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 (the Netherlands ), member
Takuy a Yam azaki (Japan), member
Wouter Lam brecht (Belgium ), member
Todd Durbin (US A), member
on the matter between the player,
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case:
1.
On 10 July 2015, the Player of Country B, Player A (hereinafter: the Claimant), and
the Club of Country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the “contract”) valid as from the date of
signature until 31 May 2016.
2.
According to art. 3 of the contract, the Claimant was to be remunerated with a
total amount of EUR 245,000 for the 2015/2016 sporting season, payable in ten
installments of EUR 24,500 on the 30th day of each month (28th day in February)
for a period of ten months, starting in August 2015 until May 2016.
3.
In addition, clause 3 of the contract establishes the following: “in case the
[Claimant] takes part In [Respondent’s] 20 official matches of the Country D Super
League in the first 11 in the 2015/2016 Season, then this Employment Agreement
will automatically extend for the 2016/2017 Season under the following
conditions…”.
4.
Likewise, article 3 par. 8 of the contract reads as follow: “Victory bonus payments
will be determined by the [Respondent’s] Board of Directors. In any case
[Respondent] has the discretion to set forth the payments and any player
receiving a victory bonus payment does not grant the same right to the Player”.
5.
Despite the fact that the Claimant fulfilled the condition for automatic extension
of the contract, on 20 July 2016 the Claimant and the Respondent agreed on the
mutual termination of the contract (hereinafter: the “termination agreement”).
According to article 2 of the termination agreement “the [Respondent] will pay
the outstanding collectibles of the [Claimant] after deducting the fines imposed
by the [Respondent] to the [Claimant]. The [Claimant] hereby expressly agrees the
deduction of the fines. The amount provided in paragraph 1 above will be paid
through bank transfer, in the [Claimant’s] following bank coordinates…”
6.
On 15 December 2016, the Claimant lodged a claim before FIFA against the
Respondent and requested the following amounts:
- Outstanding salaries amounting to EUR 25,190 net consisting of:
Part of the monthly salary for September 2015, amounting to EUR
1,400 net plus 5% interest p.a. as from 30 September 2015, until the
effective day of payment;
Part of the monthly salary for February 2016, amounting to EUR 1,290
net plus 5% interest p.a. as from 28 February 2016, until the effective
day of payment;
Player A, Country B / Club C, Country D
Page 2 of 10
Part of the monthly salary for May 2016, amounting to EUR 22,500 net
plus 5% interest p.a. as from 30 May 2016, until the effective day of
payment.
7.
Furthermore, the Claimant requested the imposition of sanctions to the
Respondent, for the failure to comply with its financial obligations, in accordance
with article 12bis of the Regulations on the Statutes and Transfer of Players
(hereinafter: the “Regulations”).
8.
In support of his claim, the Claimant referred to article 3 of the contract,
according to which the Respondent undertook to pay the Claimant a minimum
salary of EUR 245,000 net for the 2015/2016 sporting season, payable in 10
installments. In this line, the Claimant argued that he was never notified of any
formal and/or informal sanction and/or penalty that could justify the nonpayment of his salaries. Consequently, the Claimant held that all due salaries must
be paid in full without any deduction whatsoever.
9.
In this respect, the Claimant explained that he notified the Respondent’s default
on 14 October 2016, granting a deadline until 26 October 2016 in order for the
Respondent to pay outstanding salaries in the amount of EUR 51,690 broken
down as follow:
- Part of September’s 2015 salary amounting to EUR 1,400;
- Part of February’s 2016 salary amounting to EUR 1,290;
- April’s 2016 outstanding salary amounting to EUR 24,500;
- May’s 2016 outstanding salary 2016 amounting to 24,500,
10.
Finally, the Claimant informed that the Respondent partially fulfilled the
Claimant’s request and paid on 26 October 2016 an amount of EUR 26,500
However, the remaining portion, amounting to EUR 25,190, remained unpaid,
without any justification by the Respondent.
11.
In its reply to the claim lodged by the Claimant, the Respondent argued that it has
fulfilled all obligations deriving from the contract including the requested
amount of EUR 25,190. According to the Respondent, the Claimant in his claim
has acknowledged the payments made by the Respondent for an amount of EUR
219,810. The Respondent explained that, besides these payments, it had further
paid seven additional installments for the total amount of 87,409 in the currency
of Country D in accordance with the Claimant’s allowances, which according to
the club amounts to EUR 26,927. As a result, according to the Respondent, the
Claimant received an amount equal to EUR 246,737 (EUR 219,810 plus EUR
26,927). The Respondent argued that since the Claimant’s total remuneration
amounts to EUR 245,000, it had fulfilled its contractual obligations. According to
Player A, Country B / Club C, Country D
Page 3 of 10
the Respondent, the positive difference of EUR 1,737 is derived from the
Respondent’s financial department rounding transactions over the currency rates.
12.
Finally, the Respondent emphasized that considering the payment dated 14
October 2016 amounting to EUR 26,500, the Respondent has fully covered the
Claimant’s allowances.
13.
In his replica, the Claimant explained that the amounts specified by the
Respondent as salary payments in the currency of Country D, in fact are
performance bonus payments paid by the Respondent to the Claimant.
14.
Subsequently, the Claimant held that, according to the contract, the salary was to
be paid in EUR and no other currency was stipulated. The Claimant referred to
paragraph 8 of article 3 of the contract which established that the so-called
“victory bonuses payments” could be determined and paid by the Respondent.
Therefore, the Claimant was entitled to receive two different types of payments:
on the one hand, the salary amounting to EUR 245,000; and on the other hand,
bonuses granted by the Respondent. Consequently, the Claimant argued that the
alleged paid amount of 87,409 in the currency of Country D cannot be attributed
to salary payments.
15.
Furthermore, the Claimant argued that the Respondent deliberately forgot to
mention four other bonus payments in the currency of Country D. Thus, the
Respondent paid the Claimant the total amount of 109,321 in the currency of
Country D as bonuses. In this regards, the Claimant stated that the Respondent
did not submit these four payment orders, because they clearly named the
opponent club, which demonstrates a clear pattern of bonus payments related to
successful results in the Respondent’s matches. According to the Claimant, every
match in which the Respondent gained 1 or 3 points immediately was followed by
the payments of bonuses in the currency of Country D, performed in nearly similar
amounts. The Claimant emphasized that if the payments in the currency of
Country D could be attributed as salaries, the Respondent would have claimed the
total amount of 109,321 in the currency of Country D as salaries.
16.
In light of the above, the Claimant stated that the salaries in EUR and the bonuses
in the currency of Country D were paid to different bank accounts, which clearly
distinguished such bonus payments from salaries. In addition, the payments of
salaries in EUR were marked by the Respondent as salaries, whereas the payments
in the currency of Country D only as receivables or after the name of the
opponent club.
Player A, Country B / Club C, Country D
Page 4 of 10
17.
In addition, the Claimant pointed out that the salaries had to be paid in the
precise amount of EUR 24,500, at the end of each month. Consequently, there is
no legal basis or explanation for the Respondent to pay the amount of 87,409 in
the currency of Country D as monthly salary in seven different installments that
do not correspond to regular salary payments. According to the Claimant, even
though these seven payments did not include the name of the opponent, the
payments were performed shortly after a successful match of the Respondent. The
Claimant highlighted that at the moment of payments in the currency of Country
D, the Respondent had no overdue salary payments regarding the Claimant and
that neither the contract nor any other agreement with the Respondent provided
for advance salary payments.
18.
In its duplica, the Respondent highlighted that the seven payments performed in
the currency of Country D were made regarding the contractual salaries. In
particular, the Respondent argued that all these payments contain the
explanation in the language of Country D, which according to the Respondent,
means “in regard to his allowances”. Considering this, the Respondent argued
that such payments were made on account of the contractual salaries.
19.
Finally, and regarding the four payments that mentioned the name of the
opponent club, the Respondent stated that these are the only bonus payments
paid by the Respondent to the Claimant. According to the Respondent, there is no
logical reason that it would pay bonus payments without specifying the names of
the clubs. Along with that, the Respondent stressed that at the end of the 20152016 season it was relegated to a lower league. Consequently, the Respondent
pointed out that it stopped paying bonuses at the middle of the season due to
the unsatisfactory sporting results.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 on 15
December 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) is applicable to the matter at hand (cf. art. 21
of the 2015 and 2017 editions 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
Player A, Country B / Club C, Country D
Page 5 of 10
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 from Country B and a club from
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 matter was submitted to FIFA on
15 December 2016, the 2016 edition of the aforementioned 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 members of the Chamber entered into the substance of the
matter, while emphasizing that, although having acknowledged all the abovementioned facts, 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.
Firstly, the DRC acknowledged that, on 10 July 2015, the Claimant and the
Respondent concluded an employment contract valid as from the date of
signature until 31 May 2016. In accordance with the contract, the Claimant was to
be remunerated with a total amount of EUR 245,000 for the 2015/2016 sporting
season, payable in ten installments of EUR 24,500 on the 30 th day of each month
(28th day in February) for a period of ten months, starting in August 2015 until
May 2016.
6.
Furthermore, the Chamber observed that clause 3 of the contract established that
in “in case the [Claimant] takes part In [Respondent’s] 20 official matches of the
Country D Super League in the first 11 in the 2015/2016 Season, then this
Employment Agreement will automatically extend for the 2016/2017 Season
under the following conditions…”.
7.
In addition to that, the members of the Chamber took note that article 3 par. 8 of
the contract stipulated that “victory bonus payments will be determined by the
[Respondent’s] Board of Directors. In any case [Respondent] has the discretion to
set forth the payments and any player receiving a victory bonus payment does not
grant the same right to the Player”.
8.
Along with the above, the Chamber brought into account that, despite the fact
that the player fulfilled the condition for the automatic extension of the contract,
it is undisputed between the parties that on 20 July 2016 they agreed on the
mutual termination of the contract.
Player A, Country B / Club C, Country D
Page 6 of 10
9.
The DRC further observed that, on 15 December 2016, the Claimant lodged a
claim against the Respondent before FIFA requesting the payment 2016 in order
for the Respondent to pay outstanding salaries in the amount of EUR 25,190 net
consisting of:
- Part of the monthly salary for September 2015, amounting to EUR 1,400 net plus
5% interest p.a. as from 30 September 2015, until the effective day of payment;
- Part of the monthly salary for February 2016, amounting to EUR 1,290 net plus
5% interest p.a. as from 28 February 2016, until the effective day of payment;
- Part of the monthly salary for May 2016, amounting to EUR 22,500 net plus 5%
interest p.a. as from 30 May 2016, until the effective day of payment.
10.
In his claim, the Claimant explained that in accordance with the contract, the
Respondent undertook to pay the Claimant a minimum salary of EUR 245,000 net
for the 2015/2016 sporting season, payable in 10 installments. The Claimant held
that an amount of EUR 25,190 had remained outstanding from his yearly salary of
EUR 245,000, without any justification by the club.
11.
In continuation, the Dispute Resolution Chamber took note that the Respondent
on its part argued that the player has acknowledged the payments made by the
Respondent for a total amount of EUR 219,810. The Respondent argued that it
had also performed seven payments in the currency of Country D allegedly
relating to contractual salaries. According to the Respondent, these payments
correspond to EUR 26,927 and as a result, the Claimant received a total amount
equal to EUR 246,737 (EUR 219,810 plus EUR 26,927). Consequently, the
Respondent explained that it fully covered the Claimant’s remuneration and
requested that the claim be rejected.
12.
Furthermore, the DRC also observed that according to the Claimant the amounts
specified by the Respondent as salary payments in the currency of Country D, in
fact are performance bonus payments paid by the Respondent to the Claimant
13.
After having carefully examined the parties’ positions, the DRC turned its
attention to the contract concluded between the parties. In this regard, the
Chamber was eager to emphasise that, the parties had agreed upon payment of
the Claimant’s remuneration in Euros. In particular, the contract stipulated that
the salary has to be paid in ten instalments of EUR 24,500 at the end of each
month and consequently, there is no contractual basis to make payments in the
currency of Country D as monthly salaries, meaning that they should not be
considered as salary payments. At this point, the DRC concluded that the
argumentation of the Respondent cannot be upheld due to the fact that is clear
that there is no provision in the contract for any salary payment in any other
currency than Euros.
14.
Furthermore, the members of the Chamber determined that according to
paragraph 8 of article 3 of the contract, the Claimant was also entitled to receive
Player A, Country B / Club C, Country D
Page 7 of 10
the so-called “victory bonus payments”. Therefore, the Claimant was entitled to
receive two different types of payments; on the one hand, the salary amounting
to EUR 245,000; and on the other hand, bonus granted at the Respondent’s
discretion.
15.
In this regard, the members of the Chamber wished to point out that, according
to the documentation on file, the payments in the currency of Country D were
performed in similar amounts and shortly after a successful result of the
Respondent. Consequently, and considering that there is no contractual basis for
payments in the currency of Country D as monthly salaries, the Chamber
concluded that these payments should be considered as bonus payments and
cannot be considered as salary payments.
16.
In view of the above, considering that the Respondent could not prove that it had
paid the entire salary to the Claimant and in accordance with the principle of
pacta sunt servanda, the Chamber unanimously decided to accept the claim
lodged by the Claimant, and established that the Respondent has to pay to the
Claimant the amount of EUR 25,190 as outstanding remuneration.
17.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on
the amount of EUR 25,190 until the date of effective payment as follows:
a) 5% p.a. over the amount of EUR 1,400 as from 1 October 2015 until the date of
effective payment;
b) 5% p.a. over the amount of EUR 1,290 as from 1 March 2016 until the date of
effective payment;
c) 5% p.a. over the amount of EUR 22,500 as from 31 May 2016 until the date of
effective payment.
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is accepted.
2. The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 25,190.
3. Within the s ame deadline, the Respondent has to pay to the Claimant interest
as follows:
- 5% p.a. over the amount of EUR 1,400 as from 1 October 2015 until the date of
effective payment;
Player A, Country B / Club C, Country D
Page 8 of 10
- 5% p.a. over the amount of EUR 1,290 as from 1 March 2016 until the date of
effective payment;
- 5% p.a. over the amount of EUR 22,500 as from 31 May 2016 until the date of
effective payment.
4. In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2 and 3 are 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.
5. The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are 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:
Player A, Country B / Club C, Country D
Page 9 of 10
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
Page 10 of 10