Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the claim presented by the player,
Player 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 case
1.
On 17 August 2010, Player A from country B (hereinafter: player or Claimant)
and Club C from country D (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract), valid as from 17 August 2010 until
1 June 2011.
2.
According to the contract, the player was entitled to receive a monthly fee of
EUR 300 in cash.
3.
On 17 August 2010, the player and the club further signed an annex to the
contract (hereinafter: annex), according to which the player was entitled to
receive the amount of EUR 15,000, payable as follows: (1) EUR 3,000 immediately
upon the signing of the contract and (2) EUR 12,000 in ten monthly instalments
of EUR 1,200 each.
4.
On 2 January 2012, the player lodged a claim against the club in front of FIFA,
maintaining that the club failed to pay the total amount of EUR 9,100, based on
the contract and the annex, in spite of having put the club in default.
5.
Therefore, the player asks that the club be ordered to pay the total amount of
EUR 9,100, plus 5% annual interest as from 1 June 2011 until the date of
payment.
6.
The player states that he spent 10 months at the club and that he therefore was
entitled to receive EUR 3,000 based on the contract.
7.
According to the player, he was entitled to receive the total amount of EUR
18,000, throughout the contractual duration, but the club had only paid him the
amount of EUR 8,900.
8.
The club alleges in reaction to the claim of the player that it is not obliged to
pay the amount of EUR 9,100, since it has fulfilled all its contractual obligations
towards the player. The club states that three monthly salaries were reduced by
50% due to fines, pension fund contributions and health insurance
contributions.
9.
According to the club, the fines were based on article 2 of the contract, and it
presented receipts of salaries and housing allowances paid to the player.
Player A, country B / Club C, country D
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10.
In his replica, the player states that the club never delivered the disciplinary
regulations to him, that the fines were unilaterally imposed and without his
knowledge deducted from his salary and that he had had no possibility to
defend his case, which led him to conclude that the disciplinary decisions of the
club are void.
11.
The player further states that the club presented receipts relating to
accommodation and food allowance as receipts for salary payments and some
of the payment receipts for salary twice. In this regard, the player explains that
he sometimes had to sign two separate documents for one salary payment.
12.
The documents presented by the club in support of its position led the player to
conclude that the club only paid him the amount of EUR 8,190 for salaries. The
player therefore amended his claim to the total amount of EUR 9,810, with 5%
interest p.a. as from the due dates of the respective amounts.
13.
In spite of having been invited to do so, the club has not reacted to the replica
of the player.
II.
Considerations of the Dispute Resolution Chamber
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
hand. In this respect, it took note that the present matter was submitted to FIFA
on 2 January 2012. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 1 and par. 2 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 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, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2014), and considering that the present claim was lodged on 2 January
2012, the 2010 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D
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4.
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.
5.
In this respect, taking into account the claim of the Claimant, as well as the reply
of the Respondent, the members of the Chamber acknowledged that the
following two questions needed to be addressed:
i) Can the fines that were imposed by the Respondent on the Claimant as
well as the other items that the Respondent considers to be deductible
from the Claimant’s alleged outstanding receivables be taken into
consideration?
ii) Which evidence of payments made to the Claimant was presented by
the Respondent in its defence?
6.
In this context, the Chamber 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.
7.
Turning to the first question, the Chamber analysed the various fines imposed
by the Respondent on the Claimant due to his alleged poor performance during
a match and for allegedly breaching work discipline, as well as poor
performance of the team in general.
8.
In this context, the Chamber concurred that the fines imposed on the Claimant
by the Respondent shall be disregarded, since a) a fine based on bad sporting
performances cannot be considered valid, b) the Claimant does not appear to
have had the possibility to defend his case and c) the fines imposed on the
Claimant by the Respondent must be considered disproportionate.
9.
As regards further deductions which the Respondent relies on in its defence, i.e.,
pension fund and health insurance contributions, the Chamber noted that the
Respondent had not presented any documentation corroborating that it was
entitled to make such deductions. Consequently, the members of the Chamber
decided to also reject this argument of the Respondent.
10.
Consequently, the Chamber concurred that the Respondent’s aforementioned
arguments do not constitute a valid reason not to pay the Claimant’s salary in
full.
Player A, country B / Club C, country D
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11.
Turning to the second question, and with due consideration to the above, the
Chamber acknowledged that the Claimant stated not having received his
contractual payables in full, whereas the Respondent considers that it fulfilled
all its contractual obligations towards the Claimant.
12.
After careful consideration of the payment receipts presented by the
Respondent in its defence, the Chamber noted that the Respondent had
provided evidence of salary payments totalling EUR 9,390.
13.
In view of all of the above, the Chamber established that the Respondent had
failed to pay to the Claimant the amount of EUR 8,610 out of the full amount
of EUR 18,000 as agreed upon between the parties in the agreement dated 17
August 2010 and the annex belonging to this agreement. As a consequence, and
in accordance with the general legal principle of pacta sunt servanda, the
Respondent must fulfil its obligations as per employment agreement and the
annex concluded with the Claimant and, consequently, is to be held liable to
pay the outstanding amount of EUR 8,610 to the Claimant.
14.
In addition, taking into account the Claimant’s request for interest as well as the
constant practice of the Dispute Resolution Chamber, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
EUR 8,610 as from 1 June 2011 until the date of effective payment.
15.
Finally, the Chamber concluded his deliberations in the present matter by
establishing 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 EUR 8,610 plus 5%
interest p.a. as from 1 June 2011 until the date of effective payment.
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.
Player A, country B / Club C, country D
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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 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, country B / Club C, country D
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