Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 May 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Piat (France), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
Player T, from country B
as Claimant
against the club,
Club S, from country I
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 December 2010, Club S, from country I (hereinafter: the Respondent), and Player
T, from country B (hereinafter: the Claimant), concluded an employment contract
(hereinafter: the contract) valid “for the second half 2010/2011 season”.
2.
According to clause 5 of the contract, the Claimant was entitled to receive the
following amounts:
a. USD 50,000 payable upon signature of the contract;
b. USD 30,000 as remuneration payable in six monthly instalments of USD 5,000
each;
c. USD 30,000 “when the season will be finish”;
d. USD 20,000 as bonus if the Respondent remains in the country I Super League.
3.
Equally, clause 5.3 of the contract stipulated that “the taxes that may apply to the
payments above shall be paid 10% by the [Claimant] within country I federation rules”.
4.
On 25 October 2011, the Claimant lodged a claim against the Respondent in front of
FIFA, requesting the payment of outstanding monies in the total amount of
USD 27,955, plus interest “since each due date”, as set out below:
-
USD 2,667 as outstanding partial payment due in December 2010;
USD 230 as outstanding partial payment due in January 2011;
USD 475 as outstanding partial payment due in February 2011;
USD 380 as outstanding partial payment due in March 2011;
USD 460 as outstanding partial payment due in April 2011;
USD 575 as outstanding partial payment due in May 2011;
USD 575 as outstanding partial payment due in June 2011;
USD 22,593 as outstanding partial payment due in June 2011;
Procedural costs and legal fees;
Sporting sanctions.
Furthermore, the Claimant requested disciplinary measures and/or sporting sanctions to
be imposed on the Respondent in case of non-compliance. Equally, he also requested
the Respondent to bear all costs related to this proceeding including his legal fees.
5.
In his claim, the Claimant states that the Respondent only made partial payments of the
monies stipulated in the contract. According to the Claimant, this is due to the fact that
in spite of the Respondent’s obligation to pay his remuneration in US Dollars, all
payments were made in currency of country I “after a currency conversion from dollars
to country I money […], with complete prejudice to [the Claimant]”.
6.
In this context, the Claimant explained that he had to withdraw the money in order to
exchange it into US Dollars so that he could remit the money to country B. As a
consequence, he would lose almost 18% due to the “real local currency conversion
(exchange rate)”.
7.
For this reason, the Claimant is now claiming partial amounts of each salary payment as
well as the bonus amounting to USD 20,000, since the Respondent allegedly remained
in the country I Super League.
Player T, from country B / Club S, from country I
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8.
In its response to the claim, the Respondent submitted a document issued by the
country I Football Federation Super League Organization which was signed by the
Claimant, by means of which he confirmed that “The contract […] concluded with [the
Respondent], terminated on season 2010-2011 and he settled all his accounts with this
club. […] The formalities for settlement of accounts of [the Claimant] with [the
Respondent] were carried out and he settled all his accounts with football federation
of province”.
9.
In his reaction to the Respondent’s position, the Claimant confirmed having signed the
waiver, however, indicated that the waiver must be considered void since it “does not
have the requirements that Fifa imposes to the clubs”. In this regard, he noted that the
Respondent allegedly told him that the waiver was a “routine document the country I
Federation solicited, necessary to end the contract”. On this account, the Claimant
signed said waiver even though it was written neither in his native language nor in
English, unaware that the document represented a confirmation of total discharge. In
this context, the Claimant stated that he had to leave the country and needed the
money the Respondent would pay him upon signing the waiver, “remaining with no
option but to sign the document”.
10.
In its final comments, the Respondent reiterated its previous statements and added
that the Claimant signed the waiver together with his agent. Equally, it stated that the
country A Football Committee confirmed all related documents including the
Claimant’s “settlement of account” before he left country I. Finally, the Respondent
noted that it would have tried to settle the matter if the Claimant would have
contacted it before lodging a claim in front of FIFA.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules). The present matter was submitted to FIFA on 25 October 2011. Therefore, the
Chamber concluded that the edition 2008 of the Procedural Rules was applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition 2010), it is competent to
decide on the present litigation, which concerns an employment-related dispute with
an international dimension, between a country B player and an country I club.
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 par. 2 of the Regulations (editions 2010 and 2012), and considering that the
present claim was lodged on 25 October 2011, the 2010 edition of said regulations is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
Player T, from country B / Club S, from country I
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5.
In this respect, the Chamber recalled that it was undisputed by the parties that they
had signed an employment contract on 1 December 2010 valid “for the second half
2010/2011 season”, in accordance with which the Claimant was entitled to receive the
following amounts: a) USD 50,000 upon signature of the contract, b) USD 30,000 as
remuneration payable in six monthly instalments of USD 5,000 each, c) USD 30,000
“when the season will be finish” and d) USD 20,000 as bonus if the Respondent remains
in the country I Super League.
6.
Furthermore, the DRC noted that it was also undisputed by the parties that they had
signed an undated waiver, containing a declaration in accordance with which the
Claimant admitted having received all his dues and entitlements from the club
(cf. point I.8. above).
7.
In continuation, the Chamber noted that the Claimant, on the one hand, alleged that
the said declaration, that was written neither in his native language nor in English, was
signed by him under pressure since he was in need of money in order to leave the
country and the Respondent allegedly only agreed to pay him upon signing the waiver.
8.
The DRC further noted that the Respondent, on the other hand, is of the opinion that
the document in question was signed by the Claimant without any type of pressure
whatsoever and, consequently, rejects the claim lodged against it, having no pending
debts towards the Claimant.
9.
In view of the aforementioned, the DRC deemed that, in order to be able to establish
whether the Claimant is entitled to the amounts he requests, it would first have to
analyse the waiver provided by the Respondent and allegedly signed by the Claimant.
10.
In this context, the Chamber noted that the Claimant confirms having signed the
aforementioned waiver in a language he does not understand and to have been forced
by the Respondent to do so.
11.
In this respect, referring to art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the burden
of proof, the DRC took into account that the player failed to present documentary
evidence in support of his allegation that he had been pressured by the Respondent
into signing the above-mentioned waiver. Consequently, the DRC decided that the
Claimant’s allegations in this regard cannot be accepted.
12.
Subsequently, and in view of the allegations of the Claimant that he was not aware of
the content of the waiver, as it was written in a language he does not understand, the
DRC deemed it fit to emphasise that any party signing a document of legal importance
without knowledge of its precise contents, as a general rule, does so on its own
responsibility and must, therefore, bear the legal consequences eventually arising from
such document.
13.
In the light of all of the above, and in particular bearing in mind the fact that the
Claimant confirmed having signed the aforementioned waiver, the Chamber deemed
that, by doing so, he accepted its content without any reserves and, therefore, accepted
Player T, from country B / Club S, from country I
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that there were no outstanding amounts payable by the Respondent in his favour. As a
consequence, the Chamber decided that it must reject the claim for outstanding
remuneration put forward by the Claimant.
14.
In addition, the DRC held that the Claimant’s claim pertaining to procedural costs and
legal fees is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s respective longstanding jurisprudence.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player T, is rejected.
*****
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 Dispute Resolution Chamber
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player T, from country B / Club S, from country I
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