Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club S, from country U
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 15 July 2008, Player A, from country B (hereinafter: player or Claimant) and the
Club S, from country U (hereinafter: club or Respondent), signed an employment
contract for eleven months, valid as from 15 July 2008 until 15 June “2008”.
2.
In accordance with the contract, the player was entitled to receive inter alia the
total net amount of USD 2,500,000, to be paid as follows:
“USD 1,250,000 (…) to be paid immediately after the player passes the proper
medical tests, in a Bank Account to be provided by the Player”.
“USD 1,250,000 (…) divided as monthly salary, and to be paid in 11 (eleven)
consecutive instalments always on the first week of the consecutive months,
the first instalment of (US Dollar 113.500.00) One Hundred and Thousand and
five Hundred US Dollars net shall be paid on the first week of August 2008, and
so on for the next consecutive nine months, and the last instalment of (US
Dollar 115.000.00) One Hundred and Fifteen Thousand UD Dollar Net shall be
paid on the first week of June/2009”.
3.
On 8 June 2011, the player lodged a claim against the club in front of FIFA claiming
that, upon the expiry of the contract, the club had failed to fully comply with its
financial obligations, still owing him his salary payable in the months of April, May
and June 2009.
4.
In this respect, the player claims that after formally notifying the club of its arrears,
the latter in response provided him with a letter dated 21 July 2010 in which it only
recognised the final instalment of USD 115,000 as pending.
5.
In line with the above-mentioned facts, the player is requesting to be awarded the
total amount of USD 343,500 plus 5% interest p.a., expenses and fees:
- USD 113,500 corresponding to his salary payable in April 2009;
- USD “115,000” corresponding to his salary payable in May 2009;
- USD 115,000 corresponding to his salary payable in June 2009.
6.
In relation to the statute of limitations contained in art. 25 par. 5 of the
Regulations on the Status and Transfer of Players, the player, on 28 June 2011
claimed that i) the event giving rise to the dispute was 21 July 2010 as the player
had accepted, upon the club’s request, to “postpone to collect his due payments”
or ii) the contract run until 15 June 2009 and “there was a common agreement on
postponing the payment of salaries the real deadline was june 15 th 2011”.
Player A, from country B / Club S, from country U
2/7
7.
In reply, the club claims to have paid the player all his dues until 15 May 2009, and
in order to sustain its position, the club provided several bank account statements
which contained the following payments:
-
10.09.2008: payment of currency of country U 417,680 approx. USD 113,500
29.09.2008: payment of currency of country U 417,680 approx. USD 113,500
23.10.2008: payment of currency of country U 417,680 approx. USD 113,500
27.12.2008: payment of currency of country U 417,680 approx. USD 113,500
21.01.2009: payment of currency of country U 417,680 approx. USD 113,500
22.01.2009: payment of currency of country U 417,680 approx. USD 113,500
17.02.2009: payment of currency of country U 417,680 approx. USD 113,500
04.04.2009: payment of currency of country U 417,680 approx. USD 113,500
08.04.2009: payment of currency of country U 417,680 approx. USD 113,500
03.05.2009: payment of currency of country U 416,970 approx. USD 112,000
8.
Finally, and taking into account that the player lodged his claim in front of FIFA on
8 June 2011, the club states that it is “related to the limitation period set forth in
article 25.5 of FIFA Regulation on Status & Transfer of Players”.
9.
In his replica, the player claims that by submitting the above-mentioned bank
statements, the club is acknowledging that it still owes the player his final salary
which was due in June 2009. Moreover, and regarding the club’s alleged payment
of the player´s salary for April and May 2009, the player claims that the bank
statement presented by the club cannot be held as proof of payment, as its
legitimacy cannot be verified.
10.
In its final comments, the club presented another list of the payments it had
allegedly made to the player.
*****
Player A, from country B / Club S, from country U
3/7
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA on
8 June 2011. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and par.
3 of the 2008 and 2012 editions 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 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), 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 country B player and an country U club.
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 par. 2 of the Regulations on the Status and Transfer of Players
(editions 2012 and 2010), and considering that the present claim was lodged on 8
June 2011, the 2010 edition of said Regulations (hereinafter: Regulations) is
applicable to the substance of the matter at hand.
4.
In continuation, the members of the Chamber started by acknowledging the facts
of the case as well as the documentation contained in the file, and in this respect,
in view of the circumstances of the present matter, had to focus first of all on the
question whether or not the player´s claim against the club might be barred by the
statute of limitations in application of art. 25 par. 5 of the Regulations.
5.
In this respect, the DRC acknowledged that on 15 July 2008, the parties signed an
employment contract for eleven months, valid as from 15 July 2008 until 15 June
“2008”, according to which the player was entitled inter alia to “USD 1,250,000 (…)
divided as monthly salary, and to be paid in 11 (eleven) consecutive instalments
always on the first week of the consecutive months, the first instalment of (US
Dollar 113.500.00) One Hundred and Thousand and five Hundred US Dollars net
shall be paid on the first week of August 2008, and so on for the next consecutive
nine months, and the last instalment of (US Dollar 115.000.00) One Hundred and
Fifteen Thousand UD Dollar Net shall be paid on the first week of June/2009”.
Player A, from country B / Club S, from country U
4/7
6.
In continuation, the Chamber recalled the contents of the Claimant´s claim, who
alleged that his salaries for April, May and June 2009 remained unpaid.
7.
Having established the above, the Chamber unanimously stated that first and
foremost, it was crucial to clarify the date of submission of the formal petition to
FIFA, in order to establish whether the claim was brought to FIFA in due time. In
this context, the Chamber highlighted art. 25 par. 5 of the Regulations, which, in
completion to the general procedural terms outlined in the Procedural Rules,
clearly establishes that the decision-making bodies of FIFA shall not hear any
dispute if more than two years have elapsed since the event giving rise to the
dispute and that the application of this time limit shall be examined ex officio in
each individual case.
8.
In this context, the Chamber noted that the Claimant was requesting the salaries of
April, May and June 2009. However, following the terms of the employment
contract, the Chamber acknowledged that there was no salary payable for the
month of June 2009. More specifically, the Chamber outlined that the Claimant
was entitled to 11 salary payments, the first one falling due in the first week of
August 2008 and the last payment falling due in the first week of June 2009.
Therefore, a detailed breakdown of the salary payments would look as follows:
Salary for the month of:
July 2008
August 2008
September 2008
October 2008
November 2008
December 2008
January 2009
February 2009
March 2009
April 2009
May 2009
9.
Payment falls due the latest on:
7 August 2008
7 September 2008
7 October 2008
7 November 2008
7 December 2008
7 January 2009
7 February 2009
7 March 2009
7 April 2009
7 May 2009
7 June 2009
In this context, the Chamber highlighted that, thus, the facts giving rise to the
dispute in casu were the alleged non-payments by the Respondent of the
Claimant’s salary for the months of March, April and May 2009 which were payable
in April, May and June 2009 respectively, and that according to the wording of the
employment contract, these payments were due always on the first week of each
consecutive month.
Player A, from country B / Club S, from country U
5/7
10.
Moreover, the Chamber was eager to underline that the contract clearly stipulated
that the first instalment was to be paid in the first week of August 2008, whilst the
last instalment was to be paid in the first week of June 2009; this is, for the month
of March 2009, the salary fell due at the latest on 7 April 2009, for the month of
April 2009, the salary fell due at the latest on 7 May 2009 and for the month of
May 2009, the salary fell due at the latest on 7 June 2009.
11.
After a thorough examination of the Claimant´s submission as well as
acknowledging the facts giving rise to the dispute, the Chamber recalled that the
Claimant lodged his claim against the Respondent on 8 June 2011 only. Therefore,
the Chamber came to the conclusion that at the moment the Claimant lodged his
claim with FIFA, more than two years had elapsed since the due dates of the
salaries of March, April and May 2009.
12.
What is more, in relation to the statements of the Claimant submitted on 28 June
2011, the Chamber considered that the document dated 21 July 2010 did not
replace the terms of the employment contract. Equally, the Chamber considered
that the expiration date of the contract is not the relevant date to consider as the
event giving rise to the dispute, but rather the dates on which the relevant
payments fell due.
13.
In view of the foregoing, the Chamber had to decide that it was not in a position
to hear the case at hand, since the respective claim is barred by the statute of
limitations in application of art. 25 par. 5 of the Regulations.
*****
Player A, from country B / Club S, from country U
6/7
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is inadmissible.
*****
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 Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl: CAS directives
Player A, from country B / Club S, from country U
7/7