Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
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 S, from country A
as Claimant
against the club,
Club U, from country B
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 12 June 2007, Player S, from country A (hereinafter: player or Claimant), and the
Club U, from country B. (hereinafter: club or Respondent), concluded an employment
contract (hereinafter: contract) valid as from 1 July 2007 until 30 June 2010.
2.
According to clause 2 of the contract, the club was entitled to unilaterally terminate the
contract until 30 June 2008 by informing the player by 15 May 2008.
3.
Pursuant to clause 4 of the contract, the player was entitled to receive a monthly salary
of currency of country B 62,500, to be paid until the 15th day of the following month.
4.
On 12 June 2007, the player and the company “Company M.” (hereinafter: company)
signed an agreement entitled “contract of services”, valid as from 1 July 2007 until 30
June 2010, which states that “the [company], according to its agreement with [the
club], is in the possession of the utilisation rights of the football teams of [the club], as
an advertisement carrier”. Consequently, the parties agreed that “the [player] transfers
the exclusive rights of the marketing and PR – connected to his person and activities as
a footballer – to the [company], and gives advertisement facilities during the duration
of the present contract”.
5.
Clause 3.a) of the “contract of services” provided for a monthly payment of EUR 4,800 +
VAT, to be paid by the company in currency of country B to the player until the 15th day
of the following month. Pursuant to clause 3.k), the player was entitled to receive twice
the amount of EUR 7,500, payable until 30 June 2007 and 15 July 2008, respectively.
6.
By means of a letter dated 14 May 2008 sent to the player, the club terminated the
contract on the basis of its clause 2 as of 30 June 2008.
7.
On 22 March 2010, completed on 3 June 2010, the player lodged a claim before FIFA
against the club requesting from the latter the payment of EUR 14,550 on the basis of
the “contract of services”, which was detailed as follows:
a) EUR 5,000 as outstanding salary for June 2008;
b) EUR 7,500 as outstanding second instalment of the “sign-on fee”;
c) EUR 2,050 as outstanding flight ticket costs.
8.
On 7 November 2011, the player added the amount of currency of country B 750,000 to
the claim alleging that the club had never paid him the 12 monthly salaries of currency
of country B 62,500 each for the period of time as from 1 July 2007 until 30 June 2008 in
accordance with the contract.
Player S, from country A / Club U, from country B
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9.
In particular, the player explained that upon the conclusion of the two contracts, the
club’s managing director guaranteed that the club was responsible for all payments and
told the player that the second contract shall be signed with the company due to tax
reasons. Furthermore, the player assured that during the 2007/2008 season, he had
received all salaries, bonuses and the first instalment of the signing-on fee from the
club, in other words, he had never received any payment from the company.
10.
In its statement of defence, the club rejected the player’s claim contesting FIFA’s
competence, since it was not the club owing the claimed payments to the player. The
club held that the “contract of services” was related to the exploitation of the
marketing rights in relation to the player and that it was concluded between the player
and the company, which undertook financial obligations towards the player. According
to the club, the company is absolutely separated from the club. Since the club was not a
party to the “contract of services”, the club was not obliged to pay any amounts agreed
upon in this contract. However, the club confirmed that it had tried to help the player
solving this issue with the company.
11.
In spite of having been informed by FIFA that, according to art. 6 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber, its decision-making bodies can only deal with cases involving parties as
stipulated in said article, the player insisted on a decision in the present matter.
12.
Moreover, the player mentioned that during the employment relation, i.e. between 1
July 2007 and 30 June 2008, he had only received payments on the basis of the
“contract of services”, which he first thought he had received from the club and not
from the company. Furthermore, at this stage, the player added the amount of currency
of country B 750,000 to his claim (cf. point I. 8. above).
13.
Despite having been invited to do so, the club did not provide any final comments.
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 22 March 2010.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are
applicable to the matter at stake (cf. art. 21 par. 2 and 3 of the Procedural Rules).
Player S, from country A / Club U, from country B
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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 is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
country A player and a country B club.
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 2012 and
2010), and considering that the present claim was lodged on 22 March 2010, the 2009
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 acknowledged that the Claimant and the Respondent signed an employment
contract setting out a period of validity as from 1 July 2007 until 30 June 2010. In
addition, the Chamber took into account that the employment relation between the
parties came to an end on 30 June 2008.
5.
The Claimant maintained that the Respondent had failed to pay him 12 monthly salaries
amounting to the total of currency of country B 750,000 relating to the period of time
between July 2007 and July 2008.
6.
Having established the above, the Chamber unanimously stated that it is crucial to
clarify the date of the submission of the formal petition for payment of the
aforementioned amount of currency of country B 750,000 on the basis of the
employment contract to FIFA, in order to establish whether this claim was brought to
FIFA in due time. In this context, the Chamber referred to art. 25 par. 5 of the
Regulations, which establishes that the Dispute Resolution Chamber shall not hear any
case subject to the regulations if more than two years have elapsed since the event
giving rise to the dispute.
7.
The Chamber recalled that the Claimant’s claim against the Respondent for the
payment of currency of country B 750,000 was lodged in front of FIFA on 7 November
2011, while the last of the 12 monthly instalments of currency of country B 62,500 was
due on 15 July 2008 the latest. Consequently, the Chamber concluded that the Claimant
had brought his claim against the Respondent well after the aforementioned two-year
period of time had elapsed.
Player S, from country A / Club U, from country B
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8.
In view of the above, the Chamber decided that the Claimant’s claim on the basis of
the contract regarding the payment of currency of country B 750,000 must be
declared barred by the statute of limitations in application of art. 25 par. 5 of the
Regulations and, thus, is not admissible.
9.
In continuation, the DRC acknowledged that the Claimant signed an agreement
entitled “contract of services” with the company, valid as from 1 July 2007 until 30 June
2010. In this regard, the DRC duly noted that the “contract of services” did not contain
any clauses related to employment and that the club is no party to such “contract of
services”.
10.
The Chamber recalled that the Claimant further claimed from the Respondent the
amounts of EUR 5,000 as salary for June 2008 and EUR 7,500 as second instalment of the
“sign-on fee” on the basis of the “contract of services”.
11.
In this respect, the DRC acknowledged that the Claimant stated that during the
2007/2008 season, he had received all salaries, bonuses and the first instalment of the
“sign-on fee” from the club and never received any payment from the company and
that the club’s director had guaranteed that the club would be responsible for all
payments. In this regard and referring to 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 burden of proof, the members of the Chamber noted that no documentation
corroborating such allegation had been presented by the Claimant.
12.
Equally, the DRC took note of the reply of the Respondent, who rejected the player’s
claim and asserted that the “contract of services” was related to the exploitation of the
marketing rights connected to the player and that said contract was concluded between
the player and the company, which undertook financial obligations towards the player.
Furthermore, the DRC noted the Respondent’s position that the company was
absolutely separated from the club, and that the club was not obliged to pay any
amounts stipulated in said “contract of services”, since the club was no party to it.
Above all, the Respondent held that FIFA has no competence over the Claimant’s claim
on the basis of the “contract of services”, which deals with marketing rights.
13.
In continuation, the DRC referred to art. 6 par. 1 of the Procedural Rules, according to
which only members of FIFA, clubs, players, coaches or licensed match and players’
agents are admitted as parties in front of FIFA’s relevant decision-making bodies. The
Chamber agreed that the company cannot be considered to be a party in the sense of
art. 6 par. 1 of the Procedural Rules.
14.
Having established the above, the DRC concluded that FIFA is not competent to deal
with any claim based on the “contract of services” concluded between the Claimant and
Player S, from country A / Club U, from country B
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the company, since said contract is not signed with a party as established in art. 6 par. 1
of the Procedural Rules and, moreover, since said contract does not include any
employment-related clauses. The Chamber highlighted that such conclusion is in line
with well-established jurisprudence of the Dispute Resolution Chamber.
15.
Consequently, the Chamber decided that the Claimant’s claim based on the “contract of
services” is not admissible.
16.
In continuation, the DRC turned its attention to the Claimant’s allegation that the
Respondent had failed to reimburse airplane ticket costs in the amount of EUR 2,050.
The DRC acknowledged the Claimant’s assertion that the flight tickets had been
negotiated between him and the Respondent, but not included into a written contract.
17.
In this respect, the DRC recalled the basic legal principle of burden of proof, as
stipulated in the aforementioned art. 12 par. 3 of the Procedural Rules and concluded
that there was no contractual basis or any documentation in accordance with which the
Respondent would be obliged to pay for the Claimant’s flight tickets.
18.
Consequently, the DRC decided that the Claimant’s claim regarding the flight ticket is
rejected.
*****
Player S, from country A / Club U, from country B
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player S, is rejected in so far as it is admissible.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player S, from country A / Club U, from country B
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