Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 May 2012,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player P, from country C
as Claimant
against the club,
Club S, from country K
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2007, Player P, from country C (hereinafter: the Claimant), and the
Club S, from country K (hereinafter: the Respondent), signed an employment
contract valid from the date of signature until 15 November 2007.
2.
According to the employment contract and its annex, the Claimant was
entitled to receive a monthly remuneration of USD 8,000, “including the salary
amounting to USD 4,000” payable on the 10th day of the following month, as
well as various bonuses established in the annex.
3.
On 9 July 2008, the Claimant lodged a complaint against the Respondent
before FIFA claiming that the Respondent breached the contract without just
cause, and after amending his claim, requests the amount of USD 15,750 made
up of the following amounts:
- USD 8,000 salary for October 2007;
- USD 2,000 part of the salary for November 2007;
- USD 5,750 bonus.
4.
In its reply, the Respondent rejected the Claimant’s claim and pointed out that
the monthly salary in the amount of USD 8,000 is made up of a guaranteed
salary of USD 4,000 and an additional payment of USD 4,000 which depends on
the achievements of the Claimant. Therefore, the Respondent argued that its
administration has the right to reduce the sum of the additional payment
according to the Claimant’s achievement unilaterally.
5.
However, the Respondent acknowledged that the salary that was to be paid to
the Claimant during his employment amounts to USD 36,000 (4 x USD 8,000 +
USD 4,000).
6.
In this respect, the Respondent enclosed a document dated 17 March 2009, to
certify that it paid the Claimant the salary of “38,250”, i.e. for July 2007: USD
8,000; August 2007; USD 18,000; September 2007: USD 9,000; October 2007:
USD 500; November 2007: USD 2,750, during his employment with the
Respondent of which USD 2,250 were bonus.
7.
In the Claimant’s replica, he maintained his previous position and stressed that
he was supposed to be paid USD 40,000 in total, but only received USD 26,000.
In this respect, he provided a non-translated copy of his country C bank
account, according to which he received the total amount of currency of
country C 500,000 for the period of July 2007 until November 2007.
In its final position, the Respondent maintained its previous position and
stressed that the total amount the Claimant was to receive during his
8.
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Player P, from country C / Club S, from country K
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employment with the Respondent was USD 36,000 and not USD 40,000 as the
Claimant indicates. The Respondent explains once again that since a part of
the Claimant’s salary depends on his achievement, it is not guaranteed that he
receives USD 8,000 every month. Furthermore, the Respondent provided
payment receipts signed by the player with the following amounts and dates:
- USD 8,000 dated 31 July 2007;
- USD 10,000 dated 6 August 2007;
- USD 10,000 dated 8 November 2007;
- USD 10,000 dated 13 November 2007;
- USD 750 dated 14 November 2007.
9.
In its reply, the Claimant rejected that he received “USD 38,250” and stated
that in August 2007 he did not receive USD 18,000, but only USD 8,000.
10.
In its final position, the Respondent replied that with regard to the USD 18,000
paid to the Claimant in August 2007, the club transferred the Claimant USD
8,000 on 28 August 2007 and paid him USD 10,000 in cash on 6 August 2007.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with
the case at hand. In this respect, he took note that the present matter was
submitted to FIFA on 9 July 2008. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter
at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010) the DRC judge is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a country C player and a country K club.
3.
Furthermore, the DRC judge analysed which regulations 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 2010 and 2009), and considering that the present
claim was lodged on 9 July 2008, the 2008 edition of the said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
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Player P, from country C / Club S, from country K
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4.
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 and
documentation contained in the file.
5.
In doing so, the DRC judge first of all established that it was undisputed that
the parties had signed, on 1 July 2007, an employment contract valid as from
the date of signature until 15 November 2007.
6.
The DRC judge observed that according to the employment contract and its
annex, the Claimant is entitled to receive a monthly remuneration of USD
8,000, “including the salary amounting to USD 4,000” payable on the 10th day
of the following month, as well as various bonuses established in the annex.
7.
In continuation, the DRC judge took due note that, on the one hand, the
Claimant demands to be awarded payment by the Respondent of the amount
of USD 15,750, made up of the salary of October 2007 amounting to USD
8,000, partial salary of November 2007 amounting to USD 2,000 as well as
bonus in the amount of USD 5,750.
8.
The Respondent, for its part, denies that it owes the Claimant any monies,
since it allegedly paid the Claimant the amount of USD 38,250 of which USD
2,250 were bonus, and in this respect provided several payment receipts signed
by the Claimant. Therefore, according to the Respondent it fulfilled all its
obligations towards the Claimant, since according to the employment contract
the Claimant was to receive USD 36,000 (4 x USD 8,000 and USD 4,000).
9.
In view of the argumentation put forward by the Respondent, the DRC judge
deemed that, in order to be able to establish whether the Respondent still had
outstanding salaries and bonuses to be paid to the Claimant, it was crucial to
closely examine the aforementioned documents submitted by the parties.
10.
In this regard, the DRC judge referred to art. 12 par. 3 of the Procedural Rules
according to which any party deriving a right from an alleged fact shall carry
the burden of proof. Therefore, the DRC judge examined the Respondent’s
allegation that it does not owe any monies to the Claimant in light of the
aforesaid article and turned his attention to the evidence on file.
11.
In this respect, the DRC judge noted that the Respondent provided several
documents such as payment receipts allegedly signed by the player amounting
to a total of USD 38,750.
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Player P, from country C / Club S, from country K
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12.
With regard to the foregoing, the DRC judge acknowledged that the Claimant
claimed not having received USD 38,750. However, the DRC judge also
emphasised that the Claimant had never explicitly claimed that he had not
signed the payment receipts or contested the translations of the documents
provided by the Respondent.
13.
Moreover, the DRC judge noted that the Claimant provided as evidence that
he had only received partial payments from the Respondent, a copy of his
country C bank account to confirm that he only received USD 26,000 instead of
USD 40,000, without any translation into one of the official FIFA languages
(English, Spanish, French or German). Therefore, the DRC judge was of the
opinion that he could not take the provided documentation into account as
evidence and thus the DRC judge concluded that the Claimant could not
provide any evidence that the Respondent did not comply with its obligations.
14.
In view of the above, the DRC judge held that the Respondent had acted
according to its salary obligations under the employment contract, according
to which it was to pay monthly remuneration of USD 8,000, “including the
salary amounting to USD 4,000”, i.e. a total amount of USD 36,000, since in
accordance with the Respondent’s documents provided it paid to the Claimant
a total amount of USD 38,750 during their employment relationship, of which
USD 38,000 were salaries.
15.
Subsequently, the DRC judge turned his attention to the claim of USD 5,750
concerning the bonus allegedly due to the Claimant. In this respect, the DRC
judge decided to reject as well this part of the claim in accordance with art. 12
par. 3 of the Procedural Rules, due to the fact that the Claimant has not
provided any evidence demonstrating that he is entitled to receive the abovementioned amount as bonus.
16.
On account of all the aforementioned considerations, the DRC judge decided
that the Respondent does not owe the Claimant any outstanding monies and,
consequently, to reject the claim of the Claimant in its entirety.
III.
Decision of the DRC judge
The claim of the Claimant, Player P, is rejected.
*****
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Player P, from country C / Club S, from country K
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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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
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Player P, from country C / Club S, from country K
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