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,
U, from country A,
as Claimant
against the club,
Club A, from country G,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
The player U from country A (hereinafter: player or Claimant), and Club A from
country G (hereinafter: club or Respondent), signed an employment contract, valid
until 30 June 2014 (hereinafter: contract).
2.
The employment contract does not indicate any starting or signature date.
However, according to the club, the employment contract was signed on 29
September 2011, which was not contested by the player.
3.
According to the contract, the player was entitled to receive, inter alia, for the
2011/12 season the following amounts/benefits:
Twelve equal monthly instalments of EUR 897.25, payable at the end of
each month;
Christmas bonus in the amount of EUR 897.25, EUR 448.62 Easter bonus
and EUR 448.62 holiday bonus;
Advance payment (payable until 30 September 2011) of EUR 30,000;
Remuneration as from November 2011 to May 2012 (4 instalments of EUR
54,822.75 payable on or before 30 November 2011 and 31 January, 31
March, 31 May 2012 respectively) in the amount of EUR 219,291;
Monthly rent of EUR 500.
4.
On 31 May 2012, the player put the club in default of payment of the total amount
of EUR 202,069.67.
5.
This default notice having remained unanswered, on 21 June 2012, the player
formally notified the club of the unilateral termination of the contract
6.
On 25 June 2012, the player lodged a claim against the club in front of FIFA
maintaining that, at the time of the termination of the contract, i.e. 21 June 2012,
the club had failed to pay the following amounts (totalling EUR 202,069.67):
- Monthly salaries as from October 2011 to April 2012 (7 x EUR 897)
EUR 6,279
- Apartment costs as from October 2011 to April 2012 (7 x EUR 500)
EUR 3,500
- Remuneration (3 instalments of EUR 54,822.75 each payable
on or before 31 January, 31 March, 31 May 2012 respectively)
EUR 164,468.25
- Payment stipulated in a document signed on 30 March 2012
EUR 27,821.92
7.
Therefore, the player asked that the club be ordered to pay the total amount of
EUR 202,069.67 ``for breach of contract during the protected period plus 5%
interest accrued as from the date on which the unilateral termination of the
contract occurred, i.e. 21 June 2012’’. Furthermore, the player requested that
sporting sanctions be imposed on the club.
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8.
In addition, the player reserved his right to claim all the sums due under the
contract.
9.
In its response, the club acknowledged having a significant amount outstanding
towards the player and alleged that the payment delay was due to the serious
financial problems that the club was experiencing.
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 25 June 2012. 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. art. 21 par. 2 and 3 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 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 player and a 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 2 of the Regulations on the Status and Transfer of Players
(editions 2012 and 2010), and considering that the present claim was lodged on 25
June 2012, the 2010 edition of 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. The members
of the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. In this respect, the Chamber recalled that the
parties had entered into an employment contract on 29 September 2011 and valid
until 30 June 2014. Furthermore, the Chamber noted that in accordance with the
terms and conditions of the contract, the Claimant was to receive, inter alia, for the
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2011/12 season, twelve equal monthly instalments of EUR 897.25 each, Christmas,
Easter and holiday bonuses in the total amount of EUR 1,794.50, four instalments of
EUR 54,822.75 each, falling due between 30 November 2011 and 31 May 2012 as
well as apartment costs in the amount of EUR 500 per month.
5.
Subsequently, the members of the Chamber noted that, according to the Claimant,
on 30 March 2012, a document was signed, in accordance with which the Claimant
was allegedly entitled to receive from the Respondent the total amount of EUR
37,821.92, payable on or before 10 April 2012, out of which the Claimant allegedly
already received EUR 10,000 and that thus, the amount of EUR 27,821.92 was still
outstanding. In this respect, the Chamber highlighted that the pertinent document
was presented in the country G language only.
6.
The members of the Chamber further acknowledged that, on 31 May 2012, the
Claimant requested the Respondent to comply with its obligations and that, his
default notice having remained unanswered, on 21 June 2012, the Claimant
formally notified the club of the unilateral termination of the contract.
7.
In continuation, the Chamber noted that the Claimant lodged a claim against the
Respondent in front of FIFA requesting the payment of the amount of EUR 202,069.67
on the basis of the contract and the aforementioned document. Furthermore, the
Chamber noted that the Claimant had reserved his right to claim all the sums due
under the contract. Consequently, and bearing in mind the Claimant’s breakdown of
his financial claim, the Chamber concluded that the present claim concerns
outstanding remuneration only.
8.
Furthermore, the Chamber duly noted that the Respondent admitted having a
significant debt towards the player, without any indication as regards the amount
it failed to pay to the Claimant, and alleged that the payment delay was due to
the serious financial problems that the club was experiencing.
9.
In this context, the Chamber first recalled the basic principle of the 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 burden of proof.
10.
In this respect, the members of the Chamber noted that the Respondent did not
submit any documentary evidence of any amounts possibly paid by the Respondent to
the Claimant in compliance with its financial obligations towards the Claimant.
11.
In addition, the Chamber noted that the Claimant, for his part, failed to submit
evidence corroborating his allegation that the Respondent still owed him the
amount of EUR 27,821.92, allegedly on the basis of the aforementioned document,
since he did not submit, despite pertinent requests, a translation of the referred
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document into one of the four official FIFA languages, in accordance with art. 9 par. 1
lit. e) of the Procedural Rules. Consequently, the members of the Chamber concurred
that the document bearing the date of 30 March 2012 could not be taken into
consideration and that, thus, the player’s claim based on this specific document must
be rejected.
12.
As a consequence of all the above, the members of the Chamber concurred that the
Respondent is liable to pay to the Claimant the amounts which were outstanding
under the contract at the moment of the termination, i.e. EUR 6,279 corresponding to
Claimant’s monthly salaries as from October 2011 until April 2012, EUR 164,468.25
relating to three instalments of EUR 54,822.75 each, payable on or before 31
January, 31 March, 31 May 2012, respectively, as well as apartment costs in the amount
of EUR 500 per month as from October 2011 until April 2012.
13.
Consequently, on account of all of the above-mentioned considerations and in
accordance with the general legal principle of pacta sunt servanda, the Chamber
decided that the Respondent must pay to the Claimant outstanding remuneration
in the total amount of EUR 174,247.25.
14.
Furthermore, taking into account the Claimant’s petition for interest as well as the
constant practice of the Dispute Resolution Chamber in this regard, the Chamber
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. over
the amount of EUR 174,247.25 as from 21 June 2012 until the date of effective
payment.
15.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player U, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 174,247.25 plus interest at 5% p.a. as of 21 June 2012 until the date of
effective payment.
3.
In the event that the above-mentioned amount plus interest due to the Claimant is
not paid by the Respondent within the stated time limit, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and decision.
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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 Dispute
Resolution Chamber 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives
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