Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Taku Nomiya (Japan), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player K, from country G
as Claimant
against the club,
Club K, from country T
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 May 2013, Player K, from country G (hereinafter: the player or Claimant),
and Club K, form country T (hereinafter: the club or Respondent), entered into an
employment contract valid as from 1 June 2013 until 31 May 2014.
2.
According to the contract, the club undertook to pay the player the net amount of
EUR 750,000 as follows:
- EUR 300,000
- EUR 150,000
- EUR 100,000
- EUR 100,000
- EUR 100,000
3.
payable on 25 August 2013;
payable on 25 October 2013;
payable on 25 January 2014;
payable on 20 March 2014:
payable on 20 May 2014.
Art. 6 par. 3 of the contract reads as follows:
“The club undertakes to make 50,000.00 Euro guarantee bonus payment to the
Player during the 2013/2014 football season. In this context, the bonus payments
that are to be made to the Player during the season shall be deducted from the
aforementioned guarantee amount and the remaining amount, between the
guarantee amount and actual bonus payment made during the season, shall be
made to the Player in 30 days following the end of the 2013/2014 season.”
4.
On 1 May 2014, the player lodged a claim in front of FIFA against the club, which
he amended on 21 May 2014, alleging that the club had only paid him EUR 80,000
out of the EUR 100,000 that fell due on 25 January 2014. Equally, the player
asserted that the club had not paid the instalments that fell due on 20 March 2014
and 20 May 2014.
5.
As a result, the player requested to be awarded the amount of EUR 220,000 plus
5% interest as from the respective due dates.
6.
In its reply to the claim, the club stated that the player was fined with the
following amounts:
- EUR 53,320 due to his absence at a training session held on 22 March 2014;
- EUR 79,980 due to his absence at a training session held on 14 April 2014;
- Currency of country T 45,000, which according to the club corresponds to EUR
15,000, due to player’s low performance, his flippancy and unwillingness to play.
Player K, from country G / Club K, from country T
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7.
In this respect, the club submitted a decision of its board dated 18 April 2014
imposing two fines on the player, since he “went out of town without Club’s
authorities’ written permission.” Equally, the club submitted a decision of its board
dated 29 May 2014 indicating that the player was fined because he
underperformed. The decisions further stipulated that it was decided to set off
“this penalties from or out of the receivables of [the player].”
8.
The club stressed that all fines were imposed in compliance with the club’s internal
disciplinary regulations and added that it is a general principle that if an employee
is rewarded for his good performance, he may also be sanctioned for his low
performance.
9.
As to the fine of currency of country T 45,000, the club explained that it “made
bonus payments in the season to [the player] as it is clearly stated in the decisions
and the notification, this fine does not exceed the bonus payment and as the
bonus payment was made in currency of country T, the fine was also imposed as
currency of country T too.”
10.
As a result, the club held that the amount of EUR 148,300 should be deducted
from the outstanding remuneration.
11.
On 1 July 2014, the player amended his claim stating that he was entitled to a
“guaranteed bonuses” of EUR 50,000 in accordance with art. 6 par. 3 of the
contract. The player explained that he received the total amount of currency of
country T 45,000 as bonuses, which, according to him, corresponds to EUR 15,517.
12.
As a result, the player claimed an amount of EUR 34,483 (EUR 50,000 – 15,517) as
“guaranteed bonuses” plus 5% interest as from 1 July 2014.
13.
Although having been invited to provide its position regarding the amended
claim, the club did not provide any further comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
Player K, from country G / Club K, from country T
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on 1 May 2014. Consequently, the 2012 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. article 21 of
the 2012 and 2014 edition 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 2012), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a country G player and a country T club.
3.
Furthermore, the Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (edition 2012 and 2014) and
considering that the present claim was lodged in front of FIFA on 1 May 2014, the
2012 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
5.
In this respect, taking into account the claim of the player as well as the reply of
the club, the members of the Chamber acknowledged that the following two
questions needed to be addressed:
i) Can the club set-off its debt towards the player by means of the various
fines imposed on him?
ii) Is the player entitled to the amount of EUR 34,483 related to the
“guaranteed bonuses”?
6.
Turning to the first question, the Chamber analysed the fines imposed on the
player due to his alleged absence from training sessions. In this respect, the
Chamber first of all noted that it appeared from the content of the fines that
those were not imposed on the player for his absence from training, but rather for
leaving the town of country T without the club’s authorization. Indeed, the
Player K, from country G / Club K, from country T
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translations of the relevant decisions indicate that the player was fined because he
“went out of town without Club authorities’ written permission.” However,
regardless of the foregoing remark, the Chamber emphasised that a fine
amounting to the total amount of EUR 133,320 for missing just two training
sessions is manifestly excessive and disproportionate and cannot be upheld. Hence,
the Chamber was unanimous in its conclusion that the fines imposed on the player
on 18 April 2014 must be disregarded.
7.
As to the fine imposed on the player on 29 May 2014, i.e. two days before the
expiry of the contract, the Chamber pointed out that a player cannot be fined for
alleged poor performance, as this is purely unilateral and subjective evaluation by
the club. Thus, the Chamber emphasised that poor or unsatisfactory performance
cannot, by any means, be considered as a valid reason to reduce a player’s salary or
fine a player. Hence, the Chamber considered that by fining the player based on
poor performance, the club acted in an abusive manner and therefore, decided to
also disregard the fine imposed by the club on 29 May 2014.
8.
Furthermore, and in any case, the Chamber wished to point out that the
imposition of a fine, or any other available financial sanction in general, shall not
be used by clubs as a means to set off outstanding financial obligations towards
players.
9.
In conclusion, the Chamber determined that the club could not set-off its debt
towards the player by means of the various fines imposed on him and that thus,
the amount of EUR 220,000 is due to the player.
10.
Turning to the second question, the Chamber examined art. 6 par. 3 of the
contract and noted that indeed, as claimed by the player, he was entitled to a
“guaranteed bonus” of EUR 50,000. What is more, the Chamber underlined that
although the club had been invited to reply to the amended claim of the player, it
did not submit any observations as to the additional request of the player. Hence,
the player’s entitlement to the “guaranteed bonus” of EUR 50,000 had not been
disputed by the Respondent.
11.
In view of the foregoing consideration and taking into account that the player had
already received the amount of EUR 15,517, the Chamber decided that the player
is entitled to the amount of EUR 34,483 related to the outstanding part of the
“guaranteed bonus”.
Player K, from country G / Club K, from country T
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12.
For all the above reasons, the Chamber decided to accept the player´s claim and
determined that the club must pay to the player the total amount of EUR 254,483
as outstanding remuneration.
13.
In addition, taking into account the player’s request, the Chamber decided that
the club must pay to the player interest of 5% p.a. as follows:
a. 5% p.a. as of 26 January 2014 on the amount of EUR 20,000;
b. 5% p.a. as of 21 March 2014 on the amount of EUR 100,000;
c. 5% p.a. as of 21 May 2014 on the amount of EUR 100,000;
d. 5% p.a. as of 31 July 2014 on the amount of EUR 34,483.
14.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player K, is partially 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 254,483, plus 5% interest
until the date of effective payment as follows:
a. 5% p.a. as of 26 January 2014 on the amount of EUR 20,000;
b. 5% p.a. as of 21 March 2014 on the amount of EUR 100,000;
c. 5% p.a. as of 21 May 2014 on the amount of EUR 100,000;
d. 5% p.a. as of 31 July 2014 on the amount of EUR 34,483.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is not paid by the Respondent 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.
Any further claim lodged by the Claimant is rejected.
Player K, from country G / Club K, from country T
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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 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player K, from country G / Club K, from country T
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