Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 April 2015,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 4 January 2012, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from the date of the
signature until 30 May 2012.
2.
According to clauses 4 and 10 of the contract, the Respondent undertakes to pay
the Claimant, inter alia, the following monies:
i.
EUR 15,000, as gross total salary payable in 5 equal monthly instalments of
EUR 3,000 payable on the 31st day of each month;
ii.
3.
EUR 400 per month as accommodation allowance.
Subsequently, on 5 January 2012 the parties signed a “supplementary agreement”
(hereinafter: the agreement), by means of which the parties agreed the following:
“Despite the agreement dated the 04/01/2012, the Club agrees to pay the Football
Player the amount of Euro 10,000 for the period 2011-2012 as follows: Euro 10,000
payable by 5 equal monthly instalments of Euro 2000 each payable on the 31st day
of each month, the first one being payable on the 31st of January 2012”.
4.
By means of a letter dated 2 September 2012 the Claimant reminded the
Respondent of its arrears amounting EUR 13,000, giving it a five day deadline to
proceed with the payment of such amount. In case of non-compliance, the Claimant
would submit a claim “to all competent and/or proper authorities and/or will inform
accordingly the Licensing Administration of the Football Association of country D”.
In the absence of any payment by the Respondent, on 12 September 2012, the
Claimant informed the Football Association of country D of said situation.
5.
On 5 January 2013, the Claimant lodged a claim in front of FIFA against the
Respondent for outstanding salaries, requesting, after amending his claim, the
payment of the total amount of EUR 10,800 (c.f. point I.6. below) plus interest of
5% p.a..
Player A, country B / Club C, country D
2
6.
In his claim, the Claimant holds that Respondent paid him that moment EUR 12,000
as salaries and EUR 2,000 for his accommodation allowance. In addition, on 3 August
2013, following the intervention of the Licensing Committee of the Football
Association of country D, the Respondent paid an additional amount of EUR 2,200.
As a result, according to the Claimant, EUR 10,800 are still outstanding from the
total of EUR 27,000 due to him as remuneration and accommodation allowances for
the entire duration of the contract and the supplementary agreement.
7.
The Claimant further holds that the Respondent did not pay its due regularly as
from the beginning of the contract and he repeatedly reminded the Respondent to
pay its arears without success. According to the Claimant, the Respondent never
denied the existence of the Claimant’s outstanding salaries but holds having
financial difficulties.
8.
Finally, the Claimant underlines that the supplementary agreement was not
submitted to the Licensing Committee of the Football Association of country D and,
therefore, its intervention was only based on the contract.
9.
In its reply, the Respondent disputed the jurisdiction of DRC judge and considers
that “any dispute between the parties should be dealt by the Football Association
of country D which is the appropriate body for the present matter by applying the
Football Association of country D’s regulations and the law of country D”.
10.
Despite of having been invited to provide FIFA with all the documentary evidence
that the Respondent deemed useful to prove that the present matter should be
dealt with by the deciding body under the Football Association of country D, the
Respondent did not react.
11.
As to the substance of the case, the Respondent fully rejects every claim of the
Claimant and underlines having paid all his salaries according to the contract and
the supplementary agreement. Regarding the accommodation allowance, the
Respondent states that each monthly rent has been directly transferred to the
owner of the apartment. Furthermore, as per the Respondent, the Claimant is not
Player A, country B / Club C, country D
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entitled to his salary of May 2012 because of the fact that every player of the team
was punished for the Respondent’s relegation to the second division. Moreover, the
Respondent states that on 23 February 2012, the Claimant bought a ticket of the
Respondent’s lottery amounting EUR 500 which has to be deducted from his salary.
In addition, the Respondent holds that “the player has not right to claim
compensation which are provided by the signature of the supplementary
agreement (…)” according to “article 8.10 of the Football Association of country D’s
Regulations
on Register
and Transfer
of Football
Players,
stating that
Supplementary Agreement cannot be submitted and/or recognised as valid by the
Football Association of country D in respect of compensation assessment”.
12.
In his replica, the Claimant maintains his arguments and refutes all the Respondent’s
allegations. In particular, the Claimant holds that it was his obligation to pay directly
the rent of his apartment. Additionally, the Claimant does not deny that the
Respondent was relegated to the second division, but he has never accepted the
imposition of the alleged fine, which is not acceptable. Finally, the Claimant deems
that the DRC is the competent body to take a decision on this case arguing that
there is no jurisdiction clause in the contract and that the Football Association of
country D’s NDRC has no jurisdiction over the present dispute since this is an
international dispute.
13.
Despite of having been invited by FIFA to provide its final comments, the
Respondent failed to do so.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect,
the DRC judge took note that the present matter was submitted to FIFA on 5
January 2013. Consequently, the DRC judge concluded that the 2012 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Player A, country B / Club C, country D
4
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.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and
2015). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22
lit. b) of the aforementioned Regulations, the DRC judge would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an player from country
B and a club from country D, the litigious value of which does not exceed CHF
100,000.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies claiming that “any dispute between the
parties should be dealt by the Football Association of country D which is the
appropriate body for the present matter by applying the Football Association of
country D’s regulations and the law of country D”.
4.
In this regard, the DRC judge noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
While analysing whether he was competent to hear the present matter, first and
foremost, the DRC judge deemed it of utmost importance to highlight that the
contract does not contain any arbitration or jurisdiction clause. In addition, the DRC
judge noted that, despite of having been invited to provide FIFA with all
documentary evidence deemed useful to prove that the present matter should be
dealt with by a deciding body under the Football Association of country D, the
Respondent did not react.
6.
In view of all the above, the DRC judge established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected and
that the DRC judge is competent, on the basis of art. 22 lit. b) of the Regulations
Player A, country B / Club C, country D
5
on the Status and Transfer of Players, to consider the present matter as to the
substance.
7.
Subsequently, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (editions 2012, 2014 and
2015) and considering that the present claim was lodged in front of FIFA on 5
January 2013, the 2012 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.
8.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the above-mentioned facts of the case as well as the
documentation contained in the file. However, the DRC judge emphasised that in
the following considerations he will refer only to the facts, arguments and
documentary evidence which he considered pertinent for the assessment of the
matter at hand.
9.
In this respect, the DRC judge acknowledged that the parties had signed an
employment contract on 4 January 2012, in accordance with which the player was
entitled to receive the amount of EUR 15,000 as total remuneration for the term of
the contract as well as an accommodation allowance of EUR 400 per month (cf.
point I.2. above).
10.
Additionally, the DRC judge observed that the parties had concluded a
supplementary agreement on 5 January 2012, which stipulated that the Respondent
agreed to pay the player an additional amount of EUR 10,000 in five equal
instalments (cf. point I.3. above).
11.
In continuation, the DRC judge noted that the Claimant alleged that the
Respondent had failed to pay the outstanding amount of EUR 10,800 due to him as
Player A, country B / Club C, country D
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detailed in point I.6. above. Consequently, the Claimant asked to be awarded the
payment of the total amount of EUR 10,800, plus interest of 5% p.a..
12.
Equally, the DRC judge took note of the reply of the Respondent, which asserted
that it had already paid all the amounts due to the player. More precisely, the
Respondent stated having paid the accommodation allowances directly to the
apartment’s owner, that the Claimant has allegedly a debt of EUR 500 towards the
Respondent corresponding to a club’s lottery ticket bought by the Claimant, and
that the player was not entitled to his salary of May 2012 because of the club’s
relegation.
13.
Firstly, the DRC judge analysed the deduction allegedly imposed on the Claimant
due to the relegation of the Respondent. The DRC judge pointed out that a player
cannot be fined for alleged poor performance and as punishment for the relegation
of a club as this is purely unilateral and abusive decision from the club. Thus, the
DRC judge emphasised that poor or unsatisfactory performance cannot by any
means, be considered as a valid reason to reduce a player’s salary or fine a player.
Hence, the DRC judge considered that by fining the player based on the poor
performance of the team, the Respondent acted in an abusive manner and
therefore, decided to disregard the fine allegedly imposed by the Respondent.
14.
Furthermore, and in any case, the DRC judge wished to point out that 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. In
conclusion, the DRC judge determined that the club could not set-off its debt
towards the player by means of the fine imposed on the Claimant and thus, the
Claimant’s salary of May 2012 is due to him, as per the contract and the
supplementary agreement.
15.
Turning his attention to the other arguments of the Respondent for the nonpayment of the Claimant’s contractual monies, the DRC judge deemed it
appropriate to refer the parties to the content of art. 12 par. 3 of the Procedural
Rules, according to which “any party claiming a right on the basis on an alleged fact
Player A, country B / Club C, country D
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shall carry the burden of proof”. In this particular case, the DRC judge pointed out
that the Respondent bore the burden of proving that it has paid the Claimant’s
remuneration and his accommodation allowances (cf. point I.11.), or that the
Claimant in fact has a debt towards it, based on which certain amounts could be
reasonably deducted from his monies. In this respect, the DRC judge noted that the
Respondent did not present any evidence in support of its allegations.
16.
In view of the above, the DRC judge concluded that the Respondent had failed to
pay all outstanding amounts claimed by the Claimant. As a consequence, and in
accordance with the general legal principle of pacta sunt servanda, the Respondent
must fulfil its obligations as per the contract and the supplementary agreement
concluded with the Claimant and, consequently, it is held liable to pay the
outstanding amount of EUR 10,800 to the Claimant, referring to unpaid salaries and
accommodation allowance, as per the contract and the supplementary agreement.
17.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
10,800 as from 5 January 2013, i.e. the date of claim, until the date of effective
payment.
18.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that the claim of the Claimant is accepted.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the amount
Player A, country B / Club C, country D
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of EUR 10,800 plus 5% interest p.a. as from 5 January 2013 until the date of effective
payment.
4.
In the event that the aforementioned sum plus interest is not paid within the stated
time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
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 DRC judge
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 DRC judge:
Markus Kattner
Acting Secretary General
Player A, country B / Club C, country D
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Encl.
CAS directives
Player A, country B / Club C, country D
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