Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 September 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Leonardo Grosso (Italy), member
Theodoros Giannikos (Greece), member
Mohamed Mecherara (Algeria), 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 between the parties
I.
Facts of the case
1.
On 11 June 2012, the player from country B, Player A (hereinafter: Claimant or
player), and the club from country D, Club C (hereinafter: Respondent or club),
signed an employment contract (hereinafter: contract) valid as from 15 June
2012 until 31 May 2015.
2.
According to the contract, the club undertook to pay the player the amount of
EUR 1,200,000 per season, payable in 10 instalments of EUR 120,000 between 20
August and 20 May of the respective year.
3.
On 30 June 2014, with a subsequent amendment on 24 August 2015, the player
lodged a claim with FIFA against the club for outstanding remuneration and
requested to be awarded the following monies:
- EUR 121,000 corresponding to unpaid salaries of the 2013/2014 season;
- EUR 780,000 corresponding to unpaid salaries of the 2014/2015 season.
In addition, the player requested to be awarded a “15% fine as loss of suit”.
4.
The player held having received the total amount of EUR 1,079,000 during the
2013/2014 season and that, thus, EUR 121,000 remained outstanding.
5.
In this regard, the player stated that after having sent default notices in May
and June 2014, the club informed him that it imposed two fines on the player
and, on this basis, deducted the amounts of EUR 100,000 and EUR 21,000 from
his salaries.
6.
In its reply to the player’s claim in connection with the 2013/2014 season, the
club confirmed having imposed said fines on the player and therefore held
having fulfilled all its financial obligations towards the player regarding the
season 2013/2014 season.
7.
According to the club, the reason for the first fine in the amount of EUR 100,000,
imposed on the player on 5 August 2013, was that the player allegedly did not
attend a match “although the Coach gave him a position in squad”.
8.
In this regard, the club held that the player never protested against the relevant
decision.
9.
According to the club, the second fine in the amount of EUR 21,000 was imposed
on the player on 2 June 2014 due to his low performance.
10.
Moreover, the club pointed out that it paid EUR 1,079,000 during the 2013/2014
season and therefore showed good faith.
Player A, country B / Club C, country D
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11.
The player, for his part, stated that both fines were “completely ungrounded”
and he denied not having protested against the first fine. He further explained
that the first fine was delivered in city E during the period of time he was absent.
12.
Furthermore, the player denied any wrongdoing and submitted a statement of
the coach, which reads as follows: “On 29 July 2013, Player A spontaneously
appeared to play a friendly match against Club F and I released him of that
match in view of his physical and psychological condition”.
13.
Regarding the second fine, the player held that he did not underperform and
that a player cannot be fined for low performance.
14.
Moreover, the player pointed out that the imposition of a fine shall not be used
by clubs to offset outstanding remuneration due to the player.
15.
With respect to the 2014/2015 season, the player argued having only received
the total amount of EUR 420,000 and that therefore EUR 780,000 remained
outstanding.
16.
The club, for its part, requested that the claim for outstanding remuneration
related to the 2014/2015 season shall be rejected as well.
17.
In this respect, the club held having fulfilled its financial obligations for the
2014/2015 season, by having paid the total amount of EUR 1,499,000 to the
player “from the beginning of the year 2014 until 28.08.2015”. The club
presented various payment documents in its defence.
18.
The player acknowledged receipt of a payment in the amount of EUR 180,000
on 28 August 2015, i.e. after he had lodged his claim against the club in front of
FIFA.
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 30 June 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
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
Player A, country B / Club C, country D
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combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016) the Dispute Resolution Chamber is 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 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 2016), and considering that the present claim was lodged on 30 June
2014, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
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 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.
5.
In this respect, the DRC acknowledged that, on 11 June 2012, the parties had
signed a valid employment contract for the period of 15 June 2012 until 31 May
2015, in accordance with which the Respondent undertook to pay to the
Claimant the amount of EUR 1,200,000 per season, payable in 10 instalments of
EUR 120,000 between 20 August and 20 May of the respective year.
6.
The Chamber noted that according to the Claimant, the Respondent had failed
to pay his remuneration in the amount of EUR 121,000 during the 2013/2014
season as well as the amount of EUR 780,000 during the 2014/2015 season.
Consequently, the Claimant requested to be awarded inter alia payment of the
total amount of EUR 901,000.
7.
Subsequently, the DRC observed that the Respondent, in reply to the player’s
claim regarding outstanding remuneration for the 2013/2014 season, stated that
it imposed a fine in the amount of EUR 100,000 on the Claimant, since he
allegedly did not attend a match and another fine in the amount of EUR 21,000
due to the Claimant’s alleged low performance. The Chamber took into account
that it remained undisputed that these fines were deducted from the Claimant’s
salary.
8.
Furthermore, the members of the Chamber noted that the Respondent held
having entirely fulfilled its financial obligations towards the Claimant regarding
the 2014/2015 season and that it submitted various documents related to
payments allegedly made to the Claimant in its defence.
Player A, country B / Club C, country D
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9.
Having said this, the DRC acknowledged that it had to address the question as
to whether the deductions made by the Respondent from the Claimant’s
receivables on the basis of the fines during the 2013/2014 season can be
accepted.
10.
In this respect, as a general remark, the DRC wished to highlight 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.
11.
Having said that, the Chamber firstly recalled 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 on the basis of an alleged fact shall carry the respective
burden of proof.
12.
Turning its attention to the first fine of EUR 100,000 imposed by the Respondent
on the Claimant due to his alleged absence during a match, the Chamber
concurred that, apart from the fact that it considered the fine disproportionate,
the Respondent had not presented credible evidence with regard to the reasons
for the imposition of said fine.
13.
Subsequently, the members of the Chamber turned their attention to the fine
of EUR 21,000 imposed on the Claimant due to alleged low performance.
14.
In this regard, the DRC referred to its jurisprudence in accordance with which a
decrease in, or deduction from, payments to a player by a club on the basis of a
player’s alleged low performance cannot be accepted, due to the unilateral and
arbitrary character of the club’s decision.
15.
In addition, the Chamber pointed out that the Respondent had not
corroborated the reasons for the imposition of this fine with sufficient
documentary evidence.
16.
For these reasons, the Chamber decided that both fines totalling EUR 121,000
shall be disregarded and that the Respondent’s arguments in this respect shall
be rejected.
17.
Subsequently, the DRC turned its attention to the Respondent’s allegation that
it fulfilled all of its financial obligations towards the Claimant for the 2014/2015
season and examined the documents provided by the Respondent in its defence.
18.
In relation to the documentation provided by Respondent, the Chamber recalled
art. 9 par. 1 lit. e) of the Procedural Rules, which stipulates that all documents
of relevance to the dispute shall be submitted in the original version as well as
translated into one of the official FIFA languages.
Player A, country B / Club C, country D
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19.
In this context, the members of the Chamber noted that, although having been
asked to do so, the Respondent did not provide translated versions of some of
the documents it submitted in the language of country D only. In view of the
foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC
decided that it could not take into account the documents which were not
translated into an official FIFA language.
20.
As to the documents presented in an official FIFA language, the Chamber
acknowledged that the Respondent did submit corroborating evidence of
payments in the total amount of EUR 300,000 to the Claimant relating to the
2014/2015 season.
21.
In light of the above, taking into account the total amount due to the Claimant
for the 2014/2015 season, i.e. EUR 1,200,000, the DRC considered that the
Respondent had not sufficiently substantiated its defence, as it did not present
conclusive documentary evidence which could corroborate that it has fully paid
the Claimant’s receivables for the 2014/2015 season.
22.
Having said that, the Chamber recalled that the Claimant claimed outstanding
remuneration related to the season 2014/2015 in the amount of EUR 780,000,
having acknowledged receipt of the amount of EUR 420,000 from the
Respondent for the 2014/2015 season until he lodged his claim in front of FIFA,
and that the Claimant had acknowledged having received a further payment of
EUR 180,000 on 28 August 2015.
23.
Consequently, in light of the above, the members of the Chamber concluded
that the amount of EUR 600,000 remained outstanding in connection with the
2014/2015 season.
24.
On account of all of the above, the DRC established that the Respondent had
failed to pay to the Claimant the amount of EUR 121,000 corresponding to
remuneration related to the 2013/2014 season and the amount of EUR 600,000
related to the 2014/2015 season.
25.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the Chamber decided that the Respondent must pay outstanding
remuneration in the total amount of EUR 721,000 to the Claimant.
26.
Subsequently, the DRC analysed the request of the Claimant corresponding to
“15% fine as loss of suit”. In this regard, the Chamber deemed it appropriate to
point out that said request presented by the Claimant had no legal or regulatory
basis and, consequently, the DRC rejected this part of the claim.
Player A, country B / Club C, country D
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27.
The DRC concluded its deliberations on 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, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 721,000
within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned sum is not paid by the Respondent within
the stated 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 FIFA’s Disciplinary Committee for consideration and a formal
decision.
4.
Any further claim lodged by the Claimant is rejected.
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 article 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
Player A, country B / Club C, country D
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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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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