Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 14 August 2013,
by Theo van Seggelen (Netherlands), DRC judge
on the claim presented by the player,
Player D, from country S
as Claimant
against the club
Club A, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 30 June 2011, Player D, from country S (hereinafter: the Claimant) and the
Club A, from country C (hereinafter: the Respondent), concluded an
employment contract valid as from 1 July 2011 until 30 May 2013, in
accordance with which the Claimant would, inter alia, receive the following
amounts:
- EUR 5,000 payable on 1 July 2011;
- EUR 15,000 payable in ten monthly installments of EUR 1,500, the first
installment falling due on 31 August 2011.
2.
On 1 July 2011, the parties signed a supplementary agreement for the same
duration as the employment contract, in accordance with which the Claimant
would receive, inter alia, the following amounts:
- EUR 35,000 payable in ten monthly installments of EUR 3,500, the first
installment falling due on 31 August 2011;
- EUR 400 per month for the rent.
3.
On 11 May 2013, the Claimant lodged a claim in front of FIFA against the
Respondent indicating that the latter had i) failed to pay him his salaries since
January 2012, and ii) had failed to pay the rent. Therefore, the Claimant
claimed the total amount of EUR 32,400, calculated as follows:
- EUR 5,000 corresponding to the sign-on fee;
- EUR 7,500 corresponding to the salaries from January to May 2012 under the
contract;
- EUR 14,000 corresponding to the salaries from February to May 2012 under
the agreement;
- EUR 1,500 corresponding to a part of the January 2012 salary under the
agreement;
- EUR 4,400 corresponding to the rent of August 2011 until May 2012.
4.
Equally, the Claimant requested interest on the salary payments as from the
due dates, interest on the rent as from 31 May 2012 as well as procedural
compensation.
5.
In reply, the Respondent rejected the claim of the Claimant in full arguing
that:
Player D, from country S / Club A, from country C
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a) The amount of EUR 5,000, falling due on 1 July 2011, was paid to the
Claimant in cash in accordance with the contract. However, later on, the
Respondent stated that the sign-on fee was paid to the agent of the
Claimant together with “the first rent and deposit for the
accommodation”. In this respect, the Respondent provided FIFA with a
cheque as well as with a statement of a certain Mr Z who confirmed having
received EUR 5,800 on 20 July 2011 on behalf of the Claimant;
b) The Respondent paid all the rent directly to the landlord;
c) As to the salary of February 2012, the Claimant agreed to buy “lottery from
the club on 23.2.2012”, reason for which EUR 500 was deducted from the
salary;
d) The salary of May 2012 was not due since the Respondent “punished the
[the Claimant] (…) because of the degradation of [the Respondent] to
second division.”;
e) No compensation can be paid on the basis of the agreement, in accordance
with art. 8 par. 10 of the country C Football Association Regulations; and
f) The contract is not valid as it was no submitted to the country C Football
Association.
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, the DRC judge took note that the present
matter was submitted to FIFA on 11 May 2013. Consequently, the DRC judge
concluded that the 2012 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).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012) the DRC judge is competent to decide on the present
matter, which concerns an employment-related dispute with an international
dimension between a country S player and a country C club.
3.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (edition 2012) and
considering that the present claim was lodged in front of FIFA on 11 May 2013,
the 2012 edition of the Regulations on the Status and Transfer of Players
Player D, from country S / Club A, from country C
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(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
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.
5.
In this respect and first of all, the DRC judge acknowledged that, on 30 June
2011 and 1 July 2011, the Claimant and the Respondent had concluded an
employment contract, respectively a supplementary agreement, both valid as
from 1 July 2011 until 30 May 2013.
6.
Equally, the DRC judge duly noted that the Claimant asserted that the
Respondent had failed to pay him the amount of EUR 32,400 corresponding to
salary payments, rent and the sign-on fee.
7.
In addition, the DRC judge took note that, for its part, the Respondent
asserted that it had i) paid the rent directly to the landlord of the Claimant, ii)
had paid the sign-on fee to the agent of the Claimant, iii) had deducted EUR
500 from the February 2012 salary for the “lottery of the club”, and iv) it had
sanctioned the Claimant with an one-monthly salary for the relegation of the
team to the second division.
8.
What is more, the DRC judge observed that the Respondent contested the
validity of the contract since it was not submitted to the country C Football
Association. Finally, the Respondent argued that, based on art. 8 par. 10 of the
country C Football Association Regulations, no compensation is payable in
connection with the agreement.
9.
On account of all the above, the Respondent argued that the claim of the
Claimant should be rejected in full.
10.
In this context and after a thorough analysis of the arguments put forward by
both parties in the present matter, the DRC judge first recalled the basic
principle of the 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.
11.
In this respect, the DRC judge noted that the Respondent did not present any
documentary evidence in respect of the payments it sustained to have paid
directly to the landlord of the Claimant. Equally, the Respondent did not
provide any evidence that the Claimant had authorised the Respondent to pay
Player D, from country S / Club A, from country C
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the signing-on fee of EUR 5,000 to his alleged agent, nor had it proven that Mr
Z was in fact the agent of the Claimant. In addition, the Respondent had not
submitted any documentation that the Claimant had agreed to buy a “lottery”
from the club. Finally, the DRC judge pointed out that the Respondent had not
provided a copy of the country C Football Association Regulations and that he
was therefore not in a position to analyse art. 8 par. 10 of said Regulations. As
a result, in view of the lack of documentary evidence provided by the
Respondent, the DRC judge decided he could not take into consideration the
aforementioned arguments of the Respondent.
12.
What is more, and in relation to the statement of the Respondent that it had
sanctioned the Claimant with an one-monthly salary following the relegation
of the club to the second division, the DRC judge determined that, irrespective
of the question whether such a sanction is valid in the first place, the contract
and agreement did not contain any provision on the basis of which such
sanction could have been imposed. Therefore, the DRC judge did not consider
the sanction imposed on the Claimant to be legitimate.
13.
Finally, and in relation to the argument of the Respondent that the contract
was not valid because it had not been submitted to the country C Football
Association, the DRC judge emphasised that the homologation and/or
registration of an employment contract at a federation does not constitute a
condition for its validity. In fact, the DRC judge deemed that the validity of an
employment contract cannot be linked to the willingness of the club to
register the player with the association.
14.
On account of the above, the DRC judge concluded that the Respondent had
not provided sufficient documentary evidence in support of its defence, nor
had it provided legitimate arguments which could justify the non-payment of
the salaries to the Claimant. Therefore, the DRC judge decided that it could be
established that the Respondent had not fulfilled its contractual obligations
towards the Claimant.
15.
Turning his attention to the claim of the Claimant, the DRC judge first
observed that the Claimant requested the payment of 11 rent payments for
the period as from August 2011 until May 2011, i.e. for a period of 10 months.
Consequently, the DRC judge determined that he could only grant the amount
of EUR 4,000 instead of the EUR 4,400 requested by the Claimant for this
concept.
16.
Furthermore, the DRC judge reiterated that the Respondent had not been able
to prove that it had paid the salaries as well as the sign-on fee to the Claimant.
Player D, from country S / Club A, from country C
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17.
The DRC judge established that, as a consequence, and in accordance with the
general legal principle of pacta sunt servanda, the Respondent must fulfil its
obligations towards the Claimant and is to be held liable to pay the Claimant
the outstanding salaries in the amount of EUR 32,000 plus 5% interest.
18.
The DRC judge further decided that the Claimant's claim for legal expenses is
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
respective longstanding jurisprudence of the Dispute Resolution Chamber.
19.
The DRC judge concluded his deliberations in the present matter by rejecting
any further claim of the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player D, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 32,000 plus 5%
interest until the date of effective payment as follows:
a. 5% p.a. as of 2 July 2011 on the amount of EUR 5,000;
b. 5% p.a. as of 1 February 2012 on the amount of EUR 3,000;
c. 5% p.a. as of 1 March 2012 on the amount of EUR 5,000;
d. 5% p.a. as of 1 April 2012 on the amount of EUR 5,000;
e. 5% p.a. as of 1 May 2012 on the amount of EUR 5,000;
f. 5% p.a. as of 1 June 2012 on the amount of EUR 5,000;
g. 5% p.a. as of 31 May 2012 on the amount of EUR 4,000.
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player D, from country S / Club A, 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
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
Player D, from country S / Club A, from country C
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