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 F
represented by Mr xxxx
as Claimant
against the club,
B, country I
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
The player from F, A (hereinafter: player or Claimant), and the club from I, B
(hereinafter: club or Respondent), concluded an undated employment
contract (hereinafter: the contract), valid from 13 November 2010 until “the
end of the semi season (2010-2011)”.
2.
According to the contract, the player was entitled to receive a total
remuneration of USD 140,000, payable as follows:
- USD 30,000 after signature of the contract;
- USD 10,000 as monthly salary at the end of each month of the semi season
from November 2010 until May 2011;
- USD 40,000 at the end of the season 2010-2011.
3.
On 19 December 2011, the player granted an authorisation to Mr N to collect
“the last part of my contract, which is about 31,000 USD”. On 9 May 2012, the
player terminated said authorisation and authorized Mr V to collect
outstanding monies on his behalf instead.
4.
On 4 September 2012, the player lodged a claim in front of FIFA against the
club for outstanding remuneration, and after amending his claim on 4 March
2013, he claimed the aggregate amount of USD 52,326.50, made up of:
- unpaid wages in the sum of USD 49,350.34;
- USD 2,976.16 as interest.
In addition, the player asks for payment of legal expenses of xxxxx (xxx) 2,500
plus VAT.
5.
In this respect, the player held that the club failed to meet its financial
obligations under the contract. In this regard, the player indicated the
payments made by the club in the total amount of USD 95,000, namely:
- USD 30,000 shortly after signing the contract;
- USD 10,000 on 12 January 2011;
- USD 10,000 on 17 January 2011;
- USD 5,000 on 14 March 2011;
- USD 9,000 on 11 April 2011;
- USD 10,000 on 26 April 2011;
- USD 5,000 on 1 May 2011; and
- two further payments totalling USD 10,000 of which the exact dates are
unknown;
- USD 6,000 after the expiry date of the contract, allegedly consisting of USD
1,000 in salary payments and USD 5,000 for a flight ticket.
Player A, country F / Club B, country I
Page 2 of 8
6.
According to the player, in or around mid-February 2011, the club informed
him that the delay in salary payments was caused by financial difficulties.
However, at the end of the season the club owed the player USD 11,000 in
salary arrears plus an additional USD 40,000, corresponding to the final
payment at the end of the season according to the contract.
7.
In its reply, the club stressed that the player had acknowledged having
received USD 95,000. Further, the club argued that the power of attorney
granted by the player in favour of Mr N did authorize the latter to collect the
player’s outstanding wages, set at USD 31,000. In this regard, the club clarified
that while the player had cancelled the said power of attorney on 9 May 2012,
Mr N has acted on behalf of the player within the timeframe from 19
December 2011 and 8 May 2012 and was paid by the Football Federation of I
(FFI) on behalf of the club. As a consequence, the club held that the player
should seek reimbursement from Mr N.
8.
In turn, the player stated that the club’s reply failed to respond to many of the
key elements raised in his claim. As to the USD 31,000 allegedly paid to Mr N,
the club provided neither any evidence of this payment itself nor of the date
of the alleged payment. In any event, the player ascertained that if said
payment has actually been effected, this would still leave an outstanding
balance of USD 20,000 together with interest.
9.
Furthermore, the player highlighted some apparent inconsistencies in relation
to the payments allegedly made by the club to Mr. N and he presented a letter
from the club addressed to the player’s representative, Mr. H, dated 17 April
2012 stating that a sum of USD 15,000 had been paid to Mr N. Consequently,
the player stressed that the club had provided no explanation for these
inconsistencies and, thus, it is unclear whether any funds at all had been paid
to Mr N.
10.
Moreover, regarding the power of attorney granted in favour of Mr N, the
player explained that he understood that Mr N was an agent/official of the
club and that granting him authorization to collect his wages was the only
means of recovering his wages. The player stresses that the club was at all
times aware that the player’s representative was Mr H as proven by an email
from the club dated 20 November 2010, which refers to Mr H as “the
manager” of the player.
11.
In its final comments, the club claimed that the player had been paid an
overall amount of USD 103,000 and that the FFI had paid Mr N the amount of
xxx 350,000,000, which is allegedly equivalent to USD 20,558.
Player A, country F / Club B, country I
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12.
Furthermore, according to the club the total value of the player’s contract had
been reduced by USD 10,000, earmarked for the purpose of paying taxes, to
USD 130,000 justified by an agreement executed on 25 June 2011.
13.
Therefore, the club ascertained that the total payments made to the player
add up to USD 123,558 and that, thus, the outstanding amount is USD 9,682,
which the club was willing to pay.
14.
After the closure of the investigation into the present matter the player
submitted further unsolicited comments.
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 4 September 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 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 F and a club from I.
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 4
September 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. 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.
Player A, country F / Club B, country I
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5.
In this context, the members of the Chamber deemed it fit to address the
receipt of an unsolicited position from the Claimant after the closure of the
investigation in the present matter. Given that the Claimant’s relevant
correspondence was only received after the investigation-phase of the matter
had already been concluded, the DRC decided not to take into account this
additional position of the Claimant.
6.
Having said this, the Chamber recalled that the parties had signed an
employment contract valid as from 13 November 2010 until “the end of the
semi season (2010-2011)”.
7.
In continuation, the DRC acknowledged that, in accordance with the
employment contract, the Respondent was obliged to pay to the Claimant the
total amount of USD 140,000 for the whole term of the contract.
8.
In this respect, the Chamber took into consideration that according to the
Claimant, the Respondent had failed to pay his remuneration in the total
amount of USD 49,350.34. In addition, the Claimant requested interest of USD
2,976.16 and reimbursement of his legal expenses in the amount of GBP 2,500
plus VAT. Consequently, the Claimant requested to be awarded payment of
the total amount of USD 52,326.30 plus GBP 2,500.
9.
The Respondent, for its part, held that it paid a total amount of USD 103,000
to the player as well as USD 20,558 to Mr N. The DRC observed that the
Respondent brought forward to have deducted a further USD 10,000 for tax
payments and that it acknowledged a remaining debt of USD 9,682 towards
the Claimant.
10.
In this context, the Chamber recalled the basic principle of 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 respective
burden of proof.
11.
Subsequently, the DRC noted that the Respondent, in its defence, provided
several payment receipts for the total amount of USD 103,000 bearing the
player’s signature.
12.
Consequently, the Chamber considered that the Respondent had sufficiently
substantiated its defence regarding the payment of the amount of USD
103,000 to the Claimant.
13.
Furthermore, the DRC took note that the Respondent submitted a document
in xxxx, with an unknown date, with two short handwritten notes in English
that read “Paying to A as a part of amount owing: 350,000,000 xxx” and “Mr.
B representative: Mr. N”.
Player A, country F / Club B, country I
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14.
In this context, bearing in mind the principle of burden of proof, the Chamber
referred to art. 9 par. 1 lit. e) of the Procedural Rules, which stipulates that all
documents of relevance to the dispute shall be submitted in the original
version as well as translated into one of the official FIFA languages.
15.
Moreover, the DRC noted that, although having been asked to do so, the
Respondent did not provide a translated version of the document it enclosed
to its submission in the xxxx language only. In view of the foregoing and
taking into consideration art. 9 of the Procedural Rules, the DRC decided that
it could not take into account the documents of which no translation into an
official FIFA language was submitted.
16.
Therefore, the Chamber decided that the above-mentioned document in xxxx
could not be taken into account in the present matter.
17.
In addition, the Chamber observed that the Respondent provided a document,
without the player’s signature, establishing that USD 10,000 from the player’s
remuneration shall be deducted for tax purposes.
18.
In this context, considering that the document was not signed by the player,
the members of the Chamber equally took into account that the further
documentation presented by the Respondent does not constitute evidence of
the alleged fact that the parties would have been contractually bound to said
alleged deduction.
19.
Therefore, the Chamber decided that said document could not be considered
as a legitimate basis to justify deductions from the amount claimed by the
Claimant.
20.
Subsequently, the DRC took into account that the Respondent had not
presented any documentation corroborating its allegations that payments
were made to the Claimant through the IRIFF and/or agent(s).
21.
On account of the aforementioned considerations, the DRC established that
the Respondent failed to remit the Claimant’s remuneration in the total
amount of USD 37,000.
22.
Consequently, the Chamber decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the
Claimant outstanding remuneration in the total amount of USD 37,000.
23.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Player A, country F / Club B, country I
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Respondent must pay to the Claimant interest of 5% p.a. on the amount of
USD 37,000 as from 20 May 2011 until 11 June 2015.
24.
Moreover, as regards the claimed legal expenses, the Chamber referred to art.
18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal expenses.
25.
Finally, the DRC concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
Player A, country F / Club B, country I
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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, outstanding remuneration in the amount
of USD 37,000 plus 5% interest p.a. as of 20 May 2011 until 11 June 2015.
3.
In the event that the amount 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 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 F / Club B, country I
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