Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 September 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
John Bram hall (England), member
Johan v an Gaalen (S outh Africa), member
Pav el Piv ov arov (Rus s ia), member
Moham ed Al S aikhan (S audi Arabia), member
on the claim presented by the player,
Play er 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 cas e
1.
On 20 July 2015, the Player of Country B, Player A (hereinafter: the
Claimant or the player), and the Club of Country D, Club C (hereinafter:
the Respondent or the club), signed an employment contract (hereinafter:
the contract) valid as from the date of signature until the end of the
season 2015/2016.
2.
According to art. 4 of the contract, the Claimant was entitled to a total
salary of USD 360,000, payable as follows:
- 20% as sign-on fee;
- 80% in ten monthly instalments, as from 22 August 2015.
3.
Moreover, pursuant to art. 8 of the contract, the Respondent committed to
pay bonuses to the Claimant, depending on the club’s results. In particular,
inter alia:
- USD 5,000 “for [the club] passing the 1/8 final in ACL” (art. 8-4 of the
contract);
- USD 700 for each match won by the club (art. 8-8 of the contract).
4.
On 24 August 2016, the Claimant put the Respondent in default for the
payment of USD 135,600 as outstanding salaries and bonuses and
requested the payment within the following 10 days.
5.
On 18 January 2017, the Claimant lodged a claim in front of FIFA against
the Respondent for outstanding remuneration, requesting the payment of
USD 135,600 for outstanding salaries and bonuses, plus the following:
- USD 13,560 as “penalty fee”, corresponding to 10% of the
aforementioned outstanding amount;
- 5% interest p.a. as of 24 August 2016;
- 5% of the “final condemnation”, as legal fees.
6.
In his claim, the Claimant alleged that the Respondent did not pay him
four out of ten instalments provided in the contract, which were due on 22
February, March, April and May 2016 respectively. Moreover, the Claimant
affirmed that he was entitled to USD 20,400 for the following bonuses:
- USD 5,000 for the club reaching “the round of 16 of Asia Champions
League (item 8-4 of the Contract)”;
- USD 15,400 for twenty-two matches allegedly won by the club between
30 July 2015 and 20 May 2016, pursuant to art. 8-8 of the contract.
7.
The club replied to the claim only after the closure of the investigationphase by the FIFA Administration, affirming that, due to alleged absences
of the player from training sessions, it deducted the amount of USD 72,000
Player A, Country B / Club C, Country D
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from the Claimant’s receivables. However, the Respondent
acknowledged a debt of USD 23,637 towards the Claimant.
also
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to
as: the 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 18 January 2017. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21, 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 in
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 of Country B and a Club of Country D.
3.
In continuation, 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 18 January 2017, the 2016 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 abovementioned 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.
First, the Chamber noted that the parties entered into an employment
contract valid as from 20 July 2015 until the end of the season 2015/2016,
which entitled the Claimant to a total salary of USD 360,000, plus bonuses
depending on the club’s results.
Player A, Country B / Club C, Country D
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6.
In continuation, the members of the Chamber took note that the Claimant
requested the payment of USD 135,600, plus 5% interest p.a. as of 24 August
2016, for outstanding salaries and bonuses, corresponding to: i) the monthly
salaries as from February until May 2016 and, ii) in the amount of USD 20,600,
the bonuses provided in the contract for the club reaching “the round of 16 of
Asia champions League” and for the won matches.
7.
Equally, the members of the Chamber observed that the Respondent
submitted its reply to the claim only after notification of the closure of the
investigation of the matter at hand. As a result, in line with art. 9 par. 3 and 4
of the Procedural Rules as well as the Chamber’s constant jurisprudence in this
regard, the DRC decided not to take into account the reply of the Respondent
and established that, in accordance with art. 9 par. 3 and 4 of the Procedural
Rules, it shall take a decision upon the basis of those documents on file that
were provided prior to the closure of the investigation-phase, in casu, upon
the statements and documents presented by the Claimant.
8.
With the above in mind, the members of the Chamber took note that,
according to the documentation provided by the Claimant, the
Respondent failed to pay him USD 135,600, plus 5% interest p.a. as of 24
August 2016, for outstanding salaries and bonuses.
9.
Furthermore, the DRC took note that the Claimant requested the payment
of a “penalty fee” of USD 13,560, as well as 5% of the “final
condemnation”, as legal fees.
10.
In relation to the above-mentioned requests, the members of the Chamber
recalled that, according to the contract, the Claimant was entitled to a
total salary of USD 360,000, payable as follows: 20% as sign-on fee and
80% in ten monthly instalments, starting on 22 August 2015.
11.
In addition, the members of the Chamber noted that, as specified in the
contract, the Claimant was entitled to bonuses depending on the club’s
results, such as USD 5,000 “for [the club] passing the 1/8 final in ACL” and
USD 700 for each match won by the club.
12.
In this respect, the Chamber recalled the basic principle of the burden of
proof, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. In particular, the
members of the Chamber concluded that, with reference to the claimed
outstanding bonuses, the Claimant did not fully substantiate his claim with
pertinent documentary evidence in accordance with art. 12 par. 3 of the
Procedural Rules. That is, the Claimant did not provide any supporting
Player A, Country B / Club C, Country D
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documentation in order to substantiate that the said bonuses were
effectively due by the Respondent in the light of the club’s results.
Consequently, the DRC decided to reject this part of the Claimant’s claim.
13.
On account of the aforementioned and, in particular in view of the
considerations made above, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant outstanding
salaries in the total amount of USD 115,200, corresponding to his salaries
for the period between February and May 2016.
14.
In continuation, taking into consideration the Claimant’s request as well as
the constant practice of the Dispute Resolution Chamber in this regard, the
members of the Chamber decided to award the Claimant 5% interest p.a.
on the above-mentioned amount as requested, as of 24 August 2016.
15.
Furthermore, as to the claimed “penalty fee”, the member of the Chamber
deemed it appropriate to point out that the aforementioned request by
the Claimant had no contractual or regulatory basis and, thus, rejected the
Claimant’s claim in this regard.
16.
In addition, as regards the claimed legal fees, the Chamber referred to art.
18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished 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 legal fees.
17.
Finally, the members of the Chamber concluded their deliberations by
rejecting any further claim of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of USD 115,200 plus 5%
interest p.a. as from 24 August 2016 until the date of effective payment.
3. In the event that the aforementioned sum plus interest is not paid by the
Respondent within the stated time limit, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
Player A, Country B / Club C, Country D
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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 m otiv ated decis ion (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
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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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