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
Jon Newman (USA), member
Eirik Monsen (Norway), member
Theodore Giannikos (Greece), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
Player E, from country C
as Claimant
against the club,
Club L, from country B
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 September 2011, Player E, from country C (hereinafter: the player or
Claimant), and Club L, from country B (hereinafter: the club or Respondent),
signed an employment contract (hereinafter: the contract) valid as from 1
September 2011 until 30 June 2012. The player explained that he first travelled to
country B to sign an employment contract with Club P, however since said club
had already exhausted its foreigner quota, he could not be registered with Club P.
Subsequently, the Claimant signed the contract with the Respondent.
2.
In accordance with the contract, the Claimant was entitled to a monthly salary of
currency of country B 2,500, “which shall be paid by the 15th day of the month
following the month for which it is due. III.1.3. Payment of the remuneration shall
be made in cash or by bank transfer, which must be explicitly requested by the
FOOTBALLER.”
3.
Art. IX.1 of the contract stipulates that: The parties to the contract agree that all
disputes for the performance, extension or termination of the present contract
shall be referred exclusively to the Arbitration Court of the country B Football
Union.”
4.
Art. XIII.3 of the contract stipulates that: ”The disputes having occurred between
the parties on occasion of the performance or interpretation of the contract shall
be settled through negotiations (…). If no agreement is reached the dispute shall
be referred for settlement exclusively to the Arbitration Court of the country B
Football Union.”
5.
On 10 January 2012, the Claimant lodged a claim against the Respondent in front
of FIFA, alleging that it was agreed upon between the parties that the
Respondent would pay the Claimant a salary of EUR 6,000 per month as well as
two flight tickets country B – country C. The Claimant held that he did not receive
a copy of the relevant contract at the time of signing the contract, since the
Respondent apparently first needed to register the contract with the country B
Football Union. It was only on 30 November 2011 that he received a copy of his
contract, when the country B Football Union provided him with one.
6.
In continuation, the player asserted that he did not receive any of his salaries since
the beginning of the contract and, therefore, he had no alternative than to leave
country B. In this respect, the player stressed that he reminded the club of its
obligations on several occasions, however, to no avail.
7.
On account of the above, the player believed that he terminated the contract
with just cause at the end of December 2011 and requested the following
amounts:
Player E, from country C / Club L, from country B
Page 2 of 15
- EUR 24,000 as outstanding salaries for September to December 2011, plus 5%
interest since the due date of each salary;
- EUR 36,000 as compensation for breach of contract, plus 5% interest as from 1
January 2012.
8.
In its reply, the Respondent first challenged the competence of FIFA to adjudicate
on the present matter, indicating that the Arbitration Court of the country B
Football Union is competent on the basis of art. IX.1 and XIII.3 of the contract.
9.
The Respondent stressed that the Arbitration Court of the country B Football
Union complies in full with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players. In this respect, the Respondent submitted a copy of the
Arbitration Court of the country B Football Union Statutes, which came into force
on 1 February 2009, a copy of the Arbitration Court of the country B Football
Union Rules, which came into force on 3 June 2010 and a list of the Arbitration
Court of the country B Football Union arbitrators.
10.
The Arbitration Court of the country B Football Union Statutes stipulate, inter
alia, the following:
Art. II: Staff
Par. 1: The Arbitration Court of the country B Football Union consists of a
Chairman, Vice Chairman, arbitrators and the Secretariat.
Par. 2: Arbitration Court of the country B Football Union includes arbitrators
appointed in equal numbers from the Association of c Footballers (…) and the
Professional Football League [PFL] (…)
Art. III Principles
Par. 1: The Parties are equal and equally entitled to select the arbitrators.
Par. 2: The arbitral tribunal shall ensure an impartial, fair and equal treatment of
parties.
Art. IV. Competence
Par. 2: The tribunal shall consider and resolve disputes between: (…) football clubs
and players and coaches – on performance, breach or termination of contracts, on
the ground type and amount of benefits terminated or outstanding contracts (…).
Art. IV Structure
The tribunal resolves the disputes by an arbitrator or a panel of three arbitrators.
Their rights and obligations are the same.
Art. VI Chairman and Vice-President
Par. 1: The Chairman and Vice-President Arbitration Court of the country B
Football Union shall be elected for four years.
Player E, from country C / Club L, from country B
Page 3 of 15
Par. 2: The Chairman and Vice-President shall be elected Arbitration Court of the
country B Football Union adult and capable country B citizens and legal education
acquired legal capacity and legal experience of not less than 8 years. (…)
Par. 3: The Chairman and Vice-President Arbitration Court of the country B
Football Union to be chosen from among five candidates proposed by the
Executive Committee of the country B Football Union, the arbitrators by a simple
majority by secret ballot. Executive Committee of the country B Football Union
determined provisionally as chairman of Arbitration Court of the country B
Football Union until the election of Chairman and Vice-President.
Par. 4: The Chairman of Arbitration Court of the country B Football Union i)
organizes the activities of Arbitration Court of the country B Football Union and
Secretariat, ii) perform functions specified in the Rules Arbitration Court of the
country B Football Union, iii) reports the activity of IC Arbitration Court of the
country B Football Union to country B Football Union annually.
Art. VII Arbitrators
Par. 1: The arbitrators shall be entered in the list of arbitrators in Arbitration
Court of the country B Football Union upon a proposal from the Association of
country B Footballers and PFL (…) and after approval by the Executive Committee
of the country B Football Union.”
(…)
Par. 3: Proposal to the Executive Committee of the country B Football Union for
the removal can be done by the President of Arbitration Court of the country B
Football Union from the President of the association or a member of the
Executive Committee of the country B Football Union, the President of the
affiliated league or the President of the Association of country B Footballers. In
case of cancellation, the body that proposed the deleted arbitrator proposes a
new arbitrator.
Art. XI Finance
Par. 4: Fees and expenses of the cases are determined by a tariff approved by the
Executive Committee of the country B Football Union, after consultation with the
PFL and Association of country B Footballers.
11.
The Arbitration Court of the country B Football Union Rules stipulate, inter alia,
the following:
Art. 7: The tribunal shall hear and decide the disputes by an arbitration panel
(composition), which may consist of three arbitrators or one arbitrator included in
the list of arbitrators under the statute of the Court of Arbitration. A dispute
about monetary obligation in excess of 10,000 Levs be heard and determined only
by the arbitration panel of three arbitrators.
Art. 8: The arbitration panel shall consist of three arbitrators, where each party
selects one arbitrator and his deputy and the two arbitrators together choose
Player E, from country C / Club L, from country B
Page 4 of 15
from a list of arbitrators the chairman of the arbitration panel within 3 days of
notification of their election. If the parties do not appoint an arbitrator or
arbitrators selected chairperson of the panel in terms of the preceding paragraph,
the Chairman of the Arbitration Court shall appoint from the list of arbitrators
the arbitrator or the chairman. (…).
Art. 9: Upon agreement of the parties arbitration case can be heard and decided
by an arbitrator who they choose together or separately, from the list of
arbitrators. In this case, they chose an alternate. If the parties can not agree on
the selection, the arbitrator or his deputy shall be appointed by the President of
the Court of Arbitration.
Art. 17 par. 2: Simultaneously with the activities under par. 1. Secretariat shall
inform the defendant that it can within 3 days of receipt of a copy of the
application, submit a response, supported by evidence.
Art. 32 par. 2: The decision taken in closed session by majority members of the
Arbitral Tribunal (composition) at three-member panel. The President shall vote
last.
12.
Furthermore, the Respondent indicated that in accordance with the country B Law
on International Commercial Arbitration, decisions of the Arbitration Court of the
country B Football Union can be appealed before the Supreme Cassation Court. In
this respect, the Respondent submitted the apparent translation of art. 47 and 48
of the country B Law on International Commercial Arbitration.
13.
As to the substance, the Respondent claimed that the parties did not agree upon
a salary of EUR 6,000, but upon a salary of currency of country B 2,500 gross,
which equals the net amount of currency of country B 2,016 (EUR 1,030), payable
on the 15th day of the next month. Equally, the Respondent stated that the parties
never agreed that the Respondent would pay the Claimant two tickets country Bcountry C.
14.
Furthermore, the Respondent indicated that as from 22 September 2011 until 28
September 2011 the Claimant was granted a 7-day unpaid leave to go visit his
wife in country C and that the flight tickets were bought by the Respondent for
the amount of currency of country B 3,466. Therefore, the Respondent held that it
was entitled to set-off this amount and submitted an invoice for the amount of
EUR 1,772.40.
15.
Equally, the Respondent stressed that the Claimant was on “winter holidays” as
from 26 November 2011 until 5 January 2012.
16.
Thus, according to the Respondent, since the Claimant went on a 7-day unpaid
leave and taking into account that he left again on 26 November 2011, he was in
Player E, from country C / Club L, from country B
Page 5 of 15
principle entitled to the total sum of currency of country B 3,561.60, calculated as
follows:
- Currency of country B 1,545.60 (Currency of country B 2,016 / 30 x 23) for the
month of September 2011 (payable on 15 October 2011); and
- Currency of country B 2,106 for the month of October 2011 (payable on 15
November 2011).
17.
Therefore, and whilst taken into account the costs of the flight ticket, the
Claimant was entitled to the amount of currency of country B 95.09 (Currency of
country B 3,561.60 – Currency of country B 3,466.51).
18.
On account of the above, the Respondent deemed that, on 26 November 2011,
when the Claimant left on “winter holidays” until 5 January 2012, it was only 2
weeks late with 4.72% of the player’s net salary for October 2011, payable on 15
November 2011. The Respondent stressed that the Claimant “did not come in
legal tender during working hours to claim his salary before his departure on
winter vacations as of 26 November 2011. Moreover, he did not give an explicit
instruction to the club that he wants to be paid into a specific bank account (cf.
clause III.1.3 of the Contract) Therefore, the club was not at fault at all that the
payment of the balance of October 2011 (…) was delayed. The same applies also
to the November 2011 salary, which matured only on 15 December 2011, i.e. at
the time when the player was already in country C on winter vacation.”
19.
In the Respondent’s view, by not returning to country B on 5 January 2012, the
Claimant de facto terminated the contract without notice and without just cause.
According to the Respondent, on 5 January 2012, the outstanding salary to the
Claimant amounted to currency of country B 2,111.09 (currency of country B 95.09
+ currency of country B 2,016), which is an amount that cannot be considered
substantial. Furthermore, the Claimant did not warn the Respondent at any time
of its non-payment.
20.
On account of the above, the Respondent held that it was the Claimant who
breached the contract and owes the Respondent the amount of currency of
country B 15,000. Considering that the Claimant in principle has a claim for
currency of country B 4,387.22 (Currency of country B 95.09 for October 2011 +
currency of country H 2,016 for November 2011 + currency of country H 2,016 for
December 2011 + currency of country H 260.13 for the 4 days of January 2012),
the Respondent is of the opinion that it can set off the currency of country H
15,000 against such amount and, therefore, it owes nothing to the Claimant.
21.
In his replica, the Claimant insisted on the competence of FIFA indicating that the
Arbitration Court of the country B Football Union does not meet the standards to
be recognized as an independent arbitration tribunal. In particular, because:
Player E, from country C / Club L, from country B
Page 6 of 15
a)
b)
c)
d)
e)
f)
g)
The Chairman and Vice-President are not chosen by consensus of the
player and club representatives;
Art. II par. 2 omits to outline the important and decisive information as to
“on proposal of which body or organization” the said representatives may
be chosen. Also, a “simple majority by secret ballot” election of the
arbitrators as mentioned in art. VI par. 3 of the Arbitration Court of the
country B Football Union Statutes does not make sense when looking at
literals b and c of art. 3 par. 1 of the National Dispute Resolution Chamber
(NDRC) Standard Regulations.
Art. VII par. 3 gives a member of the Executive committee of the country B
Football Union the authority to remove an arbitrator of the list of
arbitrators and to propose a new one; another example of a lack of
independence.
In accordance with art. 32 par. 2 of the Arbitration Court of the country B
Football Union Rules it might happen that a decision is taken by a panel
that consists of a player representative, a club representative and a
President appointed by the Executive Committee of the country B Football
Union.
The proceedings are not free of charge.
Art. 17 par. 2 of the Arbitration Court of the country B Football Union
Rules states that a party has only 3 days to file a reply, which is
incompatible with art. 16 of the NDRC Standard Regulations.
There is no possibility to appeal; art. 38 Arbitration Court of the country B
Football Union Rules stipulates that the decision is final and binding,
which is incompatible with art. 34 of the NDRC Standard Regulations.
22.
As to the substance, the Claimant reiterated that he did not receive a single salary
payment from the club and insists that the parties agreed upon a monthly salary
of EUR 6,000, however, since he did not receive a copy of the contract he was not
in a position to verify the agreed payments. The Claimant held that, by doing so,
the Respondent misled him in the sense of art. 28 of the Swiss Code of Obligations
(CO) and the clause in the contract mentioning the salary should be declared null
and void and replaced by the will of the parties. The Claimant indicated he would
never have left country C for a “miserable” amount of currency of country B 2,500
gross, which amount does not cover his costs in both country C and country B.
23.
Equally, the Claimant stated that one cannot set off salary against flight tickets in
application of art. 120 of the CO.
24.
Finally, the Claimant outlined that he paid his flight ticket home out of his own
pocket and claims the reimbursement of this amount. In this respect, the Claimant
submitted a flight ticket indicating that he travelled on 22 December 2011 from
Barcelona to Madrid and thereafter to Buenos Aires and Santiago.
Player E, from country C / Club L, from country B
Page 7 of 15
25.
In its duplica, the Respondent stressed that the Claimant had already lodged a
claim in front of the Arbitration Court of the country B Football Union on 30
November 2011 and, therefore, already accepted the jurisdiction of the
Arbitration Court of the country B Football Union. The Respondent referred to a
letter submitted by the Claimant dated 30 November 2011, in which the Claimant
informed the country B Football Unit that he neither received a copy of his
contract, nor any of his salaries.
26.
Furthermore, the Respondent held that there is an equal representation between
players and clubs within the Arbitration Court of the country B Football Union;
the list of arbitrators comprises 9 player representatives elected on the proposal
of the Association of country B Footballers and 9 club representatives, elected on
the proposal of PFL. As to the appointment of the Chairman, the Respondent
referred to art. 8 par. 1 of the Arbitration Court of the country B Football Union
Rules and rejects all the statements of the Claimant in this respect. As to the costs,
the Respondent stated that there is only an advance of costs of 10% of the
amount in dispute which is also refundable, and insists that according to art. 32 in
conjunction with art 21.5 of the NDRC Standard Regulations, the proceedings in
front of the NDRC may incur procedural costs.
27.
As to the substance, the Respondent deemed it important to recall that the
Claimant first had a trial with Club P, before signing an agreement with it.
However, the Claimant failed in the trials with said club and, without any other
options, he signed a contract with the Respondent. The Respondent held that the
minimum wage for a player in the second country B League is currency of country
B 450, whereas the minimum wage for a first division club is currency of country B
700. The Respondent therefore underlined that a salary of currency of country B
2,500 is accurate.
28.
Also, the Respondent held that the Claimant received an original copy of the
contract “upon its registration with the Employment Agency” and outlined that
the calculation of the gross amount of currency of country B 2,016 was not
contested by the Claimant.
29.
As to the flight ticket, the Respondent reiterated that there is no agreement on
this concept whatsoever and, what is more, it refuses to pay for the Claimant’s
vacation in Spain, stressing that the Claimant left country B on 26 November 2011
but only left Spain on 22 December 2011.
30.
In February 2012, the Claimant signed a new contract with the country C club,
Club X valid for the year 2012, in accordance with which he was entitled to
currency of country C 1,567,000 gross.
Player E, from country C / Club L, from country B
Page 8 of 15
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 10 January 2012. Consequently, 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 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, in principle, be
competent to decide on the present litigation which involves a country C player
and a country B club regarding an employment-related Respondent.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. IX.1 and art XIII.3 of the
contract, asserting that the parties had agreed upon the exclusive jurisdiction of
the Arbitration Court of the country B Football Union.
5.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against the
club.
6.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Transfer of Players it 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 Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of the Chamber referred to the principles contained in the NDRC
Standard Regulations, which were issued on 1 January 2008.
7.
In continuation, the DRC turned its attention to the principle of equal
representation of players and clubs and underlined that this principle is one of the
very fundamental elements to be fulfilled, in order for a national dispute
Player E, from country C / Club L, from country B
Page 9 of 15
resolution chamber to be recognised as such. Indeed, this prerequisite is
mentioned in the Regulations on the Status and Transfer of Players, in the FIFA
Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which
illustrates the aforementioned principle as follows: “The NDRC shall be composed
of the following members, who shall serve a four-year renewable mandate: a) a
chairman and a deputy chairman chosen by consensus by the player and club
representatives (…); b) between three and ten player representatives who are
elected or appointed either on proposal of the players’ associations affiliated to
FIFPro, or, where no such associations exist, on the basis of a selection process
agreed by FIFA and FIFPro; c) between three and ten club representatives (…).”
8.
In this context, the Chamber examined the documentation provided by the
Respondent and referred to art. VII par. 1 of the Arbitration Court of the country
B Football Union Statutes which stipulates that “The arbitrators shall be entered
in the list of arbitrators in Arbitration Court of the country B Football Union upon
a proposal from the Association of country B Footballers and PFL (…) and after
approval by the Executive Committee of the country B Football Union.”
9.
Furthermore, the Chamber acknowledged the content of art. 8 of the Arbitration
Court of the country B Football Union Rules, which stipulates that: The arbitration
panel shall consist of three arbitrators, where each party selects one arbitrator
and his deputy and the two arbitrators together choose from a list of arbitrators
the chairman of the arbitration panel within 3 days of notification of their
election. If the parties do not appoint an arbitrator or arbitrators selected
chairperson of the panel in terms of the preceding paragraph, the Chairman of
the Arbitration Court shall appoint from the list of arbitrators the arbitrator or
the chairman. (…).
10.
Taking into consideration the aforementioned provisions, in particular, that the
arbitrators appointed by the parties from the list of arbitrators select the
chairman of the arbitration panel from that same list of arbitrators, the Chamber
came to the conclusion that the composition of the Arbitration Court of the
country B Football Union panel always consists of either 2 player representatives
and 1 club representative or 1 player representative and 2 club representatives.
11.
Finally, the Chamber also underlined that as a last resort the decision of the
relevant national deciding body may be subject of an appeal before an arbitration
body, but that the Respondent had not provided enough evidence in this respect.
12.
In view of the aforementioned and taking into account the prerequisites for the
recognition of the jurisdiction of an arbitration body at a national level stipulated
in art. 22 lit. b) of the Regulations, the FIFA Circular no. 1010 and the NDRC
Standard Regulations, the DRC considered that, in light of the documentation
provided by the Respondent, the relevant national deciding body does not respect
the principle of equal representation between players and clubs.
Player E, from country C / Club L, from country B
Page 10 of 15
13.
Furthermore, the Chamber referred to art. 17 par. 2 of the Arbitration Court of
the country B Football Union Rules which stipulate that “Simultaneously with the
activities under par. 1. Secretariat shall inform the defendant that it can within 3
days of receipt of a copy of the application, submit a response, supported by
evidence. In this respect, the Chamber was not convinced that a 3-day deadline to
provide a reply to a claim lodged in front of the Arbitration Court of the country
B Football Union, guarantees the principle of fair proceedings.
14.
Therefore, the Chamber concurred that the Respondent was unable to prove that
the Arbitration Court of the country B Football Union had met the minimum
procedural standards for independent arbitration tribunals, as laid down in art. 22
lit. b) of the above-mentioned Regulations, in FIFA Circular no. 1010 as well as in
the NDRC Standard Regulations.
15.
For the sake of completeness, the Chamber emphasised that the notification sent
by the Claimant to the country B Football Union on 30 November 2011, did clearly
not constitute a claim or petition lodged in front of the Arbitration Court of the
country B Football Union.
16.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has to
be rejected and that the Dispute Resolution Chamber 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.
17.
In continuation, 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, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (editions 2010 and
2012) and, on the other hand, to the fact that the present claim was lodged in
front of FIFA on 10 January 2012. Therefore, the Dispute Resolution Chamber
concluded that the 2010 edition of the Regulations on the Status and Transfer of
Players is applicable to the matter at hand as to the substance.
18.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber
continued 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
substance of the matter at hand.
19.
First of all, the members of the Chamber acknowledged that the Claimant
asserted that the parties had agreed upon an employment contract by means of
Player E, from country C / Club L, from country B
Page 11 of 15
which the Respondent would pay the Claimant a monthly salary of EUR 6,000.
Nevertheless, the Chamber duly observed that the Respondent refuted such
statement, emphasising that the Respondent had not committed to pay the
Claimant a monthly salary of EUR 6,000, but rather a monthly salary of currency of
country B 2,500 gross, which equals the net amount of currency of country B
2,016.
20.
As a consequence, the Chamber decided that it first had to establish the amount
of remuneration agreed upon between the parties, taking into consideration that
the only contract provided during the present proceedings was the employment
contract valid as from 1 September 2011 until 30 June 2012 which stipulated a
monthly salary of currency of country B 2,500. In this regard, the members of the
Chamber, whilst referring to the principle of the burden of proof as stipulated in
art. 12 par. 3 of the Procedural Rules, stressed that it was up to the Claimant to
prove that in fact a monthly salary of EUR 6,000 had been agreed upon.
21.
With due consideration to the above, the Chamber noted that the Claimant had
only argued that he would have never left country C for the amount of currency
of country B 2,500, but that he had not provided any evidence from which it could
be established that the Respondent had agreed to pay him the amount of EUR
6,000 per month. In view of the foregoing, the Chamber concluded that the
Claimant had not discharged his burden of proof in relation to the statement that
his salary amounted to EUR 6,000. Hence, in absence of any evidence to the
contrary, the Chamber had no alternative but to determine that the parties
agreed upon a monthly salary of currency of country B 2,500, as clearly stipulated
in the contract. For the sake of completeness, the Chamber stressed that it had
also not been proven by the Claimant that the Respondent had misled him.
22.
In continuation, the Chamber addressed the question whether the amount
stipulated in the contract was a net or gross amount. In this respect, considering
that no specification was included in the contract and that no conclusive
documentation was provided by the Respondent to prove its statements, the
Chamber determined that the amount of currency of country B 2,500 was a net
amount.
23.
Then, the Chamber addressed the issue of the termination of the contract and
stressed that it was not disputed by the Claimant that he did not return from his
winter holidays on 5 January 2012. Hence, the Chamber noted that the
employment relationship between the Claimant and the Respondent came to an
end on 5 January 2012, when the Claimant did not return to country B.
24.
In relation to the previous paragraph, the Chamber underlined that the Claimant
held having not received a single salary payment from the Respondent since the
very start of the contractual relationship and that, thus, in January 2012, 4
monthly salaries were outstanding and his absence was therefore justified. The
Player E, from country C / Club L, from country B
Page 12 of 15
Chamber noted however that the Respondent, for its part, rejected the Claimant’s
allegations and pointed out that it voluntarily provided the Claimant with a flight
ticket. As such obligation was not established in the contract, the Respondent
claimed that it was entitled to deduct the value of the ticket from any amounts
due to the Claimant. Therefore, the Respondent claims that in January 2012 only
one monthly salary was outstanding.
25.
In this regard, the Chamber pointed out that the contract at the basis of the
present dispute did not provide for an obligation to the Respondent to pay the
Claimant a flight ticket. As a result, and taking into account that the Respondent
had indeed paid the amount of currency of country B 3,466.51 for the Claimant’s
flight ticket, a fact that remained uncontested by the Claimant, the Chamber
agreed with the Respondent’s statement that this amount was to be deducted
from the Claimant’s salaries.
26.
Furthermore, the Chamber deemed it essential to recall at this stage that the
salary payments were only due on 15th day of the following month, and that,
thus, on 5 January 2012, only the salaries of September, October and November
2012 were to be paid, in the total amount of currency of country B 7,500. Taking
into account the deduction of the flight ticket in the amount of currency of
country B 3,466.51, this would correspond to an outstanding amount of currency
of country B 4,033.49. As a result, the Chamber concluded that the Claimant
terminated the contract without just cause, as only minor amounts were
outstanding at the time that he did not return to the Respondent. In this respect,
the Chamber also highlighted that the Claimant had not been able to prove that
he had put the Respondent in default of its payment obligations.
27.
Moreover, the Chamber concluded that the Respondent has failed to substantiate
its allegations in relation to the setoff and therefore the members determined
that the Respondent’s statement in that regard cannot be upheld.
28.
In view of all the foregoing, the Chamber determined that the Respondent is only
obliged to pay the Claimant outstanding remuneration in the amount of currency
of country B 6,533.49, which includes the salary of December 2012, plus 5%
interest as from the due dates.
29.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
*****
Player E, from country C / Club L, from country B
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player E, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club L, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of currency of country B 6,533.49,
plus 5% interest until the date of effective payment as follows:
a. 5% p.a. as of 16 November 2011 on the amount of currency of country B
1,533.49;
b. 5% p.a. as of 16 December 2011 on the amount of currency of country B
2,500;
c. 5% p.a. as of 16 January 2012 on the amount of currency of country B 2,500.
4.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
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
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:
Player E, from country C / Club L, from country B
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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 E, from country C / Club L, from country B
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