Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 April 2015,
in the following composition:
Geoff Thompson (England), Chairman
Leonardo Grosso (Italy), member
Theo van Seggelen (Netherlands), member
Philippe Diallo (France), member
Todd Durbin (USA), member
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 9 January 2013, the player from country B, Player A (hereinafter: the
Claimant), and the club from Country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract) valid as from the
date of signature until 31 May 2013.
2.
According to the contract, the Claimant was to be remunerated with EUR
100,000 to be paid as follows:
-
EUR 10,000 upon signature of the contract;
EUR 22,500 on 10 February 2013;
EUR 22,500 on 10 March 2013;
EUR 22,500 on 10 April 2013;
EUR 22,500 on 10 May 2013.
3.
Additionally, the contract stipulated that “The [Claimant] will receive victory
bonuses on the same level as his teammates”.
4.
Furthermore, according to art. 4 of the contract, the Respondent had to “take
care of the health of the [Claimant] as set out in the provisions of the articles
related to illness and injury and to take all necessary measures during
competitions, trainings, pre-season training camps, training camps and travels”.
5.
On 27 June 2014, the Claimant lodged a claim before FIFA claiming that the
Respondent had failed to pay his salary for the months of February, March, April
and May 2013. Furthermore, the Claimant held that he had undergone
treatment for an injury and that the Respondent had failed to reimburse his
expenses in this regard.
6.
In this respect, the Claimant explained that he had received permission from the
Respondent to undergo treatment in Country B. In this regard, the Claimant
submitted a “permission document” according to which he had permission to
go to Country B from 7 April 2013 until 31 May 2013 and which stipulates the
following: “for medical reasons, without prejudice of [Claimant] right to receive
salaries during permission time”.
7.
Furthermore, the Claimant explained that he had requested the payment of the
outstanding amounts from the Respondent via correspondence dated 3 July
2013 and 29 August 2013, but without result. The Claimant further explained
that the Respondent had tried to reduce its debt by making several payments to
him during the contractual period. However, according to the Claimant, these
payments pertain to victory bonuses.
Player A, Country B / Club C, Country D
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8.
In view of the foregoing, the Claimant is claiming outstanding remuneration in
the amount of EUR 90,000 plus interest as of 3 July 2013 as well as the
reimbursement of medical expenses in the amount of EUR 3,360.31 plus interest
as of 31 May 2013.
9.
In its reply to the claim, the Respondent argued that it was not in a position to
pay any bonuses to its players, due to financial difficulties. The Respondent
argued that the payment receipts provided by the Claimant pertain to salary
payments in the total amount of EUR 42,379.98. According to the Respondent,
some of the payment receipts indicate that the payments were made for the
“transfer” of the Claimant which, according to the club, “confirms that the
payments were made pursuant to the allowances derived from the Employment
Agreement”.
10.
According to the Respondent, the Claimant’s legal representative had agreed
with the outstanding amount of EUR 57,620.02 in an email exchange dated 5
December 2013 and 18 December 2013.
11.
With regard to the medical expenses incurred by the Claimant, the Respondent
stated that the “permission document” submitted by the Claimant only secured
the contractual payments to be executed during the period of the injury.
However, according to the Respondent, it was the Claimant who decided to
undergo treatment from his own private doctor in Country B and, consequently,
the Respondent cannot be held liable for reimbursement of such expenses.
Finally, the Respondent argued that the Claimant did not submit any official
invoice or document from which it can be established that he was treated in
Country B and that the costs amounted to EUR 3,360.31.
12.
In his replica, the Claimant referred to the email exchange between the legal
representatives of the parties and argued that “the friendly negotiations
remained unsuccessful”. Consequently, the Claimant repeated his claim for the
“full value”, i.e. the amount of EUR 57,620.02, which was now recognized by
the Respondent, “plus the differences”.
13.
In its duplica, the Respondent reiterated its arguments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) 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 27
June 2014. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Player A, Country B / Club C, Country D
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Chamber (hereinafter: the Procedural Rules) is 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 2015), 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 player from Country B and a club from
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 2012, 2014 and 2015), and considering that the present matter was
submitted to FIFA on 27 June 2014, the 2012 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter, while emphasizing that, although having acknowledged all the abovementioned facts, 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.
First of all, the DRC acknowledged that, on 9 January 2013, the Claimant and
the Respondent had concluded an employment contract valid as from the date
of signature until 31 May 2013.
6.
The DRC further observed that the Claimant lodged a claim in front of FIFA
against the Respondent indicating that the Respondent had failed to pay his
salary for the months of February, March, April and May 2013 in the total
amount of EUR 90,000 as well as that the Respondent had failed to reimburse
medical expenses incurred by the Claimant.
7.
Furthermore, the DRC noted that the Claimant acknowledged several payments
made by the Respondent to him and submitted payment receipts for the total
amount of EUR 39,000 which, according to the Claimant, pertain to victory
bonuses and not to salary payments.
8.
Equally, the DRC observed that the Respondent, for its part, asserted that it had
already paid salary to the Claimant in the amount of EUR 42,379.98 which did
not include any bonus payments.
Player A, Country B / Club C, Country D
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9.
After having carefully examined the parties’ positions, taking into consideration
all the aforementioned arguments, the DRC observed that it is undisputed
between the parties that the Respondent made several payments to the
Claimant, but that the parties disagreed on the purpose of said payments as well
as on the total amount paid.
10.
In this respect, the members of the Chamber stressed that it does not become
clear from the payment receipts submitted by the Claimant what the payments
were made for. Equally, the DRC stressed that although the contract stipulates
that the Claimant would receive victory bonuses, no amounts are actually
specified.
11.
In this context, the Chamber first referred to the basic principle of the burden
of proof as stipulated in art. 12 par. 3 of the Procedural Rules, according to which
a party claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
12.
With the abovementioned consideration in mind, the Chamber noted that the
Claimant did not substantiate his claim, as he did not present any evidence that
the payments pertained to victory bonuses. In particular, the Claimant failed to
prove to which amounts he would be entitled per victory, failed to explain the
difference in the amounts (allegedly) paid as victory bonuses, and failed to submit
corroboratory documentation in relation to the matches allegedly won.
13.
In view of the above, the members of the Chamber concluded that the Claimant
has not provided evidence in support of his claim and that, therefore, it could
not be established that the payments made by the Respondent pertained to
victory bonuses.
14.
In this respect, the members of the Chamber highlighted that, in accordance
with the payment receipts submitted by the Claimant, the Respondent paid a
total amount of EUR 39,000 to the Claimant. The Chamber recalled that the
Respondent argued that it had paid EUR 42,379.98 to the Claimant. However,
the Chamber observed that the Respondent did not substantiate its defence that
the amount converted by the Claimant was incorrect and, therefore, concluded
that the Respondent had only paid the amount of EUR 39,000 to the Claimant.
15.
In view of all the above and, in particular, taking into account that the
Respondent acknowledged that a part of the salaries had remained unpaid, the
DRC decided that, in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its contractual obligations towards the
Claimant and is to be held liable to pay the Claimant the amount of EUR 51,000.
For the sake of good order, the DRC emphasised that although emails been
exchanged between the parties, it was clear from the Claimant’s replica that not
agreement had been made between the parties.
Player A, Country B / Club C, Country D
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16.
The Chamber then turned its attention to the Claimant’s claim for
reimbursement of medical expenses in the alleged amount of EUR 3,360.31. In
this context, the Chamber recalled once more the basic principle of the burden
of proof and noted that the Claimant did again not substantiate his claim in this
regard, as he did not present corroborative evidence regarding the alleged
medical expenses, in particular no invoice was provided.
17.
In view of all of the above, the Chamber decided that the Respondent must pay
the amount of EUR 51,000 to the Claimant as outstanding remuneration.
18.
In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber in this regard, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on the outstanding
amount of EUR 51,000 as of 3 July 2013 until the date of effective payment.
19.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 51,000 plus 5% interest p.a. on said amount as from 3 July 2013
until the date of effective payment.
3.
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.
4.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. above 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:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, Country B / Club C, Country D
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