Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 23 September 2013,
by Mr Theo van Seggelen (The Netherlands), DRC judge,
on the claim presented by the player,
Player T, from country H
as Claimant
against the club
Club W, from country S
as Respondent
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 24 November 2011, Player T, from country H (hereinafter: the Claimant), lodged a
complaint with FIFA against Club W, from country S (hereinafter: the Respondent) for
breach of contract.
2.
In this respect, the Claimant alleged having concluded an employment contract with
the Respondent valid from 15 February until 31 May 2011, by means of which the
Claimant was apparently entitled to receive from the Respondent a monthly salary of
currency of country S 3,800 gross. Nevertheless, the Claimant failed to provide FIFA
with a copy of the relevant agreement arguing that he never received one from the
Respondent.
3.
In order to prove that the Claimant had had a labour relationship with the
Respondent, he submitted to FIFA the following documents:
a statement of the Respondent dated 19 April 2011, co-signed by the Claimant,
related to the sub tenancy of an apartment by the Claimant;
a printout from TMS indicating that the Claimant’s contract with the Respondent
was valid from 15 February until 31 May 2011 and that the Claimant had been
registered with the Respondent on 10 March 2011.
4.
According to the Claimant, the Respondent never paid the salary agreed. Therefore,
the Claimant requested from the Respondent the payment of the total amount of
currency of country S 13,300, equivalent to 3 and half months of salary, as well as, 5%
interest as from 1 June 2011.
5.
In spite of having been asked to do so, the Respondent never responded to the claim
lodged against it, although it was informed that, in absence of a reply, a decision
would be taken on the basis of the information and evidence at disposal.
6.
According to the employment contract uploaded in TMS, the Claimant was hired by
the Respondent from 15 February until 31 May 2011 and was entitled to receive from
the latter a monthly salary of currency of country S 3,800 gross payable at the end of
the corresponding month.
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
24 November 2011. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of
the Procedural Rules).
Player T, from country H / Club W, from country S
2/5
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and par. 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,
concerning an employment-related dispute with an international dimension between
a country H player and a country S club.
3.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter concerning the contractual dispute
between the parties. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations (edition 2010 and 2012) and considering that the present
matter was submitted to FIFA on 24 November 2011, 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 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 argued that the Respondent
failed to pay the Claimant’s remuneration in the total amount of currency of country H
13,300, corresponding to 3 and half months of salary.
6.
In addition to the above, the DRC judge recalled that the Claimant maintained that he
never received a copy of the employment contract he asserts having signed with the
Respondent.
7.
Moreover, the DRC judge took due note that the Claimant provided a printout form
from TMS indicating that the Claimant’s contract with the Respondent was valid from
15 February until 31 May 2011 and that the Claimant had been registered with the
Respondent on 10 March 2011.
8.
In view of the above, the DRC judge emphasized that according to art. 6 par. 3 of
Annexe 3 of the Regulations, within the scope of proceedings pertaining to the
application of these legalization, FIFA may use any documentation or evidence
generated by or contained in TMS in order to properly asses the issue at state.
9.
Consequently, the DRC judge took into account that according to the information
contained in the TMS, the Claimant and the Respondent signed an employment
contract, valid as from 15 February until 31 May 2011, according to which the Claimant
was entitled to receive from the Respondent a monthly salary of currency of country S
3,800 gross payable at the end of the corresponding month.
10.
Furthermore, the DRC judge noted that the Respondent never took position in the
specific matter relating to the claim of the Claimant, although having been invited to
do so by FIFA. Therefore, the DRC judge deemed that, in this way, the Respondent
Player T, from country H / Club W, from country S
3/5
renounced to its right to defence and therefore accepted the allegations of the
Claimant.
11.
As a consequence of the aforementioned consideration, the DRC judge established
that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall pass a decision
upon the basis of the documents already on file i.e. upon the statements and
documents presented by the Claimant as well as upon the information contained in
the TMS.
12.
Having established the above, the DRC judge referred to the documentation
contained in the file as well as to the information contained in TMS. In this respect,
the DRC judge took into consideration that according to the Claimant, the Respondent
had failed to remit the Claimant’s monthly remuneration in the total amount of
currency of country S 13,300, corresponding to the unpaid salaries of 3 and half
months.
13.
Taking into account the documentation presented by the Claimant in support of his
petition and the information on TMS the DRC judge concluded that the Claimant had
substantiated his claim pertaining to outstanding remuneration with sufficient
documentary evidence.
14.
In view of all of the above considerations and in accordance with the general legal
principle of pacta sunt servanda, the DRC judge decided to accept the claim of the
Claimant and held that the Respondent is liable to pay the Claimant outstanding
remuneration in the total amount of currency of country S 13,300.
15.
Finally, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber, the DRC judge decided that the Respondent must
pay to the Claimant interest of 5% p.a. on the amount of currency of country S 13,300
as from 1 June 2011 until the date of effective payment.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player T, is accepted.
2.
The Respondent, Club W, has to pay to the Claimant, Player T, within 30 days as from
the date of notification of this decision, the amount of currency of country S 13,300 as
well as 5% interest p.a. on said amount as from 1 June 2011 until the date of effective
payment.
Player T, from country H / Club W, from country S
4/5
3.
If the aforementioned amount plus interest is not paid within the stated time limit,
the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
The Claimant, Player T, is directed to inform the Respondent, Club W, 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 T, from country H / Club W, from country S
5/5