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
arisen between the parties
I.
Facts of the cas e
1.
On 2 July 2017, the player of Country B, Player A (hereinafter: the
Claimant), and the club of Country D, Club C (hereinafter: the
Respondent), signed an employment contract valid as from the date of
signature “until the end of the season 2017/2018”.
2.
According to art. 17 of the employment contract, the Claimant was
entitled to a total amount of USD 40,000 for the whole duration of the
employment relationship, to be paid as follows: i) USD 3,000 per month
for 10 months “at the end of each Gregorian month”; ii) USD 5,000 on
15 August 2017 and iii) USD 5,000 on 15 November 2017.
3.
By letter addressed to the Football Association of Country D on 10 July
2018, with request to forward it to the Respondent, the Claimant put
the latter in default of payment of USD 40,000, corresponding to the
total value of the employment contract, setting a time limit of 10 days
in order to remedy the default.
4.
On 3 August 2018, the Claimant lodged a claim against the Respondent
in front of FIFA asking that the Respondent be ordered to pay to him
overdue payables in the amount of USD 40,000, plus 5% interest p.a.
“from the due date of each payment”.
5.
More specifically, the Claimant held that he had not received salary
payments from the Respondent for the whole duration of the
employment contract.
6.
In reply to the claim, the Respondent argued that there was “no truth
to what was stated in the warning of the lawyer agent of the
[Claimant]” and that the Claimant was in possession of a check in the
amount of USD 5,000, awarded “as a provider” on 15 November 2017.
Furthermore, the Respondent denied having received the default notice
and claimed it only received it with the claim.
7.
The Respondent added that the Claimant was entitled to USD 6,000 as
salaries for March and April 2018. Moreover, with its reply, the
Respondent produced an untranslated internal list allegedly referring to
the Claimant’s account without further clarifications.
8.
For the above-mentioned reasons, the Respondent declared to be
“ready to pay” the amount of USD 11,000 to the Claimant, provided
that the latter “handed over the check in [his] possession”.
9.
In his replica, the Claimant reiterated his requests and denied “the
[Respondent]’s allegations regarding that he received payments of his
employment Contract”.
Player A, Country B / Club C, Country D
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10.
In its final comments, the Respondent reiterated its position declaring to
be willing to pay to the Claimant USD 6,000 as salaries for March and
April 2018. Furthermore, the Respondent explained that it made 12
payments towards the Claimant as from 25 July 2017 until 25 April 2018
for a total amount of 23,747.20 in the currency of Country D, claiming
that USD 100 correspond to 71 in the currency of Country D. In other
words, the Respondent claimed having paid approximately USD 33,494
to the Claimant. At this stage, the Respondent produced a further
untranslated internal list of alleged payments.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 stake. In this respect, the DRC took note that the present
matter was submitted to FIFA on 3 August 2018. Consequently, the DRC
concluded that the 2018 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 June 2018) the DRC is competent to deal
with the matter at stake, which concerns an employment–related
dispute with an international dimension between a player of Country B
and a club of Country D.
3.
Furthermore, the DRC 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 DRC confirmed that in accordance
with art. 26 par. 1 and par. 2 of the said Regulations (edition June 2018)
and considering that the present claim was lodged in front of FIFA on 3
August 2018, the June 2018 edition of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the members of 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
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facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand. In particular, the
Chamber recalled that, in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or
evidence generated or contained in the Transfer Matching System
(TMS).
5.
In this respect, the DRC acknowledged that, according to the
employment contract signed by the parties on 2 July 2017, the Claimant
was entitled to a total amount of USD 40,000 for the whole duration of
the employment relationship, to be paid as follows: i) USD 3,000 per
month for 10 months “at the end of each Gregorian month”; ii) USD
5,000 on 15 August 2017 and iii) USD 5,000 on 15 November 2017.
6.
In addition, the Chamber observed that said employment contract was
meant to run as from its date of signature “until the end of the season
2017/2018”. In this respect, the members of the DRC observed that,
according to the TMS, the season concerned in Country D ended on 1
May 2018.
7.
In continuation, the members of the Chamber observed that, according
to the Claimant, the Respondent had failed to remit to him the entirety
of the remuneration contractually agreed upon for the whole duration
of the employment relationship.
8.
Moreover, the members of the Chamber noted that the Respondent, for
its part, deemed that the only outstanding entitlements that the
Claimant could claim were those relating to his monthly salaries of
March and April 2018 for a total amount of USD 6,000, which the
Respondent declared it was willing to pay.
9.
The DRC further observed that the Respondent maintained that the
Claimant was in possession of a cheque of USD 5,000 allegedly remitted
to him in November 2017 and that the Respondent was willing to pay to
the Claimant said amount, provided that the latter “handed over” the
cheque.
10.
Moreover, the Chamber pointed out that the Respondent relied on an
untranslated internal list of alleged payments, which it had submitted
during the course of the proceedings, in order to prove that it had
performed its financial obligations towards the Claimant.
11.
In respect of the above, bearing in mind art. 12 par. 3 of the Procedural
Rules, in accordance with which any party claiming a right on the basis
of an alleged fact shall carry the burden of proof, the DRC concurred in
the conclusion that the Respondent did not provide sufficient evidence
Player A, Country B / Club C, Country D
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corroborating the allegations on the basis of which a. the Claimant was
in possession of a USD 5,000 cheque and b. the Respondent had
performed payments towards the Claimant for a total amount of
23,747.20 in the currency of Country D.
12.
In this context, the DRC deemed it worthwhile to underline that the
documentation provided by the Respondent in order to discharge itself
from part of its financial obligations towards the Claimant cannot be
considered satisfactory evidence by any means. Not only is such list not
translated into one of the FIFA official languages, but – from a cursory
look at its content – it is impossible to retrieve any indication regarding
the alleged payments, i.e. if these payments had been indeed
performed in the first place and, even assuming so, towards whom, in
which currency and under which causal relationship.
13.
On account of the above considerations, 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 40,000 to the
Claimant.
14.
In addition, taking into account the Claimant’s claim, the Chamber
decided to award the Claimant interest of 5% p.a. as of the day
following the day on which the relevant payments fell due in
accordance with the employment contract.
15.
Furthermore, taking into account the consideration under number II./3.
above, the Chamber referred to par. 1 and 2 of art. 24bis of the
Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the
failure of the concerned party to pay the relevant amounts of
outstanding remuneration and/or compensation in due time.
16.
In this regard, the Chamber established that, in virtue of the
aforementioned provision, it has competence to impose a sanction on
the Respondent. More in particular, the DRC pointed out that, against
clubs, the sanction shall consist in a ban from registering any new
players, either nationally or internationally, up until the due amount is
paid and for the maximum duration of three entire and consecutive
registration periods.
17.
Therefore, bearing in mind the above, the DRC decided that, in the
event that the Respondent does not pay the amount due to the
Claimant within 45 days as from the moment in which the Claimant,
following the notification of the present decision, communicates the
relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall
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become effective on the Respondent in accordance with art. 24bis par. 2
and 4 of the Regulations.
18.
Finally, the Chamber recalled that the above-mentioned sanction will be
lifted immediately and prior to its complete serving upon payment of
the due amounts, in accordance with art. 24bis par. 3 of the
Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of USD
40,000 plus 5% interest p.a. as follows:
a. on the amount of USD 3,000 as from 1 August 2017 until the date of
effective payment;
b. on the amount of USD 3,000 as from 1 September 2017 until the
date of effective payment;
c. on the amount of USD 3,000 as from 1 October 2017 until the date
of effective payment;
d. on the amount of USD 3,000 as from 1 November 2017 until the date
of effective payment;
e. on the amount of USD 3,000 as from 1 December 2017 until the date
of effective payment;
f. on the amount of USD 3,000 as from 1 January 2018 until the date of
effective payment;
g. on the amount of USD 3,000 as from 1 February 2018 until the date
of effective payment;
h. on the amount of USD 3,000 as from 1 March 2018 until the date of
effective payment;
i.
on the amount of USD 3,000 as from 1 April 2018 until the date of
effective payment;
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j.
on the amount of USD 3,000 as from 1 May 2018 until the date of
effective payment;
k. on the amount of USD 5,000 as from 16 August 2017 until the date
of effective payment;
l.
on the amount of USD 5,000 as from 16 November 2017 until the
date of effective payment.
3.
The Claimant is directed to inform the Respondent, immediately and
directly, preferably to the e-mail address as indicated on the cover letter
of the present decision, of the relevant bank account to which the
Respondent must pay the amount mentioned under point 2 above.
4.
The Respondent shall provide evidence of payment of the due amount
in accordance with point 2 above to FIFA to the e-mail address XXX,
duly translated, if need be, into one of the official FIFA languages
(English, French, German, Spanish).
5.
In the event that the amount due plus interest in accordance with point
2 above is not paid by the Respondent w ithin 45 day s as from the
notification by the Claimant of the relevant bank details to the
Respondent, the Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amount is
paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
6.
The ban mentioned in point 5. above will be lifted immediately and
prior to its complete serving, once the due amount is paid.
7.
In the event that the aforementioned sum plus interest is still not paid
by the end of the ban of three entire and consecutive registration
periods, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
*****
Note relating to the findings of the decis ion (art. 15 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber):
Player A, Country B / Club C, Country D
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A request for the grounds of the decision must be received, in writing, by the
FIFA general secretariat w ithin 10 day s of receipt of notification of the
findings of the decision. Failure to do so within the stated deadline will result
in the decision becoming final and binding and the parties being deemed to
have waived their rights to file an appeal.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal Officer
Player A, Country B / Club C, Country D
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