr. X, dated 10 May 2011.
26.
In this regard, the DRC deemed that the receipt of 28 July 2010 could be considered as
consistent evidence of the amount paid by the Claimant with regard to his medical
Player P, from country G / Club B, from country B
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treatment. The e-mail of the Claimant’s physician dated 10 May 2011, however, could
not be considered as irrefutable proof by the Claimant of the payment of the amount
therein indicated. Thus, the Chamber concluded that only the total amount of EUR
877.75 was due to the Claimant by the Respondent, as reimbursement of medical
expenses.
27.
In conclusion, the Chamber decided that the claim of the Claimant is partially accepted,
that the Respondent is ordered to pay the Claimant outstanding remuneration in the
amount of EUR 24,000 plus 5% interest p.a. as from 26 July 2011 until the date of
effective payment, as well as to reimburse the Claimant medical expenses incurred in
the amount of EUR 877.75.
28.
Finally, the Chamber decided that any further claims lodged by the Claimant are
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is partially accepted.
2.
The Respondent, Club B, is ordered to pay to the Claimant outstanding remuneration in
the amount of EUR 24,000 plus 5% interest p.a. as from 26 July 2011 until the date of
effective payment, within 30 days as from the date of notification of this decision.
3.
The Respondent has to pay to the Claimant medical expenses in the amount of EUR
877.75, within 30 days as from the date of notification of this decision.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time
limits, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
time limit on the amount mentioned in number 3. and the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration and a
formal decision.
5.
Any further claims lodged by the Claimant are rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
Player P, from country G / Club B, from country B
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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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player P, from country G / Club B, from country B
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