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, Country B,
as Claimant
against the club,
Club C, Country D,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 2 July 2011, the Player of Country B, Player A (hereinafter: the Claimant) and the
Club of Country D, Club C (hereinafter: the Respondent), allegedly concluded an
employment contract (hereinafter: the contract), valid for ten months as from
“August 2010 until May 2011”.
2.
The contract states that the Claimant is to receive a monthly salary of EUR 1,200.
3.
The contract also sets forth a bonus of EUR 30 for each match won and subject to
the Claimant being called-up in the team. In this respect, the contract provides for
the following:
100% of the bonus in the event the Claimant is called-up for 20 to 26 matches;
70% of the bonus in the event the Claimant is called-up for 15 to 19 matches;
50% of the bonus in the event the Claimant is called-up for 10 to 14 matches.
4.
On 18 November 2013, the Claimant lodged a complaint before FIFA against the
Respondent, claiming the following amounts:
EUR 6,000 as outstanding salaries from January 2012 to May 2012, plus 5%
interest p.a. as from the due date of each payment;
EUR 330 as unpaid bonuses, plus 5% interest p.a. as from the due date of each
payment;
3,000 to be paid to the Football Federation of Country B for the transfer of the
Claimant from Country B to Country D in July 2011, plus 5% interest p.a. as
from July 2011.
EUR 19,200 as compensation for damages since “the Player [the Claimant] has
remained sixteen (16) months unemployed”.
5.
The Claimant first of all points to the contract irregularities. In particular, the
Claimant asserts that he was only given a copy of the contract which does not bear
the signature of the Respondent. The Claimant further explains that the contract
was actually set to run until May 2012, instead of May 2011 as stipulated in the
contract which is, according to the Claimant, a “contract template”.
6.
In order to substantiate his allegation relating the existence of a contractual
relationship between the parties, the Claimant provides a written statement dated 2
July 2012 from the Respondent (hereinafter: the acknowledgement of debt),
asserting that the player “who was under the services of Club C [the Respondent]
during the season 2011/2012 is entitled to receive EUR 2,530 (…) as soon as the club
receives the subsidies from the Regional Government of Region in Country D”.
Player A, Country B / Club C, Country D
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7.
Furthermore, the Claimant holds that the Respondent paid his salary up to
December 2011. As from January 2012, the Respondent apparently no longer paid.
In this respect, the Claimant specifies that the amount quoted in the
acknowledgement of debt (cf. point 6 above) only represents part of the
outstanding amounts.
8.
The Claimant also alleges that he was called-up 11 times out of the 11 matches won
with the club in the season 2011-2012. Therefore, the Claimant deems being
entitled to bonuses. In this regard, the Claimant provided a table indicating the
team’s results for the season 2011-2012.
9.
In view of the foregoing, and since the Respondent apparently did not proceed to
any payment, on 20 February 2013, the Claimant put the Respondent in default
regarding the payment of the aforementioned outstanding amounts.
10.
In its statement of defence, the Respondent first of all underlines that the Law of
Country D is the governing law in the present case insofar as the Claimant provided
his services in Country D. In this context, the Respondent explains that the Claimant
should not be regarded as a professional since futsal is not a professional
competition in Country D. Moreover, the Respondent points to the unsigned
contract provided by the Claimant in order to assert that there was no contractual
relationship between the Claimant and the Respondent.
11.
However, the Respondent acknowledges having paid the Claimant a monthly salary
– based on the Law of Country D which provides for a minimum wage in the
amount of EUR 485 per month to be paid by the employer to his employees – as
well as covered his accommodation and food expenses.
12.
In continuation, the Respondent holds that the sole amount due to the Claimant is
the amount set forth in the acknowledgement of debt, amount which apparently
was not requested at the pay office by the Claimant.
13.
Finally, the Respondent rejects the rest of the claimed amounts, in particular the
bonuses and the amount of 3,000 for lack of contractual basis.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 18 November 2013. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
Player A, Country B / Club C, Country D
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(hereinafter: the Procedural Rules) is applicable to the matter at stake (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) and art. 11 par. 3 of the Annexe 6 of the Regulations on the Status and
Transfer of Players (edition 2015), the DRC judge is competent to deal with the
matter at stake, which concerns a dispute with an international dimension between
a Player of Country B and a Club of Country D, and which value does not exceed
CHF 100,000, in relation to an alleged employment relationship between the two
aforementioned parties invoked by the Claimant.
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 2 of the Regulations on the Status and Transfer of Players
(editions 2012, 2014 and 2015), and considering that the present claim was lodged
in front of FIFA on 18 November 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 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 it considered pertinent for the
assessment of the matter at hand.
5.
In this respect and in first instance, the DRC judge recalled that, according to the
Claimant, on 2 July 2011, he concluded with the Respondent an employment
contract set to run for ten months, in accordance with which the Respondent
allegedly undertook to pay him a monthly salary of EUR 1,200, as well as bonuses. In
this respect, the DRC judge took due note that the Claimant acknowledged not
being in possession of a signed copy of the alleged employment contract by the
Respondent; instead, the Claimant provided an acknowledgement of debt from the
Respondent dated 2 July 2012, referring to the due amount of EUR 2,530 for the
season 2011-2012, in order to corroborate his allegations pertaining to the existence
of the contractual relationship between the parties.
6.
On the other hand, the DRC judge took due note that the Respondent argued that
the contract did not bear its signature, there was therefore no contractual
relationship between both parties.
Player A, Country B / Club C, Country D
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7.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, the
DRC judge firstly referred to art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof. The application of the said principle in the present
matter led the DRC judge to conclude that it was for the Claimant to prove that the
employment contract, on the basis of which he claims outstanding amounts from
the Respondent, indeed existed.
8.
Having stated the above, the DRC judge recalled that the Claimant maintained that
he never received a copy duly signed by both parties of the employment contract he
asserts having signed with the Respondent. In this regard, the DRC judge deemed it
important to highlight that, in order for an employment contract to be considered
as valid and binding, it must bear, inter alia, the signature of both the employer and
the employee. In this respect, the DRC judge observed that the Claimant was unable
to provide the DRC judge with a copy of the employment contract duly signed by
both the player and the club.
9.
In respect of the foregoing, the DRC judge had to conclude that the document
presented by the Claimant does not contain the essential element of the signature
of both the employer and the employee and therefore did not prove beyond doubt
that the Respondent and the Claimant had validly concluded a professional
employment contract.
10.
However, the DRC judge took into consideration that the Claimant submitted an
acknowledgement of debt in support of his claim, dated 2 July 2012, signed by the
Respondent. In this regard, and given that the Claimant had been unable to
produce an executed copy of the alleged employment contract between the parties,
the DRC judge noted that the core element of the present dispute is to examine
whether or not the said acknowledgement of debt can indeed establish the
existence of a labour relationship between the Claimant and the Respondent.
11.
As to the content of the acknowledgement of debt, the DRC judge noted that said
document indicated that the player was “under the service of Club C”, for the
season 2011-2012. Furthermore, the DRC judge noted that the relevant document
provided for an amount due by the Respondent, i.e. EUR 2,530, and was signed by
the Respondent, which did not dispute the validity of said document.
12.
In view of the above and based on the documentation currently at his disposal, the
DRC judge concluded that the existence of a labour relationship between the
Claimant and the Respondent could be established.
Player A, Country B / Club C, Country D
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13.
In continuation, the DRC judge entered the question of the claimed amounts by the
Claimant. In this respect, the DRC judge referred to the acknowledgement of debt
which states that the Claimant is entitled to receive the amount of EUR 2,530.
14.
The DRC judge also took due note that the Respondent acknowledged that the only
amount due to the Claimant was the amount set forth in the aforementioned
document.
15.
As a consequence, the DRC judge considered that, given that the acknowledgement
of debt is the sole reliable document evidencing the labour relationship between
the Claimant and the Respondent, the Claimant is therefore entitled to the amount
contained in the said document, thus rejecting the Claimant’s financial claims based
on the alleged employment contract.
16.
The DRC judge thus decided that the Respondent is liable for the payment of the
amount of EUR 2,530 to the Claimant.
17.
In continuation and with regard to the Claimant's request for interest, the DRC
judge decided that the Claimant is entitled to receive interest at the rate of 5% p.a.
on the amount of EUR 2,530 as from 3 July 2012 until the date of effective payment.
18.
Reverting to the Claimant’s petition regarding damages since “the Player has
remained sixteen (16) months unemployed”, the DRC judge agreed that such claim
is to be rejected as it is not sufficiently specified and lacks legal basis.
19.
As to the Claimant’s request regarding the payment of the amount of 3,000 to the
Football Federation of Country B for the transfer of the Claimant from Country B to
Country D in July 2011, the DRC judge was of the firm opinion that such claim shall
be dismissed since it is not sufficiently substantiated.
20.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of EUR 2,530 plus 5% interest p.a. as from 3
July 2012 until the date of effective payment.
Player A, Country B / Club C, Country D
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3.
In the event that the aforementioned amount 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.
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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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