Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 May 2014,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player O, from country B
as Claimant
against the club,
Club I, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 27 August 2008, Club I, from country C (hereinafter: the Respondent) and the
player Player O, from country B (hereinafter: the Claimant) concluded a loan
agreement (hereinafter: the loan agreement) for the temporary transfer of the
Claimant from The Strongest to the Respondent for the period between 29
August 2008 until 30 November 2008.
2.
According to clause TERCERA of the loan agreement “The basic conditions to be
immediately fulfilled for the conclusion of the [loan agreement] are (…) $us
15,000 (fifteen thousand 00/100 American Dollars) of net monthly salary for the
player, free of taxes (…) Housing, vehicle and bonuses to be agreed with the
player” (free translation from Spanish)
3.
On 28 August 2008, the Respondent and the Claimant entered into an
employment contract (hereinafter: the employment contract) valid as from 29
August 2008 until 10 December 2008. According to the employment contract, the
player was entitled to receive remuneration in the amount of 8,165 currency of
country C.
4.
Also, on 28 August 2008, the Claimant, the Respondent and “company x”
(hereinafter: the company) concluded a “the image rights agreement”
(hereinafter: the image rights agreement), valid as from the date of signature
until 10 December 2008.
5.
According to the image rights agreement “the company, which is the owner of
the image rights of [the Claimant], has the interest of assigning the [Claimant’s]
image, voice and sportive nickname rights to [the Respondent]”.
6.
Moreover, clause 5.1 of the image rights agreement reads “for the assignment of
the [image rights of the player], [the Respondent] obliges to pay to the company
the monthly amount of R$23,000 (twenty three thousand reales)…”.
7.
Furthermore, clause 11.1 of said agreement states that “The parties choose the
jurisdiction of the “Comarca de Santos” (where the headquarters of the company
are) to resolve any matter based on the present [image rights agreement],
resigning to any other jurisdiction…”.
8.
On 1 September 2008, the parties concluded an Annex to the contract
(hereinafter: the annex) where it was stated that “[The Respondent] will pay to
[The Claimant] a monthly salary of currency of country C 8,165 (…) and will also
provide a house for [The Claimant]”.
Player O, from country B / Club I, from country C
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9.
On 23 March 2009, the Claimant lodged a claim against the Respondent in front
of FIFA, requesting the total amount of USD 36,000 as outstanding salaries for 12
days of September 2008, and the full salaries of October 2008 and November
2008.
10.
In particular, the Claimant explained that according to clause TERCERA of the loan
agreement, the Respondent agreed to pay to him a monthly remuneration of USD
15,000. In this respect, the Claimant stresses that he only received USD 9,000
corresponding to 18 days of September 2008.
11.
The Respondent replied to the claim firstly stating that such claim was timebarred as more than two years had elapsed since “the end of the employment
relation between the parties” until the Claimant completed his claim on 18 July
2011.
12.
As to the substance, the Respondent stressed that according to the employment
contract, the Claimant was entitled to receive a monthly salary of currency of
country C 8,165 and that the latter acknowledged in his claim having received
already USD 9,000. In this respect, the Respondent claims that this is the amount
established in the contract as well as in the annex which was signed by the player
and, thus, agreed by him.
13.
The Respondent further claimed that the image rights agreement is a “pure
commercial” contract signed between the Respondent and the company which
held the image rights of the Claimant. In this regard, the Respondent asserts that
according to FIFA’s longstanding jurisprudence, the latter is not competent to
deal with this kind of contracts.
14.
In addition, the Respondent argued that all the terms and conditions of an
employment relationship must be established in a separate contract concluded
only between the Respondent and the Claimant. In this respect, the Respondent
rejects the possibility that the loan agreement “overcomes what [the Claimant]
himself agreed in his employment contract with [the Respondent]”.
15.
In continuation, the Respondent alleged that the USD 9,000 paid to the Claimant
equals to currency of country C 17,228.70 and since the contract was for the total
amount of currency of country C 24,495, it only has to pay to the Claimant
currency of country C 7,266.30 “related to the remaining part of November 2008”.
16.
In his replica, the Claimant firstly rejected the Respondent’s argument about the
claim being time-barred. In this sense, the Claimant argues that the initial claim
was presented on 23 March 2009 and thus, within the time limit set in art. 25 of
the procedural rules.
Player O, from country B / Club I, from country C
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17.
As to the substance, the Claimant alleged that from the loan agreement it is clear
that the Respondent committed to pay to him the amount of USD 15,000 as
monthly salary, as a “condition to be fulfilled immediately”.
18.
The Claimant further argued that the Respondent misled him when signing the
contract as it told him that it was a common practice in country B to pay the
greater part of players’ salaries based on image rights agreements and this is the
reason why he agreed to sign both the contract and the image rights agreement.
19.
In addition, the Claimant stressed that the image rights agreement foresees a
monthly remuneration of currency of country C 23,000 which, if added to the
monthly salary established in the contract, equals to currency of country C 31,165,
which in turn approaches the sum of USD 15,000 fixed in the loan agreement.
20.
The Claimant further argued that in accordance with country B
were signed by the Claimant in clear error.
21.
In its duplica, the Respondent rejected the Claimant’s arguments and alleged that
any claim regarding the loan agreement should be lodged only by The Strongest,
which the latter already did and was pending with FIFA under the case ref. no. 1000096. Furthermore, the Respondent argued that, in any case, any claim regarding
the image rights agreement should be lodged in front of the competent ordinary
courts.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 23
March 2009. Consequently, 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. 1 and par. 2 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 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B
and a club from country C.
3.
In this respect, the Chamber then reverted to the two arguments of the
Respondent, according to which the DRC was not able to adjudicate on (a part of)
the Claimant’s claim, since it held that i) the present matter is barred by the
Player O, from country B / Club I, from country C
agreement and
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statute of limitations and ii) the DRC is not competent to adjudicate on image
rights agreements.
4.
In this regard, the members of the Chamber first referred to art. 25 par. 5 of the
aforementioned Regulations, according to which, inter alia, the Dispute
Resolution Chamber shall not hear any case subject to the said Regulations if
more than two years have elapsed since the event giving rise to the dispute. The
present claim having been lodged in front of the DRC on 23 March 2009 and the
event giving rise to the dispute having occurred in September, October and
November 2008, the members of the Chamber had to reject the respective
argument of the Respondent and confirmed that the present petition was lodged
in front of the DRC within said two years’ period of time and is, thus, not barred
by the statute of limitations in accordance with art. 25 par. 5 of the
aforementioned Regulations.
5.
In continuation, with regard to the claimed payments in connection to the image
rights agreement apparently signed by the parties, the Chamber also had to verify
whether, for formal reasons, it was competent to deal with this specific
component or not. In fact, it remains that this part of the claim could possibly not
be considered due to the Chamber lacking competence to deal with disputes
related to image rights.
6.
In this context, the members of the Chamber acknowledged that, on 27 August
2008, the country B club, The Strongest, the Claimant and the Respondent had
concluded a loan agreement by means of which the Claimant would receive from
the Respondent a monthly salary in the amount of USD 15,000. Furthermore, the
Chamber observed that on 28 August 2008 and 1 September 2008, the Claimant
and the Respondent concluded an employment contract and an annex
respectively, according to which the Claimant was entitled to a monthly salary of
currency of country C 8,165. Moreover, also on 28 August 2008, an image rights
agreement was concluded by means of which the Respondent would pay “Mabs
Intermediação e Assessoria LTDA” the amount of currency of country L 23,000 per
month.
7.
In this order of ideas, the Chamber then acknowledged the position of the
Claimant, who argued that according to the loan agreement, the salary to which
he was entitled was USD 15,000 and that this was an essential part of the loan
agreement in order for the latter to be valid. On its part, the Respondent rejected
such allegation and asserted that the only valid contracts which contain the salary
of the Claimant are the employment contract and its annex dated 28 August 2008
and 1 September 2008 respectively.
8.
As a result of the above, the members of the Chamber turned their attention to
the dates on which the relevant documents were signed. In this respect, the DRC
noted that while the loan agreement was concluded on 27 August 2008, the
Player O, from country B / Club I, from country C
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image rights agreement and the employment contract were signed on 28 August
2008 and its annex on 1 September 2008. Therefore, it is a fact that the image
rights agreement, the employment contract and its annex were signed after the
conclusion of the loan agreement.
9.
In view of the above, the members of the Chamber considered that in the image
rights agreement and in the employment contract and its annex, the parties
agreed on the specifications of how the USD 15,000 established in the loan
agreement were going to be paid . Therefore, the Chamber was of the unanimous
opinion that the image rights agreement and the employment contract and its
annex concluded on 28 August 2008 and 1 September 2008, respectively,
superseded the loan agreement of 27 August 2008, insofar as to the salary of the
player.
10.
In continuation and while analysing the image rights agreement, the DRC wished
to highlight that said image rights agreement did not contain any elements which
could led to believe that the said document was not in fact an image rights
agreement but rather a separate agreement directly linked to the services of the
Claimant as a player and employee of the Respondent. In this respect, the
Chamber pointed out that a company was a party in said agreement and that the
payments established thereto should have been made to the company.
11.
In view of the foregoing and according to art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the
members of the Chamber came to the unanimous conclusion that the DRC, in line
with the long-standing practice of the Chamber, has no competence to deal with
the claim of the Claimant related to the image rights agreement.
12.
On account of the above, the Chamber came to the unanimous conclusion that
the only agreements which stipulate the salary of the player and can be
considered by the Chamber are the employment contract and its annex.
13.
Furthermore, and in relation to the claim of the Claimant in respect that he was
deceived by the club into signing two different contracts, the DRC recalled that
according to the legal principle of the burden of proof contained in art. 12 par. 3
of the Procedural Rules, any party claiming a right on the basis of an alleged fact
shall carry the burden of proof. In this respect, the members of the Chamber
considered that the Claimant did not present any kind of evidence from which it
could be established that he was actually misled by the Respondent and that he
signed the employment contract and the image rights agreement in clear error.
Thus, the Chamber decided that this argument must be rejected.
14.
This being established, the members of the Chamber further observed that the
Claimant acknowledged having received from the Respondent USD 9,000.
Moreover, the Chamber took note of the Respondent’s assertion that said amount
is equal to currency of country C 17,228.70 and, since the entire value of the
Player O, from country B / Club I, from country C
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contract was currency of country L 24,495, it acknowledged still having to pay the
Claimant the outstanding amount of currency of country C 7,266.30.
15.
In view of the foregoing considerations, the members of the Chamber concurred
that the Respondent must fulfill its obligations as per employment contract in
accordance with the general legal principle of pacta sunt servanda. Consequently,
the Chamber decided that the Respondent is liable to pay to the Claimant the
remuneration that remains outstanding as per the employment contract
concluded between the parties i.e. the amount of currency of country C 7,266.30.
16.
The Dispute Resolution 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 O, is partially accepted, insofar as it is
admissible.
2.
The Respondent, Club I, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
currency of country C 7,266.30.
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 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.
*****
Player O, from country B / Club I, from country C
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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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player O, from country B / Club I, from country C
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