Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Alejandro Marón (Argentina), member
Rinaldo Martorelli (Brazil), member
Santiago Nebot (Spain), member
on the claim presented by the player,
Player S, from country G
as Claimant/Counter-Respondent
against the club,
Club P, from country B
as Respondent/Counter-Claimant
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 8 July 2009, Player S, from country G (hereinafter: the Claimant/Counter-Respondent),
and Club P, from country B (hereinafter: the Respondent/Counter-Claimant) signed an
employment contract (hereinafter: the contract) valid as from the date of signature until
30 June 2011.
2.
According to art. X par. 1, 2 and 4 of the contract, the Respondent/Counter-Claimant
undertook to provide the player, inter alia, with the following:
- EUR 18,000 net to be paid until 1 February 2010;
- EUR 6,000 net as monthly salary, payable at the latest on the 30th day of the
following month;
- a rented apartment, the cost of which will be determined by the club’s board of
directors.
3.
In addition, art. XII.3. stipulates that “Disputes between the parties arising from the
interpretation or the compliance with the contract shall be solved amicably, by means of
a written agreement. In case an amicable solution is not possible, the parties should refer
the dispute to the arbitration court of the country B Football Union”.
4.
On 11 July 2011, the Claimant/Counter-Respondent lodged a claim against the
Respondent/Counter-Claimant in front of FIFA requesting the payment of the total
amount of EUR 42,000, as follows:
- EUR 24,000 as outstanding salaries for March to June 2011 (4 x EUR 6,000);
- EUR 18,000 corresponding to the outstanding payment due on 1 February 2010;
- procedural costs.
5.
The Claimant/Counter-Respondent claims that, in spite of the default notice sent to the
Respondent/Counter-Claimant on 7 July 2011, the latter did not proceed with the
payment of the aforementioned amounts.
6.
In its reply, the Respondent/Counter-Claimant stated that it “suspended all payments to
the footballer after the management established that he has not fulfilled some of his
contractual obligations”. In this respect, the Respondent/Counter-Claimant claims that
the Claimant/Counter-Respondent was sanctioned by the country B Football Union to pay
a fine in the amount of currency of country B 4,555 for unsportsmanlike conduct during
official matches. According to the Respondent/Counter-Claimant, this fine was not
deducted from the Claimant/Counter-Respondent’s salary.
7.
In addition, the following penalties were allegedly imposed on the Claimant/CounterRespondent by the Respondent/Counter-Claimant:
- Currency of country B 10,000 due to inappropriate behaviour and violations of the
laws of the game;
- Currency of country B 12,000 for having provided “statements to the press
concerning his play and training without the explicit prior consent if the club”;
Player S, from country G / Club P, from country B
2/10
- Currency of country B 10,000 for disclosing confidential information about the club
to the press.
8.
In addition, the Respondent/Counter-Claimant argues that, even though according to the
employment contract it undertook to provide the Claimant/Counter-Respondent with an
apartment, the limit for the rent was currency of country B 300 and the difference above
this limit shall be paid by the Claimant/Counter-Respondent, according to the order n.03
of 15 May 2009 issued by the Respondent/Counter-Claimant’s board of directors. Since
the Claimant/Counter-Respondent chose an apartment for which the rent cost currency
of country B 1,564.66, the Respondent/Counter-Claimant had to conclude a rent contract
for the Claimant/Counter-Respondent in the total amount of currency of country B
32,857.88. In this regard, the Respondent/Counter-Claimant provided copies of several
receipts, submitted however without translation into a FIFA language. Thus, the
Respondent/Counter-Claimant deems that the Claimant/Counter-Respondent should pay
to it the amount of currency of country B 25,957.88, corresponding to the difference
between the maximum amount allegedly payable as rent expenses and the amount
actually paid by the Respondent/Counter-Claimant in this regard.
9.
Furthermore, the Respondent/Counter-Claimant claims to have lodged a claim in front of
a country B court, on 1 August 2011, “for the payment of the penalties […] claimed by
Club P”. Thus, the Respondent/Counter-Claimant deems that it should not pay any
amounts to the Claimant/Counter-Respondent until the court proceedings at the country
B court are finished.
10.
Finally, the Respondent/Counter-Claimant claims that it is entitled to retain any amounts
claimed by the Claimant/Counter-Respondent and that his claim should be rejected.
11.
In his replica, the Claimant/Counter-Respondent stated not to be aware of the existence
of any claim pending against him in front of a country B court. Furthermore, he points
out that the Respondent/Counter-Claimant’s arguments regarding the fines allegedly
imposed on him were not supported by any documentation neither have they been
previously notified to him. In this regard, he also rejects all the Respondent/CounterClaimant’s accusations against him and challenged, in particular, the authenticity of the
press articles presented by the Respondent/Counter-Claimant as well as their value as
documentary evidence.
12.
In addition, he points out that the several receipts provided by the Respondent/CounterClaimant were not translated and, thus, cannot be taken into account.
13.
The Claimant/Counter-Respondent further claims that the contract did not provide for
any limitation as to the amount of rent payable by the Respondent/Counter-Claimant. He
points out that the rental contract was signed between the Respondent/CounterClaimant and the tenant, without his intervention, and maintains that the
Respondent/Counter-Claimant never contacted him before with regard to an alleged
obligation of bearing any exceeding rent costs.
Player S, from country G / Club P, from country B
3/10
14.
Based on the foregoing, the Claimant/Counter-Respondent deems that all the
Respondent/Counter-Claimant’s allegations should be rejected.
15.
In its duplica, the Respondent/Counter-Claimant contests the competence of FIFA to deal
with the present matter. The Respondent/Counter-Claimant claims that the country B civil
courts should have exclusive jurisdiction over disputes concerning the payment of
financial penalties, as the present one.
16.
In this regard, the Respondent/Counter-Claimant provides a copy of the claim apparently
lodged on 1 August 2011 in front of the Regional Court of country B, by means of which
it requested the payment of the total amount of currency of country B 65,637.18 from
the Claimant/Counter-Respondent, corresponding to the fines imposed on him by the
country B Football Unit and the Respondent/Counter-Claimant, and to the exceeding rent
costs allegedly payable by the Claimant/Counter-Respondent.
17.
After the closure of the investigation phase, the Respondent/Counter-Claimant informed
FIFA that the aforementioned claim was accepted by the Regional Court of country B on
21 March 2013 and that the Claimant/Counter-Respondent was held liable to pay the
Respondent/Counter-Claimant the amount of currency of country B 60,943.20 plus
interests. In particular, the aforementioned decision states that “The defendant […] was
not found at the address he has specified in the application claim” and “no evidence of
permanent or present address in country B is available for the defendant. […] Therefore
it has been required the notice to the defendant for the formed lawsuit […] through
publication in the unofficial section of ‘Official Gazette’. […] After expiration of the
given deadline the defendant did not appear in court. Because of which […] he was
appointed a special representative”.
18.
In his final comments, the Claimant/Counter-Respondent insists that he was never
informed of the existence of a claim in country B nor of a decision in this regard.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules). The present matter was submitted to FIFA on 11 July 2011. Therefore, the
Chamber concluded that the edition 2008 of the Procedural Rules was applicable to the
matter at hand (cf. art. 21 par. 2 and 3 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 b)
of the Regulations on the Status and Transfer of Players (edition 2010, 2012 and 2014;
Player S, from country G / Club P, from country B
4/10
hereinafter: the Regulations), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player, with an international
dimension.
3.
Having said that, the DRC stated that it would, in principle, be the competent body to
decide on the present litigation involving a country G player and a country B club
regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent/Counter-Claimant contested
the competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that any dispute arisen between the parties should be submitted to the civil
courts in country B.
5.
Taking into account the above, the Chamber first emphasised that, in accordance with
art. 22 of the FIFA Regulations, a player or a club are indeed entitled to seek redress
before a civil court for employment-related disputes. However, this should be explicitly
and previously agreed by the parties in the employment contract.
6.
In this context, the DRC considered that it should, first and foremost, analyse whether the
employment contract at the basis of the present dispute actually contained a jurisdiction
clause in favour of the country B civil courts.
7.
Having said this, the members of the Chamber turned their attention to art. XII.3. of the
contract, which stipulates that “Disputes between the parties arising from the
interpretation or the compliance with the contract shall be solved amicably, by means of
a written agreement. In case an amicable solution is not possible, the parties should refer
the dispute to the arbitration court of the country B Football Union”.
8.
In view of the aforementioned clause, the members of the DRC pointed out that art.
XII.3. of the employment contract does not make any reference to the alleged exclusive
jurisdiction of the country B civil courts to decide on the present dispute, as claimed by
the Respondent/Counter-Claimant, and only refers to the arbitration court of the country
B Football Union.
9.
In addition, the Chamber has taken note of the fact that the decision allegedly passed by
the Regional Court of country B on 21 March 2013, following a claim allegedly lodged by
the Respondent/Counter-Claimant on 1 August 2011, clearly establishes that the
Claimant/Counter-Respondent did not take part in the proceedings, as detailed in point
I.17. above.
10.
Bearing in mind the foregoing, the Chamber established that the Respondent/CounterClaimant’s objection to the competence of FIFA to deal with the present matter, in
favour of the country B civil courts, had to be rejected and that the DRC is competent, on
the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to
consider the present matter as to the substance. Consequently, the claim of the
Claimant/Counter-Respondent is admissible.
Player S, from country G / Club P, from country B
5/10
11.
Having established the competence of the DRC to deal with the present matter as well as
the admissibility of the claim of the Claimant/Counter-Respondent, the Chamber went on
to analyse whether the counterclaim of the Respondent/Counter-Claimant could also be
considered as admissible or rather considered as affected by res judicata, in view of the
claim lodged by the Respondent/Counter-Claimant before the Regional Court of country
B on 1 August 2011 and decided by the latter on 21 March 2013.
12.
At this point, the Chamber deemed it appropriate to recall that, on the basis of the
principle of res judicata, a decision-making body is not in a position to deal with the
substance of a claim in the event that another deciding body has already dealt with the
same matter by passing a final and binding decision.
13.
In continuation, the Chamber noted that in its claim allegedly lodged before the
Regional Court of country B on 1 August 2011, the Respondent/Counter-Claimant
requested the payment of the total amount of currency of country B 65,637.18 from the
Claimant/Counter-Respondent, corresponding to the fines imposed on him by the country
B Football Unit, and to the exceeding rent costs allegedly payable by the
Claimant/Counter-Respondent.
14.
In addition, the Chamber noted that on 21 March 2013 the Regional Court of country B
decided that the claim of the Respondent/Counter-Claimant was accepted and that the
Claimant/Counter-Respondent was held liable to pay the Respondent/Counter-Claimant
the amount of currency of country B 60,943.20, plus interests.
15.
Subsequently, the Chamber noted that in its counterclaim lodged before the DRC in the
context of the present procedure, the Respondent/Counter-Claimant requested the
reimbursement by the Claimant/Counter-Respondent of the difference between the
maximum amount allegedly payable as rent expenses and the amount actually paid by
the Respondent/Counter-Claimant in this regard, in the amount of currency of country B
25,957.88.
16.
In this context, the Chamber underlined that the principle of res judicata is applicable if
cumulatively and necessarily the parties to the disputes and the object of the matter in
dispute are identical.
17.
Taking into account the information detailed in points II.13. to II.15. above, the Chamber
concluded that it was clear that both the Respondent/Counter-Claimant’s claim lodged
on 1 August 2011 in front of the Regional Court of country B as well as its counterclaim
lodged in the present procedure before the DRC involved the exact same parties and had
exactly the same object, i.e. the reimbursement by the Claimant/Counter-Respondent of
exceeding rent costs allegedly paid by the Respondent/Counter-Claimant. In fact, in its
claim before the Regional Court of country B, the Respondent/Counter-Claimant
requests, in addition to the reimbursement of exceeding rent expenses, also the payment
of the fines allegedly imposed on the Claimant/Counter-Respondent by the country B
Football Unit.
Player S, from country G / Club P, from country B
6/10
18.
In light of the above, the Chamber concluded that, in accordance with the general legal
principle of res judicata, it is not in a position to deal again with the substance of the
counterclaim of the Respondent/Counter-Claimant and that, therefore, the latter should
be considered as inadmissible. Thus, the DRC is competent to deal only with the claim of
the Claimant/Counter-Respondent.
19.
Subsequently, the members of the Chamber went on to analyse which edition of the
Regulations should be applicable as to the substance of the matter. In this respect, the
Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations
(editions 2010, 2012 and 2014) and considering that the claim of the Claimant/CounterRespondent in front of FIFA was lodged on 11 July 2011, the 2010 edition of said
Regulations is applicable to the present matter as to the substance.
20.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, the Chamber started by
acknowledging all the above-mentioned 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.
21.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 8 July 2009, the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant signed an employment contract valid as from the date of
signature until 30 June 2011, in accordance with which the Claimant was entitled to
receive the amount of EUR 18,000 until 1 February 2010 as well as a monthly salary in the
amount of EUR 6,000, inter alia.
22.
The DRC noted that, on the one hand, the Claimant/Counter-Respondent claims that, in
spite of his reminder dated 7 July 2011, the Respondent/Counter-Claimant failed to pay
his remuneration for the period from March to June 2011, amounting to EUR 24,000, as
well as the amount of EUR 18,000 due until 1 February 2010.
23.
The Chamber further noted that, on the other hand, the Respondent/Counter-Claimant
does not contest the existence of outstanding amounts towards the Claimant/CounterRespondent, but deems that several deductions are to be made from this amount,
regarding fines imposed on the Claimant/Counter-Respondent and the difference
between the maximum amount of rent payable by the Respondent/Counter-Claimant
and the price of the apartment chosen by the Claimant/Counter-Respondent.
24.
At this point and for the sake of good order, the DRC deemed it appropriate to remind
the parties of 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 from an alleged fact shall
carry the respective burden of proof. Bearing in mind the aforementioned principle, the
Player S, from country G / Club P, from country B
7/10
DRC noted that in the present case the Respondent/Counter-Claimant bore the burden of
proof regarding the payment of the Claimant/Counter-Respondent’s remuneration.
25.
In this respect, the DRC noted that the Claimant/Counter-Respondent has provided a copy
of the correspondence addressed to the Respondent on 7 July 2011, reminding it of the
existence of unpaid salaries for the months from March to June 2011, as well as of the
EUR 18,000 payable until 1 February 2010.
26.
Furthermore, the Chamber duly noted that the Respondent/Counter-Claimant does not
dispute the existence of outstanding remuneration towards the Claimant and even
confirms that it “suspended all payments to the footballer after the management
established that he has not fulfilled some of his contractual obligations”. The
Respondent/Counter-Claimant deems that the fines imposed on the Claimant/CounterRespondent for alleged violation of the laws of the game and disclosure of confidential
information to the press (cf. point I.7. above), were to be deducted from any amounts
owed to him.
27.
Likewise, the DRC acknowledged that the Claimant/Counter-Respondent rejected the
aforementioned argument of the Respondent/Counter-Claimant, pointing out that he
was never informed of and never participated in the proceedings leading to the
imposition of such fines, and contesting the legal value of press articles as documentary
evidence.
28.
In this context, the Chamber concurred that the alleged fines imposed on the
Claimant/Counter-Respondent by the Respondent/Counter-Claimant shall not be taken
into account in the present matter, since a) the Respondent/Counter-Claimant did not
provide any evidence of an alleged violation of the laws of the game, and b) in any case,
the Regional Court of country B has apparently already ruled upon this matter on 21
March 2013, as explained above.
29.
In addition, and irrespective of the foregoing considerations, the DRC wished to address
the fact that the imposition of a fine, or any other available financial sanction in general,
shall not be used by clubs as a method to set off outstanding financial obligations
towards players. Consequently, the DRC decided to disregard the Respondent/CounterClaimant’s argument in this regard.
30.
Subsequently, the Chamber focused its attention on the allegation of the
Respondent/Counter-Claimant, regarding further retentions to be made to any amounts
due to the Claimant/Counter-Respondent as remuneration, corresponding to the
payment of rent expenses by the Respondent/Counter-Claimant above the limit set in the
“Order no 03” (cf. point I.8. above), which the Claimant/Counter-Respondent rejects.
31.
In this regard and bearing in mind the principle of burden of proof, the Chamber noted
that in accordance with the allegations of the Claimant/Counter-Respondent, the
employment contract signed between the parties on 8 July 2009 does not establish a
Player S, from country G / Club P, from country B
8/10
specific limit for the payment of rent expenses. In addition, the Claimant/CounterRespondent claims that the rent contract was signed between the Respondent/CounterClaimant and the tenant and that the Respondent/Counter-Claimant had never before
requested from him the reimbursement of any exceeding amounts in this regard.
32.
Indeed, the DRC noted that the Respondent/Counter-Claimant did not dispute this
specific allegation of the Claimant/Counter-Respondent and only appears to have
requested the reimbursement of such rent amounts allegedly paid in excess in its reaction
to the Claimant/Counter-Respondent’s claim for outstanding remuneration before FIFA.
In any case, also with regard to this argument of the Respondent/Counter-Claimant, the
Chamber pointed out that this issue also appears to have been already ruled upon by the
Regional Court of country B in its decision of 21 March 2013. Therefore, this argument of
the Respondent/Counter-Claimant must be disregarded.
33.
Finally, the Chamber also wished to point out that, even if the Regional Court of country
B has decided that certain amounts are to be paid by the Claimant/Counter-Respondent
to the Respondent/Counter-Claimant, this does not exempt the Respondent/CounterClaimant from its obligation to comply with its financial obligations towards the
Claimant/Counter-Respondent as per the employment contract signed on 8 July 2009 and
does not justify the non-payment of the still outstanding amounts to the
Claimant/Counter-Respondent.
34.
In view of the foregoing, the Chamber concluded that the Respondent/Counter-Claimant
was not able to provide substantial evidence of its alleged right to retain any contractual
payments due to the Claimant/Counter-Respondent. Thus, the Respondent/CounterClaimant is, in accordance with the principle of pacta sunt servanda, to be held liable for
the payment of outstanding remuneration to the Claimant/Counter-Respondent in the
total amount of EUR 42,000, corresponding to his salaries for the months of March to
June 2011 as well as the amount of EUR 18,000 payable until 1 February 2010.
35.
Furthermore, the Chamber decided that the Claimant/Counter-Respondent’s claim for
procedural costs is rejected, in accordance with art. 18 par. 4 of the Procedural Rules.
36.
In conclusion, the Chamber decided that the claim of the Claimant/Counter-Respondent is
partially accepted.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player S, is admissible.
2.
The claim of the Claimant/Counter-Respondent is partially accepted.
Player S, from country G / Club P, from country B
9/10
3.
The Respondent/Counter-Claimant, Club P, is ordered to pay to the Claimant/CounterRespondent outstanding remuneration in the amount of EUR 42,000 within 30 days as
from the date of notification of this decision.
4.
If the aforementioned amount is not paid within the above-mentioned time limit, interest
at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its
consideration and a formal decision.
5.
Any further claims lodged by the Claimant/Counter-Respondent are rejected.
6.
The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant
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.
7.
The counterclaim of the Respondent/Counter-Claimant is inadmissible.
*****
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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player S, from country G / Club P, from country B
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