Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Ivan Gazidis (England), member
on the claim presented by the player,
Player A, from country C
as Claimant
against the club,
Club G, from country T
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 25 June 2007, Player A, from country C (hereinafter: the Claimant) and Club G,
from country T (hereinafter: the Respondent) signed an employment contract
(hereinafter: contract one) valid as from the date of signature until 31 May 2010.
2.
On 21 August 2008, the parties signed another employment contract (hereinafter:
contract two) valid as from 1 July 2008 until 31 May 2011.
3.
Also on 21 August 2008, the parties signed an amendment to the contract two,
according to which the salaries of the contract two “shall be changed as follows”:
- EUR 350,000 for the season 2008/2009;
- EUR 425,000 for the season 2009/2010;
- EUR 450,000 for the season 2010/2011.
“30% of each annual salary (100%) the employer pays by the end of July each year.
The remaining amount of 70% of the annual salary the employer shall pay at the
end of each month in 10 equal installments, beginning with the first payment by
the end of August.”
4.
On 30 March 2010, the Claimant informed the Respondent in writing that he cannot
accept the payment delays of his salaries any longer and that if the Respondent
does not ensure timely and proper payment in the future, he will have to consider a
termination of contract two.
5.
On 7 June 2010, the Claimant terminated contract two as per 30 June 2010 in
writing, referring to his default notice letter of 30 March 2010 and informing the
Respondent that “as the situation has not improved and certain commitments (…)
have not been met”, he deems that he has just cause to terminate the contract.
6.
On 18 June 2010, the country T Football Federation acknowledged receipt of the
Claimant’s correspondence dated 7 June 2010, however, it replied that the Claimant
was registered with the country T Football Federation only for the time period as
from 16 July 2007 until 31 May 2010. Therefore, the contract between the parties
has expired on 31 May 2010 and thus any kind of unilateral termination of said
contract cannot be taken into account.
7.
On 18 March 2011, the Claimant lodged a claim in front of the Dispute Resolution
Committee of the country T Football Federation for compensation for breach of
contract by the Respondent in the amount of EUR 90,000 plus 5% interest p.a. made
up of the salaries of March, April and May 2010 as well as costs. Furthermore, the
Claimant requested that the Respondent shall be sanctioned.
Player A, from country C / Club G, from country T
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8.
On 2 September 2011, the Claimant lodged the same claim in front of FIFA, in view
of the fact that he was allegedly informed via e-mail by the country T Football
Federation on 27 May 2011 that the entire procedure in front of the deciding
bodies of country T would be held in language of country T and that he deems that
the procedure in front of the Dispute Resolution Committee of the country T
Football Federation has been pending for too long in country T despite the
payment of advance of costs.
9.
The Claimant explained that it was agreed that instead of paying him 30% of the
annual salary, i.e. EUR 127,500, in August 2009, the Respondent would pay him EUR
125,000 as a first installment so that the “remaining of a round number” of EUR
300,000 could be paid in ten equal installments of EUR 30,000 each.
10.
In this respect, the Claimant specified that he received EUR 125,000 in two
installments on 26 August 2009 and 17 November 2009. Furthermore, the Claimant
provided a bank statement according to which he received the following amounts:
- EUR 30,000 on 14 October 2009 for the salary of September 2009;
- EUR 60,000 on 18 December 2009 for the salary of October and November 2009;
- EUR 30,000 on 21 January 2010 for the salary of December 2009;
- EUR 30,000 on 19 February 2010 for the salary of January 2010;
- EUR 30,000 on 14 April 2010 for the salary of February 2010.
11.
However, up until the termination of the contract by the Claimant, he did not
receive the amount of EUR 90,000 corresponding to the salaries of March, April and
May 2010.
12.
On 13 October 2011, FIFA informed the Claimant that it seems that the case is still
pending in front of the Dispute Resolution Committee of the country T Football
Federation and that due to litis pendens FIFA appears not to be in a position to
intervene.
13.
On 26 June 2012, the Claimant reiterated the above-mentioned claim in front of
FIFA arguing that the claim is no longer pending in front of the Dispute Resolution
Committee of the country T Football Federation.
14.
Upon FIFA’s request to provide documentary evidence that the Claimant’s claim is
no longer pending in front of the country T Football Federation, the Claimant
provided a correspondence dated 18 October 2012 allegedly received from the
Legal Department of the country T Football Federation according to which “country
T club didn’t accept national drc’s competence and we have to decline drc’s
competence according to provisional article in our statute and we have to refund
you application fee.” as well as a correspondence from the country T Football
Player A, from country C / Club G, from country T
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Federation dated 13 November 2012 according to which “The present matter
between Player A and Club G is no longer pending before our bodies”.
15.
In its reply to the claim, the Respondent rejected the Claimant’s claim since it deems
that according to art. 25 of the Regulations on the Status and Transfer of Players
the claim is prescribed, due to the fact that the Claimant’s claim was lodged on 26
June 2012 for the salaries of March, April and May 2010 which were due on 31
March, 30 April and 31 May 2010.
16.
The Respondent did not provide its position as to the substance of the claim, since it
is of the firm position that the claim of the Claimant is prescribed.
17.
Despite having been asked to do so by FIFA, the Claimant did not provide any
further comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, 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 2 September
2011. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 of
the Procedural Rules).
2.
Thereafter, the Chamber went on to examine whether it was competent to deal
with the matter at hand.
3.
In this respect, the DRC duly noted that the Respondent was of the opinion that the
present claim should be viewed as time-barred, since more than two years had
allegedly elapsed since the event giving rise to the dispute.
4.
In this context, the Chamber first of all took note that the Claimant had brought a
legal action against the Respondent in front of Dispute Resolution Committee of the
country T Football Federation which was, however, subsequently not heard on its
merits. In this regard, the members of the Chamber were of the unanimous opinion
that, since, as confirmed by the country T Football Federation in its correspondence
dated 13 November 2012 the aforementioned claim was no longer pending in front
of its Dispute Resolution Committee, nothing in principle prevented the FIFA DRC
from being competent to deal with the present dispute.
Player A, from country C / Club G, from country T
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5.
Notwithstanding the above and in light of the Respondent’s allegations that the
claim lodged by the Claimant in front of FIFA should be considered as barred by the
statute of limitations, recalled that in accordance with art. 25 par. 5 of the
Regulations, it may not hear a dispute if more than two years have elapsed since the
event giving rise to such dispute. The Chamber referred to the claim of the Claimant
lodged in front of the Dispute Resolution Chamber on 2 September 2011, according
to which the latter requested outstanding salaries for the period between March
and May 2010.
6.
As a consequence, and in view of the fact that the present claim was submitted to
FIFA on 2 September 2011, the members of the Chamber decided that the time limit
of two years had not elapsed between the event giving rise to the dispute, i.e. the
due date of payment of outstanding salaries for the period between March until
May 2010, and the submission of the present claim to FIFA, and that therefore, the
claim of the Claimant can be heard by the Dispute Resolution Chamber.
7.
Bearing in mind the foregoing, 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 (editions 2009, 2010 and 2012) 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 C player and a country T club.
8.
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 (editions
2010 and 2012), and considering that the present claim was lodged on 2 September
2011, the 2010 edition of the said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
9.
The aforementioned having been established, the Chamber entered into the
substance of the matter. In this regard, the members of the Chamber started by
acknowledging the above-mentioned facts as well as the documentation contained
in the file.
10.
In this respect, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract on 25 June 2007 valid until 31 May 2010 and, on 21
August 2008 a second employment contract as well as an amendment valid as from
the date of signature until 31 May 2011. According to the amended contract, the
player was entitled to receive the total monthly remuneration of EUR 350,000 for
the season 2008/2009, EUR 425,000 for the season 2009/2010 and EUR 450,000 for
the season 2010/2011. Moreover, “30% of each annual salary (100%) the employer
pays by the end of July each year. The remaining amount of 70% of the annual
Player A, from country C / Club G, from country T
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salary the employer shall pay at the end of each month in 10 equal installments,
beginning with the first payment by the end of August.”
18.
Furthermore, the Chamber acknowledged that on 7 June 2010, after having put the
Respondent in default of some payment arrears in writing on 30 March 2010, the
Claimant terminated contract two as per 30 June 2010, informing the Respondent
that “as the situation has not improved and certain commitments (…) have not
been met”, he deems that he has just cause to terminate the contract.
11.
The Claimant claims that the Respondent breached the contract without just cause
by failing to pay his salaries in the total amount of EUR 90,000, relating to his salary
for March, April and May 2010. Consequently, the Claimant inter alia asks to be
awarded payment of the alleged outstanding amount of EUR 90,000, plus 5%
interest p.a.
12.
The Respondent, for its part, failed to present its response as to the substance of the
claim, in spite of having been invited by FIFA to do so. In this regard, the Chamber
concluded that the Respondent renounced its right to defence and, thus, accepted
the allegations of the Claimant.
13.
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.
14.
As stated above, in accordance with contract two and its amendment presented by
the Claimant, the Respondent was obliged to pay to the Claimant the total amount
of EUR 425,000 for the season 2009/2010. Moreover, the Chamber took into account
that according to the Claimant the parties agreed that instead of paying him 30%
of the annual salary, i.e. EUR 127,500, in August 2009, the Respondent paid EUR
125,000 as a first installment so that the “remaining of a round number” of EUR
300,000 could be paid in ten equal installments of EUR 30,000 each.
15.
Furthermore, the members of the Chamber pointed out that the Claimant had duly
put the Respondent in default by means of his letter dated 30 March 2010, thus
clearly drawing the Respondent’s attention to the fact that the latter club was
acting in breach of its contractual obligations.
16.
Taking into account the documentation presented by the Claimant in support of his
petition, as well as the fact that the Respondent did not present any reply as to the
substance of the claim, the Chamber concluded that the Claimant had substantiated
his claim pertaining to outstanding salaries with sufficient documentary evidence.
Player A, from country C / Club G, from country T
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17.
Therefore, the Chamber considered that, in the present case, it could be established
that the Respondent violated the terms of the relevant employment contract and, in
particular, of its payment schedule, by not having paid the outstanding salaries for
the months of March, April and May 2010.
18.
On account of the above, the Chamber decided that the Respondent must, in
accordance with the general legal principle of pacta sunt servanda pay any
outstanding amounts under the relevant employment contract, respectively its
payment schedule, which might have been due to the Claimant until the date on
which the latter terminated the employment contract, i.e. until 30 June 2010.
19.
On account of the aforementioned considerations, the Chamber established that the
Respondent must pay the Claimant’s monthly salaries for the months of March, April
and May 2010 in the total amount of EUR 90,000.
20.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. as of 2 September 2011
over the amount of EUR 90,000.
21.
Finally, the Dispute Resolution Chamber decided that the Claimant’s claim for
procedural costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence.
22.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant, Player A, is partially accepted.
3.
The Respondent, Club G, has to pay to the Claimant, within 30 days as from the
date of notification of this decision the amount of EUR 90,000 plus interest at the
rate of 5% p.a. as of 2 September 2011 until the day of effective payment.
4.
In the event that the aforementioned sum plus interest is not paid within the
above-mentioned time limit, the present matter shall be submitted, upon request,
to FIFA’s Disciplinary Committee for its consideration and a formal decision.
Player A, from country C / Club G, from country T
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5.
Any further request filed by the Claimant is rejected.
6.
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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, from country C / Club G, from country T
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