Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 June 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (Netherlands ), member
Zola Majav u (S outh Africa), member
on the matter between the player,
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 16 June 2016, the Player of Country B, Player A (hereinafter: the Claimant)
concluded an employment contract with the Club of Country D, Club C (hereinafter:
the Respondent), valid as from the date of signature until 15 December 2016.
2.
According to the “Schedule A” to the contract, the Claimant was entitled to a monthly
remuneration of USD 16,000, to be paid by no later than the 7th day of the following
month.
3.
In addition, and following the “Schedule B” to the contract, the Claimant was entitled
to “Return tickets for family”.
4.
On 3 March 2017, the Claimant lodged a claim against the Respondent in front of FIFA
asking that the Respondent be ordered to pay to him the outstanding amount of USD
40,398.19, plus 5% interest p.a. as from 7 November 2016, corresponding to his entire
salaries of October 2016 and November 2016 (i.e. 16,000*2), a partial salary for
December 2016 (i.e. USD 8,000) and the price for “the final part of the trip back to
Country B, from City E to City F”, valued in the amount of USD 398.19. In this regard,
the Claimant attached two tickets for 27 October 2016 from City E to City G, City F,
valued in the amount of BRL 663.02 each.
5.
According to the Claimant, on 23 December 2016, he sent a default notice to the
Respondent, requesting the payment of the total outstanding amount of USD
40,398.19 by no later than 3 January 2017.
6.
Subsequently, and following the Claimant, on 4 January 2017, he sent a new default
notice to the Respondent, requesting the payment of the aforementioned outstanding
amount by no later than 17 January 2017.
7.
Moreover, the Claimant stated that he sent a “Final Warning” to the Respondent on
14 March 2017, requesting the payment of the aforementioned outstanding amount,
granting the Respondent a deadline of 10 days for the payment.
8.
Within this context, the Claimant explained that the Respondent did not reply to the
aforementioned correspondence.
9.
Despite being invited to do so, the Respondent failed to reply to the claim within the
deadline granted by FIFA, i.e. until 19 May 2017.
II. Cons iderations of the Dis pute Res olution Cham ber
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
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Player A, Country B / Club C, Country D
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respect, it took note that the present matter was submitted to FIFA on 3 March 2017.
Consequently, the 2017 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 edition 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 and 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players, edition 2016, 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 of Country B and a Club of Country D.
3. The competence of the Chamber having been established, the Chamber 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, it 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 present matter was submitted to
FIFA on 3 March 2017, the 2016 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence which it considered for the
assessment of the matter at hand.
5. In continuation, the Chamber duly noted that, on 16 June 2016, the Claimant and the
Respondent concluded an employment contract, valid as from the date of signature
until 15 December 2016.
6. Subsequently, the Chamber observed that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent had outstanding
remuneration towards him in the total amount of USD 40,398.19, corresponding to
his entire salaries of October 2016 and November 2016 (i.e. 16,000*2), a partial salary
for December 2016 (i.e. USD 8,000) and the price for “the final part of the trip back
to Country B, from City E to City F”, valued in the amount of USD 398.19.
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7. Subsequently, the DRC took into account that the Respondent, for its part, failed to
present a substantive response within the deadline granted by FIFA (i.e. 19 May
2017) to the claim of the Claimant, in spite of having been invited to do so.
8. In this way, the DRC determined that the Respondent renounced its right to defence
and thus accepted the allegations of the Claimant.
9. Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take
a decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10. Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to the aforementioned outstanding remuneration with sufficient
documentary evidence.
11. On account of the aforementioned considerations, the DRC observed that the
contract was valid until 15 December 2016 and that, consequently, it established
that the Respondent failed to remit the Claimant’s aforementioned remuneration
in the total amount of USD 40,000, corresponding to his entire salaries of October
2016 and November 2016 (i.e. 16,000*2), as well as a partial salary for December
2016 (i.e. USD 8,000).
12. 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 40,000.
13. In addition, taking into account the Claimant’s request as well as its constant
practice, the DRC decided that the Respondent must pay to the Claimant interest of
5% p.a. on the aforementioned amount as from the relevant due dates.
14. In continuation, the DRC observed that the Claimant further requested the
reimbursement by the Respondent of “the final part of the trip back to Country B,
from City E to City F”, valued in the amount of USD 398.19.
15. In this respect, the Chamber noted that, indeed, and following the “Schedule B” to
the contract, the Claimant was entitled to “Return tickets for family”.
16. In relation to said clause, the Chamber understood that it shall be interpreted as an
entitlement for the Claimant to receive air tickets to return to his home country, i.e.
from Country D to Country B.
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17. However, the Chamber observed that the request of the Claimant was referred to
an internal flight within the Territory of Country B, from City E to City F.
Consequently the members of the DRC unanimously agreed that said flight, in
principle, is not within the scope of the aforementioned clause.
18. For the sake of completeness, the Chamber also noticed that, according to the
Claimant, the aforementioned flight was only the last part of a longer flight from
Country D.
19. In this regard, the DRC recalled the basic principle of burden of proof, as established
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.
20. Within this context, the DRC observed that the Claimant failed to provide any
evidence in order to support his allegation, according to which the aforementioned
flight was only the last part of a longer flight from Country D. Consequently, the
DRC decided unanimously to reject the Claimant’s request in this regard.
21. Finally, the Chamber concluded its deliberations by establishing that any further
claims lodged by the Claimant are rejected.
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant w ithin 30 day s as from the
date of notification of the present decision, outstanding remuneration in the
amount of USD 40,000, plus 5% interest p.a. on said amount, payable as follows:
- 5% interest p.a. over the amount of USD 16,000 as from 8 November 2016 until
the date of effective payment;
- 5% interest p.a. over the amount of USD 16,000 as from 8 December 2016 until
the date of effective payment;
- 5% interest p.a. over the amount of USD 8,000 as from 8 January 2017 until the
date of effective payment.
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.
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5. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance under point 2. is to be made and to notify
the Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Enclosed: CAS directives
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Player A, Country B / Club C, Country D
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