Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 June 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Mario Gallav otti (Italy ), member
Guillerm o S altos Guale (Ecuador), member
Johan v an Gaalen (S outh Africa), member
Joaquim Ev angelis ta (Portugal), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D,
as Respondent
I.
regarding an employment-related dispute arisen between the parties
Facts of the cas e
1.
On 30 January 2015, the Club of Country E, Club F, the Club of Country D, Club C
(hereinafter: the Respondent) and the Player of Country B, Player A (hereinafter:
the Claimant), concluded an agreement (hereinafter: the loan agreement) for the
loan of the Claimant from Club F to the Respondent from 30 January 2015 until 25
July 2015.
2.
Art. 4 of the loan agreement stipulates that “[the Respondent] will sign an official
employment contract with the [Claimant] for the period from 30th January 2015
until 25th July 2015”.
3.
On 30 January 2015, the Claimant and the Respondent entered into an employment
contract (hereinafter: the contract), valid as from 30 January 2015 until 25 July 2015.
4.
The contract provides for match bonuses up to EUR 250 per match as well as
competition bonuses and free accommodation.
5.
On 19 February 2015, the Claimant and the Respondent concluded an “addendum”,
by means of which they agreed that as from 1 March 2015, the Claimant’s basic
monthly fee would amount to EUR 620. In addition, the addendum specifies that as
from 1 March 2015, the Claimant will have to bear his accommodation costs.
6.
On 25 May 2016, the Claimant put the Respondent in default of payment of the
amount of EUR 30,000 granting three days to remedy the default.
7.
On 13 September 2016, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the amount of EUR 30,000, plus 5% interest as from 26 July
2015. In addition, the Claimant requests FIFA to order the Respondent to bear the
procedural costs.
8.
In his claim, the Claimant explains that the Respondent committed to pay him a
total remuneration of EUR 30,000 during the loan period. In support of his
assertion, the Claimant submitted a letter (hereinafter: the offer) dated 30 January
2015 and addressed to Club G, by means of which the Respondent, through Player
H, expressed its intention to transfer him on loan. In particular, the Claimant
emphasises that, in the letter, the Respondent undertakes to cover the “[s]alary
total amount: 30.000 Eur”. Moreover, the Claimant points out that Club F and Club
G have the same owners, which is the reason why the letter was addressed to Club
G.
In its reply to the claim, the Respondent challenges the authenticity of the offer
dated 30 January 2015. In this respect, the Respondent alleges that it made the
offer to loan the Claimant on 10 January 2015. The Respondent further argues that
9.
Player A, Country B / Club C, Country D
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should it be considered valid, the offer dated 30 January 2015 would not have
binding effect.
10.
Furthermore, the Respondent points out that by means of art. 4 of the loan
agreement, the Claimant and itself agreed to sign “an official employment
contract”, what they did by signing the contract on 30 January 2015. In this regard,
the Respondent insists that it was initially agreed that the Claimant would only
receive free accommodation and bonuses. Nevertheless, the Respondent explains
that at a later stage, the parties agreed to cancel the provision regarding the free
accommodation and to establish a monthly salary of EUR 620 instead.
11.
In his replica, the Claimant explains that when signing the contract in Language of
Country D, the Respondent ensured him that the latter provided for a remuneration
of EUR 30,000. In this regard, the Claimant stresses that he relied on the
Respondent’s good faith since he does not comprehend the Language of Country D.
In support of his assertion, the Claimant submitted a statement of his agent.
12.
Upon FIFA’s request, the Claimant states that he does not have the original copy of
the offer dated 30 January 2015
13.
In its duplica, the Respondent reiterates that the offer dated 30 January 2015 is a
forgery. In addition, the Respondent points out that the Claimant has never
requested to be provided with a translation of the employment contract. Finally,
the Respondent emphasises that numerals in Language of Country D and Language
of Country B are identical.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 13
September 2016. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 of
the Procedural Rules).
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 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.
2.
Player A, Country B / Club C, Country D
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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
2016), and considering that the present claim was lodged on 13 September 2016,
the 2016 version 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.
In this respect, the members of the Chamber acknowledged that on 30 January
2015, Club F, the Respondent and the Claimant concluded an agreement for the
loan of the Claimant until 25 July 2015. Equally, the Chamber took note that on the
same date, the Claimant and the Respondent concluded an employment contract
valid as from 30 January 2015 until 25 July 2015, which was at a later stage
amended by means of an addendum.
6.
In continuation, the Chamber observed that according to the Claimant, the
Respondent committed to pay him a total amount of EUR 30,000 as remuneration
during the loan period. In this regard, the Chamber noted that the Claimant asserts
that the Claimant ensured him that such remuneration was established in the
contract.
7.
The DRC further took due note of the fact that the Respondent, on its part, had
categorically denied that a remuneration of EUR 30,000 was agreed upon, stressing
on the financial terms set out in the contract and in the addendum.
8.
Having stated the above, the Chamber first analysed the content of the contract
and of the addendum, in particular the financial terms contained therein. In this
regard, the Chamber observed that that neither of the above-mentioned documents
provides for a remuneration of EUR 30,000. Indeed, the contract merely establishes
bonuses and free accommodation, whereas the addendum amended the contract,
setting out a monthly fee of EUR 620 instead of the free accommodation. At this
stage, reverting to the Claimant’s alleged lack of comprehension of Language of
Country D, the Chamber deemed it fit to emphasise that a party signing a document
of legal importance without knowledge of its precise content, as a general rule,
does so on its own responsibility.
Player A, Country B / Club C, Country D
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9.
In view of the above and considering the content of art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof, the members of the DRC pointed out that
it was for to the Claimant to prove that, by means of a separate agreement from
the contract and the addendum, the Respondent would have undertaken to pay
him a remuneration of EUR 30,000.
10.
In this regard, the DRC took note that the Claimant presented a copy of an offer
dated 30 January 2015, by means of which the Respondent would have allegedly
undertaken to pay him EUR 30,000 as remuneration.
11.
The Chamber however outlined that the Respondent maintains that his signature
contained on the copy of the offer remitted by the Claimant is forged. What is
more, the Claimant expressly admitted being unable to provide the relevant offer in
its original form.
12.
At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the
ones of alleged falsified signature or document, and that such affairs fall into the
jurisdiction of the competent national criminal authority.
13.
On account of these considerations, the Chamber held that the fact the Claimant
had only submitted a copy of the disputed document was insufficient to take into
consideration its content and to establish that the Claimant was entitled to a
remuneration of EUR 30,000 on its basis. In any case, the DRC stressed that the offer
can by no means amend the actual content of the employment contract concluded
between the parties.
14.
In light of the foregoing, and in absence of any other evidence, the members of the
Chamber came to the conclusion that the Claimant had failed to satisfactorily carry the
burden of proof regarding his alleged entitlement to a remuneration of EUR 30,000.
15. All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Player A, Country B / Club C, Country D
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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
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
Encl. CAS directives
Player A, Country B / Club C, Country D
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