Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 27 August 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player D, from country P
as Claimant
against the club,
Club K, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 3 July 2009, Player D from country P (hereinafter: the Claimant), and Club K from
country C (hereinafter: the Respondent), signed an employment contract valid as
from the receipt of “the valid International Transfer Certificate” until 30 May 2010
(hereinafter: the contract).
2.
In accordance with art. 2 of the contract, the Claimant was entitled to receive “For
the term of his employment for the season 2009/2010, salary amounting to EURO
20,000 (Twenty Thousands EURO) payable in 10 (Ten) installments of EURO 2,000
(Two Thousands EURO) per month, as the first installment to be paid on 31st of
August 2009”.
3.
On 19 April 2011, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting from the latter the amount of EUR
6,000 (plus 5% interest p.a.) allegedly corresponding to outstanding salaries. In
particular, the Claimant alleged that the cheques provided to him by the
Respondent, each amounting to the sum of EUR 2,000 payable on 30.08.2010,
30.09.2010 and 30.12.2010, respectively, in order to settle the Respondent’s debt
towards the Claimant, could not be cashed.
4.
On 29 June and 26 July 2011, the Respondent replied to the claim lodged against it
and argued that on the basis of art. 22 of the FIFA Regulations on the Status and
Transfer of Players, FIFA has no competence or jurisdiction in the matter at hand.
According to the Respondent, “the present dispute is not an employment related
dispute and it’s cause of action does not consist of an alleged violation of the
contract of employment”. The Respondent further alleged that “the present dispute
has to do with the civil claim of the player to collect the amount €6,000 based on
cheques”.
5.
Furthermore, the Respondent submitted a statement on the substance of the
dispute. The Respondent admitted having issued the cheques to the Claimant with
the aim of fully settling the employment contract, and clarified that “the cheques
have not been paid not because they were not honored but because the signatories
of the cheques have changed due to the change of the Board of Directors”.
6.
The Respondent claimed, consequently, to have duly informed the Claimant and his
agent, that in order to proceed with the payment of the sums of the cheques, the
Claimant had to return the actual cheques in his possession. However, the
Respondent asserted that the Claimant had failed to return the cheques, despite the
fact that he was playing in the country C Championship. According to the
Player D, from country P / Club K, from country C
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Respondent “the club cannot make any payment whatsoever unless the player
submits for payment in lieu the said cheques”.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 19 April 2011. Consequently, the DRC judge concluded that the 2008 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. art. 21 par. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the DRC judge to decide on the present matter,
the DRC judge referred to art. 3 par. 2 and par. 3 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 2010) the
DRC judge would, in principle, be competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
country P player and a club from country C.
3.
However, the DRC judge acknowledged that the Respondent had contested the
competence of FIFA on the basis of art. 22 of the FIFA Regulations on the Status and
Transfer of Players (hereinafter: Regulations) in the matter at hand. According to the
Respondent, the present matter is not an employment related one and its cause of
action does not consist of an alleged violation of the contract of employment but
instead shall be regarded as a civil claim of the player to collect the amount €6,000
based on cheques.
4.
While analysing whether or not he was competent to hear the present matter, the
DRC judge ascertained that the Claimant is requesting the payment of his alleged
outstanding salaries in the total amount of EUR 6,000 and stressed that the relevant
cheques were issued by the Respondent in order to fulfil its obligations towards the
Claimant in relation to the employment contract concluded between both parties, a
fact not denied by the Respondent. Therefore, the DRC judge was of the firm opinion
that the present matter concerns an employment-related dispute.
5.
In view of all the above, the DRC judge established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected and
that the DRC judge is competent, on the basis of art. 22 lit. b) of the Regulations, to
consider the present matter as to the substance.
Player D, from country P / Club K, from country C
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6.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations (edition 2010), and
considering that the present claim was lodged in front of FIFA on 19 April 2011, the
2010 edition of said Regulations is applicable to the matter at hand as to the
substance.
7.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the above-mentioned facts as well as the documentation
contained in the file.
8.
In this respect, and first of all, the DRC judge acknowledged that, on 3 July 2009, the
Claimant and the Respondent had concluded an employment contract valid as from
the receipt of the valid International Transfer Certificate until 30 May 2010. Similarly,
the DRC judge noted that the contract established a total remuneration of EUR
20,000 payable in 10 equal monthly instalments of EUR 2,000, the first of which was
to be paid on 31 August 2009.
9.
Subsequently, the DRC judge observed that the Claimant is requesting the payment
of his alleged outstanding salaries in the total amount of EUR 6,000 thereby asserting
that the Respondent had not yet paid this amount.
10.
Finally, the DRC judge took note that, for its part, the Respondent admitted it did not
yet pay all relevant salaries to the Claimant; however, the Respondent justified the
non-payment by arguing that the payment could not be made because the cheques
made out to the Claimant could not be cashed due to a change in the Board of
Directors. The Respondent further alleged that it informed the Claimant that upon
return of the invalid cheques, it would proceed to pay the due amounts. Despite the
alleged notice sent to the Claimant, the cheques were not returned and thus the
Respondent withheld payment of the outstanding salaries.
11.
With due consideration to the above, the DRC judge noted that it was undisputed
between the parties that the amount of EUR 6,000 had not yet been paid and that
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the only reason for the non-payment was that the cheques issued by the Respondent
could not be cashed by the Claimant.
12.
On account of the aforementioned consideration, the DRC judge established that the
Respondent had failed to pay to the Claimant the total amount of EUR 6,000 and
that, consequently, the Respondent is liable to pay the Claimant the amount of EUR
6,000. Equally, the DRC judge decided that the Claimant has to return to the
Respondent the three cheques amounting to EUR 2,000 each, bearing the date of 30
August 2012, 30 September 2010 and 30 December 2010.
13.
Finally, with regards to the claimed interest, the DRC judge decided that the
Respondent has to pay interest at the rate of 5% on the outstanding partial amounts
as follows:
a. 5% p.a. as of 31 August 2010 on the amount of EUR 2,000;
b. 5% p.a. as of 1 October 2010 on the amount of EUR 2,000;
c. 5% p.a. as of 31 December 2010 on the amount of EUR 2,000.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player D, is accepted.
2.
The Respondent, Club K, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 6,000 plus 5% interest p.a. until
the date of effective payment as follows:
a. 5% p.a. as of 31 August 2010 on the amount of EUR 2,000;
b. 5% p.a. as of 1 October 2010 on the amount of EUR 2,000;
c. 5% p.a. as of 31 December 2010 on the amount of EUR 2,000.
3.
If the aforementioned sum plus interest is not paid within the stated time limit, the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
for consideration and a formal decision.
4.
The Claimant is ordered to return to the Respondent within 30 days as from the date
of notification of this decision, the three cheques amounting to EUR 2,000 each,
bearing the date of 30 August 2010, 30 September 2010 and 30 December 2010,
respectively.
Player D, from country P / Club K, from country C
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5.
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 DRC judge
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 DRC judge:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player D, from country P / Club K, from country C
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