Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2015,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Alejandro Marón (Argentina), member
Rinaldo Martorelli (Brazil), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
A, country R
represented by Mr xxxxxx
as Claimant
against the club,
B, country S
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 30 June 2010, the player from R, A (hereinafter: player or Claimant), and
the club from S, B (hereinafter: club or Respondent), signed an employment
contract (hereinafter: the contract), valid from 1 July 2010 until 30 June 2012,
as well as an additional agreement (hereinafter: the agreement).
2.
According to Annexe 3 of the contract, the club undertook to pay the player
EUR 220’000 net per season.
3.
According to the agreement, the club undertook to pay the player, inter alia,
50% of the costs for the children’s private school, two return flight tickets to
Romania per season and to provide the player with a furnished apartment.
4.
Additionally, the player signed a document entitled “Directive sur les véhicules
mis à disposition” [free translation: instruction on cars provided]. According to
said document, the club undertook to provide the player with a car as from 28
March 2012 until 4 November 2013. Art. 7 of this document reads as follows:
“Pour les véhicules mis à disposition de manière durable (pendant une saison
ou demi-saison le cas échéant), le joueur/membre du staff technique participle
de manière forfaitaire aux frais d’assurances à hauteur de xxx 1'000.-, prélevés
sur son dernier salaire de la saison (le cas échéant de la demi-saison)” [free
translation: For the cars provided permanently (during a season or a halfseason if applicable), the player/member of the technical staff contributes to
the costs of the car insurance with a fixed fee of xxx 1,000, deducted of his last
salary of the season (if applicable for the half-season)].
5.
On 24 September 2013, the player lodged a claim in front of FIFA against the
club for outstanding salaries and requested to be awarded payment of the
following monies:
- EUR 43,352.80 plus 5% interest as of the due dates, corresponding to
partially outstanding salaries of September 2011 plus May and June 2012
as well as interest on late payment of salaries (cf. point I./6. below);
- xxx 13’992.95 plus 5% interest as of 1 July 2012, corresponding to
additional remuneration (cf. point I./7. below);
- xxx 25,000 as compensation for personal suffering;
- EUR 150,000 as damage compensation;
- EUR 110,000 as compensation, corresponding to 6 months of the player’s
salary.
Player A, country R / Club B, country S
Page 2 of 10
6.
In detail, the player claimed remuneration as follows:
- Partial salary September 2011 plus 5% interest
as of 1 October 2011:
EUR 9,000.00
- Partial salary May 2012 plus 5% interest
as of 4 April 2013:
EUR 14,399.60
- Salary June 2012 plus 5% interest
as of 1 July 2012):
EUR 18,333.35
EUR 41,732.95
- Interest late payment April 2012 salary
(01.05.2012 – 04.04.2013):
EUR
848.85
- Interest late partial payment May 2012 salary
(01.06.2012 – 04.04.2013):
EUR
771.00
Total
EUR 43,352.80
7.
The player claimed additional remuneration as follows:
- Costs for 50% of children’s private school
xxx 5,943.00
- Tax invoices of 2011
plus 5% interest as of 1 July 2012
xxx 7,885.30
xxx 13,828.30
- Interest reimbursement of flight tickets
(01.07.2012 – 04.04.2013)
xxx
87,25
- Interest family allowance (May to June 2012)
(01.07.2012 – 04.04.2013)
xxx
77,40
Total
xxx 13,992.95
8.
The player argues that the club deducted EUR 9’000 from his September 2011
salary for unjustified reasons. In this respect, the club had accused him of
refusing to play in an under 21 match of the club. However, according to the
player, the coach and the sporting director of the club had advised him not to
play.
9.
Furthermore, the player held that the salaries between April and June 2012
were not paid on time and remained partially outstanding. In this regard, he
put the club three times in default of payment of the relevant amounts
between 22 June 2012 and 17 January 2013.
10.
Moreover, the player acknowledged receipt of a partial payment of xxx
31,415.80 on 4 April 2013. Nevertheless, according to the player, the amounts
of EUR 43,352.80 and xxx 13,992.95 remained outstanding.
11.
Due to alleged mobbing the player claimed xxx 25,000 as compensation for
personal suffering.
12.
Furthermore, the player claimed damage compensation in the amount of xxx
150,000, since he allegedly suffered from a decreased market value following
the alleged ban from the first team. According to the player, said
Player A, country R / Club B, country S
Page 3 of 10
development was the reason for the player’s unemployment after the expiry
of the contract and a direct consequence of the behaviour of the club.
13.
In addition, the player claimed EUR 110’000 as compensation due to an
alleged permanent ban from the first team. The player argued that such a ban
constitutes an unjustified dismissal without notice and that he therefore
should be awarded a compensation of six monthly salaries.
14.
In its answer, the club contested all allegations of the player and requested
that the claim be rejected.
15.
In support of its position, the club submitted an internal document entitled
“Décompte final” [free translation: final balance] regarding the payment
made to the player on 4 April 2013.
16.
In particular, the club argued that according to an additional agreement the
player had to pay xxx 1,100 monthly as part of his rent. Furthermore, the club
held that it only was to pay the school costs of the player’s children and no
additional costs like school uniforms, school material and additional school
hours. Moreover, the club stated that the player had to contribute xxx 1,000
per season for the car insurance and that said amount was deducted from his
receivables. Regarding the player’s claim related to tax payments, the club
answered that it only had to pay tax invoices addressed directly to the club
and that it was not liable to pay taxes regarding fortune or revenue of the
player’s wife.
17.
According to the club the fine of EUR 9,000 was justified since the player
refused to play the under 21 match.
18.
Furthermore, the club contested the player’s allegations regarding mobbing.
19.
In his replica, the player upheld his position and contested the existence of an
additional agreement regarding participation in rental costs and he referred
to the agreement, according to which the club provides the player with an
apartment.
20.
Furthermore, the player insisted that the claimed school costs are only related
to tuition fees. Moreover, the player argued that xxx 1,000 for the car
insurance was deducted without valid reason, since the player returned the car
early, i.e. on 15 June 2012.
Player A, country R / Club B, country S
Page 4 of 10
21.
Regarding the claimed taxes, the player pointed out that the club did not
deny the duty of paying the player’s taxes in general. Furthermore, the player
argued that the player’s wife was not subject to taxation and that the invoice
refers to the player’s income of 2011.
22.
In its duplica, the club upheld its position.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 24 September 2013. Consequently, the Rules governing the procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between a player from R and a club from S.
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 2 of the Regulations on the Status and Transfer of
Players (edition 2015), and considering that the present claim was lodged on
24 September 2013, the 2012 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
Player A, country R / Club B, country S
Page 5 of 10
5.
In this respect, the Chamber recalled that the parties had signed an
employment contract and an additional agreement valid as from 1 July 2010
until 30 June 2012.
6.
In continuation, the DRC acknowledged that, in accordance with the annexe
of the employment contract, the Respondent was obliged to pay to the
Claimant the amount of EUR 220,000 per season, which corresponds to a
monthly salary of EUR 18,333.35.
7.
In this context, the Chamber observed that the Claimant lodged a claim in
front of FIFA against the Respondent seeking payment of EUR 43,352.80 plus
interest, asserting that the Respondent did not fulfil its contractual obligations
towards him regarding salary payments and that the aforementioned amount
remained unpaid after a partial payment received on 4 April 2013.
8.
In this regard, the DRC took note of the Claimant’s argumentation that the
Respondent deducted the amount of EUR 9,000 from his salary of September
2011 for unjustified reasons, that the salary of May 2012 remained partially
unpaid and that the salary of June 2012 remained unpaid in its entirety.
9.
Further, the Chamber observed that the Claimant requested payment of the
amount of xxx 13,992,95 plus interest, asserting that the Respondent had not
fulfilled its contractual obligations towards him regarding costs of the
Claimant’s children’s private school and the Claimant’s tax invoice of 2011.
10.
In addition, the DRC took note that the Claimant requested payment of xxx
25,000 as compensation for personal suffering as well as EUR 150,000 and EUR
110,000 as damage compensation.
11.
In continuation, the Chamber took into account that the Respondent rejected
the claim arguing that the contractual obligations towards the Claimant were
fulfilled with the final payment on 4 April 2013, bearing in mind several
justified deductions from the player’s remuneration. The members of the
Chamber noted from the document presented by the Respondent in this
regard, i.e. the aforementioned “Décompte final”, which shows a status as at
January 2013, that the club acknowledged, among other items, outstanding
salaries for April, May and June 2012 and deducted a sum before arriving at
the final amount of xxx 31,415.80, which was paid to the Claimant on 4 April
2013 .
12.
Having said this, the members of the Chamber acknowledged that it first had
to address the question as to whether the deductions made by the
Respondent from the Claimant’s receivables can be accepted.
Player A, country R / Club B, country S
Page 6 of 10
13.
In this context, the Chamber recalled the basic principle of burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
14.
Turning to the first item, the DRC analysed the fine imposed by the
Respondent on the Claimant due to his alleged refusal to play in an under 21
match.
15.
In this context, the Chamber concurred that the fine imposed on the Claimant
by the Respondent shall be disregarded, since no convincing evidence was
presented by the Respondent in this regard. Furthermore, the amount of the
fine imposed on the Claimant represents half of the player’s monthly
remuneration, as a consequence, the fine must be considered
disproportionate. For these reasons, the Chamber decided that the fine of EUR
9,000 cannot be accepted and, thus, not be deducted from the Claimant’s
receivables for September 2011.
16.
Furthermore, and irrespective of the foregoing consideration, the DRC 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 means to set off
outstanding financial obligations towards players.
17.
As regards further deductions, which the Respondent relies on in its defence,
i.e., the player’s alleged contribution to the rent of the apartment and car
insurance, the Chamber noted that the Respondent had not presented
convincing evidence corroborating that the related deductions were justified.
Consequently, the members of the Chamber decided that the respective
deductions made by the Respondent are not acceptable.
18.
On account of the above, the Chamber concurred that the deductions made
by the Respondent from the Claimant’s receivables cannot be accepted.
19.
Having established the above, the DRC concluded that the Respondent had
not presented any valid reasons nor convincing documentation for the nonpayment of the Claimant’s salaries as per the statement of claim.
20.
Therefore, the members of the Chamber concluded that the Respondent had
failed to pay to the Claimant the amount of EUR 41,732.95 corresponding to
the partial salary of September 2011, the partial salary of May 2012, and the
salary of June 2012.
21.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the Respondent must fulfil its obligations as per contract
Player A, country R / Club B, country S
Page 7 of 10
concluded with the Claimant and, consequently, must pay the outstanding
salaries in the total amount of EUR 41,732.95 to the Claimant.
22.
Taking into consideration the Claimant’s claim related to interest as well as
the Chamber’s constant jurisprudence in this regard, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the outstanding
amounts of EUR 9,000, EUR 14,399.60, and EUR 18,333.35 as of the day
following the day on which these amounts fell due.
23.
On account of the Chamber’s constant jurisprudence and in the absence of a
related contractual provision, the Chamber decided to reject the Claimant’s
claim pertaining to interest for late payment of the April 2012 salary and part
of the May 2012 salary.
24.
In continuation, the Chamber reverted to the Claimant’s claim pertaining to
allegedly outstanding payments on the basis of the agreement and examined
the documentation submitted by the Claimant in this regard, while recalling
the above-mentioned art. 12 par. 3 of the Procedural Rules regarding the
burden of proof.
25.
Subsequently, the DRC concluded that the Respondent did not present
convincing evidence in respect of the additionally claimed payments related to
private school costs and taxes. In particular, there is no clear evidence as to the
source of the taxes indicated by the Claimant and no evidence that the club
previously paid tax invoices on behalf of the player. As regards the private
school costs, the Chamber agreed that the document presented by the
Claimant in support of his claim does not demonstrate that the relevant
amount is related to the 50% of the costs payable by the Respondent.
26.
In view of the above, the members of the Chamber decided that the Claimant
has not provided sufficient evidence in support of his claim regarding the
additional amount of xxx 13,922.95, which claim the Chamber, therefore, had
to reject.
Player A, country R / Club B, country S
Page 8 of 10
27.
Having established the above, the DRC analysed the request of the Claimant
corresponding to compensation for personal suffering in the amount of xxx
25,000 as well as his claim for damage compensation in the amounts of EUR
150,000 and EUR 110,000. In this regard, the Chamber deemed it appropriate
to point out that the requests for said compensation presented by the
Claimant had no legal or regulatory basis and pointed out that no
corroborating evidence had been submitted that demonstrated the damage
suffered or its quantity.
28.
The DRC 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, A, is partially accepted.
2.
The Respondent, B, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount
of EUR 41,732.95 plus 5% interest p.a. until the date of effective payment as
follows:
a. 5% p.a. as of 1 October 2011 on the amount of EUR 9,000;
b. 5% p.a. as of 1 June 2012 on the amount of EUR 14,399.60;
c. 5% p.a. as of 1 July 2012 on the amount of EUR 18,333.35.
3.
In the event that the amount due to the Claimant is not paid by the
Respondent within the stated time limit, 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.
Player A, country R / Club B, country S
Page 9 of 10
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.
*****
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
Acting Secretary General
Encl: CAS directives
Player A, country R / Club B, country S
Page 10 of 10