Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 1 February 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Johan v an Gaalen (S outh Africa), member
S tefano La Porta (Italy ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
According to the documentation on file, on 23 September 2014, the Club of
Country D, Club C (hereinafter: the Respondent) sent an offer to the Player of
Country B, Player A (hereinafter: the Claimant), which contained, inter alia, the
following conditions:
-
-
“USD 360,000.000 (three hundred and sixty thousand dollars only) net (Tax
free) per year.”
“Two Return tickets for you and your family (wife & 2 Kids) per year and 1
return tickets for you and your family in case of Emergency matters which will
be approved by the team Manager”.
“Bonuses as following: USD 1,000 (Dollars One Thousand Only) per goal
scored and USD 500 for every direct assist that results in goals scored”.
2.
On 28 November 2014, the Claimant and the Respondent concluded an
employment contract, valid as from 1 December 2014 until 30 November 2015
(hereinafter: the contract).
3.
According to article 1.1 of the contract, the Claimant was entitled to receive, inter
alia, the following amounts:
“USD Thirty Thousand (USD 30,000.00) per month and to be paid in the following
manner:
I.
USD 5,000.00 per month (hereinafter referred to as the “monthly salary”)
throughout the Term;
II.
A signing on fee of USD 90,000.00 (3 months) to be paid upon signing of
the Contract for the whole contract period;
III.
An advance amount of USD 300,000.00 to be paid upon signing of the
Contract for the whole contract period:
(1) 1st – USD 150,000.00
(2) 2nd – USD 150,000.00
IV.
The monthly salary payment shall be made on the last day of each month´s
employment.
V.
Contract valid when the player passes his medical and fitness test
organized by the employers”.
4.
Furthermore, art. 1.7 of the contract reads as follows:
Player A, Country B / Club C, Country D
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“[The Respondent] shall provide [the Claimant with] two return economy
flight ticket for the [Claimant] and his immediate family for the duration of
the contract and will also negotiate for any extra return ticket within the
[Claimant] and spouse during emergency reasons. The final decision will rest
on the Manager/Coach. The destination of return flight ticket is from
Country B to Capital E, Country D”.
5.
In accordance with art. 1.8 of the contract, the Claimant was also entitled to
receive, inter alia, the following amounts as bonuses:
“USD 1,000.00 per goal scored and USD 500.00 for every direct assist that
results in goals scored”.
6.
On 29 March 2017 –only completed on 21 August 2018–, the Claimant lodged a
claim before FIFA against the Respondent, claiming outstanding remuneration in
the total amount of USD 96,000, broken down as follows:
-
USD 81,000 corresponding to the outstanding monthly salaries of September
2015, October 2015 and November 2015;
USD 9,000 for allegedly having scored 9 goals during the season;
USD 2,000 for allegedly having assisted 4 times during the season;
USD 4,000 corresponding to flight ticket expenses.
7.
In his claim, the Claimant explained that, in accordance with what was agreed by
the parties in the offer and in the contract, the Claimant’s total remuneration
amounted to USD 360,000. Furthermore, the Claimant stated that, on the date of
the signature of the contract, the Respondent paid him the amount of USD 90,000.
The Claimant further explained that the remaining amount, i.e. USD 270,000,
would be paid monthly by the Respondent. In this regard, the Claimant held that
the Respondent did not pay him the total amount of USD 81,000, corresponding to
the last 3 monthly salaries of September 2015, October 2015 and November 2015.
8.
Moreover, the Claimant argued that the Respondent paid him neither the bonuses
he was entitled to receive nor the flight tickets´ expenses, despite him having put
the Respondent in default of payment of the relevant amounts.
9.
Despite having been invited by FIFA to provide its comments on the present
matter, the Respondent did not answer to the Claimant’s claim.
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 29 March
2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 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 (June 2018 edition), the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Player of Country B and a Club of Country D.
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, it confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (editions 2016 and 2018) and
considering that the present claim was lodged in front of FIFA on 29 March 2017,
the 2016 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, 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.
In this respect, the Chamber acknowledged that, following an offer sent by the
Respondent on 23 September 2014, the Claimant and the Respondent signed an
employment contract, valid as from 1 December 2014 until 30 November 2015, in
accordance with which the Claimant was entitled to receive, inter alia, a total
remuneration of USD 360,000.
6.
Furthermore, the DRC acknowledged that, in accordance with art. 1.7 of the
contract, the Claimant was also, inter alia, entitled to receive: “two return
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economy flight ticket for the [Claimant] and his immediate family for the duration
of the contract […] from Country B to Capital E”, as well as match bonuses in
accordance with art. 1.8 of the contract.
7.
The Dispute Resolution Chamber further acknowledged that, according to the
Claimant, the Respondent had failed to remit to him the total amount of USD
96,000, corresponding to i) USD 81,000 as outstanding salaries for the months of
September, October and November 2015, ii) USD 11,000 as match bonuses for
having scored nine goals and assisted four times during the relevant season and iii)
USD 4,000 as “flight tickets’ expenses”.
8.
In this respect, the Chamber took note of the argumentation of the Claimant, who
held that, the value of the contract, as agreed upon by both parties, amounted to
USD 360,000. In particular the DRC acknowledged that, from the total amount of
USD 360,000, the Claimant stressed having only received the amount of USD
90,000. In addition, the Chamber duly took note that the Claimant sustained that
the remaining value of the contract, i.e. USD 270,000, was payable by the
Respondent on a monthly basis, by the last day of each month, in accordance with
the contract. Thus, according to the Claimant, the Respondent had failed to pay
him the amount of USD 81,000, corresponding to his outstanding salaries for the
months of September, October and November 2015.
9.
Furthermore, the Chamber took note that the Respondent, for its part, failed to
present its response to the claim of the Claimant, despite having been invited to
do so. In this way, the Chamber deemed, the Respondent renounced its right to
defence and, thus, accepted the allegations of the Claimant.
10.
Moreover, and as a consequence of the aforementioned consideration, the
Chamber established that, in accordance with art. 9 par. 3 of the Procedural Rules,
it shall take a decision upon the basis of the documents already on file; in other
words, upon the statements and documents presented by the Claimant.
11.
Having said that, the Chamber highlighted that it remained uncontested that the
Respondent had not fulfilled its financial obligations set forth in the employment
contract signed between the parties and that it failed to pay to the Claimant the
amount of USD 81,000, corresponding to his outstanding monthly salaries for the
months of September, October and November 2015.
12.
In view of the above and taking into account the documentation presented by the
Claimant in support of his petition, the DRC concluded that the Claimant had
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substantiated his claim pertaining to outstanding remuneration with sufficient
documentary evidence.
13.
On account of the above considerations and the documentation on file, the DRC
decided that, in accordance with the general legal principle of “pacta sunt
servanda”, the Respondent is liable to pay the amount of USD 81,000 to the
Claimant.
14.
In continuation, with regard to the Claimant’s claim for outstanding match
bonuses and “flight tickets’ expenses”, the members of 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. In this regard, the DRC concluded that
the Claimant had not substantiated his claim pertaining to outstanding match
bonuses and “flight tickets’ expenses” with pertinent documentary evidence in
accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no
supporting documentation relating to the Claimant’s claim pertaining to
outstanding match bonuses and “flight tickets’ expenses”. Consequently, the DRC
decided to reject this part of the Claimant’s claim.
15.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant’s claim and to reject any further claim lodged by the Claimant.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 81,000.
3.
In the event that the sum due to the Claimant in accordance with the abovementioned number 2. is not paid by the Respondent within the stated time limit,
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interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limit and 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.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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