Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 24 August 2018,
in the following composition:
Geoff Thom ps on (Country F), Chairman (did not take part in the deliberations)
Johan v an Gaalen (S outh Africa), member
Joaquim Ev angelis ta (Portugal), member
Todd Durbin (US A), member
S tefano La Porta (Italy ), member
on the matter between the player
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
and the club,
Club E, Country F
as Intervening party
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 18 June 2013, the player from Country B, Player A (hereinafter: the player or
Claimant) and the club from Country D, Club C (hereinafter: the club or
Respondent) concluded an employment agreement (hereinafter: the contract),
valid from 28 June 2013 until 30 June 2017, as well as two addendums to said
contract (hereinafter: addendum 1 and addendum 2).
2.
According to article 1 of addendum 2 to the contract, the player was entitled to
receive a ‘irrevocable sign-on fee’ of EUR 2,250,000, payable as follows:
-
EUR 562,500, due ‘within a period of maximum 30 days from the day the player
has moved his centre of vital interest to Country D’;
EUR 562,500, due on 10 September 2013;
EUR 562,500, due on 20 July 2014;
EUR 562,500, due on 20 August 2014.
Furthermore, also according to article 1 of addendum 2 to the contract, the player
was entitled to receive EUR 2,000,000 net ‘per contractual year (the period from
1 July till 30 June next year’, payable as follows:
For the season 2013/2014 a yearly salary of EUR 2,000,000 net:
a monthly salary of EUR 500,000 for the month of July 2013, due on 20 July
2013;
10 monthly salaries of EUR 150,000, due on the 20th day of every month in
the period between August 2013 and June 2014.
For the season 2014/2015:
a monthly salary of EUR 500,000 for the month of July 2014, due on 20 July
2014;
10 monthly salaries of EUR 150,000, due on the 20th day of every month in
the period between August 2014 and June 2015.
For the season 2015/2016:
a monthly salary of EUR 500,000 for the month of July 2015, due on 20 July
2015;
10 monthly salaries of EUR 150,000, due on the 20th day of every month in
the period between August 2015 and June 2016.
For the season 2016/2017:
Player A, Country B / Club C, Country D / Club E, Country F
Page 2 of 16
a monthly salary of EUR 500,000 for the month of July 2016, due on 20 July
2016;
10 monthly salaries of EUR 150,000, due on the 20th day of every month in
the period between August 2016 and June 2017.
3.
Further, article 1 of addendum 2 to the contract contains the following clause:
‘For the avoidance of doubt, any ‘net’ amounts stated as payable to the player
under this agreement are stated net of any income taxes and/or wage taxes and/or
national insurance premiums and/or withholding taxes and/or equivalent
payment obligations assessed by the relevant tax authorities, and net of
deduction of any other compensation payable under applicable laws and/or
football regulations. The club will be responsible for the payment and transfer of
all amounts which are required to be made in respect of any taxes, withholdings
or compensations arising under or from this agreement. The club shall indemnify
and hold harmless the player, from and against possible claims from any tax
authority or other competent body with regard to the payments due to the player
under this agreement and against all damages, claims, losses, expenses, costs,
obligations and liabilities, including, but not limited to, reasonable legal fees and
disbursements, suffered or incurred by the player directly or indirectly as a result
of non-fulfilment by the club of its responsibility for the payment and transfer of
all amounts which are required to be made in respect any taxes, withholdings or
compensations arising under or from this agreement. In the event the player is
obligated or sentenced to pay any income taxes and/or wage taxes and/or national
insurance premiums and/or withholding taxes and/or equivalent payment
obligations assessed by the relevant tax authorities in respect of this agreement,
irrespective the amount due, a claim from the player to the club will arise at the
same time and for the same amount. The club hereby guarantees to pay this
amount immediately to the player upon the first request (by written notice) of
the player. All the above-mentioned payments and/or instalments shall be paid by
transfer/remittance by the club to the player in full, in cleared funds and without
banking costs whatsoever to the bank account(s) indicated from time to time by
the player in writing’.
4.
Moreover, article 2 of addendum 2 to the contract contains the following clause:
‘The player shall be entitled to the (match) bonus scheme (for matches and
otherwise) in accordance with the collective bonus system applicable for all the
players of the first team of the club’.
5.
Article 4 of addendum 2 to the contract, stipulates the following: ‘The club shall
provide the player with and pay for a suitable first-class furnished serviced
apartment up to the amount of USD 5,000 (five thousand US dollars) net per
month. Any applicable taxes here will be paid by the club, including but not
limited to taxation of benefits’.
Player A, Country B / Club C, Country D / Club E, Country F
Page 3 of 16
6.
Article 6 of addendum 2 to the contract, stipulates the following: ‘In addition to
the established general penalty sanctions applied to the players of the club for
violations of labor discipline and sports regime, the following penalty sanctions
may be applied to the player: for unjustified failure of the player to comply with
the team schedule (i.e. unjustified absence from the club): penalty in the amount
of EUR 20,000 (twenty thousand euros) for every missed day (including for every
incomplete day) […]’.
7.
On 15 July 2015, the club and the club from Country F, Club E (hereinafter: Club
E), concluded a transfer agreement for the transfer of the player to Club E.
8.
On 14 July 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club has to be ordered to pay him the amounts of USD 58,000,
EUR 261,250.48 and 3,431,268.89 in the currency of Country D (approximately EUR
115,070 on 14 July 2017), specified as follows:
EUR 241,935.48 as outstanding salary payment for the period between 1 July
and 15 July 2015, according to the player due on 20 July 2015;
EUR 19,315 as ‘currency difference between the net amount as agreed to be
paid to the Claimant’s bank account in Country B and the net amounts as
received by the Claimant’;
USD 50,000 as outstanding part of the premiums for winning the national cup
of Country D and the national championship of Country D;
USD 8,000 as ‘security deposit’, the player had to pay for his apartment but
which costs were never reimbursed to him;
3,431,268.89 as ‘unpaid taxes’ for the year 2015, specified as follows:
-
3,191,835.55 as unpaid ‘income tax’;
239,433.34 as unpaid ‘military tax’.
In addition, the player requests 5% interest p.a. on the abovementioned amounts
as from the respective due dates. Moreover, the player requested that sporting
sanctions as well as a fine of EUR 1,000,000 be imposed on the club.
9.
In his claim, the player explains that after he was transferred to Club E on 15 July
2015, the club failed to pay him the pro rata part of the salary for the period
between 1 July and 15 July 2015. According to the player, this pro rata part
corresponds to the amount of EUR 241,935.48.
10.
Further, the player explains that during his employment with the club, ‘a
discrepancy occurred in net salary received on the Claimant’s bank account in
Player A, Country B / Club C, Country D / Club E, Country F
Page 4 of 16
Country B on the one hand and the salary as agreed per contract on the other
hand, due to currency differences’. In this respect, the player explains that he and
the club agreed that his salary would be partially paid on his bank account in
Country B and partially on his bank account in Country D. According to the player,
as a result of the foregoing, he suffered a significant loss of income, for which the
club, based on article 1 of addendum 2 to the contract, is to be held responsible,
as it was agreed that the club would pay the player’s receivables without any
deduction of banking costs. As a result, the player claims an additional amount of
EUR 19,315 to be paid by the club.
11.
Moreover, the player explains that in the 2014/2015 season, the club won both
the national cup of Country D and the national championship in Country D and
that as a result, based on article 2 of addendum 2 to the contract, all players were
awarded with two separate premiums of USD 50,000. In this respect, the player
holds to have only received one payment of USD 50,000, and as a result, claimed
the remaining amount of USD 50,000 as premium for winning both the cup and
the championship, which according to the player had fallen due at the end of the
2014/2015 season.
12.
What is more, according to the player, he had to pay a security deposit of USD
8,000 for his apartment in Country D. The player explains that he assumed that
this amount would be refunded after he left the apartment in July 2015 ‘in perfect
condition’, based on article 4 of addendum 2 to the contract, however, despite
several requests, he never received this amount from the club.
13.
Furthermore, the player explains that the club failed to pay his taxes for the year
2015, even though it was obliged to do so as per article 1 of addendum 2 to the
contract. As a result of this, the player explains that the club ‘shall be obligated to
make the relevant tax payments for the year 2015’. In this respect, the player
submitted an overview dated 26 June 2017, calculated by the ‘Tax Specialist X
from Country D’, indicating the amount of taxes that should be paid by the player
for the year 2015, i.e. the total amount of 3,431,268.89.
14.
In conclusion, the player explains that on 3 July 2017, he put the club in default
and requested the payment of the amounts of USD 58,000, EUR 261,250.48 and
3,431,268.89, however to no avail.
15.
In its reply to the player’s claim, on 5 October 2017, the club submitted its
response, asking for the rejection of the player’s claim. First of all, the club
explains that the player’s salary was not calculated on a monthly basis, but on a
yearly basis. In this respect, the club argues that the player was entitled to a yearly
salary of EUR 2,000,000 net, and that therefore, the pro rata part of the player’s
salary for the month of July 2015, i.e. for the period between 1 July and 15 July
2015, amounted to (15/365) x EUR 2,000,000 = EUR 82,191.78.
Player A, Country B / Club C, Country D / Club E, Country F
Page 5 of 16
16.
Moreover, the club explains that it validly imposed a fine of EUR 100,000 on the
player, because allegedly, the player was absent for 5 days, i.e. a fine of EUR
20,000 for each missed day. In this respect, the club explains that ‘at the beginning
of the 2015/2016 season’, all the players were obliged to arrive in Country D on
27 June 2015, and that as an exception, some players were authorized by the club
to arrive on 29 June 2015 in Country G where the club had a training camp.
However, the player requested, via his agent, for permission to arrive on 6 July
2015 only, which request was denied by the club. According to the club, the
player’s agent confirmed in reply to this denial that the player would join the
team on 29 June 2015.
17.
However, according to the club, the player did not show up on 29 June 2015 in
Country G, and did not reply to the club’s email dated 30 June 2015, in which it
requested the player to join the club immediately for the training camp. The club
explains that the player only arrived on 3 July 2015 at the club’s training camp.
18.
As a result of the foregoing, the club deems that the fine of EUR 100,000 was
validly imposed on the player, and that therefore, ‘Club C has the right to claim
the difference between the imposed fine and the due salary’, i.e. EUR 17,808.22
as the difference between EUR 100,000 and EUR 82,191.78.
19.
With regard to the currency difference of EUR 19,315 as claimed by the player,
the club argues that the salary of the player was paid in three parts, i.e.:
(a)
the first part to the player’s bank account in Country B by the Company H;
(b)
the second part to the player’s bank account in Country D by the Company
H and;
(c)
the third part to ‘another bank account in Country D’ by the LLC “Club C”.
In this respect, the club claims that the player only considered the first and second
parts, while calculating and claiming the currency difference, and ignored the
third part. As a result of the foregoing incorrect calculations, the club argues that
it does not owe the player any amounts in this respect. Furthermore, the club
considers the claim related to the currency differences time-barred, as the ‘alleged
underpayments’ happened more than two years before the player lodged his
claim.
20.
Regarding the player’s claim for the total amount of USD 100,000 for winning the
national cup of Country D and the national championship of Country D, the club
holds that the player did not prove that he was entitled to a bonus payment of
USD 50,000 for each title. The club argues that all its players only received one
bonus payment of USD 50,000 for winning the national cup of Country D and the
Player A, Country B / Club C, Country D / Club E, Country F
Page 6 of 16
national championship of Country D, and that therefore, this part of the player’s
claim has to be rejected.
21.
In addition, the club explains that the player did not submit any evidence that he
is entitled to receive an amount of USD 8,000 as ‘security deposit’ from the club,
neither that the player submitted any evidence that the club should be obliged to
reimburse him the ‘allegedly unpaid taxes’. The club points out that the alleged
declaration of the Tax Specialist X from Country D is not signed and therefore,
cannot be considered as valid evidence.
22.
In conclusion, the club asks for the rejection of the player’s claim and lodges a
counterclaim against him, requesting the payment of the total amount of EUR
1,142,808.22, specified as follows:
EUR 17,808.22 as ‘residual part of the imposed fine’;
EUR 1,125,000 as ‘non-amortized part of the sign-on fee’, as the player only
served two years out of his four years contract. In this respect, the club
explained that in June 2013, when entering into the contract with the player,
it paid the player a sing-on fee of EUR 2,250,000. Since in July 2015, the player
was transferred to Club E, the cub argues that ‘50% of the signing-on fees […]
should be considered as received by the player without any relevant
reciprocation’.
Moreover, the club requests that the player has to be ordered to pay its legal costs,
as well as procedural costs.
23.
In his replica, the player argues that it is a fact that based on article 1 of annex 2
for the month of July 2015, he was entitled to a total salary of EUR 500,000 net,
as said amount was also paid to him in July 2013 and July 2014. Further, the player
argues that the contract stipulates that the salary is due in equal instalments or
on a daily basis. Based on the foregoing, the player argues that the club had to
pay him the amount of EUR 241,935.48 for the days he worked during the month
of July 2015.
24.
Regarding the fine of EUR 100,000 imposed on him, the player first of all argues
that said fine cannot be upheld, as the penalty is excessive and is not in line with
the DRC’s jurisprudence, which dictates that a fine cannot be used to effect
outstanding financial obligations. Furthermore, the club’s claim submitted to FIFA
on 5 October 2017 for the amount of EUR 17,808.22 as residual part of the fine, is
according to the player, time-barred as it is connected to the July 2015 salary, and
the club’s counterclaim was only lodged on 5 October 2017.
25.
As to the currency differences, the player holds that the club was aware of the
problem as it was addressed by the player’s agent on 19 November 2017 to the
Player A, Country B / Club C, Country D / Club E, Country F
Page 7 of 16
club. Further, the player denies that his salary was paid on three different bank
accounts, as indicated by the club and explains that the first part of his salary was
paid to the bank account in Country B at the Bank Y. The second part of his salary
was paid, until May 2014, to the Bank Z in Country D, and after the insolvency of
said bank, as from May 2014 to the Bank J in Country D. Furthermore, the player
states that this part of his claim cannot be considered time-barred, as the event
giving rise to the dispute concerning the currency differences was the termination
of the employment relationship in July 2015.
26.
In addition, the player explains that he was entitled to two bonuses in the amount
of USD 50,000 each, however that the club only paid him one bonus of USD
50,000. In this respect, the player argues that other players confirmed to him via
WhatsApp that they received the bonus amounts they were entitled to. Further,
the player explains that in an email dated 14 July 2015, his agent addressed the
issue about the unpaid bonuses to the club.
27.
In respect to the claimed security deposit, the player refers to an e-mail dated 22
August 2013, sent by his agent to the club, in which the agent confirmed towards
the club that the player would pay the deposit of USD 8,000 and that said amount
would be refunded within 10 days of leaving the apartment. The player further
argues that he paid the deposit in cash, and that he left the apartment in a perfect
state, as a result of which the club is obliged to reimburse him the amount of USD
8,000.
28.
With regard to the unpaid taxes, the player holds that this circumstance is
confirmed by the statement of his tax consultant ‘Tax Specialist X’ dated 25 May
2015, indicating that the 2013 and 2014 taxes were duly paid, however that for
the year 2015 an amount of 3,431,268.89 still needed to be paid. Furthermore, the
player submitted a statement of the tax authority of Country D dated 2 November
2017, in which it is confirmed that the player did not file his tax declaration for
the year 2015. What is more, the player also submitted an e-mail dated 2 June
2015 of Mr T, international affairs manager of the club, in which it is confirmed
that the club will take care of all necessary tax obligations of the player.
29.
Finally, the player requests the rejection of club’s counterclaim. First of all, the
player argues that the club’s counterclaim is time-barred, as it was lodged more
than two years after the event giving rise to the dispute, i.e. the termination of
the employment relationship in July 2015. Furthermore, the player explains that
he only received correspondence from the club, in which it announced that it was
‘considering to apply appropriate financial sanctions’ and that a final sanction was
never imposed on him. In conclusion, the player reiterates that the penalty is
excessive and is not in line with the DRC’s jurisprudence.
30.
In relation to the club’s counterclaim for the reimbursement of the non-amortized
part of the sign-on fee, the player argues that said claim cannot be upheld, as the
Player A, Country B / Club C, Country D / Club E, Country F
Page 8 of 16
sign-on fee was ‘irrevocable’ and cannot be considered as an advance payment.
Furthermore, the player argues that the ground for payment of the irrevocable
sign-on fee was the ‘moving of his centre of vital interest’ to Country D, which
condition was fulfilled by him. Finally, the player points out that based on article
67 of the Swiss Code of obligations, the club’s claim for EUR 1,125,000 as unjust
enrichment, is time-barred.
31.
In its duplica, the club argued that in his replica, the player failed to meet his
burden of proof. In relation to the salary for the month of July 2015, the club
reiterates that the player was only entitled to the amount of EUR 82,191.78, and
for the imposed fines of EUR 100,000 in total, the club points out that based on
the contract, the club had the opportunity ‘to withdraw such amount from his
salary’.
32.
Moreover, as to the currency difference, the club points out that the
documentation provided by the player only shows the ‘foreign income’, that is,
the amounts paid by Company H. Therefore, the club concludes that the player
did not provide information regarding the ‘incomes to the accounts in the Bank
J, which would clearly show that there are no any underpayments’.
33.
In relation to the claimed bonus payment of USD 50,000, which allegedly was
outstanding, the club argues that none of the player’s teammates provided a
witness statement and that it never confirmed towards the player that he was
entitled to two bonus payments of USD 50,000. Also, it stated that the player
failed to submit evidence that he is entitled to the reimbursement of the security
deposit in the amount of USD 8,000.
34.
For the allegedly unpaid taxes, the club argues that the documents provided by
the player do not prove that the club is obliged to pay the unpaid taxes. What is
more, the club explains that it could only reimburse to the player the tax
payments, ‘after player submit the declaration about property status and income
to the appropriate tax authority’.
35.
Moreover, the club reiterates that the player should reimburse the amount of EUR
1,125,000, as the sign-on fee paid ‘for the execution of the present four-year
agreement’ and which should be considered as ‘advance payments’.
36.
Furthermore, Club E confirmed that on 15 July 2015, it signed a contract with the
player and explained that it had no further comments to the matter at hand.
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
Player A, Country B / Club C, Country D / Club E, Country F
Page 9 of 16
hand. In this respect, it took note that the present matter was submitted to FIFA
on 14 July 2017. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter:
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 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (editions 2016 and 2018) 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, with the involvement of an club from Country F.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 17 August 2018 by means of which
the parties were informed of the composition of the Chamber, the Chairman, Mr
Geoff Thompson, refrained from participating in the deliberations in the case at
hand, due to the fact that Mr Geoff Thompson is from the same country as the
Club E from Country F and thus, the Dispute Resolution Chamber adjudicated the
case in presence of four 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 14 July 2017,
the 2016 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 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 acknowledged that on 18 June 2013, the parties
signed an employment contract valid between 28 June 2013 and 30 June 2017. In
accordance with said contract, the player was entitled to receive, inter alia, a singon fee of EUR 2,250,000, payable in four instalments of EUR 562,500 each.
Furthermore, the player was entitled to receive a yearly salary of EUR 2,000,000,
payable in 10 monthly instalments of EUR 150,000 each in the period between
August of the respective year and June of the following year and a yearly payment
of EUR 500,000 in the month of July of the respective year.
Player A, Country B / Club C, Country D / Club E, Country F
Page 10 of 16
7.
What is more, the Chamber further noted that on 15 July 2015, the player was
transferred to the Club E from Country F, and that the contract signed on 18 June
2013 between the player and the club was as such terminated.
8.
In continuation, the members of the Chamber noted that the player alleged that
after he was transferred to Club E, the club failed to pay him several amounts he
was contractually entitled to. In this respect, the player explains that an amount
of EUR 241,935.48, consisting of a part of the salary for July 2015, as well as an
amount of EUR 19,315 related to currency differences, had remained unpaid.
What is more, the player also explains that the club failed to pay him an amount
of USD 50,000 related to bonuses, an amount of USD 8,000 connected with the
reimbursement of a security deposit, as well as an amount of 3,431,268.69 related
to unpaid taxes. Consequently, the player asked to be awarded these outstanding
amounts.
9.
Equally, the members of the Chamber took note of the reply of the club, which
asserted that it fulfilled its financial obligations in relation to the July 2015 salary,
as it deems that the player was only entitled to the amount of EUR 82,191.78 as
pro rata part of the July 2015 salary. Furthermore, the club argues that it validly
imposed a fine of EUR 100,000 on the player, because of several unjustified
absences in the month of July 2015, as a result of which the player has to pay an
amount of EUR 17,808.22 to the club. In addition to this, the club was of the
opinion that it was also entitled to EUR 1,125,000, as part of the ‘non-amortized
part of the sign-on fee’, because the player only served two years out of the fouryear contract, and lodged a counterclaim against the player, together with its
reply, on 5 October 2017 .
10.
Furthermore, the Chamber noted that the club also argued that the player is not
entitled to the claimed currency difference, first because it considered this part of
the player’s claim as time-barred and second because it alleges to have fulfilled
all its financial obligations towards the player. What is more, the club explains
that also the player’s claims for bonus payments for winning the national
championship of Country D and the national cup of Country D, as well as his claims
for reimbursement of a security deposit and allegedly unpaid taxes, have to be
rejected, as the player failed to submit evidence that he is entitled to these
amounts.
11.
In view of the foregoing, the Chamber first noted that a few preliminary issues
related to the timeliness of the player’s claim and the club’s counterclaim were
still to be addressed, before entering the substance of the matter. In this respect,
the members of the Chamber noted that the club’s counterclaim was only lodged
on 5 October 2017, whereas the contract between the player and the club had
already been terminated as per 15 July 2015, the day when the player was
transferred to Club E. Equally, the Chamber also noted that player, in his claim of
Player A, Country B / Club C, Country D / Club E, Country F
Page 11 of 16
14 July 2017, had inter alia claimed bonuses related to winning the national
league of Country D and the national cup of Country D in the season 2014/2015,
which had ended on 30 June 2015, according to the information contained in the
Transfer Matching System (TMS) (cf. art. 6 par. 3 of the Annexe 3 to the
Regulations).
12.
In this respect, the Chamber referred to art. 25 par. 5 of the Regulations, which,
in completion to the general procedural terms outlined in the Procedural Rules,
clearly establishes that the decision-making bodies of FIFA shall not hear any
dispute if more than two years have elapsed, since the event giving rise to the
dispute arose and that the application of this time limit shall be examined ex
officio in each individual case.
13.
As a consequence, and by recalling that the player’s claim to FIFA was submitted
on 14 July 2017 and that the club’s counterclaim was submitted on 5 October 2017
only, the Chamber first of all established that the time limit of two years for the
player to claim the bonuses requested by him, had expired on 30 June 2017.
Furthermore, the Chamber established that the time limit for the club to lodge its
counterclaim had elapsed on 15 July 2017, i.e. 2 years after the termination of the
employment contract between the parties, at the latest. Consequently, the
members of the Chamber decided that the part of the player’s claim related to
outstanding bonuses in the amount of USD 50,000, payable at the latest on 30
June 2015, as well as the club’s entire counterclaim, are time-barred and have to
be considered inadmissible.
14.
Having established the aforementioned preliminary issue, the Chamber went on
to analyse the substance of the matter. In this respect, it turned its attention to
the residual requests contained in the player’s claim. In this regard, the members
of the Chamber deemed it appropriate to recall 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.
15.
In this context, the Chamber noted that the contract concluded between the club
and the player indeed mentions that the player is entitled to a yearly salary of
EUR 2,000,000, however that the contract also clearly mentions that for the month
of July 2015, the player is entitled to a salary of EUR 500,000. In this respect, the
Chamber had no other option than to conclude that the pro rata part of the
player’s salary for the period between 1 July and 15 July 2015 amounted to (14/31)
x EUR 500,000 = EUR 225,806.45, as claimed by the player. Therefore, in line with
the legal principle of pact sunt servanda, the clear terms of the contract and the
player’s well-founded request, the club’s argument that the player was only
entitled to an amount of EUR 82,191.78 must be rejected.
Player A, Country B / Club C, Country D / Club E, Country F
Page 12 of 16
16.
Subsequently, the Chamber turned its attention to the club’s argument that it
validly imposed a fine of EUR 100,000 on the player, for his absence from training
sessions in the period between 29 June 2015 and 3 July 2015.
17.
In this respect, the Chamber noted that, from the information on file, it appears
that the club imposed said fine based on article 6 of addendum 2 of the contract,
which was signed by the player. The members of the Chamber, however, also
noted that the club did not provide any evidence of having followed a due process
for the imposition of such fine, or of having requested the player at all to present
his defence as to the imposed fine. The imposition of the fine is also contested by
the player. In fact, from the documentation on file, the Chamber noted that such
proceedings and the relevant decision to fine the player in the amount of EUR
100,000 had not been clearly communicated to the player by the club, or at least
no evidence of such was provided by the club. Based on the foregoing, the
Chamber deemed that the fine of EUR 100,000 appears to have been unilaterally
imposed on the player, who thus was not in the position to defend himself, in the
context of a due process of law. Furthermore, the Chamber emphasised that a fine
amounting to EUR 100,000 for an absence of 5 days is manifestly excessive and
disproportionate and cannot be upheld. Hence, the Chamber was unanimous in
its conclusion that the fine of EUR 100,000 must be disregarded, due to the fact
that its imposition did not follow a due process of law and that its amount is
manifestly disproportionate in comparison with the alleged offense.
18.
In addition to the foregoing circumstances, the Chamber deemed it vital to point
out that the imposition of fines, 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.
19.
In conclusion, the Chamber determined that the club could not set-off its debt
towards the player by means of the fine of EUR 100,000, it alleges to have duly
imposed on him and that as such, the amount of EUR 225,806.45 for the month
of July 2015 is due to the player as per the contract.
20.
Turning its attention to the other requests of the player, the Chamber noticed
that the player also claimed an amount of EUR 19,315 as difference due to the
currency exchange rate. In this respect, the player alleged that he and the club
agreed that a part of his salary would be paid on his bank account in Country B
and another part on a bank account in Country D, however that due to currency
exchange rates, he did not receive the entire amount due, EUR 19,315 having
allegedly remained unpaid. The club contested this circumstance and explained
that the player did not mention that another part of his salary was paid to a third
bank account in Country D. As a result, the club argues that it paid the player all
the monies he was entitled to receive.
Player A, Country B / Club C, Country D / Club E, Country F
Page 13 of 16
21.
Turning to the documentation provided by the parties, the members of the
Chamber however noticed that the player indeed confirmed that it had been
agreed between him and the club that his remuneration would be paid in part to
his bank account in Country B and in part to his bank account in Country D.
Furthermore, the Chamber noted that the player only submitted a plain excel
sheet produced by himself, as well as a copy of an article published in the
Ukrainian media, confirming that the Bank Z went bankrupt, as proof of his claim,
however without submitting documentary evidence of an actual loss of the
specific amount of EUR 19,315, corresponding to alleged currency differences.
Taking into consideration art. 12 par. 3 of the Procedural Rules, the members of
the Chamber decided to reject this part of the player’s claim, in view of the lack
of documentary evidence provided.
22.
In addition, the members of the Chamber turned their attention to the player’s
claim for the reimbursement of an amount of USD 8,000, he allegedly paid as a
security deposit for his apartment in Country D. According to the player, after
leaving the apartment in a perfect condition, the club was obliged to reimburse
said security deposit to him, based on the contents of article 4 of the contract as
well as based on an agreement his agent made with the club.
23.
In this respect, the members of the Chamber however noted that article 4 of the
contract does not contain any mention at all to security deposits related to the
rent of an apartment. Furthermore, the player only submitted a copy of an e-mail
conversation between his agent and an alleged representative of the club, in
which the agent proposed to the club that the security deposit would be
reimbursed within 10 days after leaving the apartment. There is however no
explicit confirmation of the club, agreeing with this condition, on file. In view of
the foregoing, and by again referring to the contents of art. 12 par. 3 of the
Procedural Rules, the Chamber decided to also reject this part of the player’s claim.
24.
Finally, with respect to the player’s request for reimbursement of income taxes in
the amount of 3,431,268.69, the DRC pointed out that, in spite of the wording of
article 1 of addendum 2 of the contract, the corresponding calculation produced
by the player’s tax advisor is only an overview of the amount he would
hypothetically need to pay, if he would receive a tax invoice from the tax
authorities of the State of Country D. What is more, the members of the Chamber
noted that the player did not submit any documentary evidence that he was in
fact requested by the tax authorities in Country D to fulfil his tax obligations, or
that he had already made the payment of said taxes to relevant tax authorities in
Country D. As a result, the members of the Chamber were of the opinion that this
part of the player’s claim should also be rejected, in view of the fact that there
was no documentary evidence on file that the player had to bear the costs of these
unpaid taxes.
Player A, Country B / Club C, Country D / Club E, Country F
Page 14 of 16
25.
In view of all the above-mentioned circumstances, the members of the Chamber
concluded that the club, until 15 July 2015, had failed to pay to the player the
total amount of EUR 225,806.45, in relation to pro rata salary payments for the
month of July 2015.
26.
Consequently, and in accordance with the general legal principle of pacta sunt
servanda, the club must fulfil its obligations as per the contract concluded with
the player and, consequently, is to be held liable to pay the outstanding amount
of EUR 225,806.45 to the player.
27.
Furthermore, in accordance with its well-established jurisprudence and taking
into account the request of the player, the Chamber further decided that interest
at the rate of 5% p.a. was to be applied over the amount of EUR 225,806.45 as
from 20 July 2015, as requested by the player.
28.
What is more, the Chamber decided to reject the player’s claim for imposing an
additional fine of EUR 1,000,000 on the club, due to the lack of a legal and
regulatory basis.
29.
Finally, the Chamber concluded its deliberations in the present matter by
concluding that the player’s claim is partially accepted, insofar as it is admissible,
and that the counterclaim of the club is inadmissible.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted, insofar it is admissible.
2.
The counter-claim of the Respondent, Club C, is inadmissible.
3.
The Respondent 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
225,806.45, plus 5% interest p.a. as from 20 July 2015 until the date of effective
payment.
4.
In the event that the amount due to the Claimant in accordance with the abovementioned number 3. 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
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.
Player A, Country B / Club C, Country D / Club E, Country F
Page 15 of 16
*******
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 / Club E, Country F
Page 16 of 16