Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 May 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player
Player C, from country A
as Claimant
against the club
Club T, from country S
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 1 September 2008, Player C, from country A (hereinafter: the Claimant), and
Club T, from country S (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract), valid from the date of signature until 30 June
2009.
2.
The art. V of the contract established, inter alia, that the respondent would provide
the Claimant with the total remuneration of USD 165,000, as follows:
-
-
USD 135,000, divided in nine equal monthly instalments of USD 15,000 each
“payable within 15 days of a month following the month in which the
remuneration is payable” (cf. art. V, 1 and 2 of the contract);
USD 30,000 as “financial bonus”, payable within 5 days of the registration
of the Claimant (cf. art. V, 3, lit. a) of the contract).
3.
Furthermore, the art. IV lit. (m) of the contract specified that the Claimant should
behave in compliance with “the Rules of Organisation of the Club and such other
internal documents of the club” (hereinafter: the Code) and, in addition, lit. (r) also
provided that the Claimant would have to “pay the Club penalties imposed by the
Club based on a current internal document and pay fines for disciplinary offences
imposed by country S Football Association to the Club due to fault on the Player’s
part”.
4.
The Code established in its art. 5.2 lit. (f) that “disciplinary measures are sanctions of
financial nature and General manager is entitled to impose such a measure on all
players or coaches due to the breach of the player’s or coach’s duties regulated in
the contracts. Disciplinary measure may be imposed up to the triple of the player’s
or coach’s remuneration per month”.
5.
On 5 March 2010, the Claimant lodged a claim against the Respondent before FIFA,
requesting the total outstanding remuneration of USD 27,000 plus interest. The
Claimant further requested compensation and the payment of legal costs without
specifying the amounts claimed, even though invited to do so.
6.
In this respect, the Claimant alleged that even though art. V of the contract
provided a certain payment schedule, both parties to the contract had agreed that
the remuneration would be honoured in 10 instalments of USD 13,500 each, and
USD 30,000 as the “financial bonus”. In this context, the Claimant asserted to have
honoured the contract until its expiry date and to have received from the
Respondent a total remuneration of USD 138,000 only.
Player C, from country A / Club T, from country S
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7.
The Respondent presented its position, rejecting the claim. In this respect, the
Respondent confirmed not having paid the remaining outstanding remuneration
once the Claimant apparently left country S on 5 June 2009, without having any
permission from the Respondent and “even without providing us in advance with
the information he intends to do so”. In this context, the Respondent informed
having imposed on the Claimant the financial sanction of USD 27,000,
corresponding to two monthly remunerations, based on art. IV par. 1 lit. (r) of the
contract and on art. 5.2, lit. (f) of the Code providing a copy of the relevant code.
However, the Respondent has not provided any further evidence in this regard.
8.
In response to the Respondent’s arguments, the Claimant reasserted that he has
honoured his contract and contractual obligations and did not leave the country
without previously informing or having the authorization of the Respondent.
Furthermore, the Claimant provided a copy of an email allegedly exchanged
between him and the Respondent’s manager, by means of which the latter
requested information regarding his account details to send the outstanding
amounts.
9.
The Respondent reasserted its previous position as well as stated that the exchange
of emails between the manager and the Claimant should not be considered once
the Respondent was not aware of such communication as well as that the manager
was not given a mandate to act on behalf of the Respondent.
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 5 March 2010. 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. article 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 (, 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 A player and a country
S club.
Player C, from country A / Club T, from country S
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3.
Furthermore, 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 2010 and 2009), and
considering that the claim was lodged on 5 March 2010, the 2009 edition of the said
regulations is applicable to the matter at hand as to the substance (hereinafter: the
Regulations).
4.
The competence of the DRC judge and the applicable regulations having been
established and entering into the substance of the matter, the DRC judge
acknowledged the above-mentioned facts as well as the documentation contained
in the file.
5.
In this respect, the DRC judge took due note that the Claimant requested the
payments by the Respondent of the outstanding salaries in the amount of USD
27,000 with default interest of 5% p.a., as well as compensation and legal costs.
6.
The DRC judge took due note that, on the other hand, the Respondent rejected the
claim by alleging that the Claimant did not honour the contract by departing from
country S on 5 June 2009, before the end of the contract, and therefore, the
Respondent imposed financial sanctions to the Claimant corresponding to two
monthly remunerations.
7.
In this respect, referring to art. 12 par. 3 of the Procedural Rules, which establishes
that any party claiming a right on the basis of an alleged fact shall carry the burden
of proof, the DRC judge determined that the Respondent did neither provided
evidence that the Claimant had left the club without authorization nor regarding
the imposition of financial sanctions.
8.
In any case, the DRC judge considered that the unilateral imposition of financial
sanctions corresponding to two monthly salaries, considering that the contract
would expiry on 30 June 2009, cannot be considered proportionate and shall be
disregarded. In this regard, the Chamber also emphasized that the Claimant does
not appear to have had the possibility to defend himself.
9.
In this context, and irrespective of the foregoing consideration, the Chamber
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 mean to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to reject
the Respondent’s argument in this connection.
Player C, from country A / Club T, from country S
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10.
On account of the above, the DRC judge held that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfill its obligations as
per the employment contract concluded with the Claimant and, consequently, pay
the outstanding remuneration, which is due to the latter.
11.
In this respect, the DRC judge noted that the Claimant honoured the contract and
that the Claimant’s alleged departure on 5 June 2009 did not justify the financial
sanctions of two monthly instalments made by the Respondent (cf. point 8 and 9
above).
12.
As a consequence, the DRC judge deemed that on the basis of the documents on
file, the Respondent had not paid the Claimant’s outstanding salaries.
13.
On this basis and in line with the principle of burden of proof according to art. 12
par. 3 of the Rules, the DRC judge highlighted that the Respondent did not provide
justified reasons for its non-fulfilment of its payment obligations, as agreed upon in
the employment contract.
14.
On account of all of the above, the DRC judge considered it to be established that
the Respondent had not paid the Claimant the monthly salaries for May 2009 and
June 2009. Therefore, the DRC judge decided that in accordance with the Claimant’s
claim the amount of USD 27,000, consisting of salaries for May 2009 and June 2009,
was outstanding.
15.
In continuation, the DRC judge noted that the Claimant furthermore claimed 5%
interest p.a. on the total amount of USD 27,000 as from the relevant due dates.
16.
Concerning the interests claimed by the Claimant, the DRC noted that the contract
did not provide for any specific interest rate in case of late payment. Consequently,
the DRC decided to award, in accordance with the constant practice of the Dispute
Resolution Chamber, default interest at a rate of 5% p.a. to the Claimant as from
the first day after the respective due dates of each installment.
17.
In this regard, the DRC judged noted that, according to the employment contract, it
is stipulated that the monthly salaries shall be paid out to the Claimant on the 15 th
calendar day of “a month following the month in which the remuneration is
payable”. Hence, the DRC judge decided that the Respondent had to pay default
interest at a rate of 5% p.a. as from 16 June 2009 and 16 July 2009, upon the last
two salary payments.
Player C, from country A / Club T, from country S
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18.
In conclusion, the DRC judge decided to partially accept the claim of the Claimant
and that the Respondent has to pay the total amount of USD 27,000 as outstanding
remuneration plus 5% of interest p.a. on USD 13,500 as of 16 June 2009 and on USD
13,500 as of 16 July 2009.
19.
In continuation, the DRC judge analysed the request of the Claimant for
compensation. In this regard, he made reference to art. 9 par. 1 lit. g) of the
Procedural Rules, according to which the claim shall contain the amount in dispute,
as well as to art. 9 par. 2 of the Procedural Rules. In this context, the DRC judge
recalled that the Claimant did not specify the amount requested as compensation,
even though advised of the consequences, and thus the request for compensation
cannot be considered and must be rejected.
20.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
21.
The DRC judge concluded its deliberations in the present matter by establishing
that any further claims lodged by the Claimant are rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player C, is partially accepted.
2.
The Respondent, Club T, has to pay to the Claimant, Player C, within 30 days as
from the date of notification of this decision, the amount of USD 27,000 plus 5 %
interest p.a. until the date of effective payment as follows:
- 5% interest p.a. as of 16 June 2009 over the amount of USD 13,500;
- 5% interest p.a. as of 16 July 2009 over the amount of USD 13,500.
3.
If the aforementioned amount is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
Any further claims filed by the Claimant, Player C, are rejected.
5.
The Claimant, Player C, is directed to inform the Respondent, Club T, 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.
Player C, from country A / Club T, from country S
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*****
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
Deputy Secretary General
Encl. CAS directives
Player C, from country A / Club T, from country S
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