Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (Engand), Chairman
Carlos González Puche (Colombia), member
Theo van Seggelen (Netherlands), member
Guillermo Saltos Guale (Ecuador), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 14 May 2013, the player from country B, Player A (hereinafter: the Claimant), and the
club from country D, Club C (hereinafter: the Respondent), signed a pre-contract valid for
48 hours and subject to a medical test.
2.
According to the pre-contract, the Respondent undertook to pay inter alia an annual
salary of USD 1,750,000 to the player, broken-down as follows:
USD 600,000 “on signing”;
USD 150,000 due on 1 February 2014;
the rest to be paid over ten months.
3.
On 1 July 2013, the parties concluded an employment contract (hereinafter: the contract),
valid as of the date of signature until 30 June 2014.
4.
Article 19 lit. a) and d) of the contract provided for a net fixed-remuneration in the
amount of EUR 1,750,000, payable as follows:
USD 1,000,000 as annual salary payable in ten monthly instalments of USD 100,000
each, due at the end of each month;
USD 600,000 as lump-sum payment due on 20 August 2013;
USD 150,000 as lump-sum payment due on 1 February 2014.
Article 19 lit. d) in fine of the contract also stated that the Claimant was entitled to
“other allowances and compensation” and that, in this regard, “ [the Respondent]
regulations on winning competitions shall apply”.
5.
Pursuant to article 26 of the contract, “There are additional conditions attached to this
contract”.
6.
On 11 November 2013, the Claimant put the Respondent in default, via the Football
Federation of country D, asking the latter association to urge its member club to proceed
to the payment of “the total amount due as contracted by sign-fee, salaries and
commission, before the opening of the new transfer window”.
7.
On 26 February 2014, the Claimant sent a second default notice to the Respondent as to
the non-payment of the lump-sum payments plus fines amounting to USD 1,000,000,
granting the Respondent a deadline of 48 hours to proceed to the payment.
8.
On 24 September 2014, the Claimant lodged a complaint before FIFA against the
Respondent, requesting the outstanding amount of USD 1,400,000, plus 5% interest p.a.,
broken-down as follows:
USD 775,000 as balance of lump-sum payment due on 20 August 2013 plus fine;
USD 225,000 as lump-sum payment due on 1 February 2014 plus fine;
USD 400,000 corresponding to four-monthly salary;
Player A, country B / Club C, country D
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The Claimant further requested the legal costs to be borne by the Respondent.
9.
The Claimant first of all sustained that, on 1 July 2013, the parties signed an annex to the
contract, which provided for the following fines, payable by the Respondent:
USD 300,000 for failing to pay the lump-sum payment due on 20 August 2013;
USD 75,000 for failing to pay the lump-sum payment due on 1 February 2014.
The said annex also foresaw that “[The Claimant] has a right not to take a part in any
official match if [the Respondent] fails with payments in player contract (…)”.
10.
According to the Claimant, the annex to the contract was signed by both parties due to
the Respondent’s initial failure to pay the amount of USD 600,000 “on signing” as
foreseen in the pre-contract. The Claimant further alleged that the Respondent never
paid his remuneration on the due dates and held having asked several times before
urging the Respondent in writing (cf. points 6 and 7 above).
11.
As regards the claimed amount of USD 775,000, the Claimant acknowledged that, on 28
August 2013, the Respondent paid the amount of USD 125,000 (cf. correspondence dated
26 February 2014; point 7 above). In this context, the Claimant deducted said amount to
the outstanding lump-sum payment of USD 600,000 due on 20 August 2013 plus fine of
USD 300,000.
12.
In its statement of defence, the Respondent first of all contested the Claimant’s claim for
outstanding remuneration. In particular, the Respondent stated that, since the Claimant
did not have a bank account from country D at the beginning of the contractual
relationship, it paid the following amounts in cash on 28 August 2013 and provided the
payment receipts signed by the player, indicating the following:
USD 125,000 as part of the lump-sum payment of USD 600,000;
USD 100,000, equivalent to 377,000, as salary for July 2013.
13.
Furthermore, the Respondent sustained that, when the Claimant’s bank account from
country D was opened, it proceeded to the following alleged payments to the Claimant:
375,420, equivalent to USD 100,000, on 10 December 2013 corresponding to the
Claimant’s salary for August 2013;
750,000, equivalent to USD 200,000, on 22 December corresponding to the
Claimant’s salary for September and October 2013;
375,000, equivalent to USD 100,000, on 23 January 2014 corresponding to the
Claimant’s salary for November 2013;
375,000, equivalent to USD 100,000, on 23 March 2014 corresponding to the
Claimant’s salary for December 2013;
751,200, equivalent to USD 200,000, on 3 April 2014 corresponding to the
Claimant’s salary for January and February 2014.
14.
The Respondent also provided an account statement from the Respondent’s accountancy,
in order to corroborate the aforementioned alleged payments on the player’s bank
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account. The relevant account statement indicated the amount of 3,003,620 as payments
made to the Claimant up to 9 October 2014.
15.
Therefore, the Respondent alleged that only the Claimant’s salary for March and April
2014, as well as the lump-sum payments of USD 600,000 and USD 150,000 remained
unpaid to date.
16.
Having said this, the Respondent further referred to a fine in the amount of USD 50,000
imposed as a disciplinary sanction by the Respondent on the Claimant subsequently to
the match against the club from country D, Club E, which took place on 25 November
2013. The Respondent explained that, the day prior to the said match, the Claimant left
the training camp without permission and refused to take part in the match the
following day.
17.
As a result, on 27 November 2013, the Respondent notified the Claimant of the
deduction of 50% upon his salary for November 2013, in accordance with art. 1.7 of the
Internal Rules on Violations and Sanctions for the First Team (hereinafter: the club’s
Internal Rules) and art. 49 par. 1 of the General Provisions of the Status and Regulations
on Professional Players in the country D (hereinafter: the Regulations of the Football
Federation of country D). In this respect, the Respondent provided the minutes of the
meeting and notification letter to the Claimant. The Respondent further highlighted that
the aforementioned fine was not exceeding 50% of the Claimant’s salary, in accordance
with said art. 49 of the Regulations of the Football Federation of country D.
In this regard, the Respondent provided a copy in the language of country D of the 20112012 edition of the Respondent’s Internal Rules and alleged that said Internal Rules were
attached to the contract and therefore, the Claimant was aware of them as well as a
translation into English of art. 1.7 of the club’s Internal Rules and art. 49 of the
Regulations of the Football Federation of country D.
18.
On 28 November 2013, the Respondent notified the Football Federation of country D of
the aforementioned sanction and provided the said notification letter to the Football
Federation of country D. The Football Federation of country D also confirmed the
aforementioned on 12 October 2014 by means of a letter to FIFA.
19.
Subsequently, the Respondent alleged that the Claimant never complained directly to the
Respondent about a delay in the payment of his remuneration until reception of the
default notice dated 11 November 2013. In this regard, the Respondent asserted having
received said notice only on 13 November 2013 via the Football Federation of country D
and submitted in this regard the relevant fax report dated 13 November 2013.
20.
The Respondent further argued that it never received the default notice dated 26
February 2014 and that, in any event, the said default notice did not bear any signature,
date or transmission proof. Moreover, the Respondent stressed that the said document
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was sent by e-mail to persons who were not entitled to receive official communications
of the club, i.e. Mr F who was the English translator of the youth teams of the club. In
order to corroborate the relevant allegation, the Respondent provided the employment
contract of said translator, along with a written statement from the president of the
Respondent regarding the position of said translator; and Mr G, the alleged agent of the
player. Therefore, the Respondent deemed that the notice dated 26 February 2014 was
null and void and should be rejected by the Dispute Resolution Chamber (DRC).
21.
The Respondent also pointed to the lack of written evidence regarding the Claimant’s
attempts to oppose the delay of payment to the Respondent. The Respondent insisted on
the Claimant’s responsibility to warn in writing the Respondent for outstanding amounts,
otherwise he could be deemed to have accepted the late payments.
22.
As to the annex to the contract, the Respondent stated that it had never been aware of
such document when it signed the contract. Moreover, the Respondent argued that the
signature of the president of the Respondent on said document was forged and that the
document in question did not bear the stamp of the Football Federation of country D as
did the contract and which was a requirement according to art. 15.1 of the Regulations
of the Football Federation of country D on Professional Players’ Status and Transfer. In
any event, the Respondent considered that it would have never agreed upon a penalty of
50% for the non-payment of the lump-sum payments since, according to the Respondent,
it represented an infringement of the legal principle of proportionality.
23.
In view of the foregoing, the Respondent deemed owing the Claimant the total amount
of USD 775,000, corresponding to:
USD 475,000 as balance of lump-sum payment due on 20 August 2013, i.e. USD
600,000 minus USD 125,000 paid on 28 August 2013;
USD 150,000 as lump-sum payment due on 1 February 2014;
USD 150,000 as balance of salary for March and April 2014, i.e. USD 200,000 minus
USD 50,000 as fine imposed on the Claimant.
In addition, the Respondent considered that, in accordance with Swiss law, an interest
of 5% p.a. shall apply on said amount, “from 30 days as from the date of notification of
the DRC decision of the case at stake”.
24.
In his replica, the Claimant disputed the Respondent’s allegations and evidence regarding
the alleged payments of his salary and also the absence of complete translation of the
documentation provided by the Respondent. In particular, the Claimant held that the
Respondent used two receipts of payment with the same reference number, date and
amount for the months of September and October 2013. Therefore, the Claimant
considered that one more month of salary should be added in the calculation of the
outstanding salaries.
25.
As per the fine of USD 50,000 imposed on the Claimant’s salary for November 2013, the
Claimant referred to the annex to the contract which foresaw that in case of failure of
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payment by the Respondent, he was entitled to refuse to play. The Claimant also recalled
that any sanction should be immediate and not serve to set off future outstanding
amounts. In this regard, and referring to the documentation provided by the
Respondent, the Claimant stressed that his salary for November 2013 was paid without
any deduction of the fine imposed on him on 27 November 2013. As a result, the
Claimant considered that the fine should not be applicable.
26.
Furthermore, in order to evidence the validity of the annex to the contract, which was
disputed by the Respondent, the player provided:
the stamped exemplary of the annex by the Football Federation of country D;
the statement of the lawyer of the player from country B, Mr H, who allegedly
signed his contract the same day as the Claimant. The said lawyer reiterated the
Claimant’s allegations according to which the Respondent was behind the idea of
such annex as a warranty for the future payments, since it had already not paid
the sign-on fee to both players.
The Claimant also referred to art. 26 of the contract in order to evidence that when
signing the contract, the annex was attached to it.
27.
Upon FIFA’s request to provide the original of the annex to the contract, the Claimant
asserted that he expected to receive it from the Respondent – since all documents are
allegedly usually exchanged “on line” – which apparently never happened. Instead, the
Claimant provided another copy of said annex.
28.
Subsequently, the Claimant stressed that the default notice dated 26 February 2014 was
sent to one of the Respondent’s legal representatives, including Mr G (cf. point I.20.
above). In this regard, the Claimant provided the mandate given by the Respondent to
Mr G on 20 March 2012 in order to “initiate negotiations involving top players and
coaches for a possible move to” the Respondent.
The Claimant also referred to a letter dated 22 June 2014 from Mr G to the Claimant’s
agent, by means of which Mr G stated that he was instructed by the Respondent in order
to “solve the matter of the outstanding payments (…) for the season 2013-2014, and to
submit an offer to extend the contract for another season (2014-2015)”.
The Claimant further provided exchanges of e-mails between both Mr G and the
Claimant’s agent on 26 and 29 June 2014, by means of which Mr G made a last offer with
the following conditions:
USD 1,400,000 as outstanding amounts for the season 2013-2014, i.e. USD 700,000
net payable upon signature and before departing to city I plus USD 700,000 net
due on 1 September 2014;
USD 1,900,000 for the season 2014-2015.
29.
Finally, the Claimant additionally requested the DRC to apply art. 12 bis of the FIFA
Regulations of the Status and Transfer of the Players (hereinafter: the FIFA Regulations)
Player A, country B / Club C, country D
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to the case at hand, as well as the payment of outstanding bonuses “by matches, Cup
and Championship won” which the Respondent apparently failed to evidence the
payment.
30.
In its duplica, the Respondent reiterated its position as per the total outstanding amount
of USD 775,000 due to the Claimant, emphasising on the proof of payment itself and not
the possible mistake made in the translation of the document. In this regard, the club
provided the payment receipts in English language but with letterheads in the language
of country D. The Respondent also stressed that the Claimant was not entitled to twelve
but ten monthly salaries, as per art. 19 of the contract.
31.
In addition, the Respondent maintained that the Claimant failed to lodge an appeal
against the fine of USD 50,000, within the time limit of one week from the date of
receipt of the notification letter dated 27 November 2013, as set forth in the Football
Federation of country D. In this regard, the Respondent deemed that Swiss law is not
applicable and that the law of the parties, i.e. the Regulations of the Football Federation
of country D, which implied that the fine was final and binding, was applicable.
32.
With regard to the annex to the contract, the Respondent upheld its position as per the
forgery, despite the stamped copy of the annex by the Regulations of the Football
Federation of country D provided by the Claimant. The Respondent also asserted that
there was no rule which allowed a player to refrain from practicing his duty, above all 24
hours prior to an important match, without any further notice to the Respondent. In this
regard, the Respondent disputed the lack of evidence by the Claimant indicating that the
latter duly notified the Respondent in a reasonable manner that he would not play the
relevant match.
33.
The Respondent further disputed the validity of the mandate allegedly given by it to Mr
G, alleging that said document was also forged and therefore, it had no legal effect in
front of the DRC. The Respondent pointed out that, in any event, the mandate was only
limited to serve in the starting of the negotiations for a possible move of any player to
the club, and not to be used as mandatory power of representation from the Respondent
to Mr G for other unauthorised tasks at a later stage, without an additional consent from
the Respondent.
34.
Finally, as regards the additional requests of the Claimant in his replica (cf. point I.29.
above), the Respondent dismissed them all for lack of evidence and details regarding the
request for outstanding bonuses and for lack of legal basis as to the request to apply art.
12 bis of the FIFA Regulations.
II.
Considerations of the Dispute Resolution Chamber
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1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 24 September 2014.
Consequently, the 2014 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 stake (cf. art. 21 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 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute between a player from country B and a club
from country D.
3.
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 (edition 2015),
and considering that the present claim was lodged in front of FIFA on 24 September
2014, the 2014 edition of said Regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered the substance of the present matter. In doing so, it started by
acknowledging the abovementioned facts of the matter as well as the
documentation contained in the file. 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.
5.
In this respect, the Chamber acknowledged that, on 1 July 2013, the parties
concluded an employment contract which was to run until 30 June 2014, and
according to which the Claimant was to receive an annual salary amounting to USD
1,000,000 payable in ten monthly instalments of USD 100,000 each at the end of each
month, as well as USD 600,000 due on 20 August 2013 and USD 150,000 due on 1
February 2014.
6.
The Chamber further observed that the Claimant lodged a claim before FIFA, after
having put the Respondent in default on two previous occasions, seeking payment of
the amount of USD 1,400,000, plus interest, corresponding to his alleged outstanding
fixed-remuneration, bonuses and fines. On the other hand, the DRC duly noted that
the Respondent acknowledged that it owed the Claimant outstanding payments but
held that its debt towards him amounted to USD 775,000 instead, after deduction of
the fine in the amount of USD 50,000 allegedly imposed on the Claimant as
disciplinary sanction on 27 November 2013.
Player A, country B / Club C, country D
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7.
In this respect, and bearing in mind the legal principle of the burden of proof
contained in art. 12 par. 3 of the Procedural Rules, the Chamber first of all concurred
that the said fine of USD 50,000 imposed on the Claimant shall be disregarded, since
the Respondent did not provide any conclusive evidence that the Claimant did take
part in the disciplinary procedure conducted by the Respondent and that, thus, his
right to be heard was respected.
8.
Furthermore, and irrespective of the foregoing consideration, the Chamber wished
to point out that the imposition of a fine, or any other available financial sanction
in general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this connection.
9.
In continuation, the DRC took due note that the Respondent acknowledged that it
failed to pay the Claimant’s monthly salary in the total amount of USD 200,000,
corresponding to two monthly salaries, while the Claimant alleged that the
Respondent owed him four monthly salaries amounting to USD 400,000. In this
respect, the Chamber referred to art. 19 of the contract which provided for an
annual salary amounting to USD 1,000,000 payable in ten monthly instalments of
USD 100,000 each. The DRC also pointed to the documentation provided by the
Respondent in order to corroborate its payments (cf. point I.12 and 13 above) and,
in the absence of arguments and evidence in the contrary from the Claimant, the
DRC concluded that solely the Claimant’s salary for March and April 2014 remained
unpaid by the Respondent.
10.
As to the Claimant’s claim regarding the lump-sum payments due on 20 August
2013 and 1 February 2014 respectively, the DRC emphasised that the Respondent
acknowledged having failed to pay the relevant amount as per the contractual
schedule. The DRC further pointed to the payment of the amount of USD 125,000
on 28 August 2013 by the Respondent, which was confirmed by the Claimant. In
view of the aforementioned, the Chamber concluded that the Respondent failed to
pay the lump-sums in the total amount of USD 625,000 corresponding to USD
475,000 as balance of the lump-sum payment due on 20 August 2013 and USD
150,000 as the lump-sum payment due on 1 February 2014.
11.
At this stage, the Chamber reverted to the player’s claims related to the annex,
which contained various fines in case the Respondent failed to timely execute the
relevant lump-payments under the contract, and observed that the Respondent
disputed the authenticity of said document, maintaining that the signature of its
president contained in the copy of the annex remitted by the Claimant was forged.
12.
In this respect, the Chamber wished to underline that, in spite of the request of the
FIFA administration to be provided with the relevant annex in its original form, the
Claimant was unable to do so and provided another copy of said annex. In
accordance with its practice, the DRC had thus no other option but to conclude that
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the relevant document could not be considered. As a result, the Chamber
determined not to award the player any amounts on the basis of the annex.
13.
With regard to the Claimant’s additional request for outstanding bonuses “by
matches, Cup and Championship won”, the DRC referred to art. 9 par. 1 lit g) combined
with 12 par. 3 of the Procedural Rules and thus decided to reject the Claimant’s request
in this regard insofar as the Claimant did not specify his claim or substantiate it with
documentary evidence.
14.
As a consequence, and taking into account the documentation presented by the
parties to the dispute as well as the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the
outstanding amount of USD 825,000.
15.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of USD 825,000 as from
24 September 2014 until the date of effective payment.
16.
Moreover, the Chamber rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s respective longstanding jurisprudence in this regard.
17.
Finally, the DRC concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of USD 825,000 plus 5% interest p.a. as from 24
September 2014 until the date of effective payment.
3.
In the event that 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.
Any further claim lodged by the Claimant is rejected.
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5.
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 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:
Markus Kattner
Acting Secretary General
Encl.
CAS Directives
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