Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 27 August 2014,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player B, from country H
as Claimant
against the club,
Club Z, from country I
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 9 September 2010, Player B, from country H (hereinafter: player or
Claimant), and the former Club Z (now Club Z) (hereinafter: club or
Respondent), signed an employment contract valid “for one competitive
season and will finish after the FA cup and the league of season (Start: after
getting ITC) The player will play up to end of the league and cup
championship of country I for season 2010/2011” (hereinafter: contract).
2.
According to clause 4 of the contract, the player was entitled to receive a total
salary of USD 100,000, to be paid as follows:
- USD 20,000 after receipt of the International Transfer Certificate (ITC);
- USD 80,000 split into ten monthly instalments.
In addition, clause 4 of the contract states that “Bonus for qualifying to
professional will be 20,000 USD. The player will be included in bonus and
penalty system for winning or drawing of matches of league or cup as
regulations of club.”.
3.
On 7 March 2013, the player sent a letter to the country I Football Federation
requesting the payment of outstanding remuneration in the amount of USD
30,000 from the club.
4.
On 18 March 2013, the player lodged a claim before FIFA against the club
claiming the amount of USD 30,000 corresponding to his outstanding
remuneration for the three last months of the 2011/2012 season, i.e. for
March, April and May 2012.
5.
As regards the new club name, the player explained that in June 2011, former
Club Z changed its name to Club Z. According to the player, Club Z is thus the
legal successor of Club Z, even though it did not change its bylaws.
6.
In spite of having been invited by FIFA to do so, the club has failed to respond
to the player’s claim.
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
Player B, from country H / Club Z (formerly Club Z), from country I
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matter was submitted to FIFA on 18 March 2013. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural
Rules).
2.
Subsequently, 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 conjunction with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2014) he is competent to decide on the present
litigation, which concerns an employment-related dispute with an
international dimension between a player from country H and an country I
club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate in the present dispute which value does not exceed currency of
country C 100,000.
4.
Furthermore, the DRC judge analysed which 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 par. 2 of the Regulations on the Status and
Transfer of Players (edition 2014), and considering that the present matter was
submitted to FIFA on 18 March 2013, the 2012 edition of said Regulations
(hereinafter: Regulations) is applicable to the present matter as to the
substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge started by acknowledging all the above-mentioned
facts as well as the arguments and the documentation submitted by the
parties. However, the DRC judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary
evidence, which he considered pertinent for the assessment of the matter at
hand.
6.
First of all, DRC judge acknowledged that on 9 September 2010, the Claimant
and the Respondent had concluded an employment contract valid “for one
competitive season and will finish after the FA cup and the league of season
(Start: after getting ITC) The player will play up to end of the league and cup
championship of country I for season 2010/2011”. As to the financial terms of
said employment contract, the DRC judge took note that it had been agreed
Player B, from country H / Club Z (formerly Club Z), from country I
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upon between the parties that the Respondent would remunerate the
Claimant, for the whole term of the contract, with the amount of USD 100,000,
of which USD 20,000 was due upon receipt of the ITC and USD 80,000 was split
into ten monthly instalments.
7.
The DRC judge further observed that the Claimant had lodged a claim before
FIFA against the Respondent seeking payment in the amount of USD 30,000
corresponding to outstanding remuneration for the three last months of the
2011/2012 season, i.e. for March, April and May 2012, asserting that the
Respondent had not fulfilled its contractual obligations towards him.
8.
Furthermore, the DRC judge observed that the Respondent failed to present its
response to the claim of the Claimant, despite having been invited to do so. In
this way, the DRC judge deemed that the Respondent renounced its right of
defence.
9.
As a consequence of the preceding consideration, the DRC judge established
that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documents on file.
10.
In continuation, the DRC judge, after a careful study of the contract at hand, in
particular noted that the contract provided by the Claimant, which establishes
the employment relationship between the Claimant and the Respondent,
stipulates a duration for the 2010/2011 season only.
11.
Consequently, the DRC judge concluded that the parties were bound by the
employment contract for the 2010/2011 season only.
12.
In this regard, the DRC judge noted that according to the information
contained in the Transfer Matching System (TMS), the sporting season
2010/2011 in country I ran as from 29 July 2010 until 20 May 2011.
13.
Subsequently, the DRC judge turned his attention to the claim of the Claimant
and noted that he is requesting alleged outstanding remuneration for the
2011/2012 season, in particular for the months of March, April and May 2012.
14.
In this context, making reference to art 12 par. 3 of the Procedural Rules –
which stipulates that any party claiming a right on the basis of an alleged fact
shall carry the burden of proof – the DRC judge concluded that the Claimant
had not provided any evidence of a contractual relationship with the
Respondent for the 2011/2012 season, for which he claimed outstanding
remuneration.
Player B, from country H / Club Z (formerly Club Z), from country I
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15.
As a consequence, since the Claimant had failed to prove having concluded an
employment contract valid for the period for which he claims outstanding
remuneration, the DRC judge decided that the claim had to be rejected.
*****
III.
Decision of the DRC judge
The claim of the Claimant, Player B, is rejected.
*****
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 B, from country H / Club Z (formerly Club Z), from country I
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