Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 31 August 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Theo v an S eggelen (Netherlands ), member
Wouter Lam brecht (Belgium ), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 7 August 2015, the Player of Country B, Player A (hereinafter: player or
Claimant) entered into an employment contract with the Club of Country D,
Club C (hereinafter: club or Respondent) valid as from 7 August 2015 until 31
May 2016.
2.
In accordance with the employment contract, the club undertook to pay the
player the total amount of EUR 100,000 for the 2015/2016 season, payable in
ten equal monthly instalments of USD 10,000 between August 2015 and May
2016, due on the 10th day of the following month.
3.
Additionally, according to the contract, the player was entitled to two “roundtrip tickets to the Player’ Home-town” during the 2015/2016 season.
4.
On 23 February 2016, the player sent a default notice to the club by means of
which he requested payment in the amount of EUR 36,140 within 7 days.
5.
On 26 February 2016, the club replied to the default notice pointing out that
there are no outstanding payments.
6.
On 3 March 2016, the player terminated the contract due to the club’s alleged
failure to comply with its financial obligations.
7.
On 12 April 2016, the player lodged a claim in front of FIFA against the club,
claiming that the latter is to be held liable for the early termination of the
contract. Consequently, he requested to be awarded payment of the following
monies:
- EUR 36,140 corresponding to outstanding salaries plus interest as from the
respective due dates;
- EUR 40,000 as compensation corresponding to the residual value of the
contract plus interest as of 3 March 2016;
- EUR 864.98 as compensation corresponding to the value of two round trips
from Country D to Country B;
- EUR 60,000 as indemnity according to Swiss Law corresponding to the value
of six monthly salaries plus interest as of 3 March 2016;
- EUR 4,000 as legal fees.
8.
In particular, the player held that the amount of EUR 36,140 remained
outstanding at the moment of his termination.
Player A, Country B / Club C, Country D
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9.
Furthermore, the player argued not having received any payment after
putting the club in default on 23 February 2016 and that he therefore had just
cause to terminate the contract on 3 March 2016.
10.
In line with the above, the player pointed out that he is entitled to
compensation corresponding to the remaining value of the contract.
11.
In addition, the player held being entitled to the value of two round trips
from Country D to Country B since he terminated the contract with just cause.
12.
In its reply, the club rejected the player’s claim and maintained having fulfilled
its financial duties arising from the contract.
13.
In this regard, the club held having remitted the following payments to the
player:
- EUR 25,000 on 3 August 2015;
- EUR 5,000 on 21 September 2015;
- EUR 5,000 on 13 October 2015;
- EUR 5,000 on 19 October 2015;
- EUR 10,000 on 26 November 2015;
- EUR 10,000 on 23 December 2015;
- EUR 5,000 on 27 January 2016;
- 6,390 on 11 February 2016;
- 2,750 on 19 February 2016;
- 1,000 on 19 February 2016.
14.
The club argued having paid the player a total amount of EUR 64,707.62 up to
the player’s termination, even though he was only entitled to EUR 60,000
pursuant to the contract.
15.
In this context, the club stated that the player terminated the contract without
just cause.
16.
In his replica, the player reiterated his position and held that the first
payment, dated 3 August 2015, was a sign-on fee and not a salary payment
arising from the contract. In this context, the player pointed out that the
contract was only signed on 7 August 2015.
17.
According to the player, such payment was not mentioned in the contract, so
that the club would be able to avoid paying taxes.
Player A, Country B / Club C, Country D
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18.
Along those lines, the player argued that the remark on the receipt, in
Language of Country D means “transfer payment” or “sign on fee” in English.
Consequently, the player stressed that the aforementioned payment was an
extra-contractual payment not linked to the contract.
19.
Moreover, the player brought forward that the payments remitted in Currency
of Country D are not salary payments, but bonuses not mentioned in the
contract. In this context, he held that no payments in Currency of Country D
were agreed upon in the contract.
20.
In its duplica, the club reiterated its position and argued that the correct
translation would be “down payment”, which indicates, “a part of the full
price paid at the time of the purchase or delivery with the balance to be paid
later”.
21.
The club further argued that the first payment was an “advance payment”
paid in cash, since the player could not yet open a bank account in Country D.
Further, the club denied having tried to avoid taxes. In particular, the club
alleged that said payment was resulting of the contract and that an official
receipt was issued.
22.
Furthermore, the club sustained that the above-mentioned “advance
payment” was related to the contract since there was no previous agreement
between the parties.
23.
Regarding the payments in Currency of Country D, the club stated that the
player expressly requested payment in Currency of Country D and that if said
payments were related to bonus payments this would have been mentioned
on the receipts.
24.
Finally, the player informed FIFA that he remained unemployed during the
relevant period.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 12 April 2016. Consequently, the Rules governing the procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
Player A, Country B / Club C, Country D
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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 2016) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country
B and a Club of Country D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 25 Augsut 2017 by means of
which the parties were informed of the composition of the Chamber, the
member Todd Durbin (USA) and the member Takuya Yamazaki (Japan)
refrained from participating in the deliberations in the case at hand, due to
the fact that the member Todd Durbin (USA) abstained due to certain
personal circumstances and that, in order to comply with the prerequisite of
equal representation of club and player representatives, also the member
Takuya Yamazaki (Japan) refrained from participating and thus the Dispute
Resolution Chamber adjudicated the case in presence of three members in
accordance with art. 24 par. 2 of the Regulations.
4.
Furthermore, the Chamber analysed which regulations 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 2016), and considering that the present claim was lodged on
12 April 2016, the 2015 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
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.
6.
In this respect, the Chamber recalled that, on 7 August 2015, the parties had
signed an employment contract valid as from 7 August 2015 until 31 May
2016.
7.
In continuation, the members of the Chamber noted that the Claimant lodged
a claim against the Respondent maintaining that he terminated the contract
with just cause due to the Respondent’s failure to comply with its financial
obligations arising from the contract.
Player A, Country B / Club C, Country D
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8.
In this regard, the Chamber took note that the Claimant asks to be awarded
the alleged outstanding remuneration, compensation for breach of the
employment contract as well as an additional indemnity and reimbursement
of his legal fees.
9.
Moreover, the members of the DRC acknowledged that the Respondent
rejected such argumentation and pointed out that no remuneration remained
unpaid at the moment of termination (cf. point I.13 above). Along those lines,
the Respondent held that said payments were related to the contract, since no
other agreement exists. Regarding the payment dated 3 August 2015, the club
explained having remitted an “advance payment” to the player, since he had
not yet opened a Bank Account in Country D.
10.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the
parties, was to determine as to whether the Claimant had just cause to
terminate the employment contract on 3 March 2016 and to decide on the
consequences thereof.
11.
In this context, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof.
12.
In continuation, the DRC took note, that before terminating the contract on 3
March 2016, the Claimant had sent a default notice to the Respondent on 23
February 2016 requesting payment of EUR 36,140, corresponding to alleged
outstanding remuneration. The Chamber further established, that the
Respondent had answered said default notice via email on 26 February 2016,
explaining that no remuneration was due.
13.
From the documentation on file, the members of the DRC established that the
Respondent had remitted various payments to the Claimant (cf. point I.13.).
What is more, the DRC took note that the Claimant did not deny having
received said payments, but limited to argue that the payment of EUR 25,000
remitted to him on 3 August 2015 was not related to his salaries but rather
constituted a “sign on fee” which was not mentioned in the contract.
14.
Furthermore, the Chamber took note of the Claimant’s argumentation that
the payments remitted to him in Currency of Country D were no salary
payments, but bonus payments, which were not mentioned in the contract
either.
Player A, Country B / Club C, Country D
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15.
In view of the above, the DRC analysed the content of the contract and took
note that no “sign-on fee” or bonus payments were agreed upon.
16.
Furthermore, the Chamber took note that the player did not deny having
received the above-mentioned payments (cf. point I.13.). Recalling that the
player bears the burden of proof to establish that said payments are extracontractual, and since the player did not submit any evidence in this regard,
the DRC could not relate said payments to anything else but the contract. In
other words, in the Chamber’s view, the player has not sufficiently explained
the reasons and circumstances under which the alleged “sign-on fee” and
bonus fees were agreed, if at all.
17.
Consequently, the members of the Chamber did not have any other option
than to conclude that all the payments made to the player were salary
payments provided in the contract and decided to take into account the
payments in question (cf. point I.13.). In this regard, the DRC established that
since the Claimant was entitled to EUR 60,000 up to the termination on 3
March 2016, no remuneration remained outstanding. Therefore, the Claimant
had terminated the employment contract without just cause on 3 March 2016.
18.
On account of the above, the Chamber decided to reject the player’s claim in
its entirety.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 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).
Player A, Country B / Club C, Country D
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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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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