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 (the Netherlands), DRC judge,
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 14 August 2011, the player, Player A (hereinafter: the Claimant) from country
B, and the club from country D, Club C (hereinafter: the Respondent), concluded
an employment contract (hereinafter: the contract) valid as from 14 August 2011
until 31 May 2013.
2.
According to the contract, the Claimant was to be remunerated as follows:
the total amount of EUR 25,000 payable in ten equal monthly instalments
of EUR 2,500 for the period between 13 August 2011 and 31 May 2012,
the first instalment due on 31 August 2011 and the last one on 31 May
2012;
the total amount of EUR 25,000 payable in ten equal monthly instalments
of EUR 2,500 for the period between 1 June 2012 and 31 May 2013, the
first instalment due on 31 August 2012 and the last one on 31 May 2013.
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In addition, the Respondent was obliged to provide the Claimant with
accommodation not exceeding the amount of EUR 525 per month.
3.
On 15 August 2011, the Claimant and the Respondent concluded a supplementary
agreement (hereinafter: the agreement).
4.
According to the agreement, the Claimant was to be remunerated, in addition to
the remuneration stipulated in the contract, as follows:
-
-
-
the total amount of EUR 30,000 payable in ten equal monthly instalments
of EUR 3,000 for the period between 14 August 2011 and 31 May 2012,
the first instalment due on 31 August 2011 and the last one due on 31
May 2012;
the total amount of EUR 40,000 payable in ten equal monthly instalments
of EUR 4,000 for the period between 1 June 2012 and 31 May 2013, the
first instalment due on 31 August 2012 and the last one on 31 May 2013,
and
the amount of EUR 5,000 should the Respondent finish the sporting
season in 5th-8th place.
5.
On 22 October 2012, the Claimant and the Respondent signed a confirmation
(hereinafter: the confirmation) and agreed that the monthly salary of the
Claimant will decrease by EUR 1,300 per month between August 2012 and
December 2012, i.e. during 5 months.
6.
On 26 June 2013, the Claimant lodged a claim before FIFA against the
Respondent, claiming the amount of EUR 49,600, indicating that the Respondent
Player A, from country B / Club C, from country D
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had breached the contract, the agreement as well as the confirmation and never
paid him the following items:
-
the amount of EUR 5,000 as a bonus for finishing the sporting season
2011/2012 in the 8th position;
the outstanding remuneration for the sporting season 2012/2013
amounting to EUR 42,500, and
the amount of EUR 2,100 for accommodation for the period February
2013 - May 2013.
7.
According to the domestic competition summary 2011/12 of the Football
Association from country D provided by the Claimant, the Respondent finished
the sporting season 2011/2012 in 8th place.
8.
In its reply to the claim lodged against it, the Respondent first of all asserted that
FIFA has no jurisdiction to decide on the present matter since there was a
“national independent arbitrary tribunal under the authority of the Football
Association from country D” which would be competent to adjudicate on the case
at hand.
9.
As to the substance, the Respondent submitted that it had fulfilled its “express
and implied obligations” towards the Claimant, because it paid the entire amount
due in cash to the Claimant, it paid the bonus for finishing the season in the 8th
place and paid the rent of the Claimant’s apartment. The Respondent further
alleged that it paid EUR 11,100 to the Claimant as agreed upon in the contract
and the agreement.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (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 26 June 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
par. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
of the Regulations on the Status and Transfer of Players (edition 2012). In
accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of
the aforementioned Regulations, the DRC judge 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
Player A, from country B / Club C, from country D
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and a club from country D, the litigious value of which does not exceed CHF
100,000.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies because “the criteria set out in art. 22 (b) of
the Regulations on the Status and Transfer of Players are satisfied, since there is a
national independent arbitrary tribunal that can guarantee fair proceedings
respecting the principle of equal representation of Players and Clubs, under the
authority of the Football Association from country D.”
4.
In this respect, the DRC judge referred to the content of the contract and
agreement and underlined that said documents did not contain any jurisdiction
clause, i.e. neither the contract nor the agreement contained a provision referring
to the competence of any national dispute resolution chamber or any similar
arbitration body of the Football Association from country D to adjudicate on
disputes arising from the contract or the agreement. Thus, the DRC judge deemed
that it was obvious that the parties to the present dispute had never agreed to
submit a possible dispute to the relevant arbitration bodies of the Football
Association from country D.
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. Therefore, the DRC judge 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.
6.
Subsequently, 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 26 June 2013,
the 2012 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.
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 of the case as well as
the documentation contained in the file.
8.
First of all, the DRC judge acknowledged that the Claimant and the Respondent
had concluded an employment contract valid as from 14 August 2011 until 31 May
2013, a supplementary agreement for the corresponding period of time and a
confirmation dated 22 October 2012. As to the financial terms of said documents,
the DRC judge took note that it had been agreed upon between the parties that
the Respondent would remunerate the Claimant as follows:
Player A, from country B / Club C, from country D
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Employment contract
- EUR 25,000 payable in ten monthly instalments of EUR 2,500 for the
period between 13 August 2013 until 31 May 2012, the first instalment
due on 31 August 2011 and the last one on 31 May 2012;
- EUR 25,000 payable in ten monthly instalments of EUR 2,500 for the
period between 1 June 2012 and 31 May 2013, the first instalment due on
31 August 2012 and the last one on 31 May 2013;
- EUR 525 per month for accommodation.
Supplementary agreement
- EUR 30,000 payable in ten monthly instalments of EUR 3,000 for the
period between 14 August 2011 until 31 May 2012, the first instalment
due on 31 August 2011 and the last one on 31 May 2012;
- EUR 40,000 payable in ten monthly instalments of EUR 4,000 for the
period between 1 June 2012 and 31 May 2013, the first instalment due on
31 August 2012 and the last one on 31 August 2013;
- EUR 5,000 in case the Respondent “will finish the season in the place 5-8”.
Confirmation
- Decrease of the salary stipulated in the supplementary agreement by EUR
1,300 per month, i.e. from EUR 4,000 per month to EUR 2,700 per month,
for the period between August 2012 and December 2012 (5 months).
9.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of EUR 49,600, indicating
that the Respondent had not paid the bonus of EUR 5,000, the rent for 4 months,
had only paid a part of the amount due from August 2012 until November 2012
before it had ceased paying the Claimant at all since December 2012.
10.
Subsequently, the DRC judge noted that the Respondent, in its defence, alleged
that it had fulfilled all its “express and implied” obligations by paying the entire
amount in cash. In particular, the Respondent asserted to have paid the bonus,
the entire amount for the player’s apartment and paid, as allegedly agreed upon
in the contract and the agreement, the amount of EUR 11,100.
11.
In relation to the statements made by the Respondent, the DRC judge 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.
12.
In this context, the DRC judge observed that the Respondent only alleged to have
made the payments of the entire amount owed to the Claimant, however, it did
not provide any documentation whatsoever that supported its allegations.
Player A, from country B / Club C, from country D
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13.
Consequently, the DRC judge considered that the Respondent had not
substantiated its defence, as it did not present any documentary evidence which
could adduce that it indeed fulfilled its contractual obligations stipulated in the
employment contract, the supplementary agreement and the confirmation.
14.
Thus, in view of the lack of documentary evidence, the DRC judge held that it
could not be established that the Respondent had fulfilled its contractual
obligations towards the Claimant.
15.
On account of all the above, the DRC judge decided that, in accordance with the
general legal principle of pacta sunt servanda, the Respondent must fulfil its
contractual obligations towards the Claimant and is to be held liable to pay the
Claimant the amount of EUR 49,600, corresponding to the following:
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EUR 600 for a part of the outstanding salaries for August until October 2012;
EUR 4,200 for a part of the outstanding salary for November 2012;
EUR 5,200 for the outstanding salary for December 2012;
EUR 32,500 for the outstanding salary for January until May 2013;
EUR 5,000 as bonus for finishing the sporting season 2011/2012 in 8th place;
EUR 2,100 as rent for the period between February and May 2013.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 49,600,
within 30 days as from the date of notification of this 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
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
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):
Player A, from country B / Club C, from country D
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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:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player A, from country B / Club C, from country D
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