Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 July 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
John Bramhall (England), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1. On 21 January 2013, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent)
concluded an employment contract (hereinafter: the contract), valid from the date
of the signature until 30 June 2013.
2. Article 9 of the contract established that “All disputes between the parties are
settled by the Appeals Committee for the Resolution of Financial Disputes (PEEOD)
at first instance and, the Court of Arbitration of the Football Federation from
country D at second instance”
3. On the same date, i.e. 21 January 2013, the parties signed an “Agreement” valid
for the same period as the contract, establishing inter alia that the club was
obliged to provide the player with “1 round trip air ticket, business class, having
country B as the destination city, with max cost the amount of 3.000€. It is
underlined that this ticket is additional to the Player’s round trip air ticket by which
the Player travelled to country D on 27.12.2012.” (hereinafter: the Agreement).
4. The Agreement does not contain a jurisdiction clause.
5. On 3 February 2015, the Claimant lodged a claim against the Respondent, claiming
the payment of the amount of EUR 7,436, regarding flight tickets.
6. According to the Claimant, he was entitled to be reimbursed for one round trip
business class flight ticket between country B and country D as well as EUR 3,000 to
cover the cost for another round trip flight ticket.
7. In this respect, the Claimant submitted a copy of the “invoice” he issued on 23
February 2013 in the total amount of EUR 7,436, specified by the player as follows:
a) EUR 4,436 (“air ticket for the player”) regarding a trip from country B to
country D on 27 December 2012 and from country D to country B on 27 June
2013. In this respect, the Claimant submitted a document issued by a travel
agency in his name on 22 December 2012, in the amount of 495,300.
b) EUR 3,000 (“air ticket for the wife and children of player”) regarding a trip from
country B to country D in March 2013 and from country D to country B in April
2013. In this respect, the Claimant submitted a receipt dated 21 January 2013 in
the amount of 523,840 regarding an air ticket fee in the name of the
Respondent.
8. The Claimant further submitted emails exchanged with the Respondent regarding
the reimbursement of the flight tickets.
Player A, country B / Club C, country D
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9. The Claimant pointed out that the reimbursement and payment of the flight
tickets could have been made by the Respondent until the end of the contractual
period, i.e. 30 June 2013.
10. The Respondent submitted its position and, on a preliminary basis, challenged the
competence of the DRC to decide on the present matter based on article 9 of the
contract. In this respect, the Respondent held that the parties agreed on the
competence of the arbitration tribunal within the Football Federation from country
D, which is an independent arbitration tribunal that guarantees fair proceedings,
making reference to jurisprudence of the Court of Arbitration of Sport.
11. In continuation, the Respondent held that the claim is time-barred, considering
that the first flight ticket was issued on 22 December 2012 and the second flight
ticket requested is based on the Agreement concluded on 21 January 2013.
12. In addition, the Respondent pointed out that the contract and the Agreement
established the obligation of the Respondent to provide flight tickets to the
Claimant and not to his family members. Moreover, the Respondent held that it
had to provide the flight ticket to the Claimant upon request and not to reimburse
him.
13. The Respondent held that a flight ticket, business class, to country B would cost
EUR 2,115.88 and it submitted a price simulation of a flight ticket extracted from
the internet in this amount.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA on
3 February 2015. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2014; 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 par. 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B
and a club from country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of article 9 of the contract.
Player A, country B / Club C, country D
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4.
The members of the Chamber took into account that the flight tickets claimed by
the Claimant are established in the Agreement, while the contract does not contain
any clause regarding flight tickets.
5.
While analysing whether it was competent to hear the present matter, first and
foremost, the Chamber deemed it of utmost importance to recall that the
Agreement does not contain any arbitration or jurisdiction clause.
6.
In view of all the above and considering that the contractual basis of the claim is
the Agreement, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter on the basis of article 9 of the
contract has to be rejected.
7.
On account of the above, the Dispute Resolution Chamber established that it is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, to consider the present matter as to the substance.
8.
The Chamber then reverted to the argument of the Respondent, according to
whom the present matter is barred by the statute of limitations considering the
date of issuance of one flight ticket, i.e. 22 December 2012, and the date of the
signature of the Agreement, which established the entitlement to flight tickets, i.e.
21 January 2013.
9.
In this regard, the members of the Chamber referred to art. 25 par. 5 of the FIFA
Regulations on the Status and Transfer of Players, according to which, inter alia,
the Dispute Resolution Chamber shall not hear any case subject to the said
Regulations if more than two years have elapsed since the event giving rise to the
dispute.
10. In this respect, the members of the DRC took note that, on the one hand, the
present claim was lodged in front of the DRC on 3 February 2015. On the other
hand, the flight tickets were contractually agreed upon in the Agreement, which
was signed on 21 January 2013 and valid until 30 June 2013.The DRC highlighted
that the Agreement does not establish a due date for the payment of the flight
tickets and therefore, concluded that the flight tickets were payable the latest until
expiry of the Agreement, i.e. 30 June 2013.
11. Taking into account all the above, the members of the Chamber had to reject the
respective argument of the Respondent and confirmed that the present petition
was lodged in front of the DRC within said two years’ period of time. The matter is,
thus, not barred by the statute of limitations in accordance with art. 25 par. 5 of
the Regulations on the Status and Transfer of Players.
12. 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
2015), and considering that the present claim was lodged on 3 February 2015, the
Player A, country B / Club C, country D
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2014 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
13. 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.
14. As to the substance of the matter, the Chamber acknowledged that the parties had
signed the contract and the Agreement, both valid from 21 January 2013 until 30
June 2013.
15. In continuation, the members of the DRC took note that the Claimant lodged a
claim against the Respondent related to the payment of flight tickets.
16. In this context, the DRC recalled that the flight tickets were foreseen solely in the
Agreement, which therefore, constitutes the contractual basis of the present
matter.
17. In this respect, the Chamber acknowledged that the Claimant requested the total
amount of EUR 7,436 regarding two round trip flight tickets. In particular, the DRC
recalled that the Claimant detailed his claim explaining that the amount claimed
was composed of the following:
a. one round trip flight ticket for the Claimant in the amount of EUR 4,436;
and
b. one round trip flight ticket for the wife and children of the Claimant in
the amount of EUR 3,000.
18. On the other hand, the DRC considered that the Respondent rejected the claim,
stating that the player was entitled to receive only one round trip flight ticket for
himself, but that, in any case, the Respondent had the obligation to buy the flight
ticket and not to reimburse the Claimant. Finally, the Respondent alleged that a
flight ticket to country B would cost much less than the amount requested by the
Claimant.
19. Considering the conflicting position of the parties, the Chamber proceeded to
analyse the wording of the Agreement regarding flight tickets and took due note
that the Claimant was entitled to one round trip business class flight ticket with a
maximum cost of EUR 3,000 in addition to the flight ticket by means of which he
travelled to country D to join the club.
20. Therefore, the DRC confirmed that the Claimant was indeed entitled to the flight
ticket he apparently paid to travel to country D on 27 December 2012. In particular,
Player A, country B / Club C, country D
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the members of the DRC considered that the argument of the Respondent that it
only had the obligation to buy the flight tickets, but not to reimburse the Claimant
could not be sustained and had to be rejected.
21. Having established the above, the Chamber turned its attention to the amount
claimed by the Claimant for the flight ticket by means of which he travelled to
country D on 27 December 2012. In this regard, the Chamber highlighted that no
maximum amount was specified for this ticket in the Agreement.
22. At this point, the DRC recalled the basic principle of burden of proof, as stipulated
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.
23. In this regard, the Chamber took into account that the Claimant submitted a
document from a travel agency regarding said flight ticket, dated 22 December
2012, in the amount of 495,300. Furthermore, the DRC noted that the Respondent
did not demonstrate having paid for this flight ticket.
24. On account of all the above, the DRC concluded that the Respondent had to
reimburse the Claimant the amount of 495,300 in connection with the flight ticket
by means of which the Claimant travelled to country D on 27 December 2012.
25. Subsequently, the DRC analysed the Claimant’s request for the reimbursement of
the “air ticket for the wife and children of player” in the amount of EUR 3,000.
26. In this regard, the members of the DRC were eager to point out that the
Agreement does not include any obligation of the Respondent to pay for flight
tickets for the Claimant’s wife and/or children.
27. Therefore, the DRC considered that there is no contractual basis for this request
and that, therefore, such request must be rejected.
28. The Chamber concluded by stating that any further claim of the Claimant is
rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant the amount of 495,300, within
30 days as from the date of notification of the present decision.
4.
In the event that the aforementioned sum is not paid by the Respondent within the
stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
Player A, country B / Club C, country D
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aforementioned time limit and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged 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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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