Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 April 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
Alejandro Maron (Argentina), 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 1 December 2010, the player from country B, Player A (hereinafter: player or
Claimant) and the club from country D, Club C (hereinafter: club or Respondent)
signed an employment contract (hereinafter: contract) valid as from its
signature date until 30 November 2013.
2.
According to art. 1 of the contract, “the two parties agreed to sign this contract
with sum of USD 300,000. According to this contract, [the Claimant] have the
right to receive the sum of USD 50,000 as down payment equal to salary of ____
and monthly salary the sum of USD 5,000.”
3.
According to art. 3.1 of the contract, “[the Respondent] shall to pay down
payment against signature of [the Claimant] equal to salary of (…) one year if
the contract is more than one year”.
4.
According to art. 3.2 of the contract, the club undertook to pay the player a
monthly salary of USD 5,000.
5.
By means of a notice dated 31 March 2015, the player put the club in default of
payment of USD 250,000, setting a deadline for payment expiring on 15 April
2015. In said notice, the player mentioned that he received all his salaries and a
payment of USD 50,000 as part of the general amount of USD 300,000.
6.
On 17 April 2015, the player lodged a claim against the club before FIFA,
alleging that the since the club only paid him USD 50,000 and all his monthly
salaries, he is entitled to receive USD 250,000 as outstanding remuneration.
After having received the club’s reply to his petition of 17 April 2015, the player
amended his claim and asserted that the club only paid him USD 50,000 out of
an alleged total contractual remuneration of USD 480,000.
7.
Therefore, the player alleged that the club still owes him the amount of USD
430,000, composed of outstanding monthly salaries in the amount of USD
180,000 and USD 250,000, i.e. the allegedly unpaid part of the amount of USD
300,000.
8.
The player added that, depending on the interpretation given to the financial
terms of the contract, the club would have actually failed to pay him USD
430,000, USD 250,000 or USD 70,000.
9.
In addition, the player highlighted that, as the contract does not specify any
date for the payment of the remainder of the amount of USD 300,000 set forth
in art. 1 of the contract, said amount was payable until 30 November 2013 and
therefore, the player’s request in this respect is not time-barred.
Player A, country B / Club C, country D
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10.
Consequently, and by means of the submission of various subsidiary requests,
the player requested that he be granted one of said aforementioned amounts
as well as interest on the amount awarded calculated as from 1 December 2010.
11.
In addition, the player asked that the club be ordered to pay him USD 40,000
for moral damages and USD 15,000 to reimburse his legal expenses and that
sporting sanctions be imposed on the club.
12.
In its reply, the club rejected the player’s claim and argued that the player has
misunderstood the contractual terms. In this respect, the club asserted that the
contract provided for a total value of USD 300,000, payable via an advance
payment of USD 50,000 and monthly salaries payable over three years in the
amount of USD 5,000 each.
13.
The club further held that it paid the player all his contractual receivables and
submitted various payment receipts.
14.
In his replica, the player rejected the club’s interpretation of the contractual
terms and insisted that according to the contract, he was entitled to USD 300,000
as a lump amount plus USD 180,000 payable via equal monthly installments of
USD 5,000 each, i.e. a total amount of USD 480,000.
15.
In addition, the player asserted that regardless of the interpretation given to
the contractual terms, the figures do not match and that, in any case, the club
would still be in breach of its obligation to pay his remuneration, except for the
USD 50,000 he acknowledged having received. In this respect, the player
submitted that:
a.
if the global value of the contract is USD 480,000, the club is indebted
towards him in the amount of USD 430,000;
b. if the global value of the contract is USD 300,000, the club is indebted
towards him in the amount of USD 250,000;
c.
if the global value of the contract is USD 300,000 and should it be
considered that the club paid him all his monthly salaries, which he
ultimately denied, as well as USD 50,000 as a down payment, the club
remains indebted towards him in the amount of USD 70,000.
16.
In addition to the aforementioned, the player challenged the authenticity of all
the payment receipts bearing his signature, which were submitted by the club.
17.
In this respect, the player referred to a report issued by a graphology expert
whose first findings are that out of a group of 24 samples of the player’s
Player A, country B / Club C, country D
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signatures appearing on documents related to payments having allegedly taken
place between January 2011 and December 2012, one original signature of the
player was copied onto 23 other documents. Additionally, and out of a second
group of 2 samples of signatures of the player that appear on two documents
related to the months of October 2013 and November 2013, the signature
appearing on one document was duplicated onto the second document.
18.
Therefore, the player inter alia rejected the club’s argumentation that his
monthly salaries were paid and stressed that if the club could not submit any
other documents that would corroborate the payment of his salaries, it is
because the club never proceeded to such payments.
19.
Consequently, the player maintained his claim as stated under the abovementioned number I./18. in combination with number I./11.
20.
In its final comments, the club reiterated that the player received all his
remuneration.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 17 April 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 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 and par.
2 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
(edition 2015), and considering that the present claim was lodged on 17 April
2015, the 2015 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player A, country B / Club C, country D
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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 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. In particular, the
Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or
contained in the Transfer Matching System (TMS).
5.
In this respect, the Chamber acknowledged that, on 1 December 2010, the
parties signed an employment contract that entered into force on its signature
date and expired on 30 November 2013.
6.
In addition, the Chamber observed that, on 31 March 2015, the Claimant put
the Respondent in default of payment of allegedly outstanding remuneration
on the basis of the contract. The members of the Chamber, in particular, noted
that in his default notice the Claimant confirmed having received from the
Respondent the down payment of USD 50,000 as well as all of his monthly
salaries.
7.
The Chamber further took note that, on 17 April 2015, the Claimant lodged a
claim against the Respondent in relation to allegedly outstanding contractual
payments asserting that, as the club only paid him USD 50,000 as well as his
monthly salaries in the amount of USD 180,000, i.e. a total of USD 230,000, the
Respondent still owes him the amount of USD 250,000 corresponding to the
balance between USD 50,000 and USD 300,000.
8.
Equally, the Chamber noted that, subsequently, the Claimant modified his
position and declared that he neither had received the aforementioned amount
of USD 250,000 nor USD 180,000 corresponding to his monthly salaries. In other
words, the Claimant asserted that during contractual period of time, the
Respondent actually only paid him USD 50,000.
9.
In continuation, the Chamber noted that the Respondent, for its part, held that
it fully complied with its financial obligations pertaining to the contract and that
in fine, the Claimant’s claim was unjustified. In particular, the Respondent
asserted that the Claimant’s claim results from his misinterpretation of the
contractual terms and that the relevant contractual financial provisions provide
for a total remuneration of USD 300,000, which it considered already having
paid in full. Consequently, the Respondent rejected the claim of the Claimant in
full.
Player A, country B / Club C, country D
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10.
Bearing in mind the parties’ diverging position with respect to the Claimant’s
contractual receivables, the Chamber deemed that before establishing whether
the Respondent had fulfilled all of its financial contractual obligations towards
the Claimant, as submitted by the Respondent, it first had to analyse the
financial contractual terms so as to ascertain the remuneration the Claimant was
entitled to receive from the Respondent.
11.
At the outset, the members of the Chamber wished to point out that both the
financial contractual terms and the parties’ argumentation before this deciding
body are ambiguous.
12.
Against such background, the Chamber reverted to the parties’ analysis of the
financial terms of the contract and noted that according to the Respondent, the
player’s entire contractual remuneration amounted to USD 300,000. On this
basis and taking into account the Respondent’s representation of the financial
terms (cf. point I./12. above), the Chamber deduced that the Respondent
acknowledged that an extra amount of USD 70,000 was part of the Claimant’s
remuneration. Indeed, according to the Respondent, USD 300,000 were due to
the Claimant for the entire contractual period of time including a monthly salary
of USD 5,000 and a lump sum of USD 50,000, which, however, totals USD
230,000.
13.
Turning its attention to the Claimant’s position, the Chamber noted that in his
submissions, the Claimant presented different hypotheses relating to the
amount of remuneration he was contractually entitled to receive (cf. points I./8.,
I./14. and I./15. above), but that his main argumentation and interpretation are
based on the allegation that he was entitled to receive a total remuneration of
USD 480,000 for the contractual period of time.
14.
Subsequently, the Chamber turned its attention to articles 1, 3.1 and 3.2 of the
contract and, after careful analysis of said terms, reached the first conclusion
that the parties had undoubtedly agreed on a monthly remuneration payable
to the player in the amount of USD 5,000. In view of the contractual provision
that the contract at stake was of a duration of 36 months, the Chamber
concluded that in terms of monthly salaries, the player was entitled to receive a
total amount of USD 180,000.
15.
In continuation, the members of the Chamber agreed that in spite of the
confusion and omissions existing in the pertinent contractual clauses, the
wording of the contract was sufficiently clear to reasonably consider that an
amount of USD 50,000 was payable to the Claimant as a down payment.
16.
Having so found, the Chamber was eager to stress that, apart from the above
salaries and down payment and with the exception of the amount of USD
Player A, country B / Club C, country D
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300,000 stipulated in art. 1 of the contract as “… this contract with sum of USD
300,000”, the contract does not include any other quantified amounts with
respect to the player’s financial entitlements.
17.
In this regard, the Chamber disagreed with the Claimant’s main interpretation
as it unanimously considered that it could neither be read nor reasonably be
interpreted as the common intention of the parties that the player’s
remuneration would be composed of the amount of USD 300,000 plus USD
180,000, i.e. a total amount of USD 480,000.
18.
Rather, the Chamber was satisfied that on the basis of the wording of the
contractual clauses, the parties agreed that the Claimant was entitled to receive
a total remuneration of USD 300,000 during the contractual period of time.
19.
In this regard, the Chamber highlighted that a total contractual remuneration
of USD 300,000 was presented by the Claimant as one of his hypotheses as well
as acknowledged by the Respondent as such.
20.
Notwithstanding the above, the Chamber admitted that if one follows the
reasoning as set forth in the aforementioned numbers II./15. to II./19., an
amount of USD 70,000 remains unaccounted for, since the sum of the clearly
identified amounts of USD 50,000 and USD 180,000 is USD 230,000.
21.
In this respect, in light of the fact that the contract specified the player’s monthly
salary and a down payment of USD 50,000, the Chamber agreed that the
unstipulated amount of USD 70,000, which yet admittedly was part of the
player’s total remuneration of USD 300,000, did not correspond to salaries or a
signing-on fee for the first season. A contrario, the members of the Chamber
reasoned that said amount was to be considered as a sum composed of two
equal instalments of USD 35,000 to be paid to the Claimant for the second and
for the third season of the contract, respectively. Given that the amount of USD
70,000 or its composition remained unspecified in the contract as well as the
circumstance that there was no contractual due date for the down payment of
USD 50,000, the members of the Chamber concurred that each of said
instalments of USD 35,000 were payable to the Claimant at the end of the
relevant season at the latest.
22.
Having established that the Claimant’s total contractual receivables amount to
USD 300,000, the Chamber turned its attention to the Claimant’s claim that the
Respondent has a debt towards him on the basis of the contract, which claim
was rejected by the Respondent, since it allegedly paid the full amount of USD
300,000 to the Claimant.
23.
The Chamber noted that the Respondent submitted copies of payment
documents reportedly signed by the Claimant in support of its argument that it
Player A, country B / Club C, country D
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paid the total amount of USD 300,000 to the Claimant. The Claimant, however,
challenged the authenticity of the signatures appearing on said documents. In
support of his position, the Claimant presented a report issued by a graphology
expert, who inter alia found that that two samples of the player’s signature
were duplicated on all the documents at stake.
24.
The Chamber further took into account that the Respondent had not submitted
the originals of the contested payment documents, in spite of FIFA’s request to
the Respondent to do so in accordance with its standard practice in such context.
25.
On account of the above, the Chamber agreed that it could not take into
consideration the financial documents presented by the Respondent along with
its response to the claim in its appreciation of the present matter.
26.
On the other hand, the Chamber wished to recall that the Claimant, for his part,
substantively changed his version of the facts related to his claim that the
Respondent has an outstanding debt with respect to his contractual
remuneration towards him. Indeed, whereas the Claimant had admitted in his
default notice as well as in his initial claim in front of FIFA that the Respondent
had inter alia paid him all salaries amounting to USD 180,000, the player
modified said line of argument and claimed that he only ever received USD
50,000 from the Respondent, in particular after having received the
Respondent’s reply to his claim.
27.
Against such background, considering the legitimate doubts such major change
of position could give birth to, the Chamber deemed relevant to highlight that
the Claimant had not taken the initiative to corroborate the reality of his new
stance with documentary evidence.
28.
On account of the above, the members of the Chamber agreed to disregard the
Claimant’s aforementioned change of position and decided that, as admitted
twice by the Claimant himself, it was to be considered that the Claimant had
indeed received the amount of USD 180,000 from the Respondent.
29.
Having so found, and bearing in mind that the Claimant also admitted having
received USD 50,000 as down payment from the Respondent, the Chamber
focussed its attention on the remaining amount of USD 70,000 it previously
considered as being part of the Claimant’s remuneration under the contract. In
this respect, and as stated above, the Chamber considered that said amount
should have been paid to the Claimant for the first and the second sporting
season via two instalments of USD 35,000 each, payable at the latest at the end
of the relevant season, i.e. on 30 November 2012 and 30 November 2013,
respectively. Indeed, and according to the information contained in the TMS,
the Chamber could verify that during the relevant period of time, the relevant
Player A, country B / Club C, country D
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sporting seasons in country D lasted as from 21 December until 30 November of
the following year.
30.
Having said that, the Chamber referred to art. 25 par. 5 of the Regulations, in
accordance with which the Dispute Resolution Chamber shall not hear any case
subject to said regulations if more than two years have elapsed since the event
giving rise to the dispute. Furthermore, the Chamber recalled that according to
said article, the application of this time limit shall be examined ex officio in each
individual case.
31.
In view of the above, and considering that the Claimant’s claim for outstanding
remuneration was lodged on 17 April 2015, the Chamber decided that the first
instalment of USD 35,000 is barred by the statute of limitations, as opposed to
the second instalment of USD 35,000 which fell due at the end of the 2013
sporting season, i.e. 30 November 2013, which coincides with the end date of
the contract.
32.
On account of all of the above, the Chamber decided that the Respondent has
to pay to the Claimant outstanding remuneration in the amount of USD 35,000.
33.
In addition, taking into consideration the Claimant’s claim, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on the amount of
USD 35,000 as of 30 November 2013 until the date of effective payment.
34.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of USD 40,000. In this regard,
the Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that
demonstrated or quantified the damage allegedly suffered.
35.
The DRC further decided that the Claimant’s claim for legal costs is rejected, in
accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber.
36.
Finally, the 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, insofar it is admissible.
Player A, country B / Club C, country D
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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 USD 35,000, plus 5% interest p.a. as from 30 November 2013 until
the date of effective payment.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
Any further claim lodged by the Claimant is rejected.
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
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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:
Marco Villiger
Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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