Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 May 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Eirik Mons en (Norw ay ), member
Pav el Piv ov arov (Rus s ia), member
Todd Durbin (US A), member
on the claim presented by the player,
Play er 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 cas e
1.
On an unspecified date, the Player of Country B, Player A (hereinafter: the player
or the Claimant) and the Club of Country D, Club C (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid
as from 19 September 2016 until 19 June 2017.
2.
According to article III of the contract, the player was entitled to a total “net”
remuneration in the amount of EUR 35,000, payable in ten monthly salaries of EUR
3,500 “net” as from 19 September 2016 until 19 June 2017.
3.
Article III further provides that “if the objectives of the Club are not met,
qualifying for the European competitions from the final standing in the
Championship, than it will be intervened into the Player’s last two monthly salaries
by deducting from the two last monthly salaries an amount that will be equal to
EUR 5,000.00 in order to accumulate the already agreed penalty.”
4.
In addition, clause II – o) of the contract established that “The Player is obliged to
participate in all activities, appearances, trainings etc. If the Player does not show
up and has not informed duly the Club’s president or the trainer, he shall be fined
10% of the salary.”
5.
On 02 November 2018, the player lodged a claim against the club before FIFA
asking to be awarded the amount of EUR 17,500 as outstanding remuneration
corresponding to 5 monthly salaries for the period between 19 January 2017 and
19 June 2017, plus 5% interest p.a. as from “the moment that each salary has
become due until their effective payment.”
6.
By correspondences dated 9 June 2017 and 4 March 2018, the player put the club
in default of payment of the amount of EUR 17,500.
7.
In his claim, the player explained that, despite having fulfilled his contractual
obligations as well as having put the club in default twice, the latter did not reply
nor fulfilled its financial obligations towards the player.
8.
In its reply to the player’s claim, the club first argued that it provided the player
with accommodation and that, according to the contract, it paid the rent and the
player was responsible for other expenses and damages. In this regard, the club
outlined that the player did not pay the amount of EUR 150 when he left.
9.
Furthermore, the club alleged that the player did not attend trainings during the
period between 15 and 22 December 2016; therefore the club decided to impose a
penalty of EUR 2,800 on the player according to clause II - o) of the contract. (cf.
point I.4).
Player A, Country B / Club C, Country D
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10.
Finally, the club referred to the clause related to the club’s objectives of art. III of
the contract and pointed out that it imposed a penalty of EUR 5,000 on the player.
11.
In this respect, the club submitted an accounting document, which allegedly
outlined all the deductions made by the club on the player’s remuneration.
12.
In his replica, the player rejected the club’s argumentations and insisted on his
initial claim.
13.
In fact, the player denied having been absent from the club’s trainings in
December 2016.
14.
Moreover, the player affirmed that the club never informed him about its decision
to sanction him during the term of the contract.
15.
Finally, the player emphasised that the contract’s clause related to the penalty for
not meeting the club’s objectives shall be considered null and void as players
cannot be sanctioned based on their performance.
16.
Despite having been invited to do so, the club did not present its comments on the
player’s replica.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 2 November 2018. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is 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 June 2018), 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 of Country B and a Club of Country D.
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 June 2018), and considering that the present claim was lodged on 2
November 2018, the June 2018 edition of the said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
Player A, Country B / Club C, Country D
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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 aforementioned facts as well as the
arguments and documentation submitted by the parties. The Chamber, however,
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.
5.
First of all, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract in accordance with which the Claimant was
entitled to a total remuneration in the amount of EUR 35,000, payable in ten
monthly salaries of EUR 3,500 as from 19 September 2016 until 19 June 2017.
6.
In addition, the DRC took note that, by means of two correspondences respectively
dated 9 June 2017 and 4 March 2018, the Claimant put the Respondent in default
of the amount of EUR 17,500 corresponding to his monthly salaries for the period
between 19 January 2017 and 19 June 2017.
7.
The Chamber then took note that the Claimant requested outstanding
remuneration in the total amount of EUR 17,500 and argued that, despite having
rendered his services and having put the Respondent in default twice, the latter
did not comply with its financial obligations towards him.
8.
Furthermore, the members of the DRC observed that, for its part, the Respondent
held that it had fulfilled all its financial obligations towards the Claimant,
considering that it had deducted from the Claimant’s salary alleged
accommodation expenses in the amount of EUR 150 and had imposed a fine of
EUR 2,800 on the player for alleged absence at the club’s trainings. Finally, the club
alleged having imposed a penalty of EUR 5,000 on the player referring to art. III of
the contract (cf. point I. 3.).
9.
At this stage, taking into account the diverging positions of the parties, the
members of the Chamber determined that the main issue at stake was to evaluate
if the Respondent had to pay the requested amounts to the Claimant, or if it had
valid reasons not to.
10.
In this regard, the Chamber analysed the salary deduction related to the
accommodation expenses as well as the fine imposed on the Claimant due to his
alleged absence from training sessions. As regards to the salary deduction, the
Chamber first of all noted that the contract does not contain any clause in relation
to the accommodation of the player, neither for the payment of expenses in the
event of damage.
11.
Moreover, in relation to the fine imposed by the Respondent on the Claimant for
alleged absence at trainings, the DRC observed that the Respondent did not
Player A, Country B / Club C, Country D
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provide any evidence that it informed the Claimant of any ongoing disciplinary
proceedings against him nor sent any warning.
12.
Consequently, and bearing in mind the general legal principle contained in art. 12
par. 3 of the Procedural Rules, which stipulates that any party claiming a right on
the basis of an alleged fact shall carry the burden of proof, the DRC concluded that
the aforementioned argumentations of the Respondent had to be rejected.
13.
Furthermore, and in any case, the Chamber wished to point out that, in
accordance with its longstanding jurisprudence, 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.
14.
In continuation, the members of the DRC turned their attention to the penalty of
EUR 5,000 imposed on the Claimant. In this context, the Chamber recalled that,
according to the contract, the club was entitled to unilaterally deduct payments
due to the player “if the objectives of the Club are not met” (cf. art. III of the
contract).
15.
Regardless of the question as to whether such measure as set out in the
aforementioned contractual term would have been applicable to the situation in
the present matter, the Chamber agreed that a decrease in any payments to the
player by the club could not have been validly applied on the basis of the
aforementioned art. III, due to the unilateral and arbitrary character of such
clause.
16.
What is more, the DRC duly noted that the Respondent, apart from arguing that it
had imposed (i) a salary deduction, (ii) a fine and (iii) a penalty on the Claimant,
did not present evidence confirming that it had remitted any payment to the
Claimant, in particular in relation to the amounts claimed by the player in his
claim.
17.
For all the above reasons, the Chamber decided to accept the player’s claim and
determined that the Respondent, in accordance with the principle of pacta sunt
servanda, shall pay him outstanding remuneration in the amount of EUR 17,500.
18.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. as of the respective
due dates until the date of effective payment.
19.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
Player A, Country B / Club C, Country D
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20.
In this regard, the Chamber pointed out that, against clubs, the consequence of
the failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
21.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
22.
Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant outstanding remuneration in
the amount of EUR 17,500, plus 5% interest p.a. until the date of effective
payments, as follows:
a. as of 20 February 2017 on the amount of EUR 3,500;
b. as of 20 March 2017 on the amount of EUR 3,500;
c. as of 20 April 2017 on the amount of EUR 3,500;
d. as of 20 May 2017 on the amount of EUR 3,500;
e. as of 20 June 2017 on the amount of EUR 3,500.
3.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2. above.
4.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
5.
In the event that the amount due plus interest in accordance with point 2. above is
not paid by the Respondent w ithin 45 day s as from the notification by the
Player A, Country B / Club C, Country D
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Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
6.
The ban mentioned in point 5. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
7.
In the event that the aforementioned sum plus interest is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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