Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Mohamed Al-Saikhan (Saudi Arabia), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
A, from N
represented by Mr xxxx
as Claimant
against the club,
B, from T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 13 July 2011, the player from country N, A (hereinafter; the Claimant) and the
club from country T, club B (hereinafter; the Respondent) concluded an
employment contract valid as of the date of its signature until 31 May 2014.
2.
On “11 May 2011”, the parties concluded a “Protocol” (hereinafter; the
agreement) which governed the financial aspects of the contract, valid for the
seasons 2011/2012, 2012/2013 and 2013/2014 and whereby it was agreed that the
Respondent would pay to the Claimant “a total of EUR 300,000 for the season”
broken-down as follows:
a. EUR 100,000 as advance payment in two equal instalments of EUR 50,000
payable on 25 August 2011 and 27 September 2011;
b. “EUR 85,000 / 34 euro match = EUR 2,500 per match fee”;
c. EUR 115,000 payable in 10 equal instalments of EUR 11,500.
3.
In addition, the agreement provided that the match bonuses would be paid as
follows:
a. 100% if the player starts in the first eleven;
b. 75% if the player is fielded as a substitute;
c. 50% if the player is in the “squad of 18”.
4.
On 18 November 2014, the Claimant lodged a claim against the Respondent in
front of FIFA requesting outstanding remuneration for the season 2013/2014 in
the amount of EUR 61,875 plus 5% interest as of 31 May 2014.
5.
In particular, the Claimant explained that in the 2013/2014 season, he was entitled
to the total amount of EUR 291,875 comprised of EUR 100,000 as advance
payment, EUR 115,000 as salaries and EUR 76,875 as match bonuses. In this
respect, the player argued that the Respondent only paid him EUR 230,000
therefore, the amount of EUR 61,875 remains outstanding.
6.
In its reply, the Respondent rejected the claim of the Claimant and stressed that
the outstanding remuneration amounts to EUR 4,832.26 only. In this respect, the
Respondent explained that during the whole duration of the contract, the
Claimant was entitled to the total amount of EUR 888,124 and that he received
EUR 883,291.74. As to the season 2013/2014, the Respondent stressed that the
Claimant was entitled to EUR 300,000 as advance payment, EUR 115,000 as
salaries and EUR 71,875 as match bonuses.
Player A, country N / Club B, country T
Page 2 of 8
7.
Along these lines, the Respondent enclosed the following payment receipts
related to the season 2013/2014:
Date of payment
4 February 2011
8 February 2011
16 February 2011
2 March 2011
5 May 2011
5 May 2011
13 May 2011
7 June 2011
6 July 2011
14 October 2011
14 October 2011
21 October 2011
23 November 2011
30 December 2011
26 January 2011
23 March 2011
30 March 2011
2 July 2012
14 August 2012
1 November 2012
16 November 2012
7 December 2012
15 January 2013
14 March 2013
24 June 2013
14 October 2013
11 November 2013
9 January 2014
7 March 2014
27 March 2014
8 May 2014
16 May 2014
8.
Amount
“9,986 [xx(x)] (EUR 4,560)”
“x 10,700 ( EUR 5,000)”
x 8,000
x 8,000 (EUR 4,000)
“x 2,100 (EUR 962)”
“x 12,900 (EUR 5,616)”
x 18,573
x 14,000
EUR 45,000
x 110,000
x 2,200
EUR 5,500
EUR 37,860
EUR 20,000
EUR 20,800
x 119,500
EUR 37,999
EUR 55,579
EUR 61,500
EUR 61,500
EUR 8,750
EUR 11,500
EUR 19,624
EUR 35,000
EUR 34,500
EUR 50,000
EUR 25,000
EUR 50,000
EUR 100,000
EUR 27,818
EUR 34,925
15,700 (currency not clear)
Payment method
Cash
Cash
Cash
Cash
Cash
Cash
Cash
Cash
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Bank transfer
Cash
In his replica, the Claimant firstly disputed being entitled to only EUR 71,875 as
match bonuses and emphasised that, in accordance with the evidence submitted,
he is entitled to EUR 76,875. Equally, the Claimant alleged that “the Respondent
is trying to mislead the decision making body of FIFA by sending distorted and
Player A, country N / Club B, country T
Page 3 of 8
unrelated payment documents and by including the unrelated football seasons
that are not subject to this dispute”.
9.
Moreover, the Claimant explained that all the amounts agreed in the contract
were in EUR, therefore “all the payments made in x are bonus payments that are
not stated in the contract and these were made on the ground of successful
results”. In this respect, the Claimant argued that it is a common practice among
clubs to make extra payments in x which are not contractually agreed. In order to
support his position, the Claimant enclosed the CAS award 2012/O/xxxx.
Therefore, the Claimant “expressly rejects those payment documents which are
not related to the contractual and overdue unpaid amounts”. In particular, the
Claimant referred to the payment receipts of 7 June 2011 and 16 May 2014 and
stressed that they were wrongly translated “in order to diminish the receivables”.
10.
On account of the above, the Claimant reaffirmed his claim.
11.
In its duplica, the Respondent rejected the allegations of the Claimant and
stressed once again that the outstanding remuneration amounts to EUR 4,832.26
only.
12.
As to the receipt dated 16 May 2014, the Respondent argued that i) it can be
clearly seen that such payment was in EUR and ii) its “records” also show that said
payment was made in EUR.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also 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 18 November 2014. Consequently, the 2014 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 2015), 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 N and a club from
country T.
Player A, country N / Club B, country T
Page 4 of 8
3.
Furthermore, the Chamber 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 Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2015), and considering that the claim was lodged on 18 November 2014, the 2014
edition of the aforementioned regulations (hereinafter; the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
First of all, the members of the DRC acknowledged that on 13 July 2011, the
parties entered into an employment contract valid until 31 May 2014. Likewise,
the Chamber took note that the parties concluded a Protocol valid for the seasons
2011/2012, 2012/2013 and 2013/2014, which governed the financial aspects of the
contract and whereby it was agreed that the Claimant would be entitled for each
season to the following amounts:
a. EUR 100,000 as advance payment in two equal instalments of EUR 50,000;
b. “EUR 85,000 / 34 euro match = EUR 2,500 per match fee”;
c. EUR 115,000 payable in 10 equal instalments of EUR 11,500.
6.
Having established the above, the members of the Chamber focused their
attention on the claim of the Claimant who argues that the Respondent has an
outstanding amount towards him of EUR 61,875 corresponding to the 2013/2014
season. In particular, the DRC noted that, according to the Claimant, whilst he was
entitled for the aforementioned season to the total amount of EUR 291,875, the
Respondent only paid him a sum of EUR 230,000.
7.
The Chamber further noted that, conversely, the Respondent, while enclosing
several payment receipts, rejected the Claimant’s claim and argued that its only
debt towards the Claimant amounts to EUR 4,832.26.
8.
Furthermore, the Chamber duly noted that the Claimant challenged some of the
payment receipts presented by the Respondent. In particular, the Chamber noted
that, according to the Claimant, “all the payments made in xx are bonus payments
that are not stated in the contract and these were made on the ground of
successful results” and that the payment receipts of 7 June 2011 and 16 May 2014
were wrongly translated “in order to diminish the receivables”.
Player A, country N / Club B, country T
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9.
With the aforementioned considerations in mind, the Chamber wished to stress,
first and foremost, that the claim of the Claimant refers only to outstanding
salaries related to the 2013/2014 season. Indeed, the Claimant even argued that
“the Respondent is trying to mislead the decision making body of FIFA by sending
distorted and unrelated payment documents and by including the unrelated
football seasons that are not subject to this dispute”. As a consequence, the
Chamber considered that the only payments which are relevant in order to
determine the actual amount, if any, that the Respondent owes to the Claimant
are those made during the 2013/2014 season.
10.
In this context and for the sake of clarity, the Chamber deemed that it first
needed to determine the total amount to which the Claimant was entitled for the
2013/2014 season. In this respect, the Chamber established that the Claimant was
entitled to receive from the Respondent as salaries the amount of EUR 215,000.
Moreover, the Chamber considered that the Claimant had substantiated his claim
related to match bonuses in the amount of EUR 76,875. As a consequence, the
Chamber concluded that the Claimant was entitled to the total amount of EUR
291,875 for the 2013/2014 season.
11.
Having said that, the Chamber proceeded to analyse the receipts presented by the
Respondent related to payments made during the 2013/2014 season. In this
regard, the Chamber wished to recall that the only payments challenged by the
Claimant are the payments made in xx as well as the payment of 16 May 2014.
12.
With the aforementioned consideration in mind, the members of the Chamber
referred to art. 12 par. 3 of the Procedural Rules which stipulates that any party
claiming a right on the basis of an alleged fact shall carry the burden of proof and
emphasised that the evidence submitted by the Claimant is not fit to corroborate
his sayings as to the alleged nature of the payments made in xx. In particular, the
DRC was of the unanimous opinion that the Claimant failed to prove that the
payments made in xx were “bonus payments that are not stated in the contract
and these were made on the ground of successful results”.
13.
In this context, the DRC were of the unanimous opinion that the CAS award
presented by the Claimant refers to a very particular situation which involves a
completely different club. Moreover, said award is not sufficient on its own to
prove that it is a common practice in Turkey to make payments in xx which are
not related to the amounts established in the contract.
14.
As a consequence, the DRC considered that even if it could be determined that
the payment receipt of 16 May 2014 is in fact in xx, this amount should be
regarded as a payment made in accordance with the contract.
Player A, country N / Club B, country T
Page 6 of 8
15.
Along these lines, the Chamber referred to the payment receipts related to the
season 2013/2014 as per the table described in point I./7. ut supra and determined
that the Claimant received from the Respondent for said season the total amount
of EUR 293,243, namely: i) EUR 50,000 on 14 October 2013, EUR 25,000 on 11
November 2013, EUR 50,000 on 9 January 2014, EUR 100,000 on 7 March 2014,
EUR 27,818 on 27 March 2014, EUR 34,925 on 8 May 2014 and x 15,000 on 16 May
2014, corresponding to approximately EUR 5,500. In this respect, the members of
the Chamber were of the unanimous opinion that the amount established in the
receipt of 16 May 2014, was in fact in x and not in EUR.
16.
Notwithstanding the above, the Chamber highlighted that the Respondent
explicitly acknowledged owing the Claimant the amount of EUR 4,832.26 which,
in the Chamber’s view, needs to be paid by the Respondent to the Claimant.
17.
In addition, taking into account the Claimant’s request, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
4,832.26 as of 31 May 2014 until the date of effective payment.
18.
Finally, the Chamber concluded its deliberations 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, A, is partially accepted.
2.
The Respondent, B, is ordered to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 4,832.26 plus 5%
interest p.a. as of 31 May 2014 until the date of effective payment.
3.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned number 2. is not paid by the Respondent within the stated
time limit, the present matter shall be submitted, upon request, to the FIFA
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.
Player A, country N / Club B, country T
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*****
Note relating to the motivated decision (legal remedy):
According to article 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:
_____________________________
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country N / Club B, country T
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