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 claim presented by the player,
Play er B, from country B
as Claimant
against the club,
Club S , from country S
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 12 September 2013, the Player B, from country B (hereinafter: the Claimant
or the player), and the Club S, from country S (hereinafter: the Respondent or
the club), signed an employment contract (hereinafter: the contract) valid until
“the end of the season 2013-2014”.
2.
According to art. 1 of the contract, the Claimant was entitled to an amount of
USD 100,000 plus “a monthly salary of 1,500,000 (one million five hundred
thousand)”.
3.
In accordance with art. 2 of the contract, the amount of USD 100,000 was to be
paid as follows:
“A. 50% upon signing of the contract
B. 25% at the start of the second phase
C. 25% at the end of the league”.
4.
Pursuant to art. 9 of the contract, “if [the Claimant] does not show up to the
daily trainings, an amount of (250,000) thousand shall be deducted from his
salary. Also a deduction shall be calculated based on the number of minutes in
case of delays”.
5.
In accordance with art. 10 of the contract, “if [the Claimant] does not show up
to an official match, an amount of (10,000,000) ten million will be deducted.
Additionally, the [Respondent] shall have the right to terminate the contract
and ask the [Claimant] to refund all the amounts paid by the [Respondent]”.
6.
On 8 January 2014, the club’s executive committee passed a decision according
to which the Claimant was sanctioned with a fine of USD 10,000 for
“unauthorized departure home and missing 10 training sessions and two
official matches without duly notifying the club and based on points 9 and 10
of the player’s contract”.
7.
On 25 June 2014, the Claimant signed a payment receipt for the amount of
USD 25,000, referring to the “final payment of end of country S season 20132014 of the player contract”.
8.
On 3 January 2015, the Claimant sent a letter to the Respondent, by means of
which he stated that the contract provided a salary of “USD 100,000 in
addition to the monthly salaries”, acknowledged the payment of USD 65,700
and requested the payment of USD 34,300 to be paid “within two weeks”.
Player B, from country B / Club S, from country S
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9.
On 26 May 2016, the Claimant lodged a claim in front of FIFA, requesting the
amount of USD 100,000 plus interests as from the date of the claim, broken
down as follows:
a) USD 50,000 for the advanced payment as per art. 2 lit. A. of the contract;
b) USD 25,000 for the payment as per art. 2 lit. B of the contract;
c) USD 25,000 for the payment as per art. 2 lit. C of the contract.
10.
In his claim, the Claimant stated that the Respondent did not pay him the
remuneration provided in the contract, corresponding to USD 100,000.
11.
In particular, the Claimant stated that he sent an e-mail to the Respondent and
the Football Association of country S, requesting the payment of the abovementioned amount on 20 April 2016, but such email was allegedly delivered
only to the Football Association of country S and did not reach the
Respondent.
12.
In its reply, the Respondent stated that it paid the Claimant USD 40,700
“shortly after the contract was signed” and USD 25,000 on 25 June 2014
which, according to the Respondent, corresponded to the third instalment
under art. 2 lit. C) of the contract. In this regard, the Respondent argued that
such circumstance was corroborated by the letter sent by the Claimant on 3
January 2015. In addition, the Respondent affirmed that it paid him ten
monthly salaries for the total amount of 15,000,000, corresponding to USD
12,214.
13.
In continuation, the Respondent argued that the player’s claim was timebarred, being the non-payments of the first and second instalment under art. 2
lit. A) and B) of the contract the “event giving rise to the dispute at stake”,
and such events allegedly occurred on 12 September 2013 and on 10 January
2014, while the claim was lodged on 26 May 2016.
14.
Furthermore, the Respondent argued that, from the amount of USD 34,300
requested by the Claimant on 3 January 2015, the fine, in the amount of USD
10,000, imposed by the Executive Committee of the club on 8 January 2014
was to be deducted. As a consequence thereof, the Respondent considered
that “this reduces the balance to USD 24,300”.
15.
In continuation, the Respondent affirmed that the country S national tax law
was applicable (“Income Tax Law of no. 113 of 1982” – hereinafter: Tax Law).
In particular, the Respondent argued that, according to the Tax Law, the
player’s income “is taxable at a rate of 15%” (art. 13 Tax Law) and the club
itself must deduct it “from payment made to him” and “pay it to the Financial
Player B, from country B / Club S, from country S
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Authority (i.e. the Financial Ministry of country S)” (art. 17 Tax Law). On
account of the above, and considering a taxable income of USD 112,214, the
Respondent considered that “it must deduct USD 16,832 from the player’s
remuneration”.
16.
In addition, the Respondent held that “art. 28(4) of the Tax Law mandates the
[club] to deduct additional 10% of the amounts due to the player and such
amount can only be released to the player when the player obtains a
certificate of clearance from income tax and submits it to the [club]”. As a
consequence thereof, the Respondent emphasized that “it must deduct and
hold USD 11,221, and such amount will only be released to the Player after the
latter submits to the [club] certificate of clearance from income tax”.
Nonetheless, according to the Respondent, the Claimant did not submit such
certificate.
17.
Based on the above, the Respondent concluded that it paid the Claimant USD
65,700, imposed a fine of USD 10,000 and deducted USD 16,832 as well as USD
11,221 from the Claimant’s “taxable income”. Therefore, the Respondent
stressed that the sum of the above-mentioned amounts equals to USD 103,753
and considered that it “fully discharged its financial obligations towards the
player but also overpaid him USD 3,753”.
18.
In his replica, submitted on 7 August 2016, the Claimant amended the claimed
amount to USD 34,300 plus interest as of the date of the claim. In this regard,
the Claimant stated that, on 5 January 2015, the Respondent wrote him a
letter by means of which it replied to his letter dated 3 January 2015 and
allegedly acknowledged a debt of USD 34,300 towards him.
19.
Moreover, the Claimant stressed that neither the contract nor the
Respondent’s letter dated 5 January 2015 provided any tax deduction.
20.
Furthermore, the Claimant emphasised that the Respondent did not provide
any evidence of having performed any payment of taxes on behalf of the
Claimant.
21.
In its duplica, the Respondent reiterated its previous arguments and
considered that, in his replica, the Claimant “challenges the [Respondent’s]
authority to deduct taxes and withoholdings”. In this regard, the Respondent
argued that the Claimant’s claim pertained to “an income tax matter” and,
consequently, pursuant to country S law, “falls under the jurisdiction of the
country S Tax Cassation Panel and not under the remit of DRC”. In particular,
Player B, from country B / Club S, from country S
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the Respondent underlined that “there is nothing in this contract that would
exclude the remuneration payable to [the Claimant] from income taxes”.
22.
Moreover, the Respondent emphasized that the contract did not provide that
the Claimant’s remuneration was tax-free or that the Respondent undertook
to pay taxes, because such matter is regulated by Tax Law.
23.
Furthermore, the Respondent considered that, even if the Respondent did not
pay “to the Finance Ministry of country S the taxes it deducted from the
[Claimant] per the stipulations of Tax Law, this does not entitle the [Claimant]
to these amounts since these amounts are the property of the Republic of
country S”.
24.
Finally, the Respondent challenged the authenticity of the letter dated 5
January 2015, stressing that, despite 5 January 2015 was just the third working
day of the year, the letter reported 873 as chronological number. In particular,
the Respondent stated that the club “never issued more than 400 letters in a
whole calendar year”.
25.
Furthermore, the Respondent averred that the aforementioned letter was
bearing a signature different from the club’s Secretary General, whose name
“was written incorrectly” on it and submitted a statement from the club’s
Secretary General, whereby this latter denied having signed the contested
letter.
26.
Lastly, the Respondent stressed that, as further proof of its non-authenticity,
the Claimant did not submit said letter with its initial claim, but with his replica
only.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
the 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 26 May 2016. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2015; 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 and 2 in
Player B, from country B / Club S, from country S
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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 country B player and a country S club.
3.
In continuation, 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 2016), and considering that the present claim was
lodged on 26 May 2016, the 2015 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Subsequently, the Dispute Resolution Chamber duly noted that, since the
employment contract at the basis of the dispute was concluded on 12
September 2013, and that the Claimant had lodged his claim on 26 May 2016,
it should examine if the present claim should be considered as time-barred.
5.
In this respect, the DRC referred to art. 25 par. 5 of the Regulations which, in
completion to the general procedural terms outlined in the Procedural Rules,
clearly establishes that the decision-making bodies of FIFA shall not hear any
dispute if more than two years have elapsed since the event giving rise to the
dispute arose and that the application of this time limit shall be examined ex
officio in each individual case.
6.
In view of the above, the Chamber deemed it fundamental to underline that,
in order to determine whether it could hear the present matter, it should, first
and foremost, establish which is “the event giving rise to the dispute”, i.e.
which is the starting point of the time period of two years as set out under art.
25 par. 5 of the Regulations.
7.
Along those lines, the members of the Chamber took note that art. 2 of the
contract specified that the Respondent had to pay the salary to the Claimant in
three instalments: the first on the date of signature of the contract, the second
at the start of the second phase and the third at the end of the country S
league of season 2013-2014. In particular, the Chamber deemed necessary to
recall that the contract was signed on 12 September 2013 and that it was not
contested that the second phase of the country S league started on 10 January
2014.
8.
In continuation, the members of the Chamber took note that the Claimant, on
25 June 2014, signed a payment receipt which expressly referred to the “final
payment of end of the country S season 2013-2014 of the player contract”.
Moreover, the DRC also duly noted that the content of such document
Player B, from country B / Club S, from country S
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remained undisputed between the parties. Consequently, the Chamber
considered that, in principle, the claim of the Claimant referred to the other
instalments provided in art. 2 of the contract, i.e. the first and the second, due
on 12 September 2013 and 10 June 2014 respectively.
9.
On the other hand, the members of the Chamber also duly noted that,
according to the Respondent’s letter submitted by the Claimant with his
replica, on 5 January 2015 the club acknowledged a debt of USD 34,300
towards the player. In this regard, the DRC also took note that the Respondent
challenged the authenticity of said document.
10.
With the above in mind, the members of the Chamber considered that, despite
the Claimant indeed amended the claim, the document at the basis of the
present dispute was the employment contract concluded on 12 September
2013.
11.
In view of the above, the members of the Chamber, consequently, concurred
that it was not necessary to enter into the question of the authenticity of the
contested document.
12.
On account of the aforementioned considerations and, in particular, of the
explicit acknowledgement of receipt of the last salary instalment by the
Claimant, the DRC decided that the event giving rise to the dispute, and
hereby the starting point of the time period of two years set out under art. 25
par. 5 of the Regulations, regarding the first and the second salary instalment
occurred on 12 September 2013 and 10 June 2014 respectively.
13.
Therefore, the members of the Chamber held that the time period of the two
years for the salaries provided by the first and second instalment of the
contract had elapsed on 12 September 2015 and 10 January 2016 respectively.
14.
As a consequence, recalling that the present claim was submitted to FIFA on 26
May 2016, the Dispute Resolution Chamber concluded that the time limit of
two years had elapsed. Therefore, the claim of the Claimant cannot be
entertained by the Chamber and, thus, is inadmissible.
Player B, from country B / Club S, from country S
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III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player B, is inadmissible.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 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:
__________________________
Omar Ongaro
Football Regulatory Director
Player B, from country B / Club S, from country S
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