Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 11 April 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez (Uruguay ), member
S tefano S artori (Italy ), member
Dan de Jong (The Netherlands ), member
Muzam m il bin Moham ed (S ingapore), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 14 July 2015, the player of Country B, Player A (hereinafter: the Claimant)
and the club of Country D, Club C (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid as from 13 July 2015
until 31 May 2017.
2.
In accordance with the contract, the Claimant was entitled to the following
remuneration from the Respondent:
For the season 2015/2016: the total amount of EUR 140,000 payable in 9
instalments of EUR 15,555.55 each, “starting from 31 August 2015 and
ending on 31 May 2016 on monthly basis”;
For the season 2016/2017: the total amount of EUR 155,000 payable in 10
instalments of EUR 15,500 each, “starting from 31 August 2016 and ending
on 31 May 2017 on monthly basis”.
3.
According to the Respondent, on 1 July 2016, the parties had signed an
amendment to the contract (hereinafter: the amendment), by means of
which they amended its financial terms regarding the Claimant’s
remuneration for the season 2016/2017.
4.
In accordance with the amendment, for the season 2016/2017, the Claimant
was allegedly entitled to a total remuneration of EUR 100,000, payable in 10
instalments of EUR 10,000 each.
5.
Moreover, according to the Respondent, on 1 July 2016, the parties signed
also a settlement agreement in accordance with which “the parties hereby
declare and accept that although the due and payable amount to the
[Claimant] by the [Respondent] is EUR 110,000, the parties hereby agree to
accept the payable amount as EUR 80,000 and the [Claimant] irrevocably
waives his rights and discharges the [Respondent] for the amount of EUR
30,000 and for the any other amount that is stipulated in the contract
regarding 2015/2016 season”.
6.
In accordance with the settlement agreement, the Claimant was allegedly
entitled to EUR 80,000, payable as follows:
EUR 8,000 on 30 June 2016;
EUR 8,000 on 30 July 2016;
EUR 8,000 on 30 August 2016;
EUR 8,000 on 30 September 2016;
Player A, Country B / Club C, Country D
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EUR 8,000 on 30 October 2016;
EUR 8,000 on 30 November 2016;
EUR 8,000 on 30 December 2016;
EUR 8,000 on 30 January 2017;
EUR 8,000 on 28 February 2017;
EUR 8,000 on 30 March 2017.
7.
On 10 November 2017, the Claimant put the Respondent in default of
payment of the amount of EUR 195,405 as outstanding remuneration,
claiming that he had only received EUR 99,595 since the beginning of the
employment relationship. The Claimant gave the Respondent time until 22
November 2017 in order to remedy its default. On 23 November 2017, the
Claimant put the Respondent in default a second time, giving it until 12
January 2017 to remedy its default.
8.
On 5 December 2017, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting the total amount of EUR 195,405 as outstanding
remuneration and 5% interest p.a. as from the default notice of 10
November 2017 until the date of effective payment. The Claimant further
requested the reimbursement of legal costs in the amount of EUR 10,000.
9.
More in particular, the Claimant explained that – out of the total amount of
EUR 295,000 he should have received under the contract – he had only
received from the Respondent EUR 99,595, leaving EUR 195,405 outstanding.
10.
In reply to the claim, the Respondent argued that, out of the EUR 140,000
that were due to the Claimant for the season 2015/2016, the latter received
EUR 32,185. Moreover, the Respondent sustained that, in accordance with the
settlement agreement, only EUR 80,000 could be claimed by the Claimant
regarding the season 2015/2016.
11.
Concerning the season 2016/2017, the Respondent held that, under the
amendment, the Claimant was entitled to a total remuneration of EUR
100,000 and that – out of that amount – EUR 76,302 had been duly paid to
him.
12.
In conclusion, the Respondent claimed it had remitted to the Claimant – by
means of 28 different payments, although randomly performed, between August
2015 and September 2017 – the total amount of EUR 108,487.97. Moreover, the
Respondent acknowledged that the total amount of EUR 103,697 was still
outstanding and requested that the claim for interest and for legal costs be
rejected.
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13.
In his replica, the Claimant contested having signed the amendment and the
settlement agreement and claimed that his signature had been forged on both
documents. The Claimant did not comment on the alleged payments brought
forward by the Respondent.
14.
In its duplica, the Respondent argued that the documents had been signed by
the Claimant and not forged and reiterated that it recognized the total amount
of EUR 103,697 being still outstanding. The Respondent further argued that “the
right of litigation will not be used by the player in relation to the waived
remaining receivables with the settlement” and that consequently, “a party
cannot submit a case regarding a right it has waived”.
15.
Despite being requested by the FIFA administration to provide an original of the
settlement agreement and of the amendment, the Respondent did not provide
any original specimens.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 5 December 2017. Consequently, the 2017 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. article 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 June 2018), 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 of Country B and a
club of 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 June 2018), and considering that the present
claim was lodged on 5 December 2017, the 2016 edition of said regulations
Player A, Country B / Club C, Country D
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(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. The
members of the Chamber started by acknowledging the facts of the case, as
well as the documentation contained in the file. 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.
5.
In this respect, the Chamber first acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 13 July 2015 until
31 May 2017 in accordance with which the Claimant was entitled to the total
remuneration of EUR 140,000 payable in 9 instalments of EUR 15,555.55 each
for the season 2015/2016 and to the total remuneration of EUR 155,000 for
the season 2016/2017, payable in 10 instalments of EUR 15,500 each. The
Chamber further noted that, according to the Respondent, on 1 July 2016,
the parties signed an amendment to the contract, by means of which they
allegedly amended the Claimant’s remuneration for the season 2016/2017
and, on the same date, the parties signed a settlement agreement according
to which the Claimant was allegedly entitled to EUR 80,000 only from the
Respondent for the season 2015/2016.
6.
In continuation, the DRC noted that the Claimant lodged a claim against the
Respondent, after having previously put the latter in default on 10 and 23
November 2017, arguing that it had failed to pay him remuneration in the
total amount of EUR 195,405, corresponding to salaries due under the
employment contract.
7.
Subsequently, the members of the DRC noted that the Respondent, for its
part, maintained that, under the settlement agreement, only EUR 80,000
could be claimed by the Claimant regarding the season 2015/2016, and that,
under the amendment, the Claimant was entitled to a total remuneration of
EUR 100,000, out which he had received EUR 76,302. The DRC further took
note that the Respondent acknowledged being in debt of EUR 103,697
towards to the Claimant.
8.
In this regard, the Dispute Resolution Chamber equally took note of the fact
that the Claimant, for his part, had categorically denied the conclusion of the
amendment as well as the settlement agreement dated 1 July 2016, claiming
that his signature had been forged on both documents.
Player A, Country B / Club C, Country D
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9.
The DRC noted that on this allegation, the Respondent maintained that the
Claimant had signed both documents.
10.
In view of the aforementioned dissent between the parties in respect of the
question as to whether or not the amendment and the settlement agreement
had been signed by the Claimant, the members of the Chamber firstly
referred 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 respective
burden of proof. The application of the said principle in the present matter
led the members of the Dispute Resolution Chamber to conclude that it was
up to the Respondent to prove that the amendment and the settlement
agreement had been validly concluded and, as such, binding upon the
parties.
11.
As a result, in accordance with the contents of art. 12 par. 3 of the Procedural
Rules, the Chamber observed that, following its standard practice in this
respect, during the course of the investigation the FIFA administration
requested the Respondent to submit an original copy via mail or courier of
the contested documents. However, the Chamber noted that the Respondent
failed to provide said documents as requested.
12.
In view of the above, the Chamber referred to the contents of art. 12 par. 6
of the Procedural Rules and unanimously concluded that the Respondent had
failed to meet its burden of proof, since it failed to provide an original
version of the contested documents, despite being asked to do so. As a result,
the Chamber concluded that, for the purpose of assessing the matter at
stake, it could only take into account the employment contract, consequently
disregarding the alleged amendment and settlement agreement.
13.
The foregoing having been established, the Chamber took note of the
Respondent’s argument that it had remitted to the Claimant certain amounts
through various payments. Moreover, the DRC observed that the Respondent
acknowledged an outstanding debt of EUR 103,697 towards the Claimant.
14.
In this regard, the DRC took note that the Respondent provided multiple
payment slips which were not contested by the Claimant and that most of
those alleged payments could be identified in the bank account receipt
provided by the Claimant.
15.
Taking all of the above into consideration, the Chamber was of the opinion
that, since the payments alleged by the Respondent were uncontested, the
total amount of EUR 108,487.97 could be considered duly paid by the
Respondent to the Claimant as from the beginning of the employment
relationship.
Player A, Country B / Club C, Country D
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16.
However, the Chamber also took note that the aforementioned payments
had been performed by the Respondent in a chaotic manner, rendering it
difficult for the Chamber to attach each of them to a specific monthly
entitlement. As the total amount paid to the Claimant roughly corresponded
to the first 7 salaries of the season 2015/2016, i.e. those running from
September 2015 to March 2016 included, the members of the DRC allocated
the amount acknowledged by the Claimant to the said monthly entitlements.
Consequently, the members of the Chamber concluded that the Claimant’s
salaries as from April 2016 until May 2017 included, corresponding to EUR
186,111.10, were still outstanding.
17.
The Chamber, thus, deemed that the Claimant was entitled to the salaries as
from April 2016 until May 2017 included, for a total amount of EUR
186,111.10.
18.
On account of all of the above, the Chamber decided to partially accept the
Claimant’s claim and determined that the Respondent, in accordance with
the general principle of pacta sunt servanda, must pay him the total amount
of EUR 186,111.10.
19.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant 5% interest p.a. on the said
amount as of the date of the default notice, as requested, until the date of
effective payment.
20.
The Dispute Resolution Chamber concluded its deliberations in the present
matter establishing that any further claim lodged by the Claimant was
rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, the amount of EUR 186,111.10 as
outstanding remuneration, plus 5% interest p.a. as from 10 November 2017
until the date of effective payment.
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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.
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 m otiv ated 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:
Emilio García Silvero
Chief Legal & Compliance officer
Encl.: CAS directives
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