Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 12 May 2015,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 1 April 2014, the Player from country B, Player A (hereinafter: the Claimant), and the
club from country D, Club C (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract), valid from the date of the signature until 31
October 2014.
2.
Clause 2.1 of the contract established that the Claimant is entitled to a salary in
accordance with “Schedule A” “at the end of each month”.
3.
“Schedule A” established a salary of USD 8,000 per month to be paid “no later than the
7th of the following month”.
4.
On 4 February 2015, the Claimant lodged a claim against the Respondent before FIFA,
requesting the total amount of USD 27,200 plus 5% interest as from the respective due
dates, as follows:
USD 8,000 regarding the salary of May 2014;
USD 8,000 regarding the salary of June 2014;
USD 800 regarding part of the salary of July 2014;
USD 800 regarding part of the salary of August 2014;
USD 1,600 regarding part of the salary of September 2014;
USD 8,000 regarding the salary of October 2014.
5.
According to the Claimant, the Respondent failed to pay the salaries of May, June and
October 2014 and part of the salaries of July, August and September 2014.
6.
Moreover, on 13 September 2014, the Respondent remitted via email a document
named “Payment of wages for Contract Premier League 2014” dated 11 September
2014, by means of which it informed the Claimant that he was not obliged to attend
any training sessions during the months of September and October 2014 and that his
salary for August, September and October 2014 would be lowered to USD 7,200.
7.
The Respondent submitted its response denying owing the salaries for the months of
June and July 2014. In this respect, the Respondent submitted lists of payments made to
the players issued by the Respondent.
8.
On the other hand, the Respondent stated having duly informed the Claimant that he
should not train during the months of August, September and October 2014, reason
why his salaries were reduced by 10%.
9.
Moreover, since the Claimant had allegedly returned to his home country, another 10%
was deducted from the salary of October 2014, “amount is equivalent to that of a price
of a flight ticket which the player had to pay if he were to return to country D”. Such
deduction was allegedly agreed upon with the player over the phone.
Player A, from country B / Club C, from country D
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10.
Finally, the Respondent offered to pay the Claimant USD 2,400 corresponding to the
10% deducted from the salaries of August, September and October 2014.
11.
In his replica, the Claimant insisted in his claim, stating the following:
The Respondent did not contest owing him the salary of May 2014;
The documents provided by the Respondent to demonstrate the payment of
salaries of June and July 2014 are issued, stamped and signed by the club itself
and cannot be considered;
The Respondent has no right to unilaterally reduce the monthly salaries.
12.
The Respondent submitted its final comments stating the following:
It had paid the salaries of May and June 2014;
Regarding the salaries of July and August 2014, the player requested to return to
country B in July 2014 and the Respondent agreed paying for the flight tickets to
the player and his family and deducted 10% of the monthly salaries;
Regarding the salary of September 2014, the Respondent deducted 20% of the
salary, since the player was not attending training sessions and considering the
value of the flight ticket for him to return to country D;
Regarding the salary of October 2014, the Respondent allegedly paid the
amount of USD 6,400, deducting 20% of the monthly salary as explained above.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter
at hand. In this respect, he took note that the present matter was submitted to FIFA on
4 February 2015. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art.
22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) he is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Player from country B and a club
from country D.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26
par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (2015), and
considering that the present claim was lodged on 4 February 2015, the 2014 edition of
said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
Player A, from country B / Club C, from country D
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4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect, the
DRC judge started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC judge
emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the DRC judge acknowledged that the parties had signed the contract on
1 April 2014, in accordance with which the player was entitled to receive a monthly
salary in the amount of USD 8,000 for the term of the contract.
6.
In continuation, the DRC judge noted that the Claimant alleged that the Respondent
had failed to pay the aggregate amount of USD 27,200, regarding the monthly salaries
between May and October 2014, and asked to be awarded with the payment of the said
amount plus interest.
7.
Equally, the DRC judge took note of the reply of the Respondent, which asserted that it
had already paid the Claimant the monthly salaries claimed. Moreover, the DRC judge
took note that the Respondent held having allegedly deducted part of the salaries of
August, September and October 2014 after informing the Claimant, on 13 September
2014, that he should not train with the club and that his monthly salary would be
lowered to USD 7,200. Moreover, the Respondent alleged having further deducted a
percentage of the salaries of September 2014 and October 2014, considering the
payment of flight tickets to the Claimant.
8.
Finally, the Respondent offered to pay the amount of USD 2,400 to the Claimant,
corresponding to 10% of the salaries for August, September and October 2014.
9.
With due consideration to the above, the DRC judge acknowledged that the Claimant
stated not having received the amount of USD 27,200, whereas the Respondent states
that it has already paid the Claimant the due amounts after applying different reductions
to the remuneration established in the contract.
10.
In this respect, the DRC judge 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.
11.
According to this, the DRC judge noted that the Respondent only provided lists issued by
the club itself to demonstrate the payment of the monthly salaries. The DRC judge
stressed that such a list cannot be considered as reliable proof that the Respondent
indeed paid the relevant amounts. Therefore, the Respondent had failed to demonstrate
the effective payment of the amounts claimed.
Player A, from country B / Club C, from country D
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12.
In continuation, regarding the several reductions intended to be applied by the
Respondent to the monthly salaries, the DRC judge considered that, on the one hand, the
club failed to demonstrate the payment of any flight ticket and, on the other hand, the
deductions of 10% because the player was not obliged to train also cannot be accepted.
In connection with the letter dated 11 September 2014, the DRC judge stressed that a
club cannot unilaterally decide that the player does not have to attend training sessions
and simultaneously amend the player’s financial entitlements. Such a measure can only
be taken with the agreement of the player.
13.
Thus, the DRC judge deemed appropriate to highlight that the Respondent cannot
unilaterally decrease the remuneration agreed in the contract by both parties and thus,
the Claimant was entitled to receive the monthly salary in the amount of USD 8,000 in
accordance with the “Schedule A” of the contract.
14.
In view of all of the above, the DRC judge concluded that the Respondent had failed to
pay to the Claimant the monthly salaries as agreed upon between the parties in the
contract for the period between May and October 2014 without any valid justification. As
a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the contract and,
consequently, is to be held liable to pay the outstanding amount of USD 27,200 to the
Claimant.
15.
With regard to the claimed interests, the DRC judge decided that, in accordance with the
long-standing jurisprudence of the Dispute Resolution Chamber, the Respondent had to
pay default interest on the amount of USD 27,200 at a rate of 5% p.a. as of the
respective due dates.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of USD 27,200 plus 5% interest p.a. until the
date of effective payment as follows:
- 5% p.a. as of 8 June 2014 on the amount of USD 8,000;
- 5% p.a. as of 8 July 2014 on the amount of USD 8,000;
- 5% p.a. as of 8 August 2014 on the amount of USD 800;
- 5% p.a. as of 8 September 2014 on the amount of USD 800;
- 5% p.a. as of 8 October 2014 on the amount of USD 1,600;
- 5% p.a. as of 8 November 2014 on the amount of USD 8,000;
Player A, from country B / Club C, from country D
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3.
In the event that the aforementioned sum plus interest is not paid within the stated
time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
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 A, from country B / Club C, from country D
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