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
Mohammed Al-Saikhan (Saudi-Arabia), member
Zola Percival Majavu (South Africa), member
on the claim presented by the player,
A, country C
represented by Mr xxxxxx
as Claimant
against the club,
B, country H
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 31 December 2013, the player from C , A (hereinafter: player or Claimant) and the
club from H, B (hereinafter: club or Respondent) concluded an employment contract
valid as from 1 January 2014 until 31 May 2014 (hereinafter: contract).
2.
According to the contract, the player was entitled to receive, inter alia, a monthly
salary of xxxxxx (hereinafter: xxx) 34,875.
3.
According to the player, on 28 March 2014 the club terminated the contract with
immediate effect (due to the suspension of the club by the Football Federation of H)
and confirmed that salary payments up to the amount of xxx 93,000 were
outstanding.
4.
On 10 September 2014, the player put the club in default of the payment of xxx
93,000.
5.
On 21 October 2014, the player lodged a claim before FIFA against the club, claiming
payment of outstanding remuneration in the total amount of xxx 93,000, specified as
follows: xxx 23,250 for the period between 10 March 2014 and 31 March 2014, xxx
34,875 for the month April 2014 and xxx 34,875 for the month May 2014.
6.
Further, the player requested interest on the total amount of xxx 93,000 as of the
respective due dates, as well as payment of legal expenses and procedural costs by
the club.
7.
The club, for its part, holds that on 28 March 2014, after a request of the player, it
informed the player in writing that the contract was cancelled and that the “final
salary payment arranges an equivalent amount of basic wages in lieu of notice made
up 10 March, 2014 instead of 31 May 2014”. Further, the club stated in its letter:
“Therefore, contract period and salary-payment fall short of 2 months and 20 days or
equivalent to xxx 93,000-”.
8.
Finally, the club stated the employment contract was terminated on 7 April 2014
“under mutual agreement” and that the club and the player agreed on a final
settlement of xxx 16,000. In this respect, the club submitted a copy of a termination
agreement dated 7 April 2014, stating that the contract “had been cancelled under
mutual agreement”. Therefore, it rejects the claim of the player.
9.
In his replica, the player stated that he did not request for the letter dated 28 March
2014 and that the club failed to prove that this letter was written upon his request.
The player further confirms that he signed the document according to which the
contract was terminated by mutual consent, but that he did not waive his right to
claim the amount of xxx 93,000. According to the player, the club did not present
evidence to prove that the player and the club agreed on a final settlement of xxx
Player A, country C / Club B, country H
Page 2 of 6
16,000. Finally, the player states that the club never paid him said amount of xxx
16,000.
10.
In its duplica, the club stated that the player requested the letter dated 28 March
2014 after receiving instructions to do so from his lawyer. Finally, the club insists that
the player accepted the mutual termination of his contract, as well as the payment of
xxx 16,000 as a final settlement.
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 21 October
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).
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 H.
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 2015),
and considering that the present claim was lodged on 21 October 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 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 above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
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 members of the Chamber acknowledged that the Claimant and the
Respondent had concluded an employment contract valid as from 1 January 2014
until 31 May 2014. As to the financial terms of said contract, the Chamber took note
Player A, country C / Club B, country H
Page 3 of 6
that it had been agreed upon between the parties that the Respondent would pay to
the Claimant a monthly salary of xxx 34,875.
6.
The Chamber further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of xxx 93,000, indicating that
the Respondent had confirmed that said amount - related to the period 10 March
2014 until 31 May 2014 - was outstanding. According to the Claimant, the
Respondent failed to pay said amount after the Claimant and the Respondent signed
a termination agreement on 7 April 2014.
7.
In reply to the claim lodged against it, the Respondent alleged that the contract was
terminated on 7 April 2014 “under mutual agreement” and that the Claimant agreed
on a final settlement of xxx 16,000. Therefore, the Respondent concludes that it paid
the Claimant all the amounts he was entitled to.
8.
In his replica, the Claimant stated that the contract was indeed terminated on 7 April
2014 by mutual consent, but that he never received the amount of xxx 16,000 and
that he did not waive his right to claim the amount of xxx 93,000.
9.
In its duplica, the Respondent reiterates that the player accepted the payment of xxx
16,000 as a final settlement for the termination of the contract.
10.
In this context, the members of the Chamber acknowledged that the central issue in
the matter at stake was to determine whether the Claimant and the Respondent
agreed on an amount to be paid by the Respondent to the Claimant in relation to the
termination of the contract, and, if so, whether the Respondent paid said amount to
the Claimant.
11.
In this respect, the Chamber acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the
Claimant a monthly salary of xxx 34,875 during the whole term of the contract.
12.
In continuation, the members of the Chamber took into consideration that according
to the Claimant, the Respondent had failed to pay his remuneration as from 10 March
2014 and that he was entitled to the total amount of xxx 93,000. Bearing in mind art.
12 par. 3 of the Procedural Rules, relating to the general principle of burden of proof,
the members of the Chamber acknowledged on the one hand that the Claimant
stated that he did not receive salaries as from 10 March 2014, and on the other hand
that the Respondent did not provide any evidence that it was only liable to pay the
salary of the player until 10 March 2014. Taken into consideration that the contract
was uncontestably terminated on 7 April 2014, the members of the Chamber
concluded that the Respondent is liable to pay salary in the amount of xxx 31,388,
related to the period between 10 March 2014 and 7 April 2014, to the Claimant.
13.
Furthermore, the Chamber emphasized that the termination agreement, which is
signed by both the Claimant and the Respondent, does not mention any amounts
Player A, country C / Club B, country H
Page 4 of 6
that were to be paid by the Respondent to the Claimant after the termination of the
contract. Further, the letter dated 28 March 2014 does not explicitly and
unambiguously mention that the Respondent is obliged to pay the amount of xxx
93,000 to the Claimant.
14.
In this respect, and referring again to art. 12 par. 3 of the Procedural Rules, the
members of the Chamber observed that the Claimant did not provide evidence that
he was entitled to the payment of the amount of xxx 93,000 or any other amount in
relation to the termination of the employment contract. Therefore, the members of
the Chamber concluded to reject the Claimant’s arguments in this respect.
15.
What is more, on the Chambers opinion, the payment receipt of 5 May 2015 signed
by the club only, does not suffice to establish that an amount of xxx 16,000 was
effectively paid to the player. As such, the Chamber determined that this alleged
payment could not be taken into consideration.
16.
On account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
amount of xxx 31,388 for the period between 10 March 2014 and 7 April 2014.
17.
In addition, taking into account the Claimant’s request, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of xxx
23,250 as of 1 April 2014 and 5% p.a. on the amount of xxx 8,138 as of 8 April 2014,
until the date of effective payment.
18.
Subsequently, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and
the Chamber’s respective longstanding jurisprudence in this regard.
19.
The Chamber concluded its deliberations in the present matter by rejecting any
further request filed by 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 HKD 31,388 plus 5% interest p.a. until the
date of effective payment as follows:
a. 5% p.a. as of 1 April 2014 on the amount of xxx 23,250;
b. 5% p.a. as of 8 April 2014 on the amount of xxx 8,138.
Player A, country C / Club B, country H
Page 5 of 6
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:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player A, country C / Club B, country H
Page 6 of 6