Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 25 April 2013,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Alejandro Marón (Argentina), member
Theo van Seggelen (Netherlands), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club N, from country E
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 18 July 2007, Player A, from country B (hereinafter: the Claimant), and tClub N,f rom
country E (hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid until 15 July 2009, according to clause 13.
2.
According to the contract, the Claimant was entitled to a total remuneration in the
amount of USD 1,350,000 for the 2007/08 season, payable as follows:
a. USD 270,000 on 15 July 2007;
b. USD 270,000 on 2 January 2008;
c. USD 270,000 on 30 May 2008; and
d. a monthly salary in the amount of USD 49,000 for ten months and a last monthly
salary in the amount of USD 50,000, each of them to be paid “on the first
weekday of the following month”.
3.
On 23 September 2009, the Claimant lodged a claim before FIFA claiming the aggregate
amount of USD 320,000 plus interest as follows:
a. USD 270,000 that became due on 30 May 2008; and
b. the last monthly salary in the amount of USD 50,000, that, according to the
Claimant, became due on 18 June 2008.
4.
According to the Claimant, the contract was valid “for the term of eleven months”. In
this respect, he held that, even though he fulfilled all his contractual obligations, the club
failed to pay the amounts aforementioned.
5.
On 16 May 2011, the Respondent submitted its reply, rejecting the Claimant’s claim.
6.
In this respect, the Respondent stated that the contract was valid from 18 July 2007
through 17 June 2008 and confirmed that it was valid for eleven months.
7.
Furthermore, the Respondent enclosed a copy of a document issued by the Respondent
dated 26 June 2007 addressed to the alleged agent of the Claimant, which subject read
“Official Offer for the Player A” (hereinafter: the contract offer). The contract offer
outlined the salary for the Claimant for the 2007/08 season and regarding the contract
period it stated that:
- “If the period is Two years, same amount will paid to the player in the 2nd year”
- “If the period is One year, Club N entitled to have 7% of the new contract”
8.
The Respondent claimed having invited the Claimant in May 2008 to a meeting aimed at
renewing his contract for the 2008/09 season. According to the Respondent, the Claimant
informed them that he did not intend to renew his contract with the Respondent. The
Respondent reported that following this it informed the Claimant that, pursuant to the
contract offer, if the contract period was one year, the Respondent was “entitled to have
7% of the new contract”.
Player A, from country B / Club N, from country E
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9.
Further, the Respondent claimed to have summoned the Claimant to try and amicably
settle the dispute; however, according to the Respondent, the Claimant, without given
written notice to the Respondent, left for Italy where and, according to the website of
Club S, from country E (hereinafter: Club S), he officially joined the summer training
camp of Club S. The Respondent did not provide the relevant dates.
10.
In relation to the Claimant’s joining of Club S, the Respondent contacted the country E
Football Association. The country E Football Association replied that the Claimant had
been registered with Club S on 14 September 2008 after considering that the contract
between the Respondent and the Claimant had come to an end on 18 June 2008. In this
respect, the Respondent argued that according to the official circular letter ref. no. 1714
issued by the country E Football Association, the official registration dates for the
transfer window were from 18 June 2008 until 10 September 2008. Therefore, the
Respondent held that the registration of the Claimant with Club S is not only not
approved by the Respondent itself, but also incorrect since it was not completed within
the official registration period.
11.
In light of the above, the Respondent requested the DRC to dismiss the Claimant’s claim.
12.
The Claimant further stated that he was bound by and complied with the contract until
17 June 2008. Thereafter, from 18 June to 26 June 2008, the Claimant claimed that he
was unemployed. Then, according to the Claimant, on 27 June 2008, he signed an
employment contract with Club S.
13.
The Respondent did not submit any comments, even though it was invited to do so.
II.
Considerations of the Dispute Resolution Chamber
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 23 September 2009.
Therefore, the DRC 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).
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 conjunction with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a country B player
and a country E club.
3.
In continuation, the DRC 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,
it confirmed that in accordance with art. 26 par. 1 and 2 of said Regulations (editions
2012, 2010, 2009, and 2008), and considering that the present claim was lodged on 23
Player A, from country B / Club N, from country E
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September 2009, the 2008 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.
4.
The competence of the Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter. The members of the Chamber
started by acknowledging the facts of the case, as well as the documentation contained
in the file.
5.
In this respect, the Chamber recalled that although the contract stipulates that its term
expires on 15 July 2009, the Claimant as well as the Respondent acknowledged that the
contract was concluded for an eleven-month term only, i.e. from 18 July 2007 to 17 June
2008 (cf. pints I.4 and I.6). Moreover, the DRC took note that according to the contract,
the Claimant was entitled to a total remuneration in the amount of USD 1,350,000 for
the 2007/08 season.
6.
In continuation, the Chamber noted that the Claimant lodged a claim against the
Respondent requesting the payment of an overall amount of USD 320,000 plus interest,
corresponding to outstanding payments, namely: an installment in the amount of USD
270,000, which became due on 30 May 2008; and the last monthly salary, i.e. USD 50,000,
which according to the Claimant became due on 18 June 2008.
7.
Subsequently, the Chamber turned its attention to the arguments of the Respondent and
noted that the latter is not actually contesting the amounts claimed as outstanding, but
simply refuses to pay because the Claimant allegedly breached the contract and did not
want to renew the contract for the 2008/09 season. Furthermore, the Chamber observed
that the Respondent bases its allegation on the contract offer, pursuant to which if the
contract period was one year, the Respondent would be entitled to a 7% share of the
Claimant’s new employment contract (cf. point I.7).
8.
In view of the contradictory positions of the parties and, in particular, considering the
basis of the Respondent’s allegation, the Chamber stressed that first and foremost it had
to address whether the contract offer constituted a legally binding employment contract
on the basis of which the obligation referred to by the Respondent could be enforced.
9.
In this regard, the Chamber pointed out that the contract offer does not appear to
contain all the “essentialia negotii” of an employment contract, such as the parties to the
contract and their role, the duration of their employment relationship as well as the
remuneration. In addition, the Chamber observed that the contract offer was signed only
by the employer, i.e. the Respondent.
10.
Further, the Dispute Resolution Chamber deemed important to highlight that the parties
had concluded a valid employment contract on 18 July 2007 but made therein no
reference to the contract offer of 26 June 2007. As a consequence, the Chamber
concluded that the terms and conditions set out in the contract offer had been in any
Player A, from country B / Club N, from country E
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event superseded by those contained in the employment contract entered by the parties
on 18 July 2007.
11.
Furthermore, the Dispute Resolution Chamber recalled that according to the legal
principle of the burden of proof, any party claiming a right on the basis of an alleged
fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
12.
In view of the above, the Chamber concluded that the Respondent shall carry the burden
of proof as to the payment of the USD 270,000 installment, which became due on 30 May
2008, and the last monthly salary, in the amount of USD 50,000, which according to the
Claimant became due on 18 June 2008.
13.
In continuation, and notwithstanding the principle of the burden of proof as set out
above, the DRC stated that the Respondent does not contest the outstanding amounts
claimed by the player.
14.
On account of the aforementioned considerations, the Chamber established that the
Respondent had failed to pay to the player the USD 270,000 installment and the last
monthly salary, in the amount of USD 50,000. As a consequence, the DRC decided that
the Respondent, in accordance with the general legal principle of pacta sunt servanda, is
liable to pay to the Claimant outstanding remuneration in the total amount of USD
320,000.
15.
Taking into account all the above, the DRC judge decided to accept the Claimant’s claim.
Consequently, the Respondent has to pay to the Claimant the amount of USD 320,000.
16.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. as of 23 September 2009 on the
amount granted (cf. point II.15 above).
*****
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is accepted.
2. The Respondent, Club N, has to pay to the Claimant, within 30 days as from the date
of
notification
of
this
decision,
outstanding
remuneration
in
the
amount of USD 320,000, plus 5% interest p.a. on said amount as of 23 September 2009
until the date of effective payment.
3. In the event that the amount due to the Claimant in accordance with the abovementioned number 2 is not paid by the Respondent within the stated time limit, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
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4. 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 A, from country B / Club N, from country E
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