Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (the Netherlands ), member
Alex andra Góm ez Bruinew oud (Uruguay ), member
Wouter Lam brecht (Belgium ), member
Joel Talav era (Paraguay ), member
on the matter between the player,
Play er A, Country B
as Claimant
and 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 4 June 2014, the player of Country B, Player A (hereinafter: the Claimant
or the player) and the club of Country D, Club C (hereinafter: the Respondent
or the club) signed an employment contract (hereinafter: the contract) valid as
from 1 July 2014 until 15 June 2017.
2. In accordance with to art. 4, par. 1 of the contract, the Claimant was a entitled
to the following salary for the season 2014/2015:
a) EUR 400,000 on the date of signature of the contract;
b) EUR 60,000 as monthly salary, payable on the last day of each month as of
31 August 2014 until 31 May 2015.
3. Moreover, art. 4, par. 1, lit. h) of the contract provided that the Claimant was
entitled to a “victory bonus for each victory in the League of Country D”.
4. On 4 October 2016, the Claimant lodged a claim in front of FIFA, requesting
outstanding remuneration in the amount of EUR 240,000, corresponding to
the monthly salaries for the period between February 2015 and May 2015.
5. In his claim, the Claimant explained that he did not receive the payment of
the last four monthly salaries provided in the contract for season 2014/2015.
Moreover, the Claimant stated that the contract “ended prematurely on May
31st 2015”.
6. In its reply, the club preliminarily contested FIFA’s jurisdiction, arguing that
the National Dispute Resolution Chamber of the Football Association of
Country D (hereinafter: Football Association of Country D) was the only
competent body to adjudicate the Claimant’s claim. In particular, the
Respondent argued that said body was competent pursuant to the Statutes of
the Football Association of Country D and was compliant with the principles
of equal treatment and independency.
7. As to the merits of the case, the Respondent alleged that, between October
2014 and May 2015, it made “additional payments” to the Claimant, in the
total amount of EUR 172,458.01, which the Claimant omitted to deduct from
the claimed amount, broken-down as follows:
a) EUR 6.916,82 on 17 October 2014;
b) EUR 4.663,00 3 November 2014;
c) EUR 1,814.33 on 28 November 2014;
Player A, Country B / Club C, Country D
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d) EUR 10,555.94 on 12 December 2014;
e) EUR 8,772.86 on 19 December 2014;
f) EUR 2,659.58 on 26 December 2014;
g) EUR 60,000 on 13 February 2015;
h) EUR 1.783,31 on 13 February 2015;
i) EUR 668,45 on 13 March 2015;
j) EUR 1,334.52 on 13 March 2015;
k) EUR 60,000 on 3 April 2015;
l) EUR 5,000 on 27 April 2015;
m) EUR 2,504.17 on 30 April 2015;
n) EUR 5.785,03 on 8 May 2015.
In this regard, the Respondent submitted a copy of the relevant payment
receipts, according to which “money transfer” is indicated as the title for
each payment.
8. Furthermore, the Respondent alleged that the Claimant did not take part “in
the training sessions” of the Respondent and, as a consequence, the Board of
the club imposed a fine of 800,000 in the currency of Country D on him.
Consequently, the Respondent argued that it did not have any outstanding
remuneration towards the Claimant and requested the rejection of the claim.
9. In his replica, the Claimant rejected the Respondent’s arguments, but
acknowledged receipt of the “additional payments” in the amount of EUR
172,458.01 from the Respondent. However, the Claimant pointed out that the
aforementioned amount could not be deducted for the following reasons:
a) EUR 120,000 (cf. point 7, lit. g) and k) above) were paid by the
Respondent for the months of December 2014 and January 2015, while
the claimed amount referred to other monthly salaries, i.e. from February
2015 to May 2015. In particular, the Claimant submitted a list with the
dates on which the Respondent paid his monthly salaries;
b) EUR 52,458.01 (cf. point 7, lit. from a) to f), h), i), j), l), m) and n)) were
paid as victory bonuses, in accordance with art. 4, par. 1, lit. h) of the
contract. In this regard, the Claimant indicated a list of seven matches
won by the Respondent, which the bonuses allegedly referred to.
10. Furthermore, the Claimant denied having missed any training session of the
Respondent without the latter’s consent and affirmed that the Respondent
did not substantiate its allegations regarding the alleged fine.
Player A, Country B / Club C, Country D
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11. In its duplica, the Respondent insisted on its previous arguments and pointed
out that the amount of EUR 52,458.01 was not paid as a bonus payment but
rather as a “salary payment”, as allegedly indicated in the relevant payment
receipts (cf. point 7 above).
12. On account of the above, the Respondent acknowledged that, on the one
hand EUR 187,541.99 were not paid to the Claimant as outstanding salaries
for season 2014/2015 but, on the other hand, it argued that such amount was
not paid “due to the fine imposed on the [Claimant]”.
13. In particular, the Respondent affirmed that the Claimant left the Respondent
on 14 May 2015 and did not attend seven team’s training sessions between 13
and 22 May 2015, allegedly without any valid reason. Furthermore, the
Respondent emphasised that the Claimant did not “appear” in three official
matches of the club (on 16, 24 and 29 May 2015 respectively). Consequently,
the Respondent argued that the Claimant breached the contract and the fine
of 800,000 in the currency of Country D, allegedly “correspond to 279,000.00 Euro”, was justified.
14. In order to prove its allegations, the Respondent presented the following
documents with its duplica:
a) the decision of the club’s “presidency”, dated 25 May 2015, translated in
an official language, whereby a fine of 800,000 in the currency of Country
D was imposed on the Claimant. Attached to said decision are “notarial
reports” of the Claimant’s alleged absences. Moreover, the decision refers
to the club’s disciplinary regulations for season 2014/2015;
b) a document allegedly signed by the Claimant, whereby he acknowledged
receipt of and accepted the aforementioned disciplinary regulations;
c) an alleged certificate issued on 11 November 2016, issued by the “directory
of immigration administration of City E”, stating that the Claimant “went
abroad by plane from City F on 14th May 2015 […]. He checked in City F on
20 May 2015 and then went abroad again on 26th May 2015 from City G”.
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 hand. In this respect, it took note that the present matter was submitted to
FIFA on 4 October 2016. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
Player A, Country B / Club C, Country D
4
2015; hereinafter: Procedural Rules) are 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 2018), the Dispute Resolution Chamber would, in principle,
be 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. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies, alleging that the competent body to
deal with any dispute deriving from the relevant employment contract is the
National Dispute Resolution Chamber of the Football Association of Country
D.
4. 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 Respondent.
5. Taking into account all the above, the Chamber emphasised that, in
accordance with art. 22 lit. b) of the Regulations, 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 FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on
1 January 2008.
6. In relation to the above, the Chamber also deemed it vital to outline that one
of the basic conditions that needs to be met in order to establish that another
organ than the DRC is competent to settle an employment-related dispute
between a club and a player of an international dimension, is that the
jurisdiction of the relevant national arbitration tribunal derives from a clear
reference in the employment contract.
7. Therefore, while analysing whether it was competent to hear the present
matter, the Dispute Resolution Chamber considered that it should, first and
foremost, analyse whether the employment contract at the basis of the
present dispute contained a clear, specific and exclusive arbitration clause in
Player A, Country B / Club C, Country D
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favour of the National Dispute Resolution Chamber of the Football
Association of Country D.
8. In this respect, the members of the Chamber, after a thorough analysis of the
contract at the basis of the dispute, were eager to emphasise that the
aforementioned contract does not contain any arbitration clause.
9. Consequently, the Chamber established that the first condition in order for a
body other than the DRC to be competent is not met in the present matter.
Thus, the Chamber concluded 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, to deal with the present matter as to the substance.
10. In continuation, 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 (edition 2018), and considering that the present claim was
lodged on 4 October 2016, the 2016 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
11. 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.
12. First, the Chamber noted that the parties entered into an employment
contract valid as of 1 July 2014 until 15 June 2017, which entitled the
Claimant, for the season 2014/2015, to a signing fee of EUR 400,000 and to a
monthly salary of EUR 60,000 payable on the last day of each month, starting
from 31 August 2014 until 31 May 2015.
13. Furthermore, the DRC acknowledged that it was undisputed that the contract
was early terminated on 31 May 2015.
14. In continuation, the DRC noted that the Claimant alleged that the
Respondent breached the contract as it failed to pay him the outstanding
salaries for the months of February, March, April and May 2015, for the total
amount EUR 240,000.
15. Equally, the Chamber took note of the reply of the Respondent, which
maintained that:
Player A, Country B / Club C, Country D
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a) EUR 187,541.99 were deducted by the Respondent due to an alleged fine,
in the amount of 800,000 in the currency of Country D, which it imposed
on the Claimant as he allegedly did not attend certain team trainings;
b) EUR 52,458.01 were paid to the Claimant between 17 October 2014 and 8
May 2015 through the further payments indicated in point I.7., listed
under lit. from a) to f),h), i), j), l), m) and n);
16. Furthermore, the DRC also duly noted that the Claimant rejected the
arguments raised by the Respondent and, in particular he argued that:
a) the further payments indicated by the Respondent in the total amount of
EUR 52,458.01 had been paid as victory bonuses pursuant to art. 4, par. 1,
lit. h) of the contract;
b) he did not miss any training of the club without the Respondent’s consent.
17. In view of the aforementioned dissent positions of the parties, the members
of the Chamber firstly referred to the basic principle of burden of proof, as
established in art. 12 par. 3 of the Procedural Rules, according to which any
party claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
18. In this context, as to the fine allegedly imposed on the Claimant, the Chamber
recalled its long-standing jurisprudence, according to which, in principle, the
imposition of a fine, or any other available financial sanction in general, shall
not be used by clubs as a means to set off outstanding financial obligations
towards players. What is more, the members of the Chamber emphasised that
the Respondent did not provide any evidence that the alleged fine had been
properly notified to the Claimant, let alone that the latter was given the
opportunity to defend himself within the context of the alleged disciplinary
proceedings. Consequently, the Chamber decided to disregard the alleged
fine imposed on the Claimant and to reject the Respondent’s arguments in
this regard.
19. In continuation, as to the further payments made by the Respondent, the
members of the Chamber first noted that the relevant payment receipts
generically mention only “money transfer(s)” as title of payment and do not
refer to any victory bonuses. Moreover, the DRC stressed that art. 4, par. 1, lit.
h) does not provide specific bonuses for the Claimant but, rather, undisclosed
victory bonuses “for each victory in the League of Country D”.
20. Consequently, the members of the Chamber concurred that, in accordance
with the principle under art. 12 par. 3 of the Procedural Rules, the Claimant
Player A, Country B / Club C, Country D
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did not provide enough evidence in order to prove that the aforementioned
payments referred to specific victory bonuses provided in the contract.
21. Therefore, the DRC had no other option than to conclude that such payments,
in the total amount of EUR 52,458.01, based on the evidence submitted by
both parties, refer to salary payments and, thus, accepted the Respondent’s
arguments in this regard.
22. On account of the aforementioned considerations, and considering that the
Respondent did not invoke any other reason to justify the non-payment of
the Claimant’s salaries, the Chamber deemed that the Respondent only paid
EUR 52,458.01 out of EUR 240,000 to the Claimant and, thus, it failed to pay
the due salary, in the amount EUR 187,542, without any valid reason.
23. Consequently, and in accordance with the general legal principle of pacta
sunt servanda, the Chamber concluded that the Respondent must fulfil its
obligations and, consequently, is to be held liable to pay EUR 187,542 to the
Claimant.
24. The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is admissible.
2. The claim of the Claimant is partially accepted.
3. 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 187,542.
4. In the event that the aforementioned amount is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and 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.
Player A, Country B / Club C, Country D
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*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 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
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:
Omar Ongaro
Football Regulatory Director
Player A, Country B / Club C, Country D
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