Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 June 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Carlos González Puche (Colombia), member
on the claim presented by the player,
C, from R,
represented by xxxxxx
as Claimant
against the club,
Z, from P,
represented by xxxx
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 2 January 2015, the player from R, C (hereinafter: the Claimant) and the club
from P, Z (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract), valid as of the date of signature until 30 June 2015.
2.
Art. 2 of the contract provides that “the [Claimant]’s obligations include in
particular : 2) to actively participate in the training process and sporting
competition”.
3.
Pursuant to art. 7 of the contract, the Claimant was entitled to receive, inter alia,
the following remuneration:
- EUR 15,000 net payable in six monthly instalments of EUR 2,500;
- EUR 830 net “per official game if Played more than 46 minutes”.
4.
Furthermore, article 9 of the contract stipulates the following:
“1. The Parties hereby agree that a gross breach of the [Claimant]’s obligations by
the [Claimant] is deemed by them to be in particular any breach of the provision
of section 2 subsection 2, subsection 3 of this contract, and persistent and constant
breach of other provisions of this Contract, despite admonitions from the
[Respondent].
[…]
3. For any breach of the [Claimant]’s obligations, the [Respondent] may,
notwithstanding of the application stipulated in section 9subsection 4, demand
that the [Claimant] pay a contractual penalty in the sum of xxx 12,500 GROSS (say:
xxx twelve thousand five hundred gross) for each such breach. The penalty shall be
deducted from the basic wage and the match bonus that the [Claimant] will be
eligible for, and if the amount of the penalty exceeds the above wages and
bonuses the [Respondent] shall seek its payment though legal action.
4. If the [Respondent] makes an application stipulated in section 9 subsection 4,
the [Respondent] may lower the amount of the basic wage and match bonuses up
to 50% or suspend the payment of basic wage and match bonuses until the matter
is resolved by a final decision of a competent authority of the Football Association
of P. If the matter is resolved to the benefit of the [Claimant], The [Respondent]
shall pay the withheld amount of basic wage and match bonuses”.
5.
In addition, art. 12 of the contract reads as follows:
“1. Any disputes that may arise between the Parties as a result of this Contract, in
particular relating to the validity, existence or termination of the Contract, with
the exception of subsection 3, shall be resolved by competent authorities of the
Player C, country R / Club Z, country P
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FAP: the Dispute Resolution Chamber; and in second instance the Association
Football Tribunal, acting pursuant to separate provisions.
2. Any material disputes that may arise as a result of this Contract shall be
resolved by FIFA and TAS”.
6.
On 6 August 2015, the Claimant put the Respondent in default of paying him the
amount of EUR 7,490 within ten days.
7.
On 7 October 2015, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the following:
- EUR 5,000, plus 5% interest as of the due dates, as outstanding salaries for
May and June 2015;
- EUR 2,490, plus 5% interest as of the due dates as outstanding match
bonuses;
- “impose a sanction to the [Respondent] for delaying a due payment for more
than 30 days”.
8.
In his claim, the Claimant explains that in accordance with art. 12 par. 2 of the
contract, FIFA is competent to deal with the matter at hand.
9.
In continuation, the Claimant alleges that the Respondent failed to pay him three
match bonuses for having played more than 46 minutes in the following games:
- Match against C on 19 May 2015;
- Match against B on 30 May 2015;
- Match against R on 5 June 2015.
10.
In its reply to the claim, the Respondent challenges FIFA’s competence on the
grounds of art. 12 par. 1 of the contract. According to the Respondent, the
“Football Arbitration Court” of the FAP (hereinafter: the “PNDRC”) should be the
only authority with competence to hear about the case.
11.
In this regard, and after being invited by FIFA to provide further information on
the issue of competence, the Respondent provided additional documentation
regarding the statutes of the PNDRC. In this respect, the Respondent attached a
full copy in P language of the “Current Rules of the Court of Arbitration Football
Association approved […] under Resolution No. II/25 of 12 December 2012”. In
particular, the Respondent insists on the content of art. 4, 6, 7 and 9 of the abovementioned rules, which allegedly grant competence to the PNDRC to deal with the
dispute at hand.
12.
As to the substance, the Respondent acknowledges that a total amount of EUR
7,490 should have been paid to the Claimant for the months of May and June
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2015, but denies having overdue payables towards him. In support of its assertion,
the Respondent alleges that a series of fines were imposed on the Claimant in the
total amount of xxx 67,500 (approx. EUR 15,000) due to several unjustified
absences in accordance with art. 2 and 9 of the contract. In particular, the
Respondent identifies the following fines:
- Fine of XXX 12,500 gross “for unjustified absence from the organizational
meeting and appointed by the team coach on 09/06/2015”;
- Fine of XXX 12,500 gross “for unjustified absence from the organizational
meeting and appointed by the team coach on 22/06/2015”;
- Fine of XXX 12,500 gross “as unauthorized absence during test on
23/06/2015”;
- Fine of XXX 5,000 gross “as unauthorized absence during training on
24/06/2015”;
- Fine of XXX 5,000 gross “as unauthorized absence during training on
25/06/2015”;
- Fine of XXX 5,000 gross “as unauthorized absence during training on
26/06/2015”;
- Fine of XXX 5,000 gross “as unauthorized absence during training on
27/06/2015”;
- Fine of XXX 5,000 gross “as unauthorized absence during training on
29/06/2015”;
- Fine of XXX 5,000 gross “as unauthorized absence during training on
30/06/2015”.
13.
In this context, the Respondent presented correspondence dated 10 and 11 August
2015 written in P language, by means of which it would have allegedly informed
the Claimant that it had proceeded to the deduction of the fines from his dues
and requested him to pay the amount of XXX 32,526.88.
14.
In this respect, the Respondent stresses that the Claimant was aware of the
training programme, which was displayed in the changing room.
15.
In his replica, the Claimant reiterates that FIFA is competent to deal with the
matter, insisting on the lack of independence of the PNDRC. Furthermore, the
Claimant points out that the Respondent failed to submit a translation of the
regulations into a FIFA official language.
16.
In continuation, the Claimant alleges that he never received the letters imposing
fines on him submitted by the Respondent. Moreover, the Claimant points out
that the correspondence dated 10 and 11 August 2015 were drafted in P
language, a language that he does not understand.
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17.
Regarding the fines, the Claimant outlines that his right to be heard was not
complied with and that they were not confirmed by an independent body. In
addition, the Claimant sustains that, his contract expiring on 30 June 2015, the
Respondent did not invite him for further sporting activities after the last match
of the 2014-15 season played on 5 June 2015. In support of his assertion, the
Claimant presented the statements of two players of the team. Finally, the
Claimant argues that the imposition of fines for his absence in June violates his
right to an annual leave.
18.
In its final comments, the Respondent refers to art. 12 par. 1 of the contract and
reiterates that the PNDRC is the competent body to hear disputes concerning the
practice of football such as the dispute at stake. Moreover, the Respondent points
out that in a former correspondence, the Claimant acknowledged the jurisdiction
of the PNDRC.
19.
As to the substance, the Respondent asserts that all notices were addressed to the
Claimant in P and in English. The Respondent further sustains that the “[imposed
penalties] are liquidated damages, not disciplinary penalties” and that therefore
“the disciplinary proceedings as such should must not be mentioned”.
20.
Finally, the Respondent argues that the Claimant had the obligation to participate
in all its activities until the expiry of his contract on 30 June 2015. In this respect,
the Respondent states that the vacation schedule was displayed in the changing
room since May and clearly indicated that a meeting with the coach was to be
held on 6 June 2015. The Respondent then highlights that fines for unjustified
absences were also imposed on other players making their respective statement
unreliable.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 7
October 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is 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 2016) the Dispute Resolution Chamber shall adjudicate on
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employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a player from R and a club
from P regarding an outstanding amount based on the employment contract
concluded between the aforementioned parties.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA to deal with the present case, stating that in accordance with
art. 12 par. 1 of the contract, any dispute arisen between the parties should be
submitted to the “Football Arbitration Court” of the FAP.
5.
The Chamber equally noted that the Claimant rejected such position and insisted
that FIFA had jurisdiction to deal with the present matter.
6.
Taking into account the above, the DRC emphasised that, in accordance with art.
22 lit. b) of the FIFA Regulations, it is competent to deal with a matter such as the
one at hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing fair
proceedings, the DRC referred to the FIFA Circular no. 1010 dated 20 December
2005. In this regard, the DRC further referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
7.
While analysing whether it was competent to hear the present matter, the DRC
considered that it should, first and foremost, analyse whether the employment
contract at the basis of the present dispute actually contained a jurisdiction clause.
8.
Having said this, the members of the Chamber turned their attention to art. 12 of
the contract, which reads as follows:
“1. Any disputes that may arise between the Parties as a result of this Contract, in
particular relating to the validity, existence or termination of the Contract, with
the exception of subsection 3, shall be resolved by competent authorities of the
Football association of P: the Dispute Resolution Chamber; and in second instance
the Association Football Tribunal, acting pursuant to separate provisions.
2. Any material disputes that may arise as a result of this Contract shall be
resolved by FIFA and TAS”.
Player C, country R / Club Z, country P
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9.
In view of the aforementioned clause, the members of the DRC were of the
opinion that art. 12 of the employment contract does not make clear reference to
one specific national dispute resolution chamber in the sense of art. 22 lit. b) of
the aforementioned Regulations and even provides for the possibility of lodging a
contractual dispute in front of FIFA. Therefore, the members of the Chamber
deem that said clause can by no means be considered as a clear arbitration clause
in favour either of the national deciding bodies, and, therefore, cannot be
applicable.
10.
In addition, and for the sake of completeness, 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. However, the Chamber acknowledged that the
documents provided by the Respondent were not entirely translated. This is, the
members of the Chamber did not have at their disposal a comprehensive version
of the relevant documentation and, therefore, the Chamber could not with
certainty establish if the relevant dispute resolution bodies of the FAP comply with
the standards of an independent arbitration tribunal guaranteeing equal
representation and fair proceedings. The members of the Chamber emphasised
that they cannot base their decision on the basis of documentation that is
incomplete and from which it is not possible to infer if the relevant dispute
resolution bodies of the FAP comply with the aforementioned requirements.
11.
In view of the above, the DRC established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that it
is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, to consider the present matter as to the substance.
12.
Subsequently, the DRC analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In
this respect, the DRC confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2016) and considering
that the claim in front of FIFA was lodged on 7 October 2015, the 2015 edition of
said Regulations (hereinafter: the Regulations) is applicable to the present matter
as to the substance.
13.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In doing so, it
started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file. 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.
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14.
In this respect, the Chamber acknowledged that the parties to the dispute had
signed a valid employment contract on 2 January 2015, which expired on 30 June
2015, in accordance with which the Respondent would pay the Claimant a monthly
salary in the amount of EUR 2,500 as well a bonus “per official game […]” in the
sum of EUR 830.
15.
Moreover, the DRC took into consideration that according to the Claimant, the
Respondent had failed to pay his remuneration in the total amount of EUR 7,490,
corresponding to unpaid salaries for the months of May and June 2015 as well as
three match bonuses.
16.
In this regard, the Chamber took note of the argument of the Respondent, which
acknowledged that the aforesaid amounts fell due but alleged that it had no
overdue payables towards the Claimant since, pursuant to art. 9 of the contract, it
was entitled to impose a series of fines to the Claimant, for a total amount of XXX
67,500.
17.
Consequently, the Chamber analysed the fines imposed on the Claimant due to his
alleged absences from a meeting and training sessions.
18.
In this respect, the Chamber wished to highlight that, regardless of the existence or
not of said absences, the aforementioned fines, for the total amount of XXX 67,500
(equivalent to approx. EUR 15,000), which were imposed for allegedly missing
without authorisation a meeting and a few training sessions is manifestly excessive
and disproportionate and cannot be upheld. In particular, the members of the
Chamber highlighted that the total amount of said fines is equivalent to the
Claimant’s annual salary with the Respondent. Hence, the Chamber was unanimous
in its conclusion that the fines imposed on the Claimant by the Respondent must be
disregarded.
19.
Furthermore, and in any case, the Chamber wished to point out that the imposition
of a fine, or any other available financial sanction in general, shall not be used by
clubs as a means to set off outstanding financial obligations towards players.
20.
In conclusion, the Chamber determined that the Respondent could not set-off its
debt towards the Claimant by means of the various fines imposed on him and that
thus, the amount of EUR 7,490 is due to the Claimant. Moreover, the Chamber
highlighted that the Respondent never proved that said debt was settled.
21.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the contract concluded
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with the Claimant and, consequently, is to be held liable to pay the outstanding
amount of EUR 7,490 to the Claimant.
22.
With regards to the claimed interests, the DRC decided that the Respondent had to
pay default interest at a rate of 5% as follows:
a.
b.
c.
d.
e.
5% p.a. as of 20 May 2015 on the amount of EUR 830;
5% p.a. as of 31 May 2015 on the amount of EUR 830;
5% p.a. as of 1 June 2015 on the amount of EUR 2,500;
5% p.a. as of 6 June 2015 on the amount of EUR 830;
5% p.a. as of 1 July 2015 on the amount of EUR 2,500.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of EUR 7,490 plus 5% interest p.a. until
the date of effective payment as follows:
a.
b.
c.
d.
e.
5% p.a. as of 20 May 2015 on the amount of EUR 830;
5% p.a. as of 31 May 2015 on the amount of EUR 830;
5% p.a. as of 1 June 2015 on the amount of EUR 2,500;
5% p.a. as of 6 June 2015 on the amount of EUR 830;
5% p.a. as of 1 July 2015 on the amount of EUR 2,500;
4.
In the event that the abovementioned amount plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
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.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 58 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
Marco Villiger
Deputy Secretary General
Encl.
CAS directives
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