Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Jon Newman (USA), member
on the claim presented by the player,
Player W, from country P
as Claimant
against the club,
Club C, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 24 August 2009, Player W, form country P (hereinafter: the player or Claimant),
and Club C, from country G (hereinafter: the club or Respondent), concluded an
employment contract (hereinafter: the contract) valid as from the date of signature
until 30 June 2011.
2.
Art. 4 of the contract specified, inter alia, that the club would provide the player with
a monthly salary of EUR 850 net payable by the end of each month and remuneration
in the amount of EUR 226,200 divided in 11 instalments.
3.
Art. 4.2 of the contract established that the player was entitled to bonuses “as stated
in the Internal Regulations”.
4.
On 27 July 2010, the parties signed an amendment to the contract (hereinafter: the
amendment), by means of which “the parties change the terms and conditions” of
the contract, in particular of points 4.2., 4.4. and 4.9.
5.
According to the amendment the player would be entitled to EUR 15,000 as
extraordinary bonus if the player participated in at least 50% of the official matches
in season 2010/2011.
6.
Also according to the amendment the player would be paid the amount of EUR
188,100 in 11 instalments payable as follows:
- EUR 30,000 due on 30 August 2009;
- EUR 19,500 due on 10 October 2009;
- EUR 19,500 due on 30 December 2009;
- EUR 19,500 due on 28 February 2010;
- EUR 19,600 due on 30 April 2010;
- EUR 13,000 due on 30 November 2010,
- EUR 13,000 due on 30 December 2010,
- EUR 13,000 due on 28 February 2011,
- EUR 13,000 due on 30 March 2011,
- EUR 13,000 due on 30 April 2011,
- EUR 15,000 due on 30 May 2011.
7.
Moreover, according to the amendment art. 4.9 asserted that the player would be
entitled to EUR 20,000 in the event the team would be promoted within one month
of approval of the classification.
8.
On 30 March 2011, the parties signed a private agreement (hereinafter: the
agreement), by mans which the club recognized that as of 31 December 2010 the club
owed the player EUR 29,471. The parties agreed that the club would settle this
amount in two instalments: EUR 15,000 to be paid on 5 May 2011 and EUR 14,471 on
15 June 2011.
Player W, from country P / Club C, from country G
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9.
On 11 August 2011, the player lodged a complaint against the club before FIFA,
claiming after an amendment the total remuneration of EUR 127,571 plus 11.5%
interest p.a. as from 4 July 2011 until the date of effective payment as follows:
- “EUR 63,000” as outstanding salary as per the amendment (i.e. “7th
instalment: EUR 13,000-EUR 4,000=EUR 9,000”; instalment 8 until 10 of EUR
13,000 each and instalment 11 of EUR 15,000);
- EUR 14,471 a cheque dated 15 June 2011 being the second instalment of the
agreement;
- EUR 10,000 a cheque dated 15 June 2011 for the remaining outstanding
amounts for season 2009/2010;
- EUR 15,000 as extraordinary bonus;
- EUR 20,000 as outstanding bonus for team promotion to premiere league;
- EUR 5,100 as monthly salary per contract due from January 2011 until June
2011 (6 x EUR 850);
- Legal and procedurals costs.
10.
In this regard, the player held that while fulfilling the contract he received the
remuneration with delays despite having agreed in the amendment to accept a lower
remuneration according to the amendment of the contract. Also, the club allegedly
stopped paying the monthly salaries as from January 2011. The significant delays led
to the signing of the private agreement where the club recognized the outstanding
debts but paid only the first instalment of EUR 15,000. Also, the club failed to pay the
bonuses.
11.
Consequently, the player alleged having negotiated with the club to provide him
with “two cheques- for the amount of EUR 10,000 and EUR 14,471”, however, the
cheques were returned by the bank.
12.
Finally, the player provided FIFA with some correspondence of the club dated 15
March 2012 by means of which the club acknowledged a debt towards the player in
the amount of EUR 122,571 and offered to pay such amount in several instalments
between March 2012 and March 2013.
13.
The club only provided its position to the player’s claim after the closure of
investigation, admitting the existence of outstanding amounts towards the player
and offering their payment in instalments.
****
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter 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 11 August
Player W, from country P / Club C, from country G
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2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2008 and
2012 edition 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 2012) the
Dispute Resolution Chamber shall adjudicate on employment-related disputes
between a club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would be competent to decide on
the present litigation involving a country P player and a country G club regarding an
alleged breach of the employment contract concluded between the aforementioned
parties.
4.
In continuation, the Chamber analysed which edition of the 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 par. 2 of the Regulations on the Status and
Transfer of Players and considering that the present claim was lodged on 11 August
2011, the 2010 edition of said Regulations is applicable to the present matter as to
the substance.
5.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, the Chamber entered into the substance of the matter. In
doing so, it started by acknowledging the abovementioned facts of the matter 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.
14.
In this respect, the members of the Chamber acknowledged that the parties had
signed an employment contract on 24 August 2009 valid as from the date of
signature until 30 June 2011, an amendment to the contract on 27 July 2010, by
means of which “the parties change the terms and conditions” of the contract, in
particular of points 4.2., 4.4. and 4.9. as well as a private agreement on 30 March 2011
by means which the Respondent recognized to owe the Claimant EUR 29,471 as of 31
December 2010.
15.
In continuation, the Chamber noted that the Claimant, inter alia, alleged that the
Respondent had failed to fulfil its contractual obligations, although the Claimant had
rendered his services. In particular, the Claimant claims outstanding remuneration
and bonuses in the amount of EUR 127,571 plus 11.5% interest p.a. as from 4 July
2011 and legal and procedurals costs.
16.
Subsequently, the Chamber observed that the Respondent, for its part, in spite of
having been invited to do so, failed to present its response to the claim of the
Player W, from country P / Club C, from country G
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Claimant within the relevant time-limit. In fact, the reply of the Respondent was only
received after the investigation-phase of the matter had already been concluded. As a
result, the Chamber decided not to take into account the reply of the Respondent
and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall
take a decision upon the basis of those documents on file that were provided prior to
the closure of the investigation-phase, in casu, upon the statements and documents
presented by the Claimant.
17.
Moreover, the Chamber took due note that the Claimant provided some
correspondence dated 15 March 2012 he had received from the Respondent in which
the latter states to owe him the total amount of EUR 122,571 and offered to pay the
said amount in instalments.
18.
In continuation, the DRC 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.
19.
In view of all of the above as well as in particular in view of the fact that the Claimant
could not provide any documentary evidence as to his entitlement to the claimed
bonuses, the Chamber unanimously concluded that the Claimant is entitled to the
amount of EUR 122,571 as acknowledged by the Respondent.
20.
In addition, taking into account the Claimant’s request for interest of 11.5%, the
Chamber underlined that due to the lack of any contractual or regulatory basis such
request cannot be granted. Instead the Chamber decided that the Respondent must
pay to the Claimant interest of 5% p.a. as of 4 July 2011 until the date of effective
payment.
21.
Finally, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal and procedural costs in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence in this
regard.
22.
The Dispute Resolution Chamber 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 W, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, outstanding remuneration in the amount of EUR
122,571 plus 5% interest p.a. as from 4 July 2011 until the date of effective payment.
Player W, from country P / Club C, from country G
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3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limits, 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 motivated decision (legal remedy):
According to art. 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player W, from country P / Club C, from country G
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