Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 September 2016,
by Theo van Seggelen (Netherlands), DRC judge,
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 25 September 2012, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract), valid as of the
date of signature until 30 June 2014.
2.
According to art. 2 of the contract, the Respondent shall, inter alia, “pay to the
[Claimant] his salary and the other remunerations stipulated in this [contract]
on the last day of each calendar month”.
3.
Pursuant to art. 5 of the contract, the Claimant was entitled to receive an annual
salary of USD 1,400,000.
4.
In addition, art. 5 of the contract stipulates the following:
“- The [Claimant] shall be entitled to a winning and drawing bonuses as a policy
of the [Respondent]
- If the [Claimant] scores 20 goals in the League of country D, Asian Champions
League and the Cup he shall receive a bonus of 100,000USD (one hundred
thousand USD)”.
5.
Art. 12 further states that “[t]he regulations of the Professional Code of the
[Claimant], its rules and regulations applicable to its players and/or employees,
Football Associations of country D, and the provisions of the labor law of
country D shall be applied where there is no specific provision in this contract”.
6.
On 17 March 2016, the Claimant put the Respondent in default of paying him a
bonus of 250,000 for having won the 2014 cup.
7.
On 30 March 2016, the Respondent replied to the Claimant’s default notice,
informing him that in accordance with the Respondent’s regulations, he was
entitled to a bonus of 100,000 for winning the cup in 2014 and that said amount
was paid to him on 17 August 2015.
8.
On 16 May 2016, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the amount of 150,000 plus 5% interest per annum.
9.
In his claim, the Claimant explains that after winning the cup on 18 May 2014,
the Respondent informed him that he would receive a bonus payment of
250,000 due on 31 May 2014 as per art. 2 of the contract. In continuation, the
Claimant alleges that the Respondent only proceeded to a partial payment of
100,000 and therefore claims the balance of 150,000. In support of his assertion
Player A, country B / Club C, country D
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that a bonus of 250,000 was due, the Claimant presented several e-mails
exchanged in October 2014 between members of the Respondent’s
administration allegedly recognising said bonus. Furthermore, the Claimant
submitted an e-mail allegedly sent to him on 2 October 2014 by the
Respondent’s team manager, from the e-mail address XXXX, which reads as
follows
“hi (…) I send all the doc for u
Club E match
Club F match
and 5 match for the leage
you will have also next month
cup 250000 like all player”.
10.
In its reply to the claim, the Respondent reiterates that in accordance with the
its regulations, the bonus for winning the cup amounts to 100,000. In this
respect, the Respondent sustains that only its CEO and the members of the
board have the power to increase the bonuses, which they did not.
11.
In continuation, the Respondent challenges the probative value of the e-mails
submitted by the Claimant. Regarding the exchange of e-mails, the Respondent
denies their content, stressing that they are not official, not addressed to the
Claimant and no track of them can be found in its database. As to the e-mail
dated 2 October 2014 allegedly addressed to the Claimant, the Respondent
points out that it was sent from an anonymous address which is not related to
the Respondent.
12.
In view of the above, the Respondent requests FIFA to reject the Claimant’s claim
and to order the latter to reimburse its legal costs in the amount of CHF 3,000.
13.
In his replica, the Claimant explains that he was provided with the exchange of
e-mails by Mr G, the Respondent’s team administrator, whose e-mail address is
XXXX. In this regard, the Claimant outlines that when Mr G stated “I send you
all the doc for u”, he actually referred to the exchange of e-mails. Furthermore,
the Claimant points out that the aforesaid e-mail address was copied in the emails exchanged between the members of the Respondent’s administration,
which demonstrate his link with the latter.
14.
In its final comments, the club reiterates its previous argumentation.
II.
Considerations of the DRC judge
Player A, country B / Club C, country D
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1.
First, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, the DRC judge took note that the present matter was
submitted to FIFA on 16 May 2016. Consequently, the 2015 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 Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
(edition 2016), he is competent to decide on the present litigation, which
concerns an employment-related dispute with an international dimension
between a player from country B and a club from country D.
3.
Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate in the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge analysed which edition of the Regulations should
be applicable as to the substance of the matter. In this respect, he confirmed
that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status
and Transfer of Players (edition 2016), and considering that the present matter
was submitted to FIFA on 16 May 2016, the 2015 edition of said Regulations
(hereinafter: the Regulations) is applicable to the present matter as to the
substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing
so, he started by acknowledging the abovementioned facts of the case as well
as the documentation contained in the file. However, the DRC judge emphasised
that in the following considerations he will refer only to facts, arguments and
documentary evidence which he considered pertinent for the assessment of the
matter at hand. In this respect, the DRC judge acknowledged that the parties
had signed an employment contract valid until 30 June 2014.
6.
In continuation, the DRC judge noted that the Claimant asserts that the
Respondent had failed to remit him the amount of 150,000, allegedly
corresponding to the outstanding part of the bonus for winning the cup.
7.
Having said this, the DRC judge observed that in accordance with the internal
regulations of the Respondent, the bonus for winning the cup was equivalent
Player A, country B / Club C, country D
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to 100,000, amount that the Claimant acknowledged having received on 17
August 2015.
8.
In view of the above, the DRC judge emphasised that the burden to prove that
he was entitled to receive a higher bonus than the one stipulated in the internal
regulations of the Respondent lies with the Claimant. The DRC judge focused
therefore his attention on the e-mails, allegedly recognising his right, submitted
by the Claimant in support of his assertion. In this regard, the DRC judge first
noted that the Respondent formally contests the source as well as the
authenticity of said e-mails. Furthermore, the DRC judge observed that the
Claimant did not submit any official and reliable evidence which would allow
the DRC judge to establish a link between the addresses from which the e-mails
were sent, in particular the address XXXX, and the Respondent. Indeed, the
copies of the e-mails presented by the Claimant do not appear to be direct print
outs of the respective e-mail accounts.
9.
As a consequence, the DRC judge after making reference to art. 12 par. 3 and
par. 6 of the Procedural rules, according to which any party claiming a right on
the basis of an alleged fact shall carry the burden of proof and the evidence
shall be considered with free discretion respectively, concluded that the
Claimant did not satisfactorily carry the burden of proof regarding his
entitlement to an extra amount of 150,000.
10.
All the above led the DRC judge to conclude that the claim of the Claimant has
to be rejected.
*****
III.
Decision of the DRC judge
Player A, country B / Club C, country D
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The claim of the Claimant, Player A, is rejected.
Note relating to the motivated decision (legal remedy):
According to art. 58 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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