Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 10 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Carlos González Puche (Colom bia), member
Eirik Monsen (Norw ay ), member
Juan Batis ta Mahiques (Argentina), member
Daan de Jong (The Netherlands ), 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 14 February 2016, the Player of Country B, Player A (hereinafter: the
Claimant), and the Club of Country D, Club C (hereinafter: the Respondent),
signed an employment contract valid as from the date of signature until 31
May 2017.
2.
According to art. 9 of the employment contract, the Claimant was entitled,
inter alia, to a monthly salary of 5,000, to be paid “by the date of 20 each
month, but not later than the last day/date of the current month for which
the [Claimant] has already rendered the work”.
3.
Art. 3.1 of the employment contract stipulates that any appendix or
additional act to the employment contract shall be valid only if signed by the
parties, registered with the Football Association of Country D (Football
Association E) and refers to the employment contract.
4.
Art. 3.2 of the employment contract reads as follows: “This contract is/ is not
accompanied by an annex (consisting of ______ pages).”
5.
On 14 February 2016, the parties also signed an “Agreement”, valid as from
the signature date until 30 June 2017, according to which, inter alia:
a.
“the [Claimant] will get a payment of 1500 […] USD every month”;
b. “if a player plays 50% of first team matches per month, salary will be
3,000 […] American dollars net per month”.
6.
By letter dated 13 September 2017, the Claimant put the Respondent in
default of the payment of 75,000 and USD 13,500.
7.
On 3 October 2017, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded the amounts of 75,000 (5,000 per
month as from March 2016 until May 2017) and USD 13,500 (USD 1,500 for
August 2016 and USD 3,000 per month as from February 2017 until May 2017)
plus interest as follows:
a. 5% p.a. on 5,000 as from the first day of each month as from April 2016
until June 2017 until effective payment;
b. 5% p.a. on USD 1,500 as from 1 September 2016 until effective payment;
c. 5% p.a. on USD 3,000 as from the first day of each month as from March
2017 until June 2017 until effective payment.
8.
The Claimant further requested that sporting sanctions be imposed on the
Respondent.
Player A, Country B / Club C, Country D
2/9
9.
More specifically, the Claimant argued that, after signing the employment
contract and the agreement, the Respondent did not fulfil its financial
obligations towards him. In this respect, the Claimant explained that the
agreement and the employment contract had to be considered as being
cumulative, with the consequence of the Claimant being entitled to a
monthly basic salary of 5,000 plus a monthly remuneration in USD, which had
to be quantified in USD 1,500 or USD 3,000, depending on the amount of
games played with the Respondent.
10.
With regards to the above, the Claimant specified that, during the whole
duration of the contract, the Respondent failed to remit him the salaries
established in the employment contract for a total amount of 75,000 (i.e.
5,000 per month as from March 2016 until May 2017) and failed to pay him
USD 13,500 on the basis of the agreement (USD 1,500 for August 2016 and
USD 3,000 per month as from February 2017 until May 2017).
11.
More in particular, the Claimant argued that, having played more than 50%
of the games in the relevant periods, he was entitled to USD 3,000 for the
months of August 2016, February, March, April and May 2017 and indicated
that during those months the Respondent had paid him only USD 1,500 for
August 2016.
12.
Furthermore, with regards to the salary claimed for the months of April and
May 2017, during which he suffered from an injury, the Claimant explained
that “according to the internal regulations of the [Respondent], if there are
no matches in the particular month or if the particular football player of the
[Respondent] is injured in the match of the [Respondent], the football player
shall receive salary in the amount corresponding to the salary received by the
football player in the previous month […]”.
13.
In its reply, the Respondent asked that the Claimant’s claim be rejected for
the amount claimed, while acknowledging the existence of a debt towards
him in the amount of USD 9,000.
14.
More in particular, the Respondent recognised that, on 14 February 2016, the
parties had signed an employment contract and an agreement, but argued,
with regards to the salary payments, that the entitlements provided in said
two documents were not cumulative. According to the Respondent, in
respect of its financial obligations, the agreement replaced the employment
contract, thus establishing the sole salary of USD 1,500 or USD 3,000
depending on the Claimant’s match appearances.
15.
In continuation, the Respondent explained that, “at least” up to 31
December 2016, it had fulfilled its financial obligations towards the Claimant
and that it had encountered some financial difficulties as from February 2017,
which was the reason why it had not paid the Claimant his salaries for the
Player A, Country B / Club C, Country D
3/9
period between February and May 2017. In this respect, the Respondent
submitted 4 translated receipts signed by the Claimant, in each of which the
latter “confirm[ed] that [the Respondent] fulfilled all their financial
obligations under the contracts”, respectively, on 31 March 2016, on 30 June
2016, on 30 September 2016 and on 31 December 2016.
16.
In respect of the above, the Respondent alleged that the Claimant had
verbally accepted a late payment of the outstanding amounts prior to leaving
the country at the end of the employment contract.
17.
Moreover, the Respondent specified that the outstanding dues amounted to
USD 9,000, since the Claimant was entitled to USD 3,000 each for the months
of February and March 2017 but only to USD 1,500 for each of the months of
April and May 2017, having played in less than 50% of official matches in
April and having not played at all in May.
18.
Furthermore, and in particular referring to the outstanding dues of May
2017, the Respondent denied the existence of the internal regulation invoked
by the Claimant. The Respondent added that it had invited him on 31
October 2017 to fly to Country D in order to collect the monies it still owed
him.
19.
In his replica, the Claimant entirely reiterated his position and added that the
Respondent had substantially forced him to sign those 4 receipts “under the
threat of not receiving of salary payment”. Consequently, according to the
Claimant, said documents should be considered deprived of “legal force”.
Moreover, the Claimant acknowledged that he had been invited to collect his
monies but explained that it was not his intention to fly back to Country D to
get only 20,000, since it was not worth it for that amount and it was anyway
less than what the Respondent owed him.
20.
In its duplica, the Respondent entirely reiterated the position expressed in its
reply to the claim. With regards to the Claimant’s statement concerning the 4
receipts, the Respondent noted that, with his last submission, the Claimant
had recognised their authenticity and added that they cannot be considered
without legal force since they bear his signature.
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 stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 3 October 2017. Consequently, the DRC concluded that
the 2017 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 Procedural Rules).
Player A, Country B / Club C, Country D
4/9
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 2018) the DRC 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 DRC analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the DRC confirmed that in accordance with art. 26 par.
1 and par. 2 of the said Regulations (edition 2018) and considering that the
present claim was lodged in front of FIFA on 3 October 2017, the 2016 edition
of the Regulations on the Status and Transfer of Players (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. In this respect, the Chamber started by acknowledging all the abovementioned 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.
5.
In this respect, the DRC acknowledged that, according to the employment
contract signed by the parties on 14 February 2016, the Claimant was
entitled, inter alia, to a monthly salary of 5,000. In addition, the Chamber
observed that, according to art. 3.1 of the employment contract, any
appendix or additional act to it, in order to be valid, had to: (i) bear the
signature of the parties, (ii) be registered with the Football Association E and
(iii) refer to the employment contract.
6.
The members of the Chamber further noted that on the same day on which
the employment contract was concluded, i.e. 14 February 2016, the parties
also signed an “Agreement”, valid as from the signature date until 30 June
2017, according to which, inter alia, “the [Claimant] will get a payment of
1500 […] USD every month”. The DRC also noted that, according to said
agreement, “if a player plays 50% of first team matches per month, salary
will be 3,000 […] American dollars net per month”.
7.
In continuation, the members of the Chamber observed that, according to
the Claimant, the employment contract and the agreement had to be
considered cumulative with regards to the financial obligations envisaged in
said documents. Moreover, according to the Claimant, the Respondent had
failed to remit to him the entirety of the salaries established in the
employment contract for a total amount of 75,000 and failed to pay him USD
Player A, Country B / Club C, Country D
5/9
13,500 on the basis of the agreement. In this regard, the Chamber further
noted that the Claimant requested USD 1,500 for August 2016 and USD 3,000
per month as from February 2017 until May 2017, as he had allegedly played
more than 50% of the games in the relevant periods whereas the club had
only paid USD 1,500 for August 2016.
8.
In continuation, the members of the Chamber noted that the Respondent, for
its part, deemed that the employment contract and the agreement were not
cumulative, as the latter had allegedly replaced the former with regards to
salary payments.
9.
Having said that, the DRC further noted that the Respondent acknowledged
being in debt towards the Claimant of the total amount of USD 9,000 due to
financial difficulties it had allegedly faced as from February 2017. In this
respect, the DRC noted that the Respondent claimed having fulfilled its
financial obligations “at least” up to 31 December 2016. The Chamber further
took into account that, according to the Respondent, the Claimant was
entitled to USD 3,000 each for the months of February and March 2017 but
only to USD 1,500 each for the months of April and May 2017, having
allegedly played in less than 50% of the official matches in April and having
not played at all in May.
10.
On account of the above, and considering the disagreement of the parties on
this point, the Chamber highlighted that the pivotal issue in this dispute was
to determine as to whether the employment contract and the agreement
provided for cumulative salaries or not.
11.
In this respect, the members of the DRC first turned their attention to art. 3.1
of the employment contract, according to which any appendix or additional
act to the employment contract would be valid only if certain conditions
were met, namely: the parties’ signature, registration with the Football
Association of Country D (Football Association E) and reference to the
employment contract. In other words, the members of the Chamber were
eager to underline that, in order for the agreement to be considered
additional to the employment contract, on top of two formal requirements, it
had to refer to the latter.
12.
With the foregoing in mind, the DRC observed that the agreement lacked
any reference to the employment contract whatsoever. Therefore, pursuant
to the employment contract itself, the agreement could not be considered its
appendix. The members of the Chamber were rather of the opinion, instead,
that the agreement constituted a standalone contract, which provided for
more favourable financial entitlements of the Claimant.
13.
In this context, the members of the Chamber deemed it worthwhile to also
take into account the parties’ stance during the employment relationship. In
this respect, the members of the DRC noted that the Respondent, up to
Player A, Country B / Club C, Country D
6/9
December 2016, had regularly paid the Claimant his USD salaries whereas it
had never paid those in since the beginning of the employment relationship.
Equally, the members of the Chamber noted that the Claimant, however, had
never claimed his salaries until his default letter dated 13 September 2017.
14.
Consequently, the DRC concluded that the parties intended and agreed that
the agreement included the sole financial obligations of the Respondent
towards the Claimant, i.e. a monthly salary of USD 1,500, to be brought up to
USD 3,000 should the Claimant reach the threshold of 50% match
appearances.
15.
The foregoing being established, the members of the DRC turned their
attention to the question as to whether the Claimant was entitled to any
outstanding remuneration and, in the affirmative, to the amount.
16.
In this respect, the DRC noted, first and foremost, that the Respondent
acknowledged having failed to pay the Claimant his remuneration between
February and May 2017 due to the financial distress it allegedly had
encountered.
17.
In continuation, the members of the Chamber observed that, during the
course of the proceedings, the Respondent had produced 4 receipts, which
the Claimant acknowledged having signed, declaring that the Respondent
had fulfilled its financial obligations up to 31 December 2016.
18.
With respect to the Claimant’s allegation that the Respondent had extorted
his signature on said receipts, the Chamber deemed it fit to emphasise that
the Claimant had submitted no documentation in support of such allegation,
thereby referring to art. 12 par. 3 of the Procedural Rules. Consequently, the
Chamber concluded that such argument could not be upheld.
19.
Consequently, and bearing in mind that the Claimant did not claim his USD
salary for January 2017, the DRC concluded that he is entitled to outstanding
remuneration for the months between February and May 2017.
20.
However, the members of the Chamber noted that it remained to be
established whether the threshold of 50% appearances had been reached
during said period, as the Claimant requested to be awarded USD 3,000 for
each month, whereas the Respondent argued that in April and May 2017 he
was entitled to USD 1,500 each month only.
21.
In respect of the above, 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, the DRC concurred in the
conclusion that the Claimant did not provide sufficient evidence
corroborating the allegations on the basis of which he would be entitled to
USD 3,000 during said period due to his match appearances. On the other
Player A, Country B / Club C, Country D
7/9
hand, the DRC took into account the fact that the Respondent submitted
copies of statistics related to 6 games played during the month of April, from
which it emerged that the player played in only 2 of them, i.e. less than 50%.
22.
In continuation, concerning the month of May 2017, the Respondent
explained that the Claimant had not played at all since he was injured. In this
respect, mindful of the above-mentioned provision of the Procedural Rules,
the Chamber decided to reject the Claimant’s argument that in case of injury
any player of the Respondent would be entitled to the monthly salary
received the month before, due to the lack of documentary evidence
provided in that sense.
23.
In light of all the foregoing considerations, the DRC concluded that, in
accordance with the general legal principle of “pacta sunt servanda”, the
Respondent is liable to pay the amount of USD 9,000 to the Claimant.
24.
In addition, taking into account the Claimant’s claim, the Chamber decided to
award the Claimant interest of 5% p.a. as of the day following the day on
which the relevant payments fell due in accordance with the agreement,
which, in the absence of any specific due date was considered to be the last
day of the relevant month.
25.
The Chamber concluded its deliberations in the present matter by rejecting
any further claim of the Claimant.
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 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 USD 9,000, plus 5% interest p.a. as follows:
a. 5% p.a. on USD 3,000 as of 1 March 2017 until the date of effective
payment;
b. 5% p.a. on USD 3,000 as of 1 April 2017 until the date of effective
payment;
c. 5% p.a. on USD 1,500 as of 1 May 2017 until the date of effective
payment;
d. 5% p.a. on USD 1,500 as of 1 June 2017 until the date of effective
payment.
Player A, Country B / Club C, Country D
8/9
3.
In the event that the amount due to the Claimant in accordance with the
above-mentioned number 2 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.
4.
Any further claim lodged by the Claimant is rejected.
5.
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 (CAS)
Avenue de Beaumont 2
CH-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
9/9