Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 August 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Monsen (Norw ay ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country A,
as Claimant
against the club,
Club N, Country N,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 19 January 2016, the country A player, Player A (hereinafter: the Claimant)
signed an employment contract with the country N club, Club N (hereinafter:
the Respondent) valid “for the period of 2016 season”.
2.
The contract inter alia provides for the monthly payment of USD 15,000 which
“shall be paid at the end of each month”. Furthermore, the contract provides
that should the Claimant score ten goals during 2016, he will be entitled to a
bonus of USD 12,000.
3.
The contract also provides for the payment of four “round-trip air ticket
between country N and [the Claimant’s] designated destination”.
4.
On 8 December 2016, the Claimant lodged a claim against the Respondent
before FIFA requesting to be paid a total of USD 54,000 as outstanding
remuneration, as follows:
a. USD 7,500 pertaining to half the month of October 2016;
b. USD 15,000 pertaining to the month of November 2016;
c. USD 15,000 pertaining to the month of December 2016;
d. USD 12,000 pertaining to bonuses due for scoring ten goals;
e. USD 4,500 as flight tickets.
5.
The Claimant claims that the Respondent ceased to pay him from 14 October
2016 on the basis that this was when the Premier league finished. The
Claimant’s understanding, however, is that the contract was not due to finish
until 31 December 2016.
6.
The Claimant claims to have scored ten goals during 2016, indicating that he
scored nine goals in the Premier League and one goal in the League Cup 2nd
round on 8 June 2016 against Club X, but has not been paid the relevant bonus.
The Claimant claims that the Respondent verbally acknowledged the goals, the
flight tickets as well as a “refund of tax” which equated to USD 3,400.
7.
The Claimant further claims to be owed USD 4,500 as flight tickets.
8.
In spite of having been invited to do so, the Respondent did not reply to the
claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the 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 8 December 2016. Consequently, the Rule Governing the
Player A, country A / Club N, country N
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Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2015; 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 and par.
2 in conjunction with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (2016 edition) it is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between an country A player and a country N club.
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 (2016) edition, and considering that the present claim was lodged on 8
December 2016, the 2016 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter as to the substance. In particular, the
Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA may use within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or
contained in the Transfer Matching System (TMS).
4.
The competence of the Chamber and applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the aforementioned facts
as well as the arguments and the documentation submitted by the parties. The
Chamber, however, 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 continuation, the Dispute Resolution Chamber acknowledged that the
parties to the dispute had signed a valid employment contract on 19 January
2016, the duration of which was set to last “for the period of 2016 season”
which provided for the payment of USD 15,000 per month to the Claimant,
payable at the end of each month. Furthermore, the DRC took due note that
should the Claimant score ten goals during 2016, he will be entitled to a
further bonus of USD 12,000. Finally, the DRC also noted that the player was
entitled to four “round-trip air ticket between country N and [the Claimant’s]
designated destination”.
6.
Furthermore, the Chamber observed that the Claimant lodged a claim in front
of FIFA against the Respondent seeking payment of the total amount of USD
54,000, pertaining to outstanding salaries allegedly due until 31 December
2016, the aforementioned bonus and flight tickets. In particular, the Claimant
indicated that the Respondent had only paid him USD 7,500 for October 2016
and had ceased to pay him from 14 October 2016 on the basis that this was
when the Premier League had allegedly finished.
Player A, country A / Club N, country N
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7.
Subsequently, the DRC noted that the Respondent failed to present its
response to the claim of the Claimant, in spite of having been invited to do so.
By not presenting its position to the claim, the members of the Chamber were
of the opinion that the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC
judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules,
he shall take a decision upon the basis of the documentation already on file; in
other words, upon the statements and documents presented by the Claimant.
In addition, the DRC reminded the parties of the content of art. 12 par. 3 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”.
9.
In continuation, the DRC acknowledged that in accordance with the
employment contract provided by the Claimant, the Respondent was obliged
to pay to the Claimant the total monthly amount of USD 15,000 for the
duration of the contract. In this regard, the Chamber acknowledged that the
contract was valid “for the period of the 2016 season”. Consequently, and in
line with art. 6 par. 3 of Annexe 3 of the Regulations, the members of the
Chamber took due note that according to the information contained on the
Transfer Matching System, the 2016 season in country N began on 27 February
2016 and was set to end on 30 October 2016.
10.
The members of the Chamber, referring to art. 12 par. 3 of the Procedural
Rules, also noted that the Claimant claims that the contract’s end date was 31
December 2016, but provided no evidence thereof. Therefore, the members of
the Chamber unanimously decided to reject the portion of claim of the
Claimant pertaining to the payment of salaries for November and December
2016, as the contract concluded between the parties expired on 30 October
2016, according to the information contained on TMS and in the contract
combined.
11.
Notwithstanding the foregoing, the Chamber noted that the Claimant claims
only having received half of the salary due for the month of October 2016, i.e.
USD 7,500 of USD 15,000.
12.
Consequently, and in view of the lack of reply on the side of the Respondent,
the members of the Chamber decided that in accordance with the general
legal principle of pacta sunt servanda, the Respondent is liable to pay to the
Claimant outstanding remuneration in the total amount of USD 7,500,
corresponding to half of his monthly salary for the month of October 2016.
13.
In continuation, the Chamber took note of the Claimant’s claim relating to the
goal scoring bonus which had allegedly fallen due. In this regard, the members
Player A, country A / Club N, country N
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of the Chamber recalled the basic principle of 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.
14.
In this regard, the DRC noted that the Claimant did not substantiate his
allegation in this regard, since he did not present any evidence demonstrating
that he had scored the required ten goals during the 2016 season.
15.
In view of the above, the Chamber concluded that the Claimant had not
provided evidence of this allegation and consequently rejected this portion of
the Claimant’s claim.
16.
Equally, with regard to the Claimant’s claim pertaining to flight tickets, the
Chamber noted that the contract does not mention a specific amount to be
paid to the Claimant in this regard and that the Claimant did not provide any
evidence that the amount of USD 4,500 was indeed spent by him on flight
tickets and would have to be reimbursed by the club. Notwithstanding the
foregoing, the DRC, codirecting the Chamber’s established jurisprudence as
well as the content of the contract (cf. point I.3 above), decided that the
Respondent must pay to the Claimant the amount of CHF 700 for a round trip
flight ticket between country N and country Y for the 2016 season, on the
basis of the information provided by FIFA Travel.
17.
Finally, the Dispute Resolution Chamber concluded its deliberations in the
present matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A is partially accepted.
2.
The Respondent, Club N, has to pay to the Claimant the amount of USD 7,500,
w ithin 30 day s as from the date of notification of this decision.
3.
In the event that the aforementioned sum indicated in point 2. above 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 FIFA’s Disciplinary Committee for
consideration and a formal decision.
4.
The Respondent is ordered to pay to the Claimant the amount of CHF 700 as
flight tickets w ithin 30 day s from the notification of this decision.
5.
In the event that the aforementioned sum indicated in point 4. above is not
paid by the Respondent within the stated time limit, interest at the rate of 5%
Player A, country A / Club N, country N
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p.a. will fall due as of expiry of the aforementioned time limit and the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
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 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 A / Club N, country N
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