Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 March 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player G, from country B
as Claimant
against the club,
Club D, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 13 July 2009, Player G, from country B (hereinafter: the Claimant) and the Club
D, from country C (hereinafter: the Respondent), concluded an employment
contract valid “from the day of receiving a valid International Transfer Certificate
(ITC)” until 31 May 2011, in accordance with which the Claimant would receive
the following amounts:
-
2.
EUR 20,000 payable in ten monthly installments of EUR 2,000 for the season
2009/2010, the first installment due on 31 August 2009;
EUR 20,000 payable in ten monthly installments of EUR 2,000 for the season
2010/2011, the first installment due on 31 August 2010.
On 14 July 2009, the parties concluded an agreement by means of which the
Respondent agreed to pay the Claimant the following additional amounts:
-
EUR 20,000 payable in ten monthly installments of EUR 2,000 for the season
2009/2010, the first installment due on 31 August 2009;
EUR 25,000 payable in ten monthly installments of EUR 2,500 for the season
2010/2011, the first installment due on 31 August 2010.
3.
On 5 September 2011, the Claimant lodged a claim in front of FIFA against the
Respondent indicating that the Respondent had failed to pay him his salaries since
January 2011. Therefore, the Claimant claimed the total amount of EUR 22,500 as
well as 5% interest “from the date of the installments until full payment” and
legal costs.
4.
In reply to the claim lodged against it, the Respondent first of all asserted that
FIFA has no jurisdiction to decide on the present matter since, according to
“general terms of the contract”, the country C Football Association has
jurisdiction to “try the case”.
5.
As to the substance, the Respondent referred to several letters in which it asked
the Claimant to attend a meeting and by means of which it informed the
Claimant that he had caused damages to the car and apartment he had been
using. The Respondent asserted that the Claimant failed to pay the following
amounts:
-
EUR 280 to the management committee of his apartment and EUR 129,80 as
“shared expenses for the lessors of the complex an obligation of the
Claimant that the Respondent has paid”. In this respect, the Respondent
submitted a document by means of which a certain Mr R stated that “a
resident” did not yet pay the amounts of EUR 280 and EUR 129,80, as well as
an additional document provided in the country C language only;
Player G, from country B / Club D, from country C
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-
-
EUR 95,59 for “the bill for electricity power and as a result the club paid for
these expenses”. In this respect, the Respondent submitted a bill in the
country C language only;
EUR 1,300 for the damage to the car. In this respect, the Respondent
submitted a document, by means of which a certain Mr P stated that the
costs for repairing “the car” amounted to EUR 1,300.
6.
Although having been asked by FIFA to provide a copy of all the original and
translated documents it had enclosed to its correspondence, the Respondent did
not provide such documentation.
7.
Upon request of FIFA to be provided with a copy of the relevant documentation
which would establish that there exists an independent national arbitration
tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs in country C, the Respondent provided FIFA
with the Regulations for the Registration and Transfer of Football Players of the
country C Football Association that came into force on 15 June 2005 (hereinafter:
the country C Regulations;).
8.
According to the country C Regulations, the Dispute Resolution Committee
(hereinafter: NDRC) is composed of five members, namely the Chairman, the ViceChairman and one member, all appointed by the Executive Committee of the
country C Football Association, and two members appointed by the country C
Football Players’ Association (art. 22.1.1 and art. 22.1.3). The decisions are taken
by simple majority (art. 22.8.1), subsequent to a summary and written procedure
(art. 22.13.1 and art. 22.13.3). Clubs affiliated to the country C Football
Association, football players and other interested persons are entitled to lodge a
claim before the NDRC (art. 22.13.5). Any decision of the NDRC may be appealed
to the Disciplinary Authority of the country C Football Association, which shall
reach a final decision (art. 22.10).
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was
competent to deal with the case at hand. In this respect, the DRC judge took note
that the present matter was submitted to FIFA on 5 September 2011.
Consequently, the DRC judge concluded that the 2008 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 par. 2 and 3 of the Procedural Rules).
Player G, from country B / Club D, from country C
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2.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
of the Regulations on the Status and Transfer of Players (edition 2012). In
accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of
the aforementioned Regulations, the DRC judge would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country B player and a
country C club, the litigious value of which does not exceed currency of country H
100,000.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of “general terms of the
contract”.
4.
In this respect, the DRC judge referred to the content of the contract and
agreement and underlined that said documents did not contain any jurisdiction
clause, i.e. both the contract and the agreement did not contain a provision
referring to the competence of any national dispute resolution chamber or any
similar arbitration body of the country C Football Association for disputes arising
out of the execution of the contract or the agreement. Thus, the DRC judge
deemed that it was obvious that the parties to the present dispute had never
agreed to submit any possible dispute to the relevant arbitration bodies of the
country C Football Association.
5.
Furthermore, and for the sake of completeness only, the DRC judge outlined that
in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the
Status and Transfer of Players he is competent to deal with a matter such as the
one at hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs, has been established at national level within the framework of the
Association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the DRC judge referred to FIFA Circular no. 1010 dated 20
December 2005. In this regard, the DRC judge further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
6.
In this context, the DRC judge referred to the established jurisprudence of the
DRC which, already on several occasions, established that the NDRC of the country
C Football Association does not meet the minimum procedural standards for
independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations
on the Status and Transfer of Players.
Player G, from country B / Club D, from country C
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7.
In view of all the above, the DRC judge established that, in line with the constant
jurisprudence of the DRC together with the fact that neither the contract nor the
agreement contains a jurisdiction clause in favour of the NDRC of the country C
Football Association, the Respondent’s objection to the competence of FIFA to
deal with the present matter has to be rejected and that the DRC judge is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, to consider the present matter as to the substance.
8.
Subsequently, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2010 and 2012)
and considering that the present claim was lodged in front of FIFA on 5
September 2011, the 2010 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.
9.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well as
the documentation contained in the file.
10.
First of all, the DRC judge acknowledged that the Claimant and the Respondent
had concluded an employment contract valid as from 31 July 2009 until 31 May
2011 as well as a supplementary agreement for the corresponding period of time.
As to the financial terms of said contract and agreement, the DRC judge took
note that it had been agreed upon between the parties that the Respondent
would remunerate the Claimant as follows:
Employment contract
- EUR 20,000 payable in ten monthly installments of EUR 2,000 for the season
2009/2010, the first installment due on 31 August 2009;
- EUR 20,000 payable in ten monthly installments of EUR 2,000 for the season
2010/2011 the first installment due on 31 August 2010.
Supplementary agreement
- EUR 20,000 payable in ten monthly installments of EUR 2,000 for the season
2009/2010 the first installment due on 31 August 2009;
- EUR 25,000 payable in ten monthly installments of EUR 2,500 for the season
2010/2011 the first installment due on 31 August 2010.
11.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of EUR 22,500, indicating
Player G, from country B / Club D, from country C
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that the Respondent had stopped paying the Claimant since January 2011 and
that, thus, five monthly instalments had not been paid.
12.
Subsequently, the DRC judge noted that the Respondent, in its defence, provided
several documents, however, it did not dispute that the payments of January,
February, March, April and May 2011 had not been paid.
13.
In relation to the documentation provided by Respondent, the DRC judge recalled
the basic principle of the 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. Similarly, the DRC judge
referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all
documents of relevance to the dispute shall be submitted in the original version
as well as translated into one of the official FIFA languages.
14.
In this context, the DRC judge noted that, although having been asked to do so,
the Respondent did not provide a translated version of the documents it enclosed
to its submission in the country C language only. In view of the foregoing and
taking into consideration art. 9 of the Procedural Rules, the DRC judge decided
that it could not take into account the relevant documents which were not
translated into an official FIFA language.
15.
As to the documentary evidence presented in the country E language, the DRC
judge observed that such documents did not make an explicit reference to the
Claimant. Therefore, the DRC judge decided that said documents could not be
considered as a legitimate basis to justify any deductions from the amount
claimed by the Claimant.
16.
Consequently, the DRC judge considered that the Respondent had not sufficiently
substantiated its defence, as it did not present any conclusive documentary
evidence which could adduce that certain amounts should be deducted from the
outstanding salary payments of January, February, March, April and May 2011.
17.
In view of all the above and, in particular, taking into account that the
Respondent did not contest that the relevant salaries had remained unpaid, the
DRC judge decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent must fulfil its contractual obligations towards the
Claimant and is to be held liable to pay the Claimant the amount of EUR 22,500,
corresponding to five monthly salaries amounting to EUR 4,500 each.
18.
In continuation and with regard to the Claimant's request for interest, the DRC
judge decided that the Claimant is entitled to receive interest at the rate of 5%
p.a. on the amount of EUR 22,500 until the date of effective payment as follows:
Player G, from country B / Club D, from country C
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a.
b.
c.
d.
e.
5% p.a. as of 1 February 2011 on the amount of EUR 4,500;
5% p.a. as of 1 March 2011 on the amount of EUR 4,500;
5% p.a. as of 1 April 2011 on the amount of EUR 4,500;
5% p.a. as of 1 May 2011 on the amount of EUR 4,500;
5% p.a. as of 1 June 2011 on the amount of EUR 4,500.
19.
The DRC judge further decided that the Claimant's claim for legal costs is rejected,
in accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber.
20.
The DRC judge concluded his deliberations in the present matter by rejecting any
further claim of the Claimant.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player G, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club D, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 22,500 plus 5% interest
p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
5% p.a. as of 1 February 2011 on the amount of EUR 4,500;
5% p.a. as of 1 March 2011 on the amount of EUR 4,500;
5% p.a. as of 1 April 2011 on the amount of EUR 4,500;
5% p.a. as of 1 May 2011 on the amount of EUR 4,500;
5% p.a. as of 1 June 2011 on the amount of EUR 4,500.
4.
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.
5.
Any further claim lodged by the Claimant is rejected.
Player G, from country B / Club D, from country C
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6.
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 DRC
judge of every payment received.
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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player G, from country B / Club D, from country C
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