Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 23 September 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player B, from country R
as Claimant
against the club,
Club Z, from country U
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 1 February 20 10, the country R player, Player B (hereinafter: the
Claimant) and the country U club, Club Z (hereinafter: the Respondent),
signed an employment contract (hereinafter: the contract) valid from the
date of signature until 30 June 2011.
2.
On the same date, the parties signed an additional agreement
(hereinafter: the agreement), valid for the same period of time as the
contract, according to which the Claimant is entitled to:
USD 7,000 as monthly salary;
USD 200 per month as rent expenses;
performance bonuses.
3.
In addition, art. III of the agreement stipulates that “The Parties agree
that in case of non-corresponding execution or non-execution of the
Clause 3.1 Section 3 of the Contract by the [player] the Club Council and
the Club administration has the right to examine the question of the
[player]’s premium bonus decrease by 30%, indicated in the clauses /
signature / Section 1 of this Agreement.”
4.
Furthermore, art. V of the agreement establishes that “In the case if the
team did not perform the task set by the Club for the seasons 2010-2011
(if the Club team takes the place lower than the 2nd in the championship
table by the results of the season championship 2010-2011), then the Club
Council has the right to examine the question of non-payment of
premium bonuses to the Football Player that is indicated in the Clause 2
and 3 Section 1 of this Agreement”.
5.
On 19 April 2012 and on 27 August 2012, the Claimant reminded the
Respondent in writing of its arrears regarding outstanding remuneration
in the total amount of USD 44,900.
6.
By means of its letters dated 25 April 2012, 25 June 2012 and 23 July 2012,
the Respondent expressed its intention to pay all outstanding amounts
corresponding to the player’s remuneration arrears.
7.
In particular, with its letter of 28 August 2012, the Respondent informed
the Claimant that “Due to the fact that the [club] in the season 2011/12
failed to fulfil the task set before it, namely the promotion to the Premier
League and according to the collective bargaining agreement of football
club, all additional payments stipulated in the agreement of Employment
Player B, from country R / Club Z, from country U
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Contract were cut by 30%. As a consequence, all additional payments of
the team for the season have been paid incompletely. In the light of the
foregoing, the leadership of the club recognizes his debts on account of
additional payments toward [the player] in the amount of USD 28,500
[…]”.
8.
On 31 August 2012, the Claimant in writing rejected the reasons invoked
by the Respondent to reduce the amount he deems to be outstanding and
insisted on the fact that the correct amount should be USD 44,900.
Notwithstanding the foregoing, he would accept the payment of USD
31,400 should this amount be paid in one single instalment by 30
September 2012, otherwise he would claim the full amount in front of
FIFA.
9.
On 29 November 2012, with a subsequent amendment on 6 December
2012, the Claimant lodged a claim before FIFA against the Respondent,
requesting the payment of outstanding remuneration in the total amount
of USD 44,900, plus 5% interest as of each due date, broken down as
follows:
USD 44,700 in outstanding salaries for November 2010 (USD 2,700)
and from December 2010 to May 2011 (6 x USD 7,000);
USD 200 as outstanding rent payment for May 2011.
10.
In his claim, the Claimant states having always complied with his
contractual obligations. The Respondent, however, has repeatedly failed
to pay him his salaries as per the contract, making only sporadic payments,
with no receipts or indication as to which debts such payments referred
to. As the contract expired, the total amount of USD 44,900 was
outstanding.
11.
The Claimant claims having warned the Respondent of its arrears by
means of his letters of 19 April 2012 and 27 August 2012 (cf. point I.5.
above). He further points out that the Respondent never contested the
existence of outstanding payments towards him, as indicated in its letters
of 25 April 2012, 25 June 2012, 23 July 2012 and 28 August 2012 (cf. points
I.6. and I.7. above). However, it only recognized USD 28,500 as being
outstanding, based on the reduction mentioned in art. III of the
agreement (cf. point I.3. above).
12.
In this regard, the Claimant points out that article III of the agreement
applies in the event of non-execution of clause 3.1 section 1 of the
Player B, from country R / Club Z, from country U
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contract. According to the Claimant, such clause, however, is not to be
found in the contract.
13.
In addition, the Claimant observes that art. V refers to bonuses established
in clauses 2 and 3 section 1 of the agreement, which also do not exist.
14.
Finally, the Claimant maintains that art. III and V of the agreement are, in
any case, not applicable, as they are of potestative nature and allow the
club “to reduce at its sole discretion and without any justification the
player’s receivables”.
15.
In spite of having been invited by FIFA to do so, the Respondent did not
present its position.
16.
After the closure of investigations, the Claimant informed FIFA that the
amount of USD 18,740 had been paid by the Respondent and that, thus,
the club’s current debt towards him amounted to USD 26,160. In addition,
after having received the Claimant’s acknowledgement of receipt of the
amount of USD 18,740, the Respondent informed FIFA that “concerning
the arrears of Club Z before ex-football player B, the management of Club
Z admits the debts before Player B as evidenced by the portion of paid
debt to the player and guarantees to pay the remaining part of the
arrears until 25 October 2013”.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal
with the case at hand. In this respect, he took note that the present
matter was submitted to FIFA on 29 November 2012. Consequently, the
2008 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 par. 2 and
par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and
2 in conjunction with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2012; hereinafter: the Regulations), he is
competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a
country R player and an country U club.
Player B, from country R / Club Z, from country U
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3.
Furthermore, the DRC judge analysed which edition of the Regulations
should be applicable as to the substance of the matter. In this respect, he
confirmed that, in accordance with art. 26 par. 1 and par. 2 of the
Regulations (editions 2010 and 2012) and considering that the present
matter was submitted to FIFA on 29 November 2012, the 2010 edition of
said Regulations is applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having
been established, the DRC judge entered into the substance of the matter.
In doing so, he started to acknowledge the facts of the case as well as the
documents contained in the file.
5.
In this respect, the DRC judge noted that the Claimant claims that the
Respondent has failed to pay him his remuneration under the contract in
the total amount of USD 44,900, in spite of his default notices in this
regard dated 19 April 2012 and 27 August 2012. The Claimant further
claims that the Respondent acknowledged the debt towards him in its
correspondence dated 25 April 2012, 25 June 2012 and 23 July. Finally, the
Claimant informed FIFA that the aforementioned outstanding amount
was partially paid by the Respondent and that the club’s current debt
towards him amounts to USD 26,160.
6.
Subsequently, the DRC judge took note of the fact that the Respondent
failed to submit its position to the Claimant’s claim in spite of having been
invited to do so and, after the closure of the investigation phase in the
present matter, it even acknowledged its debt towards the Claimant and
stated that the full amount due to him would be paid until 25 October
2013.
7.
Consequently, the DRC judge deemed it appropriate to emphasize that
the Respondent not only renounced its right to defense, but also explicitly
accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the DRC judge
concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, he
shall take a decision upon the basis of the documents already on file.
9.
Subsequently, the DRC judge acknowledged that the parties had signed
an employment contract on 1 February 2010, valid until 30 June 2011, in
accordance with which the Claimant was entitled to receive, inter alia, a
Player B, from country R / Club Z, from country U
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monthly remuneration in the amount of USD 7,000 and USD 200 per
month as rent alloance.
10.
In continuation, the DRC judge acknowledged that the Claimant states
that the amount of USD 26,160 corresponding to outstanding
remuneration remains unpaid by the Respondent, which as indicated
above was not contested by the latter.
11.
Taking into account the documentation presented by the Claimant in
support of his petition and the explicit debt acknowledgement of the
Respondent, the DRC judge concluded that the club failed to remit the
player’s remuneration in the total amount of USD 26,160.
12.
Consequently, the DRC judge decided that, in accordance with the general
legal principle of pacta sunt servanda, the claim of the Claimant is
accepted and the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of USD 26,160, plus 5% interest p.a. as
of the relevant due dates until the date of effective payment.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player B, is accepted.
2.
The Respondent, Club Z, is ordered to pay to the Claimant, Player B,
within 30 days as from the date of notification of this decision, the
amount of USD 26,160, plus 5% interest p.a. until the date of effective
payment, as follows:
- 5% p.a. as of 1 March 2011 over the amount of USD 4,960;
- 5% p.a. as of 1 April 2011 over the amount of USD 7,000;
- 5% p.a. as of 1 May 2011 over the amount of USD 7,000;
- 5% p.a. as of 1 June 2011 over the amount of USD 7,000;
- 5% p.a. as of 1 May 2011 over the amount of USD 200.
3.
If the aforementioned sum plus interest is not paid within the abovementioned time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for its consideration and a
formal decision.
Player B, from country R / Club Z, from country U
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4.
The Claimant, Player B, is directed to inform the Respondent, Club Z,
immediately and directly of the account number to which the remittance
is to be made and to notify the DRC judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player B, from country R / Club Z, from country U
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