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
Wouter Lam brecht (Belgium ), member
Todd Durbin (US A), member
Theo v an S eggelen (Netherlands ), member
Takuy a Yam azaki (Japan), 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 arisen between the parties
I.
Facts of the cas e
1.
On 1 June 2015, the Player of Country B, Player A (hereinafter: the player) and
the Club of Country D, Club C (hereinafter: the club), concluded an employment
contract valid as from the date of signature until 30 June 2016.
2.
Pursuant to the contract, the player was entitled to receive a monthly
remuneration of USD 5,500.
3.
On 2 May 2016, the player and the club concluded a new employment contract
(hereinafter: the contract), valid as from 1 June 2016 until 31 December 2016.
4.
In accordance with art. 1.1.1 of the new contract, the player was entitled to
receive a monthly remuneration of USD 7,500. Furthermore, the contract
stipulates that “[t]he signing fee shall be paid 1 of new salary in 1.1.1, within 30
June, 2016”.
5.
On 1 August 2016, the player requested the club to pay him the amount of USD
60,000 within 48 hours, alleging that the club had unilaterally terminated the
contract on 5 July 2016.
6.
On 14 October 2016, the player lodged a claim in front of FIFA, requesting the
amount of USD 37,500 plus interest as follows:
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-
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USD 7,500, plus 5% interest as from 30 June 2016, corresponding to the signon fee;
USD 7,500, plus 5% interest as from 8 July 2016 “corresponding to the
month of June as consequence of the agreement between the Club and the
Player to mutually terminate the contract”;
USD 7,500, plus 5% interest as from 1 August 2016 corresponding to the
month of July as consequence of the agreement between the Club and the
Player to mutually terminate the contract;
USD 7,500, plus 5% interest as from 1 September 2016 corresponding to the
month of August as consequence of the agreement between the Club and
the Player to mutually terminate the contract;
USD 7,500, plus 5% interest as from 1 September 2016 corresponding to the
month of September as consequence of the agreement between the Club
and the Player to mutually terminate the contract.
7.
Furthermore, the player requested FIFA to order the club to pay him the amount
of CHF 5,000 in order to cover his legal costs.
8.
In his claim, the player explains that a few days after the signing of the new
contract on 2 May 2016, the club informed him that it was no longer interested
Player A, Country B / Club C, Country D
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in his services. As a consequence, the player argues that the club’s president,
President E, offered to pay him 4 monthly salaries, on 8 July 2016, 1 August 2016,
1 September 2016 and 3 October 2016 respectively, in order to mutually
terminate the contractual relationship. In support of his assertion, the player
submitted two e-mails allegedly sent to him on 30 June 2016 and 5 July 2016,
from the e-mail address [email protected]. In this regard, the emails read in their
relevant part as follows:
“Dear Player A, (…) We agree that I will pay you 4 months salary and will put
money in your account (…) each month until finish”.
“Dear Player A, Regarding to our agreement on the terminated contract, we
agree that four months salary payment shall be paid monthly. I will put he
monthly salary from June to September 2016, into your account as follows:
June, will be put on, July,8,2016
July, will be put on August,1st,2016
August, will be put on September, 1st, 2016
September, will be put on October, 3rd, 2016”.
9.
In its reply to the claim, the club explains that shortly after the signature of the
contract on 2 May 2016, the player established concrete contacts with other
clubs and eventually entered into an agreement with Club F, i.e. a first division
club. In view of the above, the club alleges that the parties agreed that the
signature of the new contract was a “misunderstanding” and that consequently
the contractual relationship would therefore be terminated on 30 June 2016 by
expiry of the term established in the first contract. In this respect, the club
submitted a letter allegedly addressed to the player on 30 May 2016, by means
of which it released the latter as from 1 June 2016 while committing to pay his
salary for June 2016. In this regard, the club insists that the player’s
remuneration for May and June 2016 was paid in accordance with the first
contract.
10.
In continuation, the club points out that the communication between the
parties has always been carried out through official letters and not via e-mails.
In this regard, the club disputes the authenticity of the e-mails presented by the
player in support of his assertion, questioning the reliability of gmail addresses
and emphasising that the president’s e-mail address is XXX.
11. In his replica, the player rejects the club’s allegation regarding the
“misunderstanding” and the mutual wish to terminate the contractual
relationship. In this respect, the player presented several e-mails allegedly
exchanged between the club’s president, [email protected], and the club’s coach,
[email protected], expressing their interest in renewing his contract. Moreover,
the player denies having received the letter allegedly sent by the club on 30 May
2016.
Player A, Country B / Club C, Country D
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12.
In continuation, the player argues that it entered into an agreement with Club
F after agreeing on the amicable termination with the club.
13.
Furthermore, the player stresses that the contract does not provide for an
official way of communication and insists that the e-mail address
[email protected] belongs to the club’s president.
14.
In its final comments, the club reiterates its previous argumentation regarding
the circumstances surrounding the termination of the contractual relationship
and the lack of authenticity of the e-mails submitted by the player.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
In a first instance, the Dispute Resolution Chamber (hereinafter referred to as
the DRC or the Chamber) analysed whether it was competent to deal with the
matter at stake. In this respect, it took note that the present matter was
submitted to FIFA on 14 October 2016. Consequently, the 2015 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) are applicable
to the matter at hand (cf. art. 21 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 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 employment-related dispute with
an international dimension between a Player of Country B and a Club of
Country D.
3.
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 in
front of FIFA on 14 October 2016, the 2016 edition of said Regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In doing so, it
started by acknowledging the abovementioned facts of the case 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.
Player A, Country B / Club C, Country D
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5.
In continuation, the Chamber noted that the Claimant asserts that the
Respondent had failed to remit him the amount of USD 37,500, amount that it
allegedly committed to pay him in exchange for the termination of the
contractual relationship. In this respect, the Chamber wished to point out that
the Claimant explicitly acknowledges that there was a mutual termination of
the contract and is basing his claim for outstanding remuneration on the e-mails
dated 30 June 2016 and 5 July 2016.
6.
In view of the above, the Chamber emphasised that the burden to prove that
he was entitled to receive the claimed amount lies with the Claimant. The DRC
focused therefore its attention on the e-mails, allegedly recognising his right,
submitted by the Claimant in support of his assertion. In this regard, the
Chamber first noted that the Respondent formally contests the source as well as
the authenticity of said e-mails.
7.
Furthermore, the members of the Chamber observed that the Claimant did not
submit any official and reliable evidence that would allow them to establish a
link between the address from which the e-mails were sent, in particular the
address [email protected], and the Respondent. Indeed, the DRC underlined that
as sole evidence of the source of the e-mail address [email protected], the
Claimant submitted several e-mails exchanged with [email protected], i.e. an email address that cannot be linked to the Respondent either.
8. In continuation, the Chamber outlined that the information contained in the
Transfer Matching System (TMS), in particular the e-mail address of the
Respondent’s TMS manager, i.e. XXX, appears to confirm the Respondent’s
statement that the domain name used for its official emails is XXX.
9.
As a consequence, the Chamber after making reference to art. 12 par. 3 and par.
6 of the Procedural rules, according to which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof and the evidence shall be
considered with free discretion respectively, concluded that the Claimant did
not satisfactorily carry the burden of proof regarding his entitlement of an
amount of USD 37,500.
10.
In view of all the above, and in particular considering its legal basis, the DRC
decided to reject the claim of the Claimant
*****
III.
Decis ion of the Dis pute Res olution Cham ber
Player A, Country B / Club C, Country D
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The claim of the Claimant, Player A, is rejected.
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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).
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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