Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 May 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player G, from country V
as Claimant
against the club,
Club E, country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 10 January 2008, the player G from country V (hereinafter: the Claimant), and the
club from country C, Club E (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as from 1 June 2008 until the end of the
2009-2010 season.
2.
In accordance with Clause 1 of the contract, the Claimant was entitled to an overall
remuneration of EUR 17,500 for each season. According to the contract, the
Claimant’s remuneration for each season shall be paid in 10 equal instalments of EUR
1,750 each, in which the payments shall commence “on or before” 31 August and
finish “on or before” 31 May of the relevant season.
3.
In addition, Clause 2 of the contract provided inter alia for the following benefits to
be paid by the Respondent to the Claimant:
EUR 500 for every win and EUR 160 for every draw in the country C Football
Association championship provided that the Claimant plays for at least 1 minute;
EUR 430 as monthly rent;
EUR 5,000 if the Claimant participates in 20 games of the 2008-2009 season;
EUR 5,000 if the Claimant participates in 20 games of the 2009-2010 season.
4. Also, the contract provided for the following benefits: a car, for which the Respondent
shall pay the “road tax” as well as the “regular mechanical services” and “two total
return flight tickets” for him and his family “to their country”.
5.
On 20 June 2008, the parties to the dispute signed another contract (hereinafter: the
supplementary contract), valid from the date of signature until the end of the 20092010 season. The supplementary contract provided for additional remuneration in
the same amount as set out in Clause 1 of the contract, i.e. EUR 17,500 per season, to
be paid in the same manner as stipulated in the contract.
6.
Clause 5.A of the supplementary contract established that the Claimant “agrees and
accepts all disciplinary penalties may be imposed according to the internal
regulations of the club, attached to this contract, as Appendix A”. Further, Clause 6
provided that the Claimant would “obey the Rules, the Internal Regulations of the
CLUB”.
7.
Appendix A to the supplementary contract sets out the penalties that can be imposed
on the Claimant. In particular, it establishes the penalty in the amount of EUR
1,708.60 for each “unreasonable” red card received by the Claimant. Such penalties
“are imposed by the football committee of the club the latest 48 hours after the end
of the relevant football match”.
8.
According to Appendix A to the supplementary contract “the definition of
Reasonable or Unreasonable Yellow or Red Card, will be decided and announced by
the HEAD COACH during the first training session of every relevant football match”.
9.
On 2 September 2010, the Claimant lodged before FIFA a complaint against the
Respondent for breach of contract, stating that the Respondent had failed to meet
its financial obligations under the contractual arrangements between the parties.
Player G, from country V / Club E, from country C
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10. After amending his claim, the Claimant requested the Dispute Resolution Chamber
to order the Respondent to pay a total outstanding remuneration amounting to EUR
11,105, made up of the following amounts:
i. EUR 1,750 corresponding to 50% of the salary of May 2010;
ii. EUR 5,000 corresponding to the bonus for the Claimant’s participation in 20
games of the 2009-2010 season;
iii. EUR 3,420, out of EUR 4,620, corresponding to bonus payments for wins and
draws during 2009-2010 season;
iv. EUR 430 corresponding to the rent for May 2010; and
v. EUR 505 as residual value of the guarantee alleged paid by the Claimant under
the “Vehicle Allocation Agreement” (cf. point I/14 below).
11. In his claim, the Claimant alleged having received only part of the salary for May
2010. Further, the Claimant stated that for the 2009-2010 season, the Respondent
paid him EUR 1,200 as bonus for wins. However, according to the Claimant, the bonus
payment for wins should have been in the amount of EUR 4,620 instead. In addition,
the Claimant claimed to have participated in 24 games during the 2009-2010 season,
and thus claimed to be entitled to receive the relevant bonus in the amount of EUR
5,000. Equally, the Claimant claimed that the rent for May 2010 was also outstanding.
Moreover, the Claimant submitted a list, made by himself, specifying the games,
benefits and minutes played, as well as his bank account declaration with all deposits
and withdraws.
12. In its reply, the Respondent admitted owing the Claimant the amounts set out in
points 10.i), ii), and iv) (cf. point I/10). However, the Respondent disputed the amount
claimed by the Claimant in point 10.iii) as bonus for wins and draws during the 20092010 season, and stated that it only owed the Claimant EUR 1,600 out of EUR 3,420,
because a verbal agreement was allegedly reached with all the players of the club
according to which “in Championship’s Second Phase for Group P5-P8 no bonuses
will be granted”. Therefore, the Respondent admitted owing the Claimant an overall
amount of EUR 8,780. Notwithstanding this, the Respondent argued that from said
owed amount, the following shall be deducted:
penalties amounting to EUR 3,416 (EUR 1,706 x 2) for two “unreasonable” red
cards shown to the Claimant, respectively, during two matches played on 14
November 2009 and on 20 December 2009;
EUR 1,495 for “car repair”; and
EUR 665 for 50% of the Claimant’s return flight ticket country C-country V for
which an invoice was provided;
Therefore, the Respondent agreed to pay a balance of EUR 3,204.
13. The Claimant disagreed with the Respondent’s position, and stated that, pursuant to
Appendix A to the supplementary contract, the Respondent should have notified the
Claimant within 48 hours from the relevant matches the alleged decisions imposing
the penalties for the red cards received by the Claimant. In this regard, the Claimant
submitted a letter from the Respondent, dated 28 April 2009, regarding a penalty
imposed on the Claimant by means of which the Claimant intended to illustrate the
relevant procedure for the notification of penalties. Therefore, the Claimant rejected
the two above-mentioned penalties due to the alleged Respondent’s failure to
respect the agreed procedure, in particular the failure of the Respondent to duly
notify the penalty to the Claimant.
Player G, from country V / Club E, from country C
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14. As regards the garage service-related expenses in the amount of EUR 1,495, the
Claimant provided FIFA with a “Vehicle Allocation Agreement” signed by both
parties. According to Clause 6 of this agreement, the Respondent “reserved the right
to claim from the footballer the amount of EUR 2,000 as guarantee for the vehicle
misuse, negligence, damages or otherwise”. Further, said Clause stipulated that the
“above mentioned amount will be returned to the football upon the delivery of the
vehicle to Club E” and that “in case of damages or otherwise, the CLUB will break
away the proportional amount and returns to the footballer the remainder sum that
will result”. Moreover, the Claimant claimed that neither was he informed of any
repairs nor was he reimbursed the remaining amount paid as guarantee, once the
alleged “car repair” had been deducted. Consequently, the Claimant amended his
claim and requested an additional EUR 505 (cf. point 10.V above) from the
Respondent, corresponding to the EUR 2,000 guarantee after deducting EUR 1,495
for the ”car repair”.
15. Furthermore, the Claimant rejected the Respondent’s claim for half the price of a
return flight ticket because, according to the contract, he was entitled to two return
flight tickets for his family and himself. In addition, according to the Claimant’s, his
previous club, Club K, had paid for the Claimant’s flight ticket country V-country C
and thus the Respondent still owed the Claimant and his family a one-way flight
ticket country V-country C. Finally, the Claimant insisted in the payment of the bonus.
16. In its duplica, the Respondent stressed that, according to Appendix A to the
supplementary contract, there was no obligation on the Respondent to notify the
penalties to the Claimant in writing because the penalties were imposed by the
football committee of the Respondent and not by the board of directors of the
Respondent. According to the Respondent, the football committee of the
Respondent did impose the penalties within the agreed 48 hour time-limit from the
relevant matches and not only informed the Claimant orally but also allegedly posted
the penalties on the penalty board of the changing rooms of the team during the
first training session following the relevant matches. Additionally, regarding the
amount corresponding to “car repair” to be deducted, the Respondent held that it
did not withhold the amount of EUR 2,000 as guarantee. In this respect, the
Respondent clarified that according to the “Vehicle Allocation Agreement” the
Respondent had a right to withhold such an amount; however, the Respondent
stated that it did not exercise it. Finally, the Respondent reiterated that it is willing
to pay the Claimant a balance amounting to EUR 3,204.
II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as
judge or DRC judge) analysed whether he was competent to deal with the case at
hand. In this respect, the judge took note that the present matter was submitted to
FIFA on 2 September 2010. Therefore, the DRC judge concluded that the 2008 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the judge referred to art. 3 pars. 2 and 3 of the Procedural Rules and
confirmed that in accordance with art. 24 pars. 1 and 2 in combination with art. 22
Player G, from country V / Club E, from country C
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lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the DRC
judge is competent to decide on the present litigation, concerning an employmentrelated dispute of an international dimension between a player from country V and
a club from country C.
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, it confirmed that in accordance with art. 26 par. 1 and 2 of said Regulations
(editions 2012, 2010 and 2009), and considering that the present claim was lodged
on 2 September 2010, the 2009 edition of the Regulations on the Status and Transfer
of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The judge started
by acknowledging that on 10 January 2010 the parties to the dispute had signed an
employment contract valid as from 1 June 2008 until the end of the 2009-2010 season.
Also, the judge acknowledged that on 20 June 2008 the parties signed the
supplementary contract, which was valid from the date of signature until the end of
the 2009-2010 season.
5.
Equally, the judge observed that the contracts concluded between the parties
stipulated, inter alia, an overall remuneration of EUR 35,000 for each season, to be
paid in 10 equal instalments of EUR 3,500 each, in which the payments shall
commence “on or before” 31 August and finish “on or before” 31 May of the
relevant season. In addition, the DRC judge took note that the contract provides for
a number of benefits, namely: (i) EUR 500 for every win and EUR 160 for every draw
in the country C Football Association championship provided that the Claimant plays
for at least 1 minute; (ii) EUR 430 as monthly rent; (iii) EUR 5,000 if the Claimant
participates in 20 games of the 2008-2009 season; and (iv) EUR 5,000 if the Claimant
participates in 20 games of the 2009-2010 season.
6.
In continuation, the judge noted that on 2 September 2010 the Claimant lodged a
claim against the Respondent requesting the payment of a total outstanding
remuneration amounting to EUR 11,105. The requested outstanding monies were
made up of:
i. EUR 1,750 corresponding to 50 % of the salary of May 2010;
ii. EUR 5,000 corresponding to the bonus for the Claimant’s participation in 20
games during the 2009-2010 season;
iii. EUR 3,420, out of EUR 4,620, corresponding to bonus payments for wins and
draws during 2009-2010 season;
iv. EUR 430 corresponding to the rent for May 2010; and
v. EUR 505 as residual value of the EUR 2,000 guarantee allegedly paid by the
Claimant under the “Vehicle Allocation Agreement”.
7.
Having said this, the judge turned his attention to the arguments of the Respondent
and noted that the latter partially accepted the claim and admitted owing the
Claimant the amounts set out in points I.10.i), ii) and iv), i.e. part of the salary
regarding May 2010 in the amount of EUR 1,750, the bonus in the amount of EUR
5,000 and the rent for May 2010 in the amount of EUR 430. Furthermore, the judge
noted that the Respondent disputed the amount claimed by the Claimant in point iii)
Player G, from country V / Club E, from country C
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above, as bonus for wins and draws, stating that it only owed the Claimant EUR 1,600
out of EUR 3,420, because allegedly a verbal agreement had been reached with all
the players of the Respondent according to which “in Championship’s Second Phase
for Group P5-P8 no bonuses will be granted”. In addition, the judge observed that
the Respondent also intended to deduct from the outstanding amount requested by
the Claimant the following: penalties amounting to EUR 3,416 (EUR 1,706 x 2) for
two “unreasonable” red cards shown to the Claimant, respectively, during two
matches played on 14 November 2009 and on 20 December 2009; EUR 1,495 for “car
repair”; and EUR 665 for 50% of the Claimant’s return flight ticket country C-country
V for which an invoice was provided. Therefore, the judge observed that the
Respondent agreed to pay a balance of EUR 3,204.
8.
Considering the disputed facts, the DRC judge recalled that according to the legal
principle of the burden of proof, any party claiming a right on the basis of an alleged
fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
9.
In view of the above, the judge concluded that the Respondent shall carry the burden
of proof that an agreement was actually reached with the player by means of which
the latter allegedly renounced the bonus “in Championship’s Second Phase for Group
P5-P8”.
10. In this respect, the DRC judge observed that the Respondent has not presented any
documentary evidence regarding an agreement concerning the bonus for the
relevant period concluded between the Respondent and the Claimant. As a
consequence, the judge concluded that the Respondent was not able to prove the
existence of such an agreement by means of which the player allegedly renounced a
number of bonus payments. Therefore, the DRC judge concluded that the Claimant
was entitled to receive the bonus and, consequently, the Respondent could not
deduct such amount.
11. In continuation, the DRC judge referred once again to the principle of the burden of
proof and stated that the Respondent has equally failed to provide evidence
regarding the red cards and of the notification to the Claimant of the penalties
referred to in point II/7 above. Therefore, the judge concluded that a deduction on
this basis shall also be rejected.
12. Furthermore, and irrespective of the foregoing consideration, the Chamber wished
to point out that the imposition of a penalty, or any other available financial sanction
in general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this connection.
13. Furthermore, the judge ascertained that the Respondent had not succeeded in
proving (cf. art. 12 par. 3 of the Procedural Rules) that the return flight ticket country
C-country V had been provided to the Claimant on top of the agreed “two total
return flight tickets” for the Claimant’s himself and his family, as provided for in the
contract. Therefore, there was no valid reason for the Respondent to request the
Claimant to reimburse the Respondent for 50% of the value of the Claimant’s return
flight ticket country C-country V. As a consequence, the judge came to the conclusion
that there was no basis to accept such deduction as well.
Player G, from country V / Club E, from country C
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14. Finally, as to the Respondent’s request for the deduction of EUR 1,495 corresponding
to “car repair”, the judge observed that, on one hand, according to the contract, the
Respondent was responsible to pay for the “regular mechanical services” and, on the
other hand, that the Respondent only enclosed a copy of an invoice in the amount
of EUR 1,495. In this respect, the DRC judge referred once more to art. 12 par. 3 of
the Procedural Rules and considered that the Respondent could not demonstrate that
such amount was paid and, in any case, that it was the Claimant’s duty to pay for
such service. Consequently, the argument of the Respondent is also rejected.
15. In continuation, the DRC judge considered that the Claimant’s request for the
reimbursement of EUR 505 as residual value of the EUR 2,000 guarantee allegedly
paid by the Claimant under the “Vehicle Allocation Agreement” shall not be taken
into account since the DRC judge shall base its considerations solely on the rights and
obligations contained in the relevant employment contract and supplementary
contract. The “Vehicle Allocation Agreement” shall be disregarded and the contracts
do not include any guarantee in the amount of EUR 2,000. Moreover, the Claimant
also failed to prove having paid the amount of EUR 2,000 to the Respondent.
16. On account of the aforementioned considerations, the judge established that the
Respondent failed to pay the Claimant EUR 3,420 corresponding to bonus
payments for wins and draws during the 2009-2010 season. Moreover, the DRC
judge recalled that the Respondent admitted not having paid the player EUR 1,750
corresponding to 50% of the salary of May 2010, EUR 5,000 corresponding to the
bonus for the Claimant’s participation in 20 games during the 2009-2010 season, and
EUR 430 corresponding to the rent for May 2010. The judge further recalled that the
Respondent’s request for deduction of several amounts (cf. point II.7) was rejected.
As a consequence, the DRC judge decided that the Respondent, in accordance with
the general legal principle of pacta sunt servanda, is liable to pay to the Claimant
outstanding remuneration in the total amount of EUR 10,600.
17. Taking into account all the above, the DRC judge decided to partially accept the
Claimant’s claim. Consequently, the Respondent has to pay to the Claimant the
amount of EUR 10,600.
18. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
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Player G, from country V / Club E, from country C
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III. Decision of the DRC judge
1. The claim of the Claimant, Player G, is partially accepted.
2. The Respondent, Club E, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 10,600.
3. In the event that the amount due to the Claimant in accordance with the abovementioned number 2 is not paid by the Respondent within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limit and 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 DRC judge
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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player G, from country V / Club E, from country C
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