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 R, from country B
as Claimant
against the club,
Club D, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 7 February 2012, Player R, from country B (hereinafter: player or Claimant),
and Club D, from country C (hereinafter: club or Respondent), signed an
employment contract valid as from the day of signature until 30 November 2013.
2.
In accordance with the employment contract, the player was entitled to receive,
inter alia, a bonus of USD 3,000 for each match won and of USD 1,000 for each
match drawn in the country C league competition, if the player was on the pitch
during the match.
3.
In addition, the player was entitled to receive five business class round-trip air
tickets from country B to country C.
4.
On 7 February 2012, the player, the club, and the company XX (country C)
Investment Co. Ltd. (hereinafter: company) signed a “personal portrait right
agreement” (hereinafter: image rights agreement), in accordance with which the
parties agreed that the club uses the player’s “personal portrait” and that the
company pays the related fee to the player. The total fee agreed upon in the
image rights agreement amounts to USD 6,850,000 payable by the company to
the player over the period of time between 7 February 2012 and 30 November
2013.
5.
According to art. 3 of the image rights agreement, if the company does not pay
the fee to the player, the club undertook to “take the full responsibility”.
6.
On 27 January 2014, the player lodged a claim against the club in front of FIFA
asking that the club be ordered to pay the outstanding amount of USD 952,000,
plus 5% interest p.a. as of 30 November 2013, on the basis of the employment
contract and the image rights agreement.
7.
The player maintains that on the basis of the employment contract he is entitled
to receive the outstanding amount of USD 62,000, which was specified as follows:
a. USD 35,000 for 5 air tickets;
b. USD 27,000 relating to bonuses.
8.
On the basis of the image rights agreement, including its art. 3 (cf. point I./5.
above), the player claims that he is entitled to receive from the club the
outstanding amount of USD 890,000.
9.
According to the player, in spite of having put the club in default on 20 December
2013, the aforementioned amounts have remained unpaid.
Player R, from country B / Club D, from country C
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10.
The club has not replied to the player’s claim, in spite of having been invited to do
so.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 27 January 2014. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
1 and par. 2 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 and par. 2
in combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2014) the Dispute Resolution Chamber is competent to deal with
the matter at stake, insofar as it concerns an employment-related dispute with an
international dimension between a country B player and a country C club.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 19 September 2014 by means of
which the parties were informed of the composition of the Chamber, the member
Mr M and the member Mr A refrained from participating in the deliberations in
the case at hand, due to the fact that the member Mr M has the same nationality
as the Claimant and that, in order to comply with the prerequisite of equal
representation of club and player representatives, also the member Mr A
refrained from participating and thus the Dispute Resolution Chamber
adjudicated the case in presence of three members in accordance with art. 24 par.
2 of the Regulations.
4.
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
(2014), and considering that the present claim was lodged on 27 January 2014, the
2012 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
Player R, from country B / Club D, from country C
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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.
6.
The members of the Chamber acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 7 February 2012 until 30
November 2013, in accordance with which the Claimant was entitled to receive
inter alia 5 business class round-trip air tickets from country B to country C as well
as result-related bonus payments.
7.
In continuation, the Chamber noted that an image rights agreement had been
entered into by and between the Claimant, the Respondent, and the company XY
(country C) Investment Co. Ltd., in accordance with which the company would pay
the amount of USD 6,850,000 to the Claimant in connection with the use by the
Respondent of the Claimant’s image rights. The members of the Chamber duly
noted that according to the image rights agreement, if the company did not pay
said fee to the player, the Respondent undertook “to take the full responsibility”.
8.
In this regard, the Chamber took particular note of the fact that the image rights
agreement does not include any employment-related benefits payable to the
Claimant, i.e. benefits in return of the latter’s player services rendered to the
Respondent, but solely includes payments on the basis of the use by the
Respondent of the Claimant’s “personal portrait right”.
9.
The Chamber then reviewed the claim of the Claimant, who maintains that the
Respondent failed to pay the total amount of USD 62,000 relating to air tickets
and bonus payments on the basis of the employment contract. In addition,
invoking clause 3 of the image rights agreement, the Claimant asks that the
Respondent be ordered to pay the alleged outstanding image rights fee of USD
890,000.
10.
In continuation, the members of the Chamber highlighted that the Respondent,
for its part, failed to present its response to the claim of the Claimant, in spite of
having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, has not contested the
allegations of the Claimant.
11.
Furthermore, as a consequence of the aforementioned consideration, the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it
shall take a decision upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
Player R, from country B / Club D, from country C
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12.
Having said this, the Chamber first turned its attention to the Claimant’s claim
based on the employment contract. According to the Claimant, the Respondent
owes him the amount of USD 35,000 relating to 5 business class round-trip air
tickets. In this connection, while referring to art. 12 par. 3 of the Procedural Rules,
which stipulates that any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the Chamber highlighted that the Claimant had
not presented any documentation corroborating the amount of USD 35,000. On
the other hand, the Chamber took into account that said 5 air tickets were
contractually due to the Claimant and that the Respondent had not replied to the
claim. Hence, on the basis of the information provided by FIFA Travel and
referring to the relevant terms of the employment contract, the Chamber decided
that the Respondent must pay to the Claimant the amount of USD 28,500 for 5
business class round trip air tickets country B – country C.
13.
Subsequently, the members of the Chamber pointed out that according to the
employment contract, the Claimant was entitled to receive match bonus payments
depending on the match result and if he had been on the pitch during the
relevant matches. According to the Claimant, bonus payments totalling USD
27,000 remained unpaid. In this respect, the Chamber highlighted once more that
the Respondent had not replied to the claim and that it, thus, has remained
uncontested that the Claimant had rendered his services to the Respondent
during the contractual duration. Therefore, the Chamber decided to accept the
Claimant’s claim relating to outstanding match bonus payments and that the
Respondent is liable to pay the amount of USD 27,000 to the Claimant for
bonuses.
14.
In addition, taking into consideration the Claimant’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. on the above-mentioned
amounts of USD 28,500 and USD 27,000, respectively, as of 30 November 2013
until the date of effective payment.
15.
Having established the above, the members of the Chamber turned to the
Claimant’s claim based on the image rights agreement.
16.
In this regard, the Chamber had to establish whether, for formal reasons, it was
competent to deal with this specific component or not. In fact, it appears that
this part of the claim could possibly not be considered due to the Chamber
lacking competence to deal with disputes related to image rights.
17.
While analysing whether it was competent to hear this part of the claim, the
Chamber wished to highlight that the image rights agreement in the matter at
stake does not contain any employment-related elements, which, in the opposite
case, may have led the Chamber to believe that it was not in fact an image rights
Player R, from country B / Club D, from country C
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agreement but rather a separate agreement to the employment contract, i.e.
directly linked to the services of the Claimant as a player.
18.
As a general rule, if there are separate agreements, the DRC tends to consider
the agreement on image rights as non employment-related and does not have
the competence to deal with it on the basis of art. 22 of the Regulations.
However, such conclusion might be different if specific elements of the separate
agreement suggest that it was in fact meant to be part of the actual
employment relationship. Such elements, like, for instance, stipulations
regarding bonuses, the use of a car, accommodation, which are typical for
employment contracts and not for image rights agreements, do not appear to be
included in the image rights agreement which is at the basis of the Claimant’s
petition.
19.
Consequently, bearing in mind the above as well as art. 22 lit. b of the
Regulations, which stipulates that the Chamber is competent to hear
employment-related disputes (emphasis added), the Chamber decided that it
cannot deal with the Claimant’s claim pertaining to the amount of USD 890,000
based on the image rights agreement.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player R, is partially accepted.
2.
The Respondent, Club D, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of USD 28,500 related to air
tickets, plus interest at the rate of 5% p.a. as from 30 November 2013 until the
date of effective payment.
3.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of USD 27,000 related to match bonuses,
plus interest at the rate of 5% p.a. as from 30 November 2013 until the date of
effective payment.
4.
In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limits, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
Any further claim lodged by the Claimant is rejected.
Player R, from country B / Club D, from country C
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6.
The Claimant is directed to inform the Respondent 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.
*****
Note relating to the motivated decision (legal remedy):
According to article 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 R, from country B / Club D, from country C
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