Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 February 2017,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Joaquim Evangelista (Portugal), member
Taku Nomiya (Japan), member
Todd Durbin (USA), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C (now Club D), country E
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 29 September 2015, the player from country B, Player A (hereinafter:
Claimant), and the club from country E, Club C (currently known as Club D)
(hereinafter: Respondent), concluded an employment contract (hereinafter:
contract), valid from 1 August 2015 until 31 December 2015.
2.
In accordance with the contract, the Claimant was entitled inter alia to receive the
following remuneration:
-
EUR 600 as monthly salary, payable on the 15th day of the following month;
EUR 150 as a bonus for “the win in match at home”;
EUR 100 as a bonus for “the win in away match”;
EUR 50 as a bonus for “the draw in away match”.
The contract further specifies that the Claimant is entitled to the full amount of
each bonus, if he plays 70 minutes or more, and 50%, in case he plays less than 70
minutes. Moreover, the contract establishes that “The Player who does not enter
the match has no claim for any bonus”.
3.
On 21 April 2016, the Claimant lodged a claim before FIFA against the
Respondent for outstanding remuneration, requesting the amount of EUR 1,420,
plus 5% interest “as of the date of effective payment”, composed as follows:
-
EUR 140 as “additional payment” regarding August 2015;
EUR 600 as monthly salary and EUR 80 as bonuses, regarding November
2015;
EUR 600 as monthly salary regarding December 2015.
4.
The Claimant further requested that the Respondent be obliged to reimburse his
legal expenses.
5.
According to the Claimant, although he fulfilled his contractual obligations, the
Respondent failed to pay him the above-mentioned amounts.
6.
Although invited to do so, the Respondent failed to reply to the claim.
7.
The Football Federation of country E informed FIFA in June and November 2016
that “during the months of March and April there were changes in the Club C.
The shares of the club were sold to another club and the seat of the club changed
as well (from city F to city G). I forwarded your correspondence to the previous
(Club C) and the new club (Club D). Unfortunately, until today, I have not received
a reply of neither of the two clubs” (free translation from “Im Laufe der Monate
März und April kam es zu den Veränderungen im Verein C. Die Akzien des
Vereines wurden an einen anderen Verein verkauft und damit ist auch der Sitz
des Vereines geändert. (Von Stadt F zu Stadt G). Ich habe Ihre Korespondenz an
den ehemaligen (Klub C) und den neuen Verein (Klub D) weitergeleitet. Leider,
bis heute habe ich keine Antwort sentens beider Vereinen erhalten.“)
Player A, country B / Club C (now Club D), country E
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8.
In addition, the Football Federation of country E stated that “On 16 March 2016,
Club C, based in city F, changed its company name to Club D, based in city G.
9.
The Football Federation of country E further clarified, inter alia, that Club C
applied for a business name change to “Club D” and that only formal and
administrative changes were made. In addition, according to the Football
Federation of country E, players were re-registered from “Club C” to “Club D” in
its information system.
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 21 April 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are 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 2016) 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
E.
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 2016), and considering that the present claim was lodged on 21 April
2016, the 2015 edition of said regulations (hereinafter: 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, 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, the DRC took note that the Claimant lodged a claim against the
Respondent for outstanding remuneration on the basis of the employment
contract concluded by the parties on 29 September 2015.
Player A, country B / Club C (now Club D), country E
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6.
At this point, the members of the DRC deemed appropriate to first and foremost
point out that the Football Federation of country E confirmed that, during the
course of 2016, the Respondent changed its name from Club C to “Club D”.
Therefore, the Chamber highlighted that “Club C (now Club D)” is referred to as
the Respondent in the present matter.
7.
Subsequently, the DRC noted that the Respondent failed to present its response
to the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the DRC deemed that the Respondent
renounced its right of defence and concurred that, in accordance with art. 9 par. 3
of the Procedural Rules, it shall take a decision upon the basis of the
documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
8.
In this respect, the DRC took into consideration that according to the Claimant,
the Respondent had failed to pay his remuneration in the total amount of EUR
1,420, corresponding to monthly salaries of November and December 2015 as well
as a bonus and an “additional payment” regarding August 2015.
9.
Taking into account the claim for monthly salaries, the Chamber reverted to the
contract and verified that it established a monthly salary of EUR 600 each during
the validity of the contract, payable on the 15th day of the following month.
10.
In this regard, the DRC concluded that the Claimant had substantiated his claim
pertaining to outstanding monthly salaries with sufficient documentary evidence.
In addition, the DRC determined that the monthly salaries claimed by the
Claimant should have been paid by the Respondent until the 15 th day of the
respective following month, i.e. 15 December 2015 and 15 January 2016.
11.
In conclusion, the DRC established that the Respondent failed to remit the
Claimant’s monthly salaries for November and December 2015.
12.
In continuation, the Chamber reverted to the claim of the Claimant relating to a
bonus payment.
13.
In this respect, the members of the DRC took note that the contract established
different bonuses, payment of which was conditioned to the match results as well
as to the participation of the Claimant in the relevant match. In particular, the
DRC took note that the percentage of the bonuses due would vary considering
the amount of minutes played by the Claimant in each match and that no bonus
would be due in the event that the Claimant would not be fielded.
14.
Having said that, the Chamber referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof, and concluded that the Claimant had not provided
documentation demonstrating that he would be entitled to the claimed bonus of
EUR 80. Moreover, the DRC considered that the Claimant had failed to indicate
the contractual basis of the bonus of EUR 80 or the match it was related to.
Player A, country B / Club C (now Club D), country E
Page 4 of 6
15.
In conclusion, the Chamber considered that the claim relating to the bonus of EUR
80 should be rejected.
16.
In continuation, the DRC reverted to the claim for an “additional payment” and
took note that the Claimant failed to specify the concept and the contractual
basis of such claim, solely indicating that it was regarding the month of August
2015.
17.
In this respect, the DRC took into account that the contract does not include any
remuneration in the concept of “additional payment” and, thus, had to reject
such claim.
18.
On account of the aforementioned considerations, the Chamber decided that, in
accordance with the general legal principle of pacta sunt servanda, the
Respondent is liable to pay to the Claimant outstanding remuneration in the total
amount of EUR 1,200 corresponding to the monthly salaries of November and
December 2015.
19.
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 each of the salaries
for November and December 2015 as of the day following the day on which the
payments fell due.
20.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute Resolution
Chamber, as well as to its long-standing and well-established jurisprudence and
decided to reject the Claimant’s request relating to legal expenses.
21.
The DRC concluded its 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 (now Club D), has to pay to the Claimant, within 30
days as from the date of notification of this decision, the amount of EUR 1,200
plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 16 December 2015 on the amount of EUR 600;
b. 5% p.a. as of 16 January 2016 on the amount of EUR 600.
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.
Player A, country B / Club C (now Club D), country E
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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 article 58 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, country B / Club C (now Club D), country E
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