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 Monsen (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 13 January 2016, 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 first contract), valid “for the remaining duration of the
football season 2015-2016”.
2.
Clause III of the first contract established that “the contract value is 4000€
net.” In addition, said article provides that “The Club takes over the
apartment rent, whereas other obligations are to be paid by the Player
(electricity, water, elevator).”
3.
Subsequently, on an unspecified date, the player and the club signed
another employment contract (hereinafter: the second contract) valid “for
the duration of the football season 2016-2017”.
4.
According to art. III a) of the second contract, the player was entitled to a
net monthly salary of EUR 4,000. Article III b) of the second contract
further stipulates that the club “takes over payment of the player’s
apartment during the contract term. All other additional expenses
(electricity, water, elevator, building maintenance, etc.) shall be paid by
the Player.”
5.
By correspondences dated 26 October 2017 and 4 March 2018, the player
put the club in default of payment of the amount of EUR 28,000 for
outstanding salaries, giving the club a deadline of 10 days in order to
remedy the default.
6.
On 2 November 2018, the player lodged a claim against the club before
FIFA asking to be awarded the amount of EUR 28,000 for outstanding
remuneration, corresponding to his monthly salaries of April 2016, May
2016, and as from January 2017 until May 2017 (EUR 4,000 each), plus 5%
interest p.a. as from “the moment that each salary and has become due
until their effective payment.”
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 him.
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, the player
was responsible for other expenses and damages in connection with said
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accommodation. In this regard, the club affirmed that it imposed a fine of
EUR 540 on the player.
9.
Furthermore, the club alleged that it had discussed with the player about
the penalties related to the non-fulfilment of the club’s objectives. In this
respect, the club presented a letter, dated 23 March 2016, which it
allegedly sent to the player and confirmed that the club retained one
monthly salary to the player for “failure of the target set by the Club C”.
10.
In support of its reply, the club also submitted two accounting documents,
which allegedly outlined all the deductions made by the club on the
player’s remuneration. In addition, the club stressed that, pursuant to said
documents, it paid the player the amount of EUR 12,734 on 21 January
2016, allegedly corresponding to “3 monthly payments”, as well as the
amount of EUR 21,200 on 1 December 2016.
11.
In his replica, the player rejected the club’s argumentations and insisted on
his initial claim.
12.
In fact, the player denied having been responsible for any damage or
expense for the accommodation.
13.
Moreover, the player underlined that the alleged payment fulfilled by the
club does not refer to the amount he is requesting in the present claim.
14.
What is more, the player stressed that the letter dated 23 March 2016
submitted by the club “has been fabricated”, since it mentioned another
letter dated 3 July 2016. In this regard, 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, nevertheless, the penalty imposed on
the player 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 any
comments to the player’s replica.
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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.
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. In particular, the Chamber recalled that in accordance
with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the
scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer
Matching System (TMS).
5.
First of all, the Chamber acknowledged that, on 13 January 2016, the
Claimant and the Respondent signed a first employment contract valid as
from its date of signature until 31 May 2016, in accordance with which the
Claimant was entitled to a monthly salary of EUR 4,000.
Player A, Country B / Club C, Country D
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6.
In addition, the DRC noted that, on an unspecified date, the parties signed
a second employment contract, valid “for the duration of the football
season 2016-2017”, according to which the Claimant was entitled to
receive a monthly salary of EUR 4,000. As regards to the contractual
duration, the Chamber took into account that, according to the
information available in the TMS, the relevant football season in Country D
started on 21 August 2016 and ended on 31 May 2017.
7.
Moreover, the members of the Chamber further took note of the content
of art. III lit. b) of the second contract, according to which the Respondent
agreed to pay for the Claimant’s accommodation but that “additional
expenses” such as “electricity, water, elevator, building administration,
etc.” were payable by the Claimant.
8.
Moreover, the members of the Chamber took into account that, by means
of two correspondences respectively dated 26 October 2017 and 4 March
2018, the Claimant put the Respondent in default of the amount of EUR
28,000 for outstanding salaries.
9.
The Chamber then acknowledged that, on 2 November 2018, the Claimant
lodged a claim before FIFA against the Respondent requesting outstanding
remuneration in the total amount of EUR 28,000, corresponding to his
monthly salaries of April 2016, May 2016, and as from January 2017 until
May 2017. In his claim, the Claimant 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.
10.
At this stage, the Chamber first referred to art. 25 par. 5 of the
Regulations, according to which, inter alia, the Dispute Resolution
Chamber shall not hear any case subject to the Regulations if more than
two years have elapsed since the event giving rise to the dispute.
Considering that the claim of the Claimant was lodged in front of FIFA on
2 November 2018 only, the Chamber concluded that it could not enter into
any claim for salaries that fell due prior to 2 November 2016.
11.
Taking into account the previous consideration, the DRC concluded that
the Claimant’s request in the total amount of EUR 8,000, corresponding to
his monthly salaries of April 2016 and May 2016, is barred by the statute of
limitations in accordance with art. 25 par. 5 of the Regulations.
12.
In continuation, the members of the DRC observed that, for its part, the
Respondent held that it had imposed a fine on the Claimant, in relation to
an alleged damage to the accommodation, in the amount of EUR 540.
What is more, the Chamber took note that the Respondent submitted a
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letter dated 23 March 2016, allegedly sent to the Claimant, by means of
which it imposed a penalty of one monthly salary “due to failure to reach
the target set by [the club]”.
13.
At this stage, taking into account the diverging positions of the parties,
the members of the Chamber determined that the main issue at stake
consisted in assessing whether the Respondent had to pay the requested
amounts to the Claimant, or if it had valid reasons not to.
14.
In this regard, the Chamber went on to analyse the fine as well as the
penalty imposed on the Claimant by the Respondent. As regards the fine,
the Chamber first of all noted that article III b) of the second contract (cf.
point I.4.) is rather vague and unclear in particular regarding the payment
of expenses in the event of damage. What is more, the DRC took note that
the Respondent did not provide any evidence regarding the alleged
damage to the accommodation, nor that it notified the alleged fine to the
Claimant.
15.
Moreover, in relation to the penalty imposed on the Claimant, the DRC
referred to the letter dated 23 March 2016 presented by the Respondent,
allegedly sent to the Claimant. In this regard, the DRC noted that the
Claimant deemed the aforementioned letter as “fabricated”, in particular
considering that he was never informed by the Respondent of such
decision to penalise him. In this respect, the members of the Chamber duly
considered that the Respondent did not submit evidence that it
transmitted the contested letter to the Claimant.
16.
Consequently, on account of the aforementioned considerations and
bearing in mind the principle enshrined 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.
17.
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.
18.
In continuation, the members of the Chamber took into consideration the
two accounting documents submitted by the Respondent (cf. point I. 10.),
which allegedly outlined the calculation of the Claimant’s remuneration.
Entering into the analysis of said documentation, the DRC underlined that
(i) the amount of EUR 12,734, allegedly remitted to the Claimant on 21
January 2016, appears to be related to the season 2015/2016 and that (ii)
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the amount EUR 21,200, allegedly paid on 1 December 2016, seems to
correspond to salaries for the period of time prior to the aforementioned
date of payment.
19.
In view of the above, the DRC concluded that the above-mentioned
accounting documents presented by the Respondent do not constitute
conclusive evidence that the monthly salaries due to the player for the
period between January and May 2017 were indeed paid.
20.
For all the above reasons, and as the Respondent did not present any other
argumentations, the Chamber decided to partially accept the player’s claim
and determined that the Respondent, in accordance with the general legal
principle of pacta sunt servanda, must pay him the total amount of EUR
20,000 in concept of outstanding remuneration.
21.
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.
17.
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.
18.
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.
19.
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.
20.
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.
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted, insofar as it is
admissible.
2.
The Respondent, Club C, has to pay to the Claimant outstanding
remuneration in the amount of EUR 20,000, plus 5% interest p.a. until the
date of effective payments, as follows:
a. as of 1 February 2017 on the amount of EUR 4,000;
b. as of 1 March 2017 on the amount of EUR 4,000;
c. as of 1 April 2017 on the amount of EUR 4,000;
d. as of 1 May 2017 on the amount of EUR 4,000;
e. as of 1 June 2017 on the amount of EUR 4,000.
3.
Any further claim lodged by the Claimant is rejected.
4.
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.
5.
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).
6.
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 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).
7.
The ban mentioned in point 6. above will be lifted immediately and prior
to its complete serving, once the due amount is paid.
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8.
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
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