Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (South Africa), member
S tefano S artori (Italy), member
Pav el Piv ov arov (Russia), member
Muzam m il bin Moham ed (Singapore), 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.
On 10 September 2015, the player of Country B, Player A (hereinafter: the Claimant)
signed an employment contract (hereinafter: the Contract) with the club of Country D,
Club C (hereinafter: the Respondent) valid from the date of signature until 30 June
2016.
2.
The contract provided for payments and amenities due to the Claimant, including:
a. EUR 655 payable at the end of each month, “twelve months per year”, as a
“monthly fee”. The Claimant is also entitled to a Christmas bonus equating to one
monthly fee, an Easter bonus equating to half a monthly fee, and a “holiday
benefit” equating to half a monthly fee, as provided for in clause 4.1 of the
contract;
b. EUR 5,200 sign-on fee “after finish the FIFA TMS”, as provided in clause 4.2 of the
contract and par. 4.2 “Extra Benefits” of the “Contract Annex”;
c. EUR 20,160 payable in five instalments, as provided for in clause 4.4 of the
contract, as follows:
i. EUR 3,900 on 30 November 2015;
ii. EUR 3,800 on 31 December 2015;
iii. EUR 3,000 on 28 February 2016;
iv. EUR 4,000 on 31 March 2016;
v. EUR 5,460 on 30 April 2016;
d. “(U)se of an apartment (excluding utilities, electricity, water supply). If the player
does not pay his apartment’s utilities, electricity and water supply, the club is
entitled to pay these bills on his behalf and withhold these amounts from due
payments to the player”, as provided for in clause 4.3 of the contract;
e. “Pension contributions and social security expenses, as foreseen by the law,
promptly and fully paid”, as provided in clause 4.6 of the contract.
3.
Clause 4.7 of the contract provided that “the amounts [cf. points 2.a, 2.b, and 2.c above]
are paid in full and complete to the bank account of the Player, in conjunction with the
provisions of Article 14 par. 3d of Appendix A”.
4.
On 1 August 2016, the Claimant put the Respondent in default for a total of EUR 16,260
pertaining to four outstanding instalments due under art. 4.4 of the contract (cf. point
I.2.c above). The Claimant gave the Respondent until 11 August 2016 to cure the
default.
5.
On 4 August 2016, the Respondent replied to the Claimant’s first default notice stating
that the “account department” will be closed until 20 August 2016 due to the summer
Player A, Country B / Club C, Country D
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holidays, and consequently, no payment can be made before 11 August 2016. It
indicated that the Claimant would be contacted after 20 August 2016.
6.
On 5 August 2016, the Claimant put the Respondent in default again, requesting the
same amount and keeping the original deadline of 11 August 2016. Another default
notice was sent on 29 August 2016, also for the same amount, but no payment deadline
was provided.
7.
However, on 25 August 2016, the Respondent indicated to the Claimant that there
were discrepancies between the amounts claimed and the ones the Respondent
considered it owed, and stated that the account director was absent until 31 August
2016. It sought to have a meeting with the Claimant “in the beginning of September”
in order to settle the matter.
8.
On 12 August 2016, the Claimant lodged a claim against the Respondent before FIFA,
requesting to be paid outstanding remuneration in the total amount of EUR 16,260
plus 5% interest as follows:
a. EUR 3,800 “as from 1 January 2016 until the date of effective payment”;
b. EUR 3,000 “as from 1 March 2016 until the date of effective payment”;
c. EUR 4,000 “as from 1 April 2016 until the date of effective payment”;
d. EUR 5,460 “as from 1 June 2016 until the date of effective payment”.
9.
The Claimant further requested sanctions to be imposed on the Respondent pursuant
to art. 12bis par. 4 RSTP.
10.
In its reply of 23 September 2016, the Respondent firstly held that all amounts agreed
upon in the contract were agreed as “gross” and not “net”, stating that if amounts are
not “stated explicitly as net” they are to be considered as gross.
11.
The Respondent further asserted that, in addition to all the monthly fees paid in full to
the Claimant, the Respondent paid the Claimant a total of EUR 14,100 net, as follows:
a. EUR 5,200 on 30 September 2015;
b. EUR 200 on 16 October 2015;
c. EUR 1,000 on 20 December 2015;
d. EUR 3,900 on 23 December 2015;
e. EUR 800 on 22 January 2016;
f. EUR 2,000 on 16 February 2016;
g. EUR 1,000 on 7 March 2016.
12.
The Respondent further asserted that, in line with clause 4.3 of the contract, it paid
EUR 8,478.76 on the Claimant’s behalf as follows:
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a.
b.
c.
d.
e.
f.
EUR 220 as the “[claimant’s] share of the obligatory contribution to the Union of
Country D of Professional Player ”;
EUR 531.97 as the “[claimant’s] share for the insurance policy carried by the
League of Country D for all players registered for its competition”;
EUR 345.09 “for communal expenses for the apartment”;
EUR 1,064 for electricity bills;
EUR 158.50 for water supply bills;
EUR 6,159.20 for “income taxes of the [claimant] in accordance with tax
Legislation of Country D”.
13.
The Respondent considered that it paid to the Claimant EUR 22,578.76 (cf. points I.11
and I.12), whereas it considered he was entitled to EUR 25,360 in light of clauses 4.2
and 4.4. of the contract. It therefore asserted that it only owed the Claimant EUR
2,781.24 as outstanding remuneration and that he should reimburse EUR 5,000 to the
Respondent as legal expenses.
14.
On 4 October 2016, the Respondent informed FIFA that it paid the Claimant the amount
of EUR 2,781.24.
15.
In his replica of 6 October 2016, the Claimant amended his claim and requested that
the Respondent pay him the amount of EUR 16,344 net, plus an interest of 5% per year
as from 1 July 2016 “until the date of effective payment”.
16.
In this context, the Claimant stated that he was contractually entitled to a fixed
remuneration of EUR 33,220 (i.e. EUR 7,860 net as basic monthly salaries including the
Christmas and Easter bonus, plus EUR 20,160 net as extra salaries, plus EUR 5,200 net as
sign-on fee).
17.
The Claimant further noted that the Respondent only paid him EUR 14,100. He
therefore argued that he was owed EUR 19,120 as outstanding remuneration.
18.
However, the Claimant acknowledged receipt of the payment by the Respondent of
EUR 2,776 on 6 October 2016, and considered that in light of the total fixed contractual
remuneration owed to him in the amount of EUR 33,220, and having received EUR
16,876 from the Respondent, he was entitled to a total of EUR 16,344 as outstanding
remuneration.
19.
The Claimant held that the contract provides that payments are to be made to the
player “in full and complete” (cf. point I.3 above) and indicated that the payment of
the sign on fee and the first instalment in line with clause 4.4 of the contract were
made “net”. In this regard, the Claimant noted that the Respondent acknowledged
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having paid the relevant instalments of EUR 5,200 (cf. points I.2.b and I.11.a) and EUR
3,900 (cf. points I.2.c.(i) and I.11.d) as a “net” amount, substantiated by the evidence
provided by it.
20.
The Claimant further stated that the contract was drafted by the Respondent and in
line with the legal principle of in dubio contra stipulatorem, the Respondent was not
entitled to make deductions from the remuneration owed to the Claimant for tax
purposes. He consequently considered that the Respondent’s payment of EUR 6,159.20
on behalf of the Claimant (cf. point I.12.f) should not be considered and must be
rejected as it is unfounded, adding that the Respondent had not fulfilled its burden of
proof. The Claimant further noted that the documentation submitted as evidence of
the tax deductions bore no official stamp and consisted only of a document seemingly
printed out and drawn up by the Respondent.
21.
With regard to the Respondent’s argument that it was entitled to deduct sums on the
basis of clause 4.3. of the contract (cf. point I.2.d above), the Claimant noted that the
evidence submitted should be inadmissible in light of it being “selectively” translated.
22.
The Claimant also argued that he was not a member of the Player’s Union of Country
D and that he consequently would not have to pay a EUR 220 membership fee (cf. point
I.12.a). In any case, the membership fee for the Player’s Union cannot be considered a
“utility expense” in the sense of clause 4.3 of the contract.
23.
In continuation, the Claimant stated that the payment of insurance (cf. point I.12.b) is
not a “utility expense”. Therefore, there is no legal basis for a deduction of EUR 531.97.
The Claimant further added that the evidence submitted did not demonstrate that any
payment has been made.
24.
Regarding the payment of EUR 345.09 “for communal expenses for the apartment” (cf.
point I.12.c), the Claimant noted that the document submitted, referring to the rental
period March-April 2016, bore no signature and was only partially translated.
Moreover, it showed that the payment was made in September 2016, “long after the
expiry of the contract and only after the filing of the [Claimant’s] statement of claim
with FIFA, when usually the maintenance fee is paid monthly and not with 5-6 months
delay”.
25.
Concerning the electricity bill (cf. point I.12.d), the Claimant argued that he was only
in the relevant apartment during March and April 2016, and that the bill ran for the
period 1 March 2016 until 29 June 2016, and paid for in September 2016. Furthermore,
the original bill only included a handwritten “Name of Player A”, whereas his full name
Player A, Country B / Club C, Country D
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appeared on the partial translation. Therefore, the Claimant argued that he was not
responsible for the payment of this bill.
26.
With regard to the water supply bill (cf. point I.12.e), the Claimant held that he was
not living in the apartment during the periods concerned. Furthermore, the
Respondent had handwritten “Name - Surname of Player A” on the bill, which
compromised the Claimant.
27.
Lastly, given that the above payments were made in September 2016, i.e. “long after
the expiry of the contract”, the Claimant argued that the Respondent was not
contractually authorised to make deductions after the expiry of the contract.
28.
In reply to the modified claim of the Claimant, the Respondent asserts that the monthly
payment due to the Claimant was EUR 570.18 net. It asserts that the net amounts due
for Christmas amount to EUR 232.58, for Easter EUR 296.97, and the bonus vacations
“paid proportionally to the period of each calendar year being in employment which
was EUR 139 for year 2015 and EUR 272.11”. It considers that the total monthly salaries
due to the Claimant were EUR 6,092.59 and not EUR 7,860, which is the gross amount.
29.
The Respondent further asserted having paid monthly salaries in the total amount of
EUR 4,113.22, as follows:
a. EUR 1,140.36 on 13 November 2015;
b. EUR 570.18 on 11 December 2015;
c. EUR 232.58 for the Christmas bonus on 15 December 2015;
d. EUR 162.50 on 25 January 2016;
e. EUR 1,140.36 on 23 March 2016;
f. EUR 867.15 on 20 April 2016.
30.
The Respondent stated that in April 2016, the Claimant announced that he would be
leaving the club and it consequently stopped paying him.
31.
The Respondent thus concluded that the Claimant received a total of EUR 20,994.46
considered to be the monthly salaries in the amount of EUR 4,113.22 (cf. point I.29),
EUR 14,100 (cf. point I.11), as well as the acknowledged payment of EUR 2,781.24 (cf.
point I.18).
32.
In addition, the Respondent stated that it withheld payments to the Claimant for the
National Tax Authorities during 2015 in the amount of EUR 2,926 and EUR 492 as
solidarity tax contribution in line with national law. A further EUR 2,741.20 was
allegedly also withheld for 2016 on the same basis. The Respondent therefore
Player A, Country B / Club C, Country D
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concluded that all taxes were withheld from the payment of each individual salary, and
totalled EUR 6,159.20.
33.
The Respondent considered that the terms “in full and complete” (cf. point I.3 above)
did not indicate in any way that amounts are provided for as “net”. It further claimed
that the reference to “Appendix A” is that of the “Players’ Regulations Annex A of the
Football Federation of Country D”.
34.
The Respondent reiterated that it paid EUR 220 to the Union of Country D of
Professional Players on the Claimant’s behalf, and referred to a circular letter of the
Union that obliges clubs of Country D to pay EUR 220 per year per player (national and
foreign), as well as to a letter by the Union in which it confirms that the Respondent
paid this amount for the Claimant.
35.
The Respondent further reiterated that it paid the Claimant’s insurance share “for the
insurance policy carried by the League of Country D for all players registered for its
competition”, but indicated having paid EUR 672.50 (instead of 531.97 in point I.12.b
above).
36.
The Respondent stated that it paid EUR 5,907.86 (instead of EUR 6,159.20 in points
I.12.f and I.32 above) as “income taxes of the player in accordance with tax Legislation
of Country D”.
37.
The Respondent concluded by stating that the Claimant needs to pay EUR 5,000 to the
Respondent corresponding to the Respondent’s legal expenses.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 12 August 2016.
Consequently, the 2015 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 2015, 2017 and 2018 editions
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 2018) the Dispute
Player A, Country B / Club C, Country D
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Resolution Chamber shall adjudicate on an employment-related dispute with an
international dimension, between a player of Country B and a club of Country D.
3.
Furthermore, the Chamber analysed which 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 2 of the Regulations on the Status and Transfer of Players (editions 2016 and
2018), and considering that the present claim was lodged on 12 August 2016, 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, 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 facts,
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
The Chamber first acknowledged that the Claimant and the Respondent signed an
employment contract on 10 September 2015 valid from said date until 30 June 2016.
The Chamber further recognised that, according to the Claimant, outstanding
remuneration was still due to the Claimant after the expiry of the employment
contract. In this regard, the Chamber took note of the fact that the Claimant originally
requested EUR 16,260 in his claim of 12 August 2016 (cf. point I.9), but that he amended
his claim on 6 October 2016, requesting EUR 16,344 net in outstanding remuneration
from the Respondent (cf. point 16).
6.
Conversely, the Respondent argued in its response of 23 September 2016 that it owed
the Claimant only EUR 2,781.24, an amount transferred to the Claimant on 4 October
2016, as confirmed by the Claimant (cf. point I.19 above). In this context, the Chamber
observed that, after transferring said amount to the Claimant, the Respondent was of
the opinion that it did not owe any money at all to the Claimant. Moreover, the
Chamber noted that, as per the Respondent, the Claimant’s remuneration as stipulated
in the contract are gross amounts, and not net amounts.
7.
Bearing in mind the arguments put forth by the Claimant and the Respondent, as well
as the content of the employment contract, the DRC deemed that the first issue to be
analysed by the Chamber was to determine whether the salaries due to the Claimant
as established in the employment contract are net or gross amounts.
Player A, Country B / Club C, Country D
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8.
In this light, the DRC acknowledged that the contract does not indicate whether the
amounts due are net or gross. However, the Chamber took note of the fact that the
Respondent had paid the Claimant the sign-on fee of EUR 5,200 in full on 30 September
2015 (cf. point I.11). The amount of EUR 5,200 is equal to the amount enshrined in
clause 4.2 of the contract and par. 4.2 “Extra Benefits” of the “Contract Annex” (cf.
point I.2). The DRC further took into account the payment made by the Respondent to
the Claimant of EUR 3,900 on 23 December 2015 (cf. point I.11.d). This amount is equal
to the amount that was due on 30 November 2015, according to the contract (cf. point
I.2.c.ii). As a result, the DRC concluded that the remuneration amounts established in
the employment contract are net amounts.
9.
Having established the above, the Chamber then proceeded to determine the amount
of outstanding remuneration, if any, still due to the Claimant by the Respondent on
the date of the contract expiry (i.e. 30 June 2016), taking into account the payments
made by the Respondent during the course of the contract and these proceedings. In
this context, and basing itself on the employment contract and the “Contract Annex”,
the Chamber thus established that for the entire duration of the contract, a total
amount of EUR 33,220 net should have been paid by the Respondent to the Claimant.
The DRC thereby agreed with the Claimant, who argued in his replica of 6 October 2016
argued that he was contractually entitled to a fixed remuneration of EUR 33,220 (cf.
point I.16).
10.
Subsequently, the Chamber subtracted the undisputed amount paid to the Claimant
from the amount of EUR 33,220. In this regard, the Chamber noted that both the
Claimant and the Respondent asserted that the amount of EUR 14,100 had been paid
during the Claimant’s stance at the club (cf. points I.11 and I.17), as well as the amount
of EUR 2,776 after the expiry of the contract (cf. point I.18). Consequently, the DRC
concluded that it is undisputed that the Claimant received EUR 16,876 from the
Respondent, and that the amount of EUR 16,344 (33,220 – 16,876) remained in dispute.
11.
As to the remaining amount in dispute, the Chamber observed that the Respondent
claimed that it had paid the Claimant a further EUR 4,113.22 in salaries (cf. point I.29),
and that it made several payments on behalf of Claimant totalling EUR 8,619.29. This
latter amount consisted of alleged payments made on behalf of the Claimant in
accordance with clauses 4.3, 4.6 and 4.7 of the contract, including an amount of EUR
6,159.20 the Respondent allegedly withheld as tax from each individual salary (cf.
points I.12 and I.32).
12.
In this light, and having previously established that the salary due to the Claimant was
net (cf. point II.8), the DRC concluded that the amount of EUR 6,159.20 that the
Respondent allegedly withheld as tax cannot be considered as a payment made on
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behalf of the Claimant. Thus, this amount cannot be subtracted from the outstanding
salary due to the Claimant.
13.
With regard to the other payments that the Responded allegedly made on behalf of
the Claimant and bearing in mind the basic principle of burden of proof, as stipulated
in art. 12 par. 3 of the Procedural Rules, the DRC was unanimous in its opinion that the
evidence provided by the Respondent lacked accuracy to be considered sufficient. The
submitted documents were vague and appeared to indicate that the payments
regarding inter alia insurance, apartment, water and electricity expenses were made
after the Claimant had launched his claim. Consequently, the Chamber held that these
documents could not be considered conclusive evidence. Therefore, the Chamber
decided that these alleged payments done by the Respondent on behalf of the
Claimant could not be subtracted from the outstanding salary.
14.
Finally, as regards the EUR 4,113.22 that the Respondent allegedly paid in salaries to
the Claimant, the DRC agreed that the bank receipts submitted by the Respondent
stipulating these payments appear to be real and valid. The dates on the receipts
showed that the amounts were paid during the period that the Claimant was registered
with the Respondent, and clearly stated that the Claimant was the receiver of said
transactions. As a consequence, the Chamber concluded that the amount of EUR
4,113.22 paid by the Respondent to the Claimant could be subtracted from the amount
in dispute (i.e. EUR 16,344), thereby leaving a final amount of EUR 12,230.78
outstanding to the Claimant.
15.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that the Claimant’s claim is partially accepted and that any further claims
lodged by the Claimant are rejected.
*****
III.
Decision 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 EUR
12,230.78 plus 5% interest p.a. as from 1 July 2016 until the effective date of payment.
3.
In the event that the amount due plus interest to the Claimant in accordance with the
above-mentioned point 2. 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.
Player A, Country B / Club C, Country D
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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 decision (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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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