Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 February 2015,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player A, country B
represented by the Football Federation of 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 3 February 2012, the player from country B, Player A (hereinafter: the Claimant or the
player), and the club from country D, Club C (hereinafter: the Respondent or the club),
concluded an employment contract (hereinafter: the contract), valid for the period between
1 February 2012 and 10 January 2013, i.e one year.
2.
According to article 2 of the contract, the player was entitled to the following remuneration:
a) a monthly salary equal to the “minimum earnings in country D published in the
National Gazette of country D”:
b) “a special compensation according to the Rulebook of the Club”; and
c) “special premiums according to the Rulebook of the Club”.
3.
On 1 February 2012, the parties signed an annex agreement (hereinafter: the agreement)
for the period between 1 February 2012 until 31 December 2012, establishing inter alia that
the “the club commits itself that to the name of annual transfer that it will pay in instalments
the value of EUR 51,700 to the footballer in the currency of country D as a counter-value
following the middle course of National Bank of country D, reduced for the value of the
minimal gain in country D, published in the national gazette of country D”. In particular,
the amount of EUR 51,700 was payable in eleven equal monthly instalments of EUR 4,700 as
“counter-value by the middle course of National Bank of country D, reduced by the value of
the minimum salary in country D”.
4.
On 8 May 2013, the Claimant lodged a claim against the club based on the agreement,
requesting the payment of EUR 34,750 as outstanding remuneration. In particular, the
Claimant acknowledged receipt of the salary of February and March 2012, and stated that
for the period between April and December 2012 he only received the total amount of EUR
7,550 (9 x EUR 4,700 – EUR 7,550 = EUR 34,750).
5.
In its reply to the Claimant’s claim, the Respondent stated that the Claimant breached the
regulations of the Football Association of country D since, upon the expiration of the
contract, the player did not contact the club as allegedly provided for in the regulations. In
this respect, the club stated that the player is still an amateur player of the club.
6.
Furthermore, the Respondent held that “it is necessary that [the Claimant] come to [the
Respondent], take documentation and determine to our financial obligations to him”.
7.
In his replica, the Claimant held that he was a professional player with the Respondent and
that he informed the latter verbally and in written that he would not renew his contract. In
this respect, the Claimant referred to his correspondences remitted to the Respondent on 27
August and 20 September 2012, by means of which he stated that he has been discriminated
since the moment he refused to extend his contract by no longer being able to neither train
nor play with the first team, he could not travel with the squad for the preparation sessions
in country E and was not paid.
8.
In this context, the Claimant pointed out that the Respondent replied to his correspondence
on 5 September 2012 by stating that one month after signing the contract, he had left the
club and only came back when “the organs of FIFA obligated you”. Thus, the club deems
that he breached the contract and it “has the right not to count on you”.
9.
In its duplica, the Respondent referred to the wording of the agreement, according to which
the amount of EUR 4,700 was “reduced for the value of the minimal gain in country D,
published in the national gazette of country D” (cf. point 3 above).
Player A, country B / Club C, country D
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10. Lastly, the Respondent asserted that it had made the following payments in favour of the
Claimant:
Payment
Amount (country D)
Amount in EUR
Month 1
Month 2
Month 3
Month 4
Month 5
Month 6
Month 7
Month 8
Month 9
Month 10
Month 11
Month 12
314,943
502,483
519,795
19,558
136,107
126,607
272,551
261,201
22,107
20,931
20,961
20,961
3,000
4,700
4,700
178
1,194
1,150
2,350
2,350
184
187
185
184
Total
2,238,205
20,362
11. Consequently, the club concluded that only EUR 31,338 remained outstanding.
II.
Considerations of the DRC judge
1.
First, the DRC judge analysed whether he was competent to deal with the case at hand. In
this respect, the DRC judge took note that the present matter was submitted to FIFA on 8
May 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) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural
Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players, edition 2012 (hereinafter: the
Regulations), he is competent to decide on the present litigation, 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 DRC judge analysed which edition of the Regulations should be applicable
as to the substance of the matter. In this respect, he confirmed that in accordance with art.
26 par. 1 and par. 2 of the Regulations (edition 2014 and 2012), and considering that the
present matter was submitted to FIFA on 8 May 2013, the 2012 edition of said Regulations
is applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the substance of the matter. In doing so, he started by
acknowledging the abovementioned facts of the case as well as the documentation
contained in the file. However, the DRC judge emphasized that in the following
consideration he will refer only to the facts, arguments and documentary evidence which
he considered pertinent for the assessment of the matter at hand.
Player A, country B / Club C, country D
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5.
In this respect, the DRC judge acknowledged that the parties had signed an employment
contract on 3 February 2012. Equally, the DRC judge observed that the parties had concluded
an annex agreement on 1 February 2012, in accordance with which the player was entitled
to receive, inter alia, the amount of EUR 51,700 as total remuneration for the term of the
contract, payable in eleven equal instalments of EUR 4,700.
6.
In continuation, the DRC judge noted that the Claimant alleged that the Respondent had
failed to pay the outstanding remuneration in the amount of EUR 34,750 established by the
parties in the annex agreement, which should have been paid between April and December
2012. Consequently, the Claimant asked to be awarded with the payment of the total amount
of EUR 34,750.
7.
Equally, the DRC judge took note of the reply of the Respondent, which asserted that it had
already paid the Claimant the amount of EUR 20,362. In consequence, the Respondent
declared that the amount due to the Claimant would be EUR 31,338.
8.
In view of the foregoing, the DRC judge observed that the Respondent had acknowledged
a considerable part of the amount claimed by the Claimant as outstanding. From EUR 34,750
claimed by the Claimant as outstanding, the Respondent explicitly admits that EUR 31,338
have in fact remained unpaid. Thus, as per the legal principle of pacta sunt servanda, the
respondent should be held liable to pay the Claimant such confessed remuneration debt.
9.
Having said that, the DRC judge then went on to analyse whether the Respondent had
presented any further proof of payment of the remaining amount of EUR 3,412 or if it had
presented any valid reasons for not having paid the Claimant such amount of remuneration.
10. In this respect, the DRC judge recalled 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.
11. According to this, the DRC judge noted that, on the one hand, the Claimant submitted a
copy of the bank statement of his bank account, based on which he claims the outstanding
remuneration. On the other hand, the DRC judge underscored that the Respondent did not
provide any receipts or any other substantial evidence that it had paid the Claimant the
remaining amount of EUR 3,412.
12. Subsequently, the DRC judge noted that the Respondent justified the non-payment of part
of the Claimant’s remuneration by the fact that he had allegedly failed to contact the
Respondent for allegedly necessary formalities, upon expiration of the contract (cf. points
I.5. and I.6. above). In this respect, the DRC judge deemed that no legal or contractual
obligation to return to the Respondent exists for the Claimant upon expiration of their
contractual relationship and that the payment of monthly salaries – which have been duly
made at the beginning of the contract – does not depend on any extraordinary formalities
to be exercised by the player.
13. In view of the above, the DRC judge concluded that the Respondent has not provided
enough evidence or any plausible justification for the non-payment of the remaining
amount of EUR 3,412. Therefore, it could be established that the Respondent had failed to
pay to the Claimant the entire amount as agreed upon between the parties in the
agreement dated 1 February 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
annex agreement concluded with the Claimant and, consequently, is to be held liable to pay
the outstanding amount of EUR 34,750 to the Claimant.
Player A, country B / Club C, country D
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14. Based on all the foregoing, the DRC judge concluded that the claim of the Claimant is fully
accepted.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is 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 EUR 34,750.
3.
In the event that the aforementioned amount is not paid within the stated time limit,
interest rate of 5% p.a. will apply as of expiry of the said 30 days’ time limit, and the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
4.
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 DRC judge 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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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