Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 June 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Tom is lav Kas alo (Croatia), member
Wouter Lam brecht (Belgium ), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 5 August 2017, the Player of Country B, Player A, (hereinafter: the Claimant),
and the Club of Country D, Club C, (hereinafter: the Respondent) signed an
employment contract valid as from the date of signature until 21 June 2018.
2.
According to articles 2 and 3 of the employment contract, the Claimant was
entitled to receive the total amount of USD 170,000 for the entire season, as
follows: (i) 35% of the contract, equal to USD 59,500, due ‘after receiving the
[Claimant]’s ITC’; (ii) 65% of the contract, equal to USD 110,500, ‘is paid to the
[Claimant] as monthly salary’ in the amount of USD 11,050 each, due in the period
between August 2017 and May 2018 on the 23rd day of the respective month.
3.
Furthermore, according to article 4 of the contract, ‘The [Claimant] is responsible
to pay all the contract’s statutory deductions related to overseas of Country D and
Country D. [The Claimant] is responsible to fil taxpayers form in TAX Department
and player pay tax to legal economical and finance Department to take receipt to
submit to Financial Department of [the Respondent]’.
4.
In accordance with article 13 of the employment contract, ‘All the expenses
related to the agency equal to USD 30,000 as transfer payment which is the
[Respondent]’s responsibility and will be paid to the agent or the agency after
issuing ITC’.
5.
In addition, pursuant to article 7 par. 5 of the contract, ‘[The Claimant] is
responsible for the 50% of expenses regarding the registration in Football
Federation of Country D and Football Association E and [the Respondent] will pay
another 50% of expenses’.
6.
By letter dated 8 June 2018, the Claimant put the Respondent in default of the
amount of USD 68,800, requesting to be paid by no later than 18 June 2018.
7.
On 23 August 2018, the Claimant lodged a claim against the Respondent in front
of FIFA, claiming outstanding remuneration in the total amount of USD 105,000,
broken down as follows: a. USD 75,000, as outstanding remuneration, consisting
of the unpaid part of the salary for the month of November 2017 in the amount
of USD 8,700 and 6 unpaid salaries for the period between December 2017 and
May 2018 in the amount of USD 11,050 each; b. USD 30,000, as commission due
on the basis of article 13 of the contract.
Player A, Country B / Club C, Country D
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8.
With his claim, the Claimant requested 5% interest p.a. on the amount of USD
105,000 as from the respective due dates.
9.
According to the Claimant, the contract had expired by law at the end of the
season 2017/2018, however the Respondent failed to pay him a total amount of
USD 105,000. In this respect, the Claimant further explained that, on 22 May 2018,
he received a confirmation via WhatsApp from the Respondent’s director,
Director F, that the amount would be paid in 20 days, i.e. by no later than 12 June
2018.
10.
In light of the fact that the Respondent did not reply to his default letter, the
Claimant held that he had accrued outstanding remuneration in the amount of
USD 105,000 and he requested FIFA to be awarded said sum.
11.
In its reply, the Respondent indicated its willingness to pay an amount of USD
25,000 to the Claimant’s agent, as well as the amount of USD 44,050 to the
Claimant, in case he fulfilled his tax obligations. Furthermore, the Respondent
requested that – in case the Claimant did not fulfil his tax obligations – the
amount of USD 34,000 would be awarded to the Respondent, as it would be
jointly liable for the payment of the relevant taxes to the competent Tax
Authorities of Country D.
12.
Moreover, the Respondent explained that the Claimant’s registration, in line with
article 7 par. 5 of the contract, amounted to USD 8,500, and that it paid said
amount in total. As a result, the Respondent deemed that the Claimant still owed
it an amount of USD 4,250.
13.
In addition, the Respondent claimed having paid in cash, and submitted receipts
related to, the following amounts to the Claimant: (i) USD 5,000 on 5 August 2017,
paid to the Claimant’s agent on the basis of article 13 of the contract; (ii) USD
1,000 on 24 September 2017, as part of his salary entitlement; (iii) USD 59,500 on
25 October 2017; (iv) USD 21,100 on 25 October 2017; (v) USD 200 on 11 February
2018; (vi) USD 30,000 on 5 May 2018, paid to the player; (vii) USD 10,000 on 20
May 2018.
14.
Furthermore, the Respondent confirmed that it still owed USD 25,000 to the
Claimant’s agent. Furthermore, the Respondent explained that, since it had paid
the total amount of USD 121,700 out of the USD 170,000 that the Claimant was
Player A, Country B / Club C, Country D
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entitled to, while the latter still had to reimburse it USD 4,250 as half of the
registration fee, the remaining amount that it had to pay to the Claimant was
USD 44,050.
15.
What is more, the Respondent argued that, due to tax reasons and in view of
article 4 of the contract as well as the Country D Tax Regulations, the Claimant
was obliged to request a tax clearance, which he however failed to do. As a result,
the Respondent explained that it withheld 20% of the total contract amount, i.e.
USD 34,000, ‘as deposit until the [Claimant] acts in accordance with his
responsibilities stipulated in article 4 of the contract […]”
16.
In his replica, the Claimant acknowledged having signed all the payment receipts
submitted by the Respondent and explained that the ‘amount owed by the
[Respondent] is less than the initial claim’. Furthermore, according to the Claimant
the clause contained in article 7 par. 5 of the contract is abusive, as it is the
Respondent’s responsibility to register the contract.
17.
In addition, the Claimant argued that he could not pay the relevant taxes, as ‘the
[Respondent] did not honour the payments’, as well as that the Respondent could
also have solved the problems, by paying the relevant taxes on his behalf,
however apparently never did so.
18.
In its final comments, the Respondent pointed out that, due to the Claimant’s
latest payments’ acknowledgment, his claim currently amounted to USD 44,050.
Moreover, the club explained that, due to the tax regulations in Country D, it
could not proceed with the payment of taxes on behalf of the Claimant. In
addition, the Respondent stated that, on 6 October 2018, it was contacted by the
Tax Office of Country D, which tried to receive information on the Claimant’s
gross salary.
19.
Lastly, the Respondent insisted that, based on article 4 of the contract, the
Claimant had to fulfill his tax obligations. Also, the Respondent insisted that the
Claimant had to bear the costs for his registration and submitted a copy of a letter
dated 16 December 2018 from the Football Association of Country D, confirming
that 5% of the total value of the contract, i.e. USD 8,500, had to be considered as
the Claimant’s ‘membership fees’.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Chamber pointed out that, contrary to the information contained
in FIFA’s letter dated 11 June 2019, by means of which the parties were informed
of the composition of the Chamber, the member Johan van Gaalen could not
participate in the deliberations in the case at hand, due to unforeseen personal
circumstances and that, in order to comply with the prerequisite of equal
representation of club and player representatives, also the member Stefano La
Porta refrained from participating and, thus, the Dispute Resolution Chamber
adjudicated the case in presence of three members.
2.
Its composition having been defined, the Dispute Resolution Chamber
(hereinafter also referred to as Chamber or DRC) analysed whether it was
competent to deal with the matter at stake. In this respect, the DRC took note
that the present matter was submitted to FIFA on 23 August 2018. Consequently,
the DRC concluded that the 2018 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).
3.
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 June 2019), the DRC 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.
4.
Furthermore, 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 par. 2
of the said Regulations (edition June 2019) and considering that the present claim
was lodged in front of FIFA on 23 August 2018, the June 2018 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
5.
The competence of the DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation submitted by
the parties. However, the Chamber emphasised that in the following
Player A, Country B / Club C, Country D
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considerations it will refer only to the facts, arguments and documentary
evidence, which it considered pertinent for the assessment of the matter at hand.
6.
In this respect, the DRC acknowledged that, on 5 August 2017, the Claimant and
the Respondent concluded an employment contract valid as from the date of
signature until 21 June 2018, pursuant to which the Respondent undertook to pay
to the Claimant the total amount of USD 170,000 as follows: (i) USD 59,500 ‘after
receiving the [Claimant]’s ITC’; (ii) USD 110,500, ‘as monthly salary’ in the amount
of USD 11,050 each, in the period between August 2017 and May 2018 on the 23rd
day of the respective month.
7.
Moreover, the DRC took note that, according to art. 4 of the employment
contract, ‘The [Claimant] is responsible to pay all the contract’s statutory
deductions related to overseas of Country D and Country D. [The Claimant] is
responsible to fil taxpayers form in TAX Department and player pay tax to legal
economical and finance Department to take receipt to submit to Financial
Department of [the Respondent]’.
8.
Furthermore, the DRC observed that, pursuant to art. 13 of the employment
contract, agency fees in the amount of USD 30,000 were to be paid to the
Claimant’s agent.
9.
In continuation, the Chamber took note of article 7 par. 5 of the contract,
according to which: ‘[The Claimant] is responsible for the 50% of expenses
regarding the registration in Football Federation of Country D and Football
Association E and [the Respondent] will pay another 50% of expenses’
10.
Having recalled the above, the members of the Chamber observed that, according
to the Claimant, he had accrued outstanding remuneration in the total amount
of USD 105,000, representing monthly salaries as well as agency fees for USD
30,000.
11.
Moreover, the Chamber took note that the Respondent, for its part, maintained
that (i) it had paid USD 5,000 to the Claimant’s agent and it was willing to pay the
remaining USD 25,000 to him only; (ii) it had remitted to the Claimant through
various payments the total amount of USD 121,800; (iii) the amount of USD 44,050
still remained outstanding and due to the Claimant, however it would pay it only
provided that the latter fulfilled his tax obligations.
12.
In light of the above, the members of the DRC deemed it fit, first of all, to point
out that, out of the total financial requests originally brought forward by the
Player A, Country B / Club C, Country D
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Claimant, USD 30,000 pertained to alleged agent fees directly payable to his
agent. In this respect, the Chamber recalled that, according to the employment
contract, said amount was payable directly to the Claimant’s agent, who had
already received USD 5,000, and not to the Claimant. Consequently, the DRC
dismissed the Claimant’s request on that point.
13.
The foregoing having been established, the members of the DRC turned their
attention to the residual claimed outstanding amount. In this respect, bearing in
mind art. 12 para. 3 of the Procedural Rules, in accordance with which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof,
the members of the DRC observed that the Respondent provided receipts of
payments performed towards the Claimant, signed by him, for a total amount of
USD 121,800. Moreover, the members of the Chamber observed that the Claimant
confirmed having received those payments.
14.
In light of the above, the Chamber highlighted that it remained uncontested that
the Respondent had paid to the Claimant the total amount of USD 121,800 in
relation to the employment contract the parties had signed for the season
2017/2018.
15.
Moreover, regarding the Respondent’s argument concerning the registration fee,
the members of the DRC pointed out that the parties had freely agreed upon the
content of art. 7 para. 5 when they signed the employment contract.
Consequently, the DRC concluded that the Respondent could lawfully deduct half
of the Claimant’s registration fee from his receivables, i.e. USD 4,250, amount
which had been confirmed by the Football Federation of Country D.
16.
The foregoing having been clarified, the DRC moved to the Respondent’s
argument concerning the Claimant’s tax obligations. In this respect, and bearing
in mind the recalled art. 12 para. 3 of the Procedural Rules, the members of the
Chamber observed that the Respondent did not provide any evidence concerning
payments made on behalf of the Claimant to the relevant tax authorities.
Moreover, the DRC took into account that the Claimant’s argument that he was
not in a position to pay taxes on his remuneration as the Respondent had failed
to remit to him his remuneration in the first place remained uncontested.
Consequently, the members of the Chamber dismissed the Respondent’s
argument on the point and concluded that it had to fulfil its financial obligations
as per the contract, regardless of alleged tax duties.
17.
On account of the above considerations, the DRC decided that, in accordance with
the general legal principle of “pacta sunt servanda”, the Respondent is liable to
pay to the Claimant the total amount of USD 43,950, representing – after
Player A, Country B / Club C, Country D
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deduction of the proved payments – his monthly salaries as from February until
May 2018.
18.
In addition, and considering the Claimant’s request, the DRC decided to award
the latter 5% interest p.a. on the above mentioned amount as of the respective
due dates.
19.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
20.
Furthermore, taking into account the consideration under number II./4. above,
the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also rule
on the consequences deriving from the failure of the concerned party to pay the
relevant amounts of outstanding remuneration and/or compensation in due time.
21.
In this regard, the Chamber pointed out that, against clubs, the consequence of
the failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
22.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
23.
Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
Player A, Country B / Club C, Country D
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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 outstanding remuneration in
the amount of USD 43,950, plus 5% interest p.a. until the date of effective
payment as follows:
a.
5% p.a. as of 24 February 2018 on the amount of USD 10,800;
b. 5% p.a. as of 24 March 2018 on the amount of USD 11,050;
c.
5% p.a. as of 24 April 2018 on the amount of USD 11,050;
d. 5% p.a. as of 24 May 2018 on the amount of USD 11,050.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected],
duly translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
6.
In the event that the amount due plus interest in accordance with point 2. above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amounts are paid and for the maximum duration of three entire
and consecutive registration periods (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player A, Country B / Club C, Country D
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8.
In the event that the aforementioned sum plus interest is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
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