Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 September 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Johan van Gaalen (South Africa), member
Leonardo Grosso (Italy), 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
Facts relating to the preliminary issue of the competence of the DRC:
1.
On 14 July 2013, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
signed an employment contract (hereinafter: the contract) which stipulates the
following in its art. 12:
“12 Resolving of Disputes
1) Disciplinary Committee of FIFA
2) The CAS”
2.
The Respondent contested the competence of FIFA to deal with the present
matter, arguing that “the only legal authority between the parties is the legal
counsel Department of the Football Federation of country D”.
3.
The Claimant, for his part, insisted that FIFA’s Dispute Resolution Chamber
should deal with the present matter. In particular, the Claimant held that art.
12 of the contract “provides for the resolution of all disputes under the
Contract to take place before FIFA and the Court of Arbitration for Sport”.
Facts relating to the substance of the matter:
1.
The contract signed between the Claimant and the Respondent on 14 July
2013, was valid as from the date of signature until 30 May 2014.
2.
According to art. 5.2 of the contract, the Respondent must pay to the Claimant
an amount of USD 450,000 as salary, as follows:
USD 150,000 payable after round of 8 of the league E 2012-2013;
USD 50,000 payable on 20 October 2013;
USD 50,000 payable on 20 November 2013;
USD 50,000 payable on 20 December 2013;
USD 70,000 payable on 20 January 2014;
USD 80,000 payable on 20 March 2014.
3.
Additionally, art. 5.3 of the contract stipulated that the Respondent
undertakes the obligation, inter alia, to pay the following bonuses:
USD 10,000 “for qualifying for semi-finals of league E 2013-2014”;
USD 2,000 “for any victory”;
USD 1,200 “per goal”.
Player A, country B / Club C, country D
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Furthermore, the contract established that these bonuses would be paid to the
Claimant “in 2 times. Half season and end of the season”. Moreover, the
contract stipulated that “the total amount of Bonuses could not be more than
USD 50,000 for the year”.
4.
On 8 October 2014, the Claimant lodged a complaint before FIFA against the
Respondent, and requested the payment of the total amount of USD 353,940,
plus 5% interest p.a. as of the respective due dates until the date of effective
payment, broken down as follows:
- USD 276,040 corresponding to outstanding “basic salary”;
- USD 36,400 corresponding to outstanding bonus payments, as follows:
USD 24,000 corresponding to 12 games which the club won and the
player participated;
USD 2,400 corresponding to 2 goals scored;
USD 10,000 corresponding to qualification for the semi-finals of the
league E
- USD 37,500 as additional compensation under the specificity of sport
criterion;
- USD 4,000 corresponding to costs.
5.
In his claim, the Claimant sustained that since the beginning of the contractual
relation, the Respondent failed to pay the instalments due. The Claimant
explained that after requesting such payments, he was reassured by the
Respondent that the payments would be made, which in light of the past
relationship with the Respondent, he accepted.
6.
Subsequently, the Claimant declared that for the whole contractual period
with the Respondent, he only received the amount USD 173,960 from the
Respondent. The Claimant explained that the only payments he received from
the Respondent were:
1) USD 59,980 on 2 December 2013;
2) USD 113,980 on 22 January 2014.
7.
The Claimant further alleged that the Respondent failed to pay the bonus
payments that fell due over the course of the 2013/2014 season.
8.
In its reply, the Respondent argued that it had paid the Claimant the amount
of USD 178,000 and that, therefore, only USD 272,000 remained outstanding
towards the Claimant. In this respect, the Respondent sustained that this
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amount “will be paid by company F to the [Claimant] from its outcome
resources specified for the [Respondent] (for the presence of the [Respondent]
in league E) and this amount will be settled to the [Claimant’s] bank account”.
9.
In his replica, the Claimant sustained that the Respondent had admitted
liability in the matter at hand and declared that he had not received any
further remuneration from the Respondent, and therefore repeated his
position.
10.
In its duplica, the Respondent explained that in light of the bad results of the
Respondent, the Disciplinary Committee of the Respondent decided to
“decrease amount of 20 percent of the whole contracts of the technical staff
and every player of the club”. Moreover, the Respondent stated that taking
into account the value of the contract (USD 450,000), that the contract was
decreased by 20% (USD 90,000) and that it had already paid the Claimant USD
178,000, the outstanding amount owed to the Claimant is USD 182,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 8 October 2014. Consequently, the Chamber concluded
that 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 hand (cf. art. 21 of the 2014
and 2015 editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 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 (edition 2015) the DRC
would, in principle, be competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension
between a player from country B and an club from country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis that “the only legal
authority between the parties is the legal counsel Department of the Football
Federation of country D”.
4.
In this regard, the DRC noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account the above, the DRC emphasised that in accordance with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is
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competent to deal with a matter such as the one at hand, unless an
independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been
established at national level within the framework of the association and/or a
collective bargaining agreement. With regard to the standards to be imposed
on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In
this regard, the members of the DRC judge further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
6.
While analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
actually contained an arbitration clause.
7.
Having said this, the members of the Chamber turned their attention to art. 12
of the contract, which stipulated the following: “12 Resolving of Disputes 1)
Disciplinary Committee of FIFA 2) The CAS”.
8.
In view of the aforementioned clause, the members of the DRC were of the
opinion that art. 12 of the contract does not make clear reference to one
specific national dispute resolution chamber in the sense of art. 22 lit. b) of the
aforementioned Regulations and even provides for the possibility of lodging a
contractual dispute in front of FIFA. Therefore, the members of the Chamber
deemed that said clause can by no means be considered as a clear arbitration
clause in favour of a national deciding body within the Football Federation of
country D, and, therefore, cannot be applicable.
9.
Having established that the first criterion for the recognition of the
competence of a national decision-making body is not fulfilled in the present
matter, the Chamber deemed unnecessary to examine any further points
which would need to be assessed before concluding to the competence of a
national deciding body.
10.
In view of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter 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.
11.
Subsequently, the DRC 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 (editions 2014 and 2015) and considering that the present claim
Player A, country B / Club C, country D
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was lodged in front of FIFA on 8 October 2014, the 2014 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
12.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the DRC started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties.
However, the DRC 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 substance of the matter at hand.
13.
In this respect and first of all, the DRC acknowledged that the Claimant and
the Respondent had concluded an employment contract valid as from 14 July
2013 until 20 May 2014, according to which the Claimant was entitled to
receive as salary, for the duration of the contract, the amount of USD 450,000.
14.
Furthermore, the members of the Chamber noted that, according to art. 5.3 of
the contract, the Claimant was entitled, inter alia, to the following bonus
payments: USD 10,000 “for qualifying for semi-finals of league E 2013-2014”,
USD 2,000 “for any victory” and USD 1,200 “per goal”.
15.
It was considered by the Chamber that the Claimant contacted FIFA on 8
October 2014, indicating that the Respondent had failed to pay him the
amount of USD 276,040 corresponding to salary and the amount of USD 36,400
corresponding to bonus payments that fell due over the course of the
2013/2014 season. Therefore, the Claimant requested to be paid the alleged
outstanding amount of USD 312,440, plus an amount of USD 37,500
corresponding to “specificity of sport”, as well as interest. In addition, the
Claimant requested an amount of USD 4,000 for costs.
16.
Subsequently, the DRC noted that the Respondent, in its defence, rejected the
Claimant’s allegations, arguing that the amount of USD 178,000 had been paid
to the Claimant.
17.
Moreover, the members of the Chamber observed that the Respondent stated
that due to bad sporting results from it, its Disciplinary Committee decided to
“decrease amount of 20 percent of the whole contracts of the technical staff
and every player of the club”.
18.
The DRC took note that the Respondent argued that taking into account that
the contract value was decreased by 20%, and that it had paid the Claimant
the amount of USD 178,000, the outstanding amount to the player is USD
182,000.
Player A, country B / Club C, country D
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19.
In relation to the alleged USD 178,000 paid by the Respondent to the
Claimant, the Chamber recalled the basic principle of the burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
20.
In this context, the Dispute Resolution Chamber noted that the Respondent
did not provide any documentation in support of its allegation.
21.
Subsequently, the Chamber recalled that according to the Respondent, its
Disciplinary Committee decided to “decrease amount of 20 percent of the
whole contracts of the technical staff and every player of the club” due to bad
sporting results from the Respondent.
22.
Regardless of the question as to whether such measure as set out would have
been applicable to the situation in the present matter, the Chamber agreed
that a decrease in any payments to the Claimant by the Respondent could not
have been validly applied on the basis of the aforementioned statement due
to the unilateral and arbitrary character of such decision.
23.
Consequently, the Chamber considered that the Respondent had not
sufficiently substantiated its defence, as it did not present any conclusive
documentary evidence which could corroborate that the amount of USD
178,000 was paid to the Claimant.
24.
In view of all the above and, in particular, taking into account that the
Respondent failed to discharge its burden of proof, the DRC decided that, in
accordance with the general legal principle of pacta sunt servanda, the
Respondent must fulfil its contractual obligations towards the Claimant and is
to be held liable to pay the Claimant the amount of USD 276,040, as
outstanding remuneration.
25.
Subsequently, the members of the Chamber pointed out that according to the
employment contract, the Claimant was entitled to receive inter alia, the
following bonus payments: USD 10,000 “for qualifying for semi-finals of
league E 2013-2014”, USD 2,000 “for any victory” and USD 1,200 “per goal”.
According to the Claimant, bonus payments totaling USD 36,400 remained
unpaid. In this respect, the Chamber highlighted that the Respondent did not
contest the allegation of the Claimant and that it, thus, has remained
uncontested that: 1) The Claimant had rendered his services to the Respondent
for 12 games, which the Respondent won; 2) The Claimant scored 2 goals; 3)
The Respondent qualified to the semi-finals of the league E, all during the
contractual duration. Therefore, the Chamber decided to accept the Claimant’s
claim relating to outstanding bonus payments and that the Respondent is
liable to pay the amount of USD 36,400 to the Claimant for bonuses.
Player A, country B / Club C, country D
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26.
In addition, taking into account the Claimant’s request, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of outstanding remuneration and outstanding bonus payments, i.e.
USD 312,440, as of the date on which the claim was lodged, i.e., 8 October
2014 until the date of effective payment.
27.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for “specificity of sport” in the amount of USD 37,500. In this
regard, the Chamber deemed it appropriate to point out that the request for
said compensation presented by the Claimant had no legal or regulatory basis
and pointed out that no corroborating evidence had been submitted.
28.
Moreover, as regards the claimed costs, the Chamber referred to art. 18 par. 4
of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request relating
to costs.
29.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by rejecting any further claim of the Claimant.
*****
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
amount of USD 312,440 plus 5% interest p.a. on said amount as from 8
October 2014 until the date of effective payment.
4.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, 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.
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.
Player A, country B / Club C, country D
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*****
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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
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