Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2014,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Mohamed Al Saikhan (Saudi Arabia), member
Joaquim Evangelista (Portugal), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player G, from country B
as Claimant
against the club,
Club V, from country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 7 June 2008, Player G, from country B (hereinafter: the Claimant), and Club V,
from country R (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract), as well as an appendix, both valid as from 1 July 2008
until 1 July 2011, i.e. for 3 years.
2.
In accordance with the appendix to the contract, the Claimant was, inter alia,
entitled to the following net amounts:
-
-
EUR 60,000 after completing the medical exams;
EUR 140,000 per season payable in 12 instalments of EUR 11,600 per
month, each due on the 22nd day of the month;
EUR 140,000 per season as bonus for finishing in 1st or 2nd position (i.e.
Champions League qualification);
EUR 70,000 per season as bonus for finishing in 3rd, 4th or 5th position (i.e.
UEFA Cup / Europa League qualification);
“Bonus will be paid only if the player is playing in at least 80% of the
games but not less than 60%”;
Match bonus for the season 2008/2009: EUR 3,000 for each match won at
home, EUR 6,000 for each match won away from home (50% will be paid
after the match and 50% at the end of the championship if the team is
classified in the top 5).
3.
Art. 17.2 of the contract stipulates that “The parties will make, in good faith, all
efforts in order to solve amiably any dispute, controversy or misunderstanding from
or in connection with the present agreement. If this is not possible, the dispute will
be forwarded in order to be solved only to the sports jurisdiction courts of country
R Football Federation or Professional Football League”.
4.
Art. 3 of the appendix stipulates that “If the player gets injured during training
sessions, official or friendly matches, he will benefit from all the rights and
obligations deriving from the present document (…)”.
5.
On 19 January 2011, the Claimant lodged a claim against the Respondent in front of
FIFA for outstanding amounts, and after amending his claim after the expiry of the
contract, requests EUR 213,456 plus 5% interest p.a. made up of the following
amounts:
-
-
Season 2009/2010 total amount of EUR 103,710 plus 5% interest p.a. as of 1
July 2010:
EUR 9,710 as total amount outstanding from his monthly salaries
throughout the season;
EUR 24,000 as outstanding match bonuses;
EUR 70,000 as outstanding ‘’UEFA bonus’’.
Season 2010/2011 total amount of EUR 109,746 plus 5% interest p.a. as of 1
July 2011:
Player G, from country B / Club V, from country R
2/14
EUR 39,654 as total amount outstanding from his monthly salaries
throughout the season;
EUR 70,092 as partial ‘’UEFA bonus’’.
6.
Furthermore, the Claimant requests sporting sanctions to be imposed on the
Respondent.
7.
The Claimant provided evidence of having put the Respondent in arrears in writing
on 19 November 2010 and 13 December 2010, upon which the Respondent
allegedly failed to remit the entire outstanding amounts.
8.
In reply to the claim, the Respondent first of all rejected the competence of FIFA to
deal with the matter, asserting that the contract is governed country R law and the
regulations of the country R Football Federation and that the “National Dispute
Resolution Chamber of the country R Football Federation or Dispute Resolution
Committee of the country R Professional Football League” of the country R Football
Federation are, respectively, the only competent bodies. In this respect, the
Respondent referred to art. 26 of the Regulations concerning the Statute and
Transfer of Players of the country R Football Federation (hereinafter: country R
Football Federation Regulations).
9.
Having been requested by FIFA to provide documentary evidence regarding the
arbitration tribunal at national level, the Respondent provided a translated version
of the “Collaboration Convention” concluded between the country R Football
Federation and the country R Professional League, dated 28 January 2011. The
Respondent also provided a translated version of the 2009 edition of the country R
Football Federation Regulations.
a. with regard to the existing deciding bodies:
Art. 26. 1 lit. a) of the country R Football Federation Regulations indicates that
the first instance deciding bodies are the NDRC of the country R Football
Federation, the DRC of the country R Professional Football League and the
Commission for the Players’ Status of the County Football Association (CFA).
b. with regard to the jurisdiction of the deciding bodies:
According to art. 26.2 lit. a) of the country R Football Federation Regulations,
the NDRC of the country R Football Federation is competent to decide on
disputes concerning “the conclusion, interpretation and execution of contracts
concluded between clubs and players, and maintaining contractual stability”.
As per art. 26.8 of the country R Football Federation Regulations, the DRC of
the country R Professional Football League is “exclusively” competent to solve
disputes involving “Clubs participating in the 1st League National
Championship, officials, players and their coaches (…) according to the country
R Football Federation and the country R Professional Football League annual
convention”.
c. with regard to the composition of the deciding bodies:
Art. 26.5 of the country R Football Federation Regulations provides that the
NDRC of the country R Football Federation is composed of a chairman and a
vice-chairman “elected by consensus by the players and clubs’ representatives
Player G, from country B / Club V, from country R
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d.
from a list containing the names of at least five people, drawn by the Executive
Committee of the country R Football Federation”, three players’ representatives
nominated by the Association of Amateur and Non-Amateur Footballers, and
three clubs’ representatives nominated by the Executive Committee of the
country R Football Federation.
Art. 26.8 in fine of the country R Football Federation Regulations stipulates that
the DRC of the country R Professional Football League – and its appeal body – is
composed of five members, among which one president and one vice-president,
their names and functions being approved by the Executive Committee of the
Professional Football League for a one-year mandate.
with regard to the possibility of an appeal:
Art. 26.1 lit. b) of the country R Football Federation Regulations establishes that
the decisions of the NDRC of the country R Football Federation may be
appealed before the “Appeal Committee of the country R Football Federation”
and that the decisions of the DRC of the country R Professional Football League
may be appealed before the “Appeal Commission of the country R Professional
Football League”. Art. 26.1 lit. c) of the country R Football Federation
Regulations provides that the decisions of the aforementioned appeal bodies
may be appealed to the Court of Arbitration for Sport (CAS).
10.
As an alternative request, the Respondent claims that country R law and the
regulations of the country R Football Federation should be applied, thereby
referring to several provisions in the contract that refer to country R law and the
regulations of the country R Football Federation.
11.
As to the substance of the claim, the Respondent rejects the Claimant’s claim and
states that it tried to find an amicable settlement with the Claimant without success
and the latter knows that the Respondent was in a difficult situation.
12.
The Respondent further states that for the season 2008/2009 the Claimant was
entitled to receive EUR 330,000 (EUR 200,000 salary + EUR 70,000 as ‘’UEFA bonus’’
+ EUR 60,000 match bonus). In this respect, the Respondent asserts that a ‘’sportive
penalty’’ representing 10% of his yearly income, i.e. EUR 33,000, was imposed on
the Claimant. This decision was taken by the Respondent on 25 May 2009, and
ratified by the Disciplinary Committee of the country R Football Federation on 9
June 2009. Therefore, taking into account the “sportive penalty”, the Claimant was
entitled to receive EUR 297,000, but has in fact received EUR 297,711 from the
Respondent, in accordance with the Claimant’s explanations.
13.
As to the season 2009/2010, the Respondent states that the Claimant was entitled to
receive EUR 140,000 as salary and EUR 70,000 as ‘’UEFA bonus’’. However, since the
Claimant participated only in 38,2% of the UEFA matches he is only entitled to
receive EUR 26,740 from said bonus. In particular, according to the Respondent’s
interpretation of the relevant bonus is “conditioned by the participation in the field
in at least 80% of the matches but not less than 60% from the duration of each
match”. As to the match bonuses claimed for the season 2009/2010, the Respondent
explains that there is no such clause for this entitlement in the appendix.
Player G, from country B / Club V, from country R
4/14
Consequently, the Claimant was entitled to receive EUR 166,740 for the season
2009/2010 of which he received EUR 166,145.
14.
In order to corroborate the amounts the Respondent alleges having paid to the
Claimant, the Respondent provides balance sheets issued by its own services for
each season. The Respondent also provides payment orders, without translation, for
four payments dated after the original claim of the Claimant amounting to 126,000
currency of country R (approx. EUR 31,300).
15.
In his replica, the Claimant emphasised that the DRC is competent since there is no
specific arbitration clause in the contract or annex empowering exclusively the
country R Football Federation NDRC and the latter does not meet the principle of
equal representation. Moreover, the Claimant stressed that the Respondent failed
to provide the country R Football Federation Regulations and “Collaboration
Convention” in their original versions in country R. Moreover, the “Collaboration
Convention” has come into force on 28 January 2011, whereas the claim was lodged
on 18 January 2011 and therefore cannot be taken into account. Also, the country R
Football Federation NDRC has no jurisdiction to rule on the dispute between a club
participating in the First League National Championship and the Claimant. In this
respect, the Claimant refers to CAS 2010/A/2289 Club V v/ Player L, which, in the
Claimant’s view, confirmed that the NDRC of the country R Football Federation
does not comply with the required minimum standards to be recognised.
16.
As to the substance of the matter, the Claimant stressed that from the balance
sheets provided by the Respondent it is not clear which debts the alleged payments
refer to. In this regard, the Claimant deems that the Respondent has not provided
tangible proof in order to demonstrate that the amounts he claims were at all paid.
17.
As to the fine imposed by the Respondent on the Claimant (cf. point 12), the latter
states that he was not notified or informed about it and thus had no right to be
heard. Moreover, the decision does not contain the names of the members of the
Chamber and therefore is not binding.
18.
As to the ‘’UEFA bonus’’ for the season 2009/2010, the Claimant explains that he
participated in 21 out of 34 matches, i.e. in 61.76% of the matches. Therefore, the
Respondent’s argument that the Claimant only participated in 38.2% of the
matches is unfounded and is not supported by any evidence. Furthermore, the
Claimant states that he missed 12 matches through injury. In accordance with art. 3
of the appendix it should thus be considered that he participated in more than 80%
of the matches and is entitled to receive the entire ‘’UEFA bonus’’ of EUR 70,000.
19.
Regarding the match bonuses for the season 2009/2010, the Claimant explains that
the Respondent is in bad faith, since he received match bonuses for the season
2009/2010 as well as 2010/2011. Thus the Respondent tacitly affirmed its obligation
to pay such bonuses in spite of them not being provided for in the appendix. The
Claimant confirms having received a total of EUR 24,000 for match bonuses during
the season 2009/2010, which he considers to be 50% of his entitlement for that
Player G, from country B / Club V, from country R
5/14
season. In particular, considering that the Respondent finished in the top 5 of the
championship that season, the other 50% of match bonuses are due at the end of
the season and are still outstanding.
20.
In addition, the Claimant states that if the balance sheets provided by the parties
are compared, it appears that the Respondent paid EUR 130,353 for salaries and
admits to have an outstanding balance of salaries of EUR 9,647 net for the
2009/2010 season (EUR 140,000 – EUR 130,353). However, the Claimant claims EUR
9,710.
21.
Regarding the season 2010/2011, the Claimant states that half of the ‘’UEFA bonus’’
is outstanding since the Respondent played against Club T in the third qualifying
round of the UEFA Champions League (2011/2012) and thus the amount of EUR
140,000 is due. However, the Claimant only received EUR 69,908, meaning that the
amount of EUR 70,092 is outstanding.
22.
In conclusion, the Claimant states that if the balance sheets for the season
2010/2011 are compared, it appears that the Respondent paid EUR 90,101 for
salaries and admits to have an outstanding balance of salaries of EUR 49,899 net
(EUR 140,000 – EUR 90,101). However, the Claimant claims EUR 39,654.
23.
In its final position, the Respondent maintained its previous position and stated that
it paid all the amounts indicated in the table below, which it enclosed to its
correspondence:
Season
Salary
Bonus
Total financial
Payment
rights
(club
Observations
to
Claimant )
2008/2009
EUR 200,000
Match bonus:
EUR 330,000
EUR 296,711
EUR 60,000
Sanction of
Claimant 10%
for season
UEFA bonus:
2008/2009 (EUR
EUR 70,000
33,000)
according to
Disciplinary
decision of 25
May 2009.
2009/2010
EUR 140,000
Match bonus:
EUR 166,740
EUR 166,145
Not stipulated
in contract
UEFA bonus:
EUR 26,740
(participation
Player G, from country B / Club V, from country R
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38,2%)
2010/2011
EUR 140,000
Match bonus:
EUR 210,000
EUR 140,900
On 27 March
Not stipulated
+ EUR 70,000
2012 the club
in contract
paid on 27
paid EUR 7,535
march 2012
for outstanding
UEFA bonus:
match bonuses
EUR 70,000
for the season
2008/2009.
24.
As to the disciplinary sanction imposed on the Claimant, the Respondent states that
the Claimant never appealed it and therefore accepted it in 2009.
25.
As to the ‘’UEFA bonus’’ for 2009/2010, the Respondent points out that the
Claimant admitted having only played 61,76% of the matches and therefore has
not reached the requirement of 80% match participation. In this respect, the
Respondent stated the bonus would be due “if [the Claimant] plays not less than
60% of the (championship) games but imposes before all an obligation for [the
Claimant] to play at least 80% of the games”. Therefore the residual amount is not
due.
26.
As to the amount of EUR 70,092 claimed as residual ‘’UEFA bonus’’ for the season
2010/2011, the Respondent states that it actually finished the season as 3rd on the
basis of the sporting performance of its team and players. However, as a result of
an administrative issue encountered by another club, the country R Professional
League had to amend the classification and the Respondent was therefore ranked
2nd. Consequently, the Claimant is not entitled to receive the ‘’UEFA bonus’’
according to the contract.
27.
Finally, the Respondent stresses that match bonuses for the seasons 2009/2010 and
2010/2011 were not contractually provided for and therefore such claim has to be
rejected.
28.
After the closure of the investigation-phase in the present matter, the Claimant
submitted an unsolicited correspondence in relation to the competence of the
Dispute Resolution Chamber. In this regard, the Claimant was informed that it
would be for the said Chamber to determine whether said correspondence could be
taken into consideration in spite of having been transmitted after the closure of the
investigation.
II.
Considerations of the Dispute Resolution Chamber
1.
In a first instance, the Dispute Resolution Chamber (hereinafter 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 19 January 2011. Consequently, the 2008 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Player G, from country B / Club V, from country R
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Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable
to the matter at hand (cf. art. 21 par. 2 and 3 of the 2008 and 2012 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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2010 and 2012) the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player that
have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a country B player and a
country R club regarding alleged outstanding remuneration.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that any dispute arisen between the parties should be submitted to the
deciding bodies of the country R Football Federation and of the country R
Professional Football League.
5.
The Chamber equally noted that the Claimant rejected such position and stressed
that FIFA had jurisdiction to deal with the present matter because there is no
specific arbitration clause in the contract or annex empowering exclusively a specific
national arbitration body. Additionally, the Claimant considered that the NDRC of
the country R Football Federation had no jurisdiction ratione personae and ratione
materiae and that the DRC of the Professional Football League did not meet the
principle of equal representation.
6.
In relation to this aspect, the DRC observed that the Claimant submitted a
correspondence after the investigation-phase of the matter had already been
concluded. As a result, the DRC decided not to take into account the last submission
of the Claimant and established that, in accordance with art. 9 par. 3 of the
Procedural Rules, it shall take a decision upon the basis of those documents on file
that were provided prior to the closure of the investigation-phase.
7.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the 2010 FIFA Regulations, it is competent to deal with a matter
such as the one at hand, unless an independent arbitration tribunal, guaranteeing
fair proceedings and respecting the principle of equal representation of players and
clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the standards
to be imposed on an independent arbitration tribunal guaranteeing fair
proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December
2005. In this regard, the members of the Chamber further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
Player G, from country B / Club V, from country R
8/14
8.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute actually contained a
jurisdiction clause.
9.
Having said this, the members of the Chamber turned their attention to art. 17 par.
2 of the contract, which stipulates that “The parties will make, in good faith all
efforts in order to solve amiably any dispute, controversy or misunderstanding
arising from or in connection with the present agreement. If this is not possible, the
dispute will be forwarded in order to be solved only to the sports jurisdiction courts
of country R Football Federation or Professional Football League”.
10.
In view of the aforementioned clause, the members of the DRC were of the opinion
that art. 17 par. 2 of the employment contract does not make clear reference to one
specific national dispute resolution chamber in the sense of art. 22 lit. b) of the
aforementioned Regulations. Therefore, the members of the Chamber deem that
said clause can by no means be considered as a clear arbitration clause in favour of
either of the national deciding bodies, i.e. of the country R Football Federation or
the country R Professional Football League, and, therefore, cannot be applicable. In
this regard, the Chamber pointed out that this lack of clarity is also reflected in the
Respondent’s argumentation since it refers to the alleged competence of the
deciding bodies of both the country R Football Federation and Professional Football
League, without further precision.
11.
Having established that the first criterion for the recognition of the competence of
a national decision-making body is not fulfilled in the present matter, the Chamber
deemed unnecessary to examine any further points which would need to be
assessed before concluding to the competence of a national deciding body.
12.
In view of the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter had to be rejected and that
the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, to consider the present matter as to the substance.
13.
Subsequently, the members of the Chamber analysed which edition of the
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 (editions 2010 and 2012) and considering that the claim in front of FIFA
was lodged on 19 January 2011, the 2010 edition of said Regulations is applicable to
the present matter as to the substance.
14.
Furthermore, the DRC wished to point out that when deciding a dispute before the
DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this
regard the Chamber emphasized that the main objective of the FIFA regulations is
to create a standard set of rules to which all the actors within the football
community are subject to and can rely on. This objective would not be achievable if
Player G, from country B / Club V, from country R
9/14
the DRC would have to apply the national law of a specific party on every dispute
brought to it. Therefore, the Chamber deems that it is not appropriate to apply the
principles of a particular national law to the present affair, which concerns alleged
outstanding remuneration only, but rather the RSTP, general principles of law and,
where existing, the Chamber’s well-established jurisprudence.
15.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this 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.
16.
In this respect, the DRC acknowledged that, on 7 June 2008, the parties signed an
employment contract as well as an appendix, both valid as from 1 July 2008 until 1
July 2011. In accordance with the appendix, the player was, inter alia, entitled to
receive the amount of EUR 140,000 per season as fixed remuneration, bonuses
pertaining to the club’s classification at the end of each season (referred to as
‘’UEFA bonus’’) and further appearances bonuses for the season 2008/2009.
17.
The Chamber further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of alleged outstanding amounts totalling
EUR 213,456, plus interest. In particular, the DRC conceded that the Claimant
claimed an amount of EUR 9,710 as outstanding salaries, EUR 24,000 as outstanding
match bonuses and EUR 70,000 as outstanding UEFA bonus for the season
2009/2010. As to 2010/2011 season, the Chamber took note that the Claimant
requested to be awarded EUR 39,654 as outstanding salaries as well as 70,092 as
residual UEFA Bonus arguing that the Respondent played in the third preliminary
round of the 2011/2012 UEFA Champions League.
18.
Turning its attention to the Respondent’s position, the DRC noted that the latter
sustained that, according to the contract, match bonuses were only agreed for the
2008/2009 season and not for either of the subsequent seasons. As regards the
amount claimed as UEFA bonus for the 2009/2010 season, the Chamber observed
that the Respondent acknowledged in its final submission that the Claimant had
taken part in 61.76 % of the games and was therefore not entitled to the claimed
amount as the contractual threshold of 80% had not been reached. In this context,
the Chamber took due note that the Respondent maintained that the Claimant was
entitled to the total amount of EUR 166,740 for the 2009/2010 season and alleged
having paid the amount EUR 166,145. Furthermore, the Chamber noted the
Respondent’s assertion that an amount of EUR 210,900 was paid to the Claimant for
the season 2010/2011. Hence, since the player was allegedly entitled to EUR 140,000
as salary plus EUR 70,000 as UEFA bonus - on the basis of having finished the season
in 3rd position – no amounts remain outstanding.
Player G, from country B / Club V, from country R
10/14
19.
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 could be upheld.
20.
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 on the
basis of an alleged fact shall carry the respective burden of proof. Bearing in mind
the aforementioned principle, the DRC noted that in the present dispute, the
Respondent bore the burden of proof regarding the payment of the Claimant’s
remuneration.
21.
The Chamber firstly focused its attention on the match bonuses claimed by the
Claimant. In order to do so, the members of the Chamber analysed the wording of
art. 1 of the appendix. According to such article, match bonuses were only provided
for the 2008/2009. Consequently, considering the lack of a contractual basis and the
Claimant’s failure to produce documentary evidence that such bonuses were
actually due, the Chamber determined, in accordance with art. 12 par. 3 of the
Procedural Rules, that the Claimant was not entitled to receive the alleged
outstanding match bonuses.
22.
As to the alleged outstanding salaries, i.e. the amounts of EUR 9,710 for the
2009/2010 season and EUR 39,654 for the 2010/2011 season, the Chamber noted
that the Respondent provided no conclusive evidence that the amounts claimed by
the Claimant were effectively paid since it only submitted a list of alleged payments
drafted by its own administration on letterhead bearing its name. In fact, despite
the burden to prove that the relevant amounts were paid to lie on the Respondent,
the Chamber deemed that the documentation provided did not prove that any
single amount had been paid by the Respondent to the Claimant. Consequently,
and in accordance with art. 12 par. 3 of the Procedural Rules, the Chamber relied on
the Claimant’s statement and evidence and held that the amounts of EUR 9,710 and
EUR 39,654 were outstanding for the seasons 2009/2010 and 2010/2011 respectively.
23.
In this context, the DRC turned its attention to the Respondent’s argument
according to which the player was not entitled to receive the full amount of the
UEFA bonus for the 2009/2010 season since he did not reach the limit of 80% stated
in article 1 of the appendix. In this respect, the Chamber analysed said clause which
reads as follows: “the bonuses will be paid only if the player is playing in at least
80% of the games, but not less than 60% of the games”. In this regard, the DRC
firstly noted that the wording of the clause is unclear. In addition, the Chamber
observed that the Respondent’s interpretation of the clause during the course of
the investigation was not consistent. While it initially considered that the bonus was
“conditioned by the participation in the field in at least 80% of the matches but not
less than 60% from the duration of each match,” the Respondent then stated the
bonus would be paid “if [the Claimant] plays not less than 60% of the
(championship) games but imposes before all an obligation for [the Claimant] to
Player G, from country B / Club V, from country R
11/14
play at least 80% of the games”. Accordingly, concentrating on the wording of the
annex, the DRC deemed that the parties must have agreed on a threshold of either
60% or 80% of matches. Facing this situation, the Chamber held that the clause had
to be interpreted in favour of the Claimant in that he would have been in good
faith in considering that a participation in 60% of matches would be sufficient to
trigger the relevant bonus, since such a figure is explicitly indicated. In this respect,
the Chamber took note that the Respondent did not produce any documentary
evidence that the Claimant’s appearances amounted to 38.2%, as alleged in its
initial submission. Conversely, the Claimant provided the Chamber with evidence
attesting that he took part in 21 out of 34 league games, i.e. 61.76%, which was
acknowledged by the Respondent in its final submission. In light of the foregoing,
the Chamber concluded that the Claimant was entitled to receive the amount of
EUR 70,000 as UEFA bonus for the 2009/2010 season. Since the Respondent failed to
produce conclusive evidence that it had already paid an amount of EUR 26,145 as
UEFA bonus, the DRC, in accordance with art. 12 par. 3 of the Procedural Rules, held
therefore that an amount of EUR 70,000 was outstanding and due by the
Respondent.
24.
As far as the UEFA bonus for the season 2010/2011 is concerned, the Chamber
pointed out that the Claimant acknowledged receipt of the payment of the bonus
corresponding to the qualification for the UEFA Cup/Europa League, i.e.
classification between 3rd and 5th. In addition, the DRC noted that the Claimant
considered that he was entitled to receive the bonus corresponding to the
qualification for the UEFA Champions League since the Respondent played in the
third preliminary round of the 2011/2012 UEFA Champions League. In this regard,
the Chamber stressed that it is generally admitted that bonuses are dependent on
sporting criteria. The DRC further noticed that, according to the ranking published
on the official website of the country R Football Federation reflects the situation at
the time of the end of the 2010/2011 season and indicates the Respondent as
having ended the season as 3rd. However, due to the relegation of Club S on the
basis of an administrative decision, the entire table was subsequently modified and
the Respondent was able to participate in the 2011/2012 UEFA Champions League
instead of Club S, i.e. as one of two country R clubs qualified for said competition.
On account of the above, the Chamber deemed that from a sporting point of view
and considering the situation at the end of the 2010/2011 season, the Respondent
came 3rd of the Championship. As a result, the Chamber concluded that since the
Claimant already received the bonus for ending 3rd, no outstanding UEFA bonus
was due.
25.
In conclusion, the Chamber decided that the claim of the Claimant is partially
accepted and that the Respondent is to be held liable to pay the outstanding
amounts of EUR 119,364 plus 5% interest p.a. until the date of effective
payment as follows:
a.
b.
5% p.a. as of 1 July 2010 on the amount of EUR 79,710;
5% p.a. as of 1 July 2011 on the amount of EUR 39,654.
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26.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 119,364 plus 5% interest p.a.
until the date of effective payment as follows:
a. 5% p.a. as of 1 July 2010 on the amount of EUR 79,710;
b. 5% p.a. as of 1 July 2011 on the amount of EUR 39,654.
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]
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www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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