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 Mons en (Norw ay ), member
Juan Bautis 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
between the parties
I.
Facts of the case:
1.
On 18 June 2013, 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 1 July 2013 until 30
June 2017.
2.
According to article 7.1 of the contract, the Respondent undertook to pay the
Claimant a monthly remuneration in the amount of 24,000 to be paid “within the
first fifteen days of the following month”.
3.
On the same date, 18 June 2013, the Claimant and the Respondent signed a
document labeled “Agreement Complementary” (hereinafter: the complementary
agreement). This document stipulates, inter alia, that:
“The [Respondent] undertakes to pay the [Claimant] a monthly wage:
- Upon the execution of the agreement – amount of 1500000;
- From 07/01/2013 – amount of 776000 per month;
- From 07/01/2014 – amount of 896000 per month;
- From 07/01/2015 – amount of 896000 per month;
- From 07/01/2016 – amount of 896000 per month.”
4.
Subsequently, the parties concluded, on 1 July 2016, a “Supplementary
Agreement” (hereinafter: the supplementary agreement) by means of which clause
7.1 of the contract should be modified as follows:
“1.The monthly salary, without including compensatory, incentive, and social
payments of the [Claimant] is fixed at 30,000 (thirty thousand).
2. The remaining terms of the contract are left unchanged…”.
5.
On 19 October 2017, the Claimant lodged a claim against the Respondent before
FIFA and requested the payment of a total amount of EUR 81,690 corresponding to
his outstanding salaries from January 2017 until June 2017 (cf. point I.8 below),
plus 5% interest p.a. as from each due date until the effective date of payment.
6.
On 27 February 2018, the Claimant amended his claim asking to be awarded EUR
134,756, amount that according to the Claimant is equivalent to 9,276,800 (cf.
points I.15 and I.16 below).
7.
The Claimant further asked that the Respondent be sanctioned and “to condemn
the [Respondent] to cover all cost of this proceeding”.
8.
In his claim, the Claimant explained that the Respondent failed to pay his salaries
from January 2017 until June 2017. In this respect, the Claimant argued that
according to the contract and the complementary agreement he was entitled to
receive a total monthly remuneration of 920,000 (896,000 + 24,000), amount that
Player A, Country B / Club C, Country D
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the Claimant estimates in the sum of EUR 13,615. Consequently, the Claimant
stated that he is entitled to receive EUR 81,690 as outstanding salaries, i.e. salaries
from January 2017 until June 2017 (6*13,615).
9.
Furthermore, the Claimant explained that by means of a letter dated 17 November
2017 he put the Respondent in default of payment of 5,520,000, amount that
corresponds to his outstanding salaries from January 2017 until June 2017 (920,000
x 6).
10.
In its reply to the claim lodged by the Claimant, the Respondent argued that it has
fulfilled all its obligations deriving from the contract, the complementary
agreement and the supplementary agreement.
11.
In particular, the Respondent explained that according to said documents the
Claimant was entitled to receive a total amount of 44,132,880. On that basis, the
Respondent argued that, according to its “accounting record” allegedly signed by
the Claimant, during the duration of its contractual relation with the Claimant the
latter received payments for a total amount of 45,805,400. Consequently, the
Respondent held that it had complied with all its contractual obligations regarding
the Claimant.
12.
In his replica, the Claimant pointed out that the club was not able to present “any
receipt or proof of payment of the overdue amounts” owed to him, such as bank
receipts.
13.
In addition, the Claimant stressed that according to the supplementary agreement
presented by the Respondent his “official” monthly salary “has received an
increase” of 6,000, i.e. from 24,000 to 30,000.
14.
Regarding the accounting record presented by the Respondent, the Claimant
stated that “the simple existence of an accounting record in a book seems to be
extremely odd for a professional football club”. However, the Claimant argued
that, according to said document, as of October 2015 his “total salary” was
increased from 920,000 to 1,241,600, amount that according to the Claimant
corresponds to EUR 18,037.
15.
As a consequence of the above and, “after reviewing the terms of the
supplementary agreement and the accounting record” presented by the
Respondent, the Claimant held that the Respondent confessed that it owed him a
total amount of 9,276,800, “equivalent to EUR 134,756”.
16.
Consequently, the Claimant amended his claim and requested a total amount of
EUR 134,756, plus 5% interest p.a. as from each due date until the date of effective
Player A, Country B / Club C, Country D
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payment, sum that according to the Claimant corresponds to part of his
outstanding salaries for December 2016 as well as the full first six months of 2017.
17.
The Respondent submitted its duplica, reiterating its arguments and confirming its
positions with regard to the claim.
18.
In addition, the Respondent stated that all the documents presented are
certificates “according to the legislation of Country D”.
19.
Furthermore, the Respondent stated that in September 2015 the Claimant
“appealed to the management of the [Respondent] about the early repayment
under existing Contract in connection with the difficult economic situation
associated with acquisition of real state and payment of loans” and therefore, as
from October 2015 it “began to make early repayments to the [Claimant] within
the obligations under the contract”.
20.
Finally, the Respondent pointed out that if the Claimant’s salary was increased
since October 2015, then he must provide “the relevant supporting documents
(additional agreement, certificates or other documents signed by the parties)”.
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 19 October
2017. Consequently, 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 2017 and
2018 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
Players (edition 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 of Country B and a Club of Country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2016 and 2018), and considering that the present matter was submitted
to FIFA on 19 October 2017, the 2016 edition of the aforementioned regulations
Player A, Country B / Club C, Country D
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(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 18 June 2013, the Claimant and the
Respondent concluded an employment contract valid as from 1 July 2013 until 30
June 2017. According to article 7.1 of the contract, the Claimant was entitled to
receive a monthly remuneration in the amount of 24,000.
6.
Furthermore, the Chamber observed that on the same date, i.e. 18 June 2013, the
Claimant and the Respondent signed a complementary agreement. This document
stipulates, inter alia, that:
“The [Respondent] undertakes to pay the [Claimant] a monthly wage:
- Upon the execution of the agreement – amount of 1500000;
- From 07/01/2013 – amount of 776000 per month;
- From 07/01/2014 – amount of 896000 per month;
- From 07/01/2015 – amount of 896000 per month;
- From 07/01/2016 – amount of 896000 per month.
7.
In addition, the members of the Chamber noted that, on 1 July 2016, the parties
concluded a supplementary agreement by means of which clause 7.1 of the
contract was modified as follows:
“The monthly salary, without including compensatory, incentive, and social
payments of the [Claimant] is fixed at 30,000 (thirty thousand)”.
8.
The DRC further observed that, on 19 October 2017, the Claimant lodged a claim
against the Respondent before FIFA and requested the payment of a total amount
of EUR 81,690, amount that according to the Claimant corresponds to his
outstanding salaries from January 2017 until June 2017.
9.
Equally, the members of the Chamber noted that, on 27 February 2018, the
Claimant amended his claim asking to be awarded a total amount EUR 134,756. In
this regard, the DRC acknowledged that the Claimant held that in its “accounting
record” the Respondent confessed that it owed him a total amount of 9,276,800,
sum that according to the Claimant is “equivalent to EUR 134,756”.
10.
In continuation, the Dispute Resolution Chamber took note that the Respondent
argued that, according to its “accounting record”, it has fulfilled all its obligations
Player A, Country B / Club C, Country D
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deriving from the contract, the complementary agreement and the supplementary
agreement during the duration of its contractual relation with the Claimant.
11.
In this regard, the DRC 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.
12.
According to this, the members of the Chamber noted that the Respondent did not
substantiate its defence, as it did not present any conclusive documentary
evidence, such as bank receipts, which could corroborate that the Claimant’s
salaries from January 2017 until June 2017 were paid.
13.
Moreover, the Chamber highlighted that during said period of time, i.e. January
2017 until June 2017, it was contractually agreed that the Claimant was entitled to
receive a total monthly remuneration of 926,000 consisting of: (i) 896,000,
established in the complementary agreement, and (ii) 30,000, established in the
supplementary agreement.
14.
On account of the aforementioned considerations and in accordance with the
principle of pacta sunt servanda, the DRC decided that the Respondent is liable to
pay to the Claimant outstanding remuneration in the total amount of 5,556,000
(926,000 * 6). In this regard, the Chamber was eager to emphasise that, in
accordance with its well-established jurisprudence in this respect, in the matter at
hand it cannot grant any outstanding amounts in Euros, as the parties had agreed
upon payment of the Claimant’s remuneration in Currency of Country D.
15.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest as follows:
a) 5% p.a. over the amount of 926,000 as from 16 February 2017 until the date of
effective payment;
b) 5% p.a. over the amount of 926,000 as from 16 March 2017 until the date of
effective payment;
c) 5% p.a. over the amount of 926,000 as from 16 April 2017 until the date of
effective payment;
d) 5% p.a. over the amount of 926,000 as from 16 May 2017 until the date of
effective payment;
e) 5% p.a. over the amount of 926,000 as from 16 June 2017 until the date of
effective payment;
f) 5% p.a. over the amount of 926,000 as from 16 July 2017 until the date of
effective payment.
16.
Furthermore, as regards the claimed procedural costs, the Chamber referred to art.
18 par. 4 of the Procedural Rules as well as to the long-standing and well-
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established jurisprudence of the DRC, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute Resolution
Chamber. Consequently, the DRC decided to reject the Claimant’s request relating
to procedural costs.
17.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are 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 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
5,556,000.
3.
Within the s ame deadline, the Respondent has to pay to the Claimant interest as
follows:
4.
-
5% p.a. over the amount of 926,000 as from 16 February 2017 until the date of
effective payment;
-
5% p.a. over the amount of 926,000 as from 16 March 2017 until the date of
effective payment;
-
5% p.a. over the amount of 926,000 as from 16 April 2017 until the date of
effective payment;
-
5% p.a. over the amount of 926,000 as from 16 May 2017 until the date of
effective payment;
-
5% p.a. over the amount of 926,000 as from 16 June 2017 until the date of
effective payment;
-
5% p.a. over the amount of 926,000 as from 16 July 2017 until the date of
effective payment.
In the event that the amounts due to the Claimant in accordance with the abovementioned 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.
Player A, Country B / Club C, Country D
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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 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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