Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 September 2013,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player
Player J, from country B
as Claimant
against the club
Club F, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 3 July 2009, Player J, from country B (hereinafter: the Claimant), and Club F, from
country C (hereinafter: the Respondent), signed an employment contract (hereinafter:
the contract), valid as from the date of signature until the end of season “2009-2010”.
2.
Clause 4 of the contract provided, inter alia, that the Claimant would be entitled to
“the sum of EUR 2,300 (per month payable always the last day of the existing monthly)
payable in 10 equal installments commencing on or before the 31/08/2009 and ending
on or before 31/05/2010”. Furthermore, clause 5 lit. (c) of the contract provided that the
Respondent would deduct any “PAYE or Social security arising from his contract
according to national Laws and Regulations of the Tax Authority of the Republic of
country C”.
3.
On 8 April 2010, both parties signed a document named “written agreement”
(hereinafter: the agreement), by means of which the Respondent undertook to pay the
Claimant the total amount of EUR 12,000 as salaries. The agreement provided that the
Claimant would receive from the Respondent EUR 3,000 in cash and that the remaining
amount of EUR 9,000 would be paid in four monthly instalments of EUR 2,250 each.
4.
Moreover, the agreement established that “IT IS AGREED THAT I THE PLAYER OF CLUB F
I WILL NOT HAVE ANY DEMAND OF MY CLUB IN ANY CASES FROM THE MOMENT THAT
I RECEIVE UNTIL AUGUST THE ABOVE AMOUNT”, as well as that “THE PLAYER IS FREE
FROM THE CLUB FROM 31/03/2010 BECAUSE THE CLUB IS NOW GO FROM B DIVISION TO
C DIVISION” and, finally “THAT EACH PARTY HAVE NO DEMANDS EACH OTHER OR
CLAIM ANY DAMAGES”.
5.
On 14 December 2010, the Claimant lodged a claim against the Respondent before
FIFA, requesting the total outstanding amount of EUR 9,000 as established in the
agreement.
6.
In its reply, the Respondent informed that as specified in clause 5 lit. (c) of the contract,
any social insurances and taxes would be deducted from the Claimant’s remuneration.
In this respect, the Respondent alleged having paid the Claimant the total
remuneration of EUR 16,350. According to the Respondent, it had “deducted the
amount EUR 2,060 which represents the social insurance contribution of the player
according to the national legislation and the amount of EUR 1,635 which represents the
tax deductions according to the salaries received and paid, thus the amount of 10% on
the amount received”. The Respondent did not provide any evidence in this regard.
7.
Furthermore, the Respondent asserted that the Claimant had not provided any services
for the months of April and May 2010 and therefore, the remuneration for those months
were not honoured due to the fact that “the player resigned from his obligations to the
contract” and “then the Club rescinded the said contract”. In particular, the Respondent
held that “on 31.03.2010 the player left the team and stopped the trainings with the rest
Player J, from country B / Club F, from country C
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of the players since his contract ended on 31.05.2010”. Again, the Respondent did not
provide any evidence in this respect.
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 14
December 2010. Consequently, the 2008 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 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 the DRC judge is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a country B player and a country C club.
3.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (editions 2012 and 2010), and considering that the
claim was lodged on 14 December 2010, the 2010 edition of the said regulations is
applicable to the matter at hand as to the substance (hereinafter: the Regulations).
4.
The competence of the DRC judge and the applicable regulations having been
established and entering into the substance of the matter, the DRC judge
acknowledged the above-mentioned facts as well as the documentation contained in
the file.
5.
In this regard, the DRC judge took note that it was uncontested by both parties that
they have signed an employment contract on 3 July 2009 valid until season “20092010”, and subsequently, on 8 April 2010, an agreement according to which “IT IS
AGREED THAT I THE PLAYER OF CLUB F I WILL NOT HAVE ANY DEMAND OF MY CLUB
IN ANY CASES FROM THE MOMENT THAT I RECEIVE UNTIL AUGUST THE ABOVE
AMOUNT”, as well as that “THE PLAYER IS FREE FROM THE CLUB FROM 31/03/2010
BECAUSE THE CLUB IS NOW GO FROM B DIVISION TO C DIVISION” and, finally “THAT
EACH PARTY HAVE NO DEMANDS EACH OTHER OR CLAIM ANY DAMAGES”.
Furthermore, the DRC judge took note that the Claimant would be entitled to receive
the total amount of EUR 12,000 according to the agreement.
6.
In this respect, the DRC judge took due note that the Claimant lodged a claim against
the Respondent for outstanding remuneration requesting from the Respondent the
Player J, from country B / Club F, from country C
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payment of the total amount of EUR 9,000 based on the agreement, confirming having
received the amount of EUR 3,000 in cash as established in the agreement (cf. point I.3).
7.
The DRC judge acknowledged that the Respondent, on the other hand, rejected the
claim alleging having paid the Claimant a total remuneration of EUR 16,350 after
having deducted EUR 2,060 as “social insurance contributions” in accordance to
national legislation as well EUR 1,635 as “tax deductions”. In addition, the DRC judge
also noted that the Respondent alleged that the Claimant did not provide any services
to the Respondent for the months of April and May 2010 since he had left the team on
31 March 2010 and, consequently, it had the right to deduct the remuneration from the
Claimant for these months.
8.
After due consideration of the argumentation provided, the DRC judge referred the
parties to art. 12 par. 3 of the Procedural Rules, which establishes that any party
claiming a right on the basis of an alleged fact shall carry the burden of proof and
proceeded to analyse the argumentation brought up by the Respondent regarding the
deductions for social insurance contributions and tax obligations in country C as well as
the alleged absence of the Claimant which would justify the salary deductions for the
months of April and May 2010. In this regard, the DRC judge decided that the
Respondent failed to provide any documentary evidence of such deductions, its values
and as well as did not demonstrate the legal grounds that could justify the
aforementioned deductions.
9.
Additionally, the DRC judge considered that the arguments of the Respondent are
based on the contractual clauses while the claim of the Claimant is based on the
agreement signed between the parties on 8 April 2010 which, on one hand, clearly
establishes that the contract is terminated as from 31 March 2010 and, on the other
hand, does not foresee the possibility of any deductions.
10.
Therefore, on the account of all the above, the DRC judge rejected the arguments
provided by the Respondent, and considered that it had failed to demonstrate having
paid the amount claimed by the Claimant as outstanding regarding the agreement.
11.
As a consequence, the DRC judge held that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfill its obligations as per the
agreement concluded with the Claimant and thus, is liable to pay the outstanding
remuneration in the amount of EUR 9,000 concerning the agreement.
****
III.
Decision of the DRC judge
1.
2.
The claim of the Claimant, Player J, is accepted.
The Respondent, Club F, has to pay to the Claimant, Player J, within 30 days as from
the date of notification of this decision, the outstanding amount of EUR 9,000.
Player J, from country B / Club F, from country C
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3.
If the aforementioned sum is not paid within the above-mentioned deadline, interest at
the rate of 5% p.a. will apply as of expiry of the stipulated time limit and the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its
consideration and a formal decision.
4.
The Claimant, Player J, is directed to inform the Respondent, Club F, 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
Jérôme Valcke
Secretary General
Encl. CAS directives
Player J, from country B / Club F, from country C
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