Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 11 June 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Carlos González Puche (Colombia), member
Santiago Nebot (Spain), member
Mohamed Al-Saikhan (Saudi Arabia), member
Zola Majavu (South-Africa), member
on the claim presented by the player,
A, country C,
represented by Mr xxxxx
as Claimant
against the club,
B, country T
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1. On 1 January 2014, the player from S, A (hereinafter: the player), and the club
from T, B (hereinafter: the club), signed an employment contract valid as from 1
January 2014 until 31 December 2014.
2. In accordance with the employment contract, the player was inter alia entitled
to receive monthly remuneration of USD 8,000, for an annual total of USD
96,000.
3.
Article 6 of the contract provides that in case of failure to perform the club may
order the player to stop performing his obligations “with a pay of half
prescribed remuneration until the circumstances become relieved or better”.
4.
Article 8 of the contract inter alia provides that “upon mutually agree, either
one party to this contract may terminate this contract prior to the expiring date
under this contract”; and that the contract may be terminated by the club with
notice of no less than one month if the player is in breach of the his obligations
(i.e. failure to perform, criminal activity etc.); and that the player may terminate
the contract in case the club fails to remunerate the player for three
consecutive months, with notice of at least one month.
5.
On 3 November 2014, the player put the club in default of the amount of USD
24,000 relating to salary for the months of October, November and December
2014.
6.
On 1 December 2014, the player lodged a claim before FIFA against the club
asking that he be paid outstanding remuneration in the amount of USD 24,000
in relation to the employment contract with interest at the rate of 15% p.a. to
run as from the date of notification of the decision rendered by the DRC as well
as the payment of legal fees.
7.
The player claims that on 14 July 2014 he was made to play with the club’s
youth team, which he alleges is “contrary to the contract”.
8.
In its reply, the club confirms that it paid USD 72,000 to the player between
January 2014 and September 2014. The club provided a letter dated 1
September 2014 signed by the player which states that “nevertheless, the club
has not registered Mr A to play in Premier League of T, FA Cup, and League Cup
or Tournament that the club participated in. And therefore, the player has not
play in any match officially for the club. All of the club decisions/actions are
lawful as it is consistent accordance with the FIFA Rules and Regulations and
have act in good faith. Moreover, to honour its obligation, B has treat the
player fairly and morally and has fully paid the player salaries, accommodation
Player A, country C / Club B, country T
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fees, training bonuses from January, 2014 to August, 2014 according to the
contract”.
9.
The club further provides a termination proposal dated 18 August 2014 sent by
the player’s representative which proposes mutual termination of the contract
if the player received USD 30,000. On 25 August 2014, the club refused the
terms of this termination proposal, and replied to said termination proposal
that it had previously proposed to pay to the player four months compensation,
which he refused. In the same reply, the club stated that they had conducted an
evaluation on the player and had indeed ordered him to train with the youth
team, and reminded him that the contract states “the contractor is also
required to comply with any and all orders from the trainer, manager and
President of the Football Club as part of this contract”.
10. The club further alleges that in October 2014, the player “trained with us as
usual” but that the day before he was to be paid they had lost contact with him
and had been informed that the player had already left the country. The club
claims that as a result, the player had failed to perform his obligations set forth
in the employment contract during November and December 2014, thereby
breaching said contract and absolving the club of its obligation to pay the
claimed sum of USD 24,000.
11. In his response to the statements of the club, the player reiterated that the club
expressly admitted it had only paid USD 72,000. The player reiterates that he
was made to play with the youth team as from 14 July 2014 and that he trained
with said youth team until 3 November 2014.
12. The player further acknowledges that he sent a termination proposal on 18
August 2014, and states that the reply of the club dated 25 August 2014 reads:
“the contract shall be valid unless terminated under the conditions in section 8.
in the contract”, thereby taking it to mean that he is owed all remuneration
until the prescribed date of termination of contract, i.e. 31 December 2014.
13. With regard to the correspondence dated 1 September 2014, the player clarifies
that he acknowledged that he was paid in full until that date, but notes that
said document does not state that the obligations of the club relating to the
employment contract had stopped, in particular the payment of remuneration
for October, November and December 2014.
14. The player points out that regarding the statement of the club that it had lost
contact with the player on the day before he was to be paid is false, as he
trained with the youth team until 2 November 2014, which was the last day of
the Championship. The player claims that on 3 November 2014 he sought
Player A, country C / Club B, country T
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payment of remuneration and was told he would not be paid, thereby forcing
his legal representative to send a formal notice of default. He further claims
that the allegation that the club had been told that the player had left the
country could only be false and his passport shows the immigration stamp of
departure dated 9 November 2014.
15. Finally, the player claims that he had fulfilled all his obligations relating to
November and December 2014, contrary to what the club is claiming, as all
players were allegedly on holiday from that moment on and therefore left the
club.
16. In its final remarks, the club alleges that they never registered the player
because the head coach did not want to use the player in the competitions, but
did wish for the player to train with the squad, whether senior or youth,
reiterating that the contract states that the player must follow the club’s orders.
17. The club further alleges it falls under its rights to order the player to train with
the youth team and therefore did not breach the contract or any rules or
regulations of FIFA.
18. The club states that with regard to the player asking for payment on 3
November 2014, it informed the player it would pay USD 8,000 for the month
of October 2014 on 5 November 2014 and would pay the salaries for November
and December 2014 if the player trained with the club during that period.
Furthermore, the club alleges that they usually pay the players between the
first and fifth day of the month and that the reason for non-payment of the
month of October 2014 was because the player did not show up on 5 November
2014 to receive his salary. They also claim that the player was not entitled to be
paid the months of November and December 2014 at the beginning of
November as the player had not rendered any services.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand.
In this respect, it took note that the present matter was submitted to FIFA on 1
December 2014. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
Player A, country C / Club B, country T
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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 2015) 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 from C and a club from T.
3.
Furthermore, the Chamber analysed which edition of the 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 2015), and considering that the present claim
was lodged on 1 December 2014, the 2014 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the DRC entered into the substance of
the matter. The Chamber started by acknowledging the aforementioned facts
of the case as well as the documentation contained in the file.
5.
The Chamber duly noted that on 1 January 2014, the Claimant and the
Respondent had concluded an employment contract valid as from the date of
signature until 31 December 2014. As to the financial terms of the contract,
the members of the Chamber noted that the parties had agreed that the
Respondent would pay the Claimant USD 8,000 a month.
6.
The DRC further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking to be paid the amount of USD 24,000,
indicating that the Respondent had failed to pay salaries for the months of
October, November and December 2014 to the Claimant.
7.
Subsequently, the Chamber noted that the Respondent, in its defence,
submitted several documents; it did not however dispute that the payments of
October, November and December 2014 had not been paid to the Claimant.
8.
Furthermore, the members of the Chamber acknowledged, from the assertions
of the Respondent and the documentation on file, that the Claimant appeared
not to have rendered his services for the Respondent as from 9 November
2014, in accordance with a copy of the Claimant’s passport. The Claimant, for
his part, asserted that his absence was justified on the grounds that all
members of the club were on leave due to the holiday break.
9.
In this regard, the Dispute Resolution Chamber recalled the basic principle of
the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
Player A, country C / Club B, country T
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according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof.
10.
In this context, the members of the Chamber noted that the Claimant did not
submit any documentation regarding the alleged authorisation of the holiday
absence.
11.
Consequently, the DRC considered that the Claimant had not sufficiently
substantiated its claim pertaining to the full payment of the salaries of
November and December 2014, as he did not present any conclusive
documentary evidence which could corroborate that he had validly been
absent or rendered his services for the Respondent from 9 November 2014.
12.
In view of all of the above and in particular taking into account that the
Respondent did not contest that the relevant salaries had remained unpaid,
the Dispute Resolution Chamber decided that, in accordance with the general
principle of pacta sunt servanda, the Respondent must fulfil its contractual
obligations towards the Claimant for the time during which the Claimant
rendered his services for it, and is to be held liable to pay the Claimant the
amount of USD 10,133, corresponding to the outstanding salary payment of
October 2014 and the Claimant’s pro-rata salary for services rendered from 1
November 2014 until 9 November 2014.
13.
In continuation and with regard to the Claimant’s request for interest, the
members of the Chamber decided that the Claimant is entitled to receive
interest at a rate of 5% p.a. on the amount of USD 10,133 until the date of
effective payment as from 24 June 2015, as per the Claimant’s request.
14.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by rejecting any further claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, has to pay to the Claimant within 30 days as from the
date of notification of this decision, the amount of USD 10,133 plus 5%
interest p.a. as from 24 June 2015, until the date of effective payment.
Player A, country C / Club B, country T
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3.
In the event that the aforementioned sum 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
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
Acting Secretary General
Encl: CAS directives
Player A, country C / Club B, country T
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