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 8 December 2013, 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 1 January 2014 until 31 December 2015, i.e. for season
2014 and for season 2015.
2.
According to the contract, the Claimant was entitled to the following salary:
“1. In season 2014, the salary of the player begins at 14,000 US Dollars (or
approximately 420,000 in the currency of Country D).
1.1
If the player can reach 12 goals or more in 19 matches of League of
Country D when the first half of season 2014 ends, the salary of the player will
be increased to 20,000 US Dollars (or approximately 600,000 in the currency of
Country D).
1.2
In case the player cannot reach 12 goals in 19 matches of League of
Country D when the first half of season 2014 ends, the salary of the player will
be decreased to 10,000 US Dollars (or approximately 300,000 in the currency of
Country D).
1.3
At the end of season 2014, in case that the player is in the condition 2.1,
if the player can reach 15 goals or more for all the matches of League of
Country D in season 2014, the salary of the player will be increased to 13,000 US
Dollars (or approximately 390,000 in the currency of Country D).
2. In season 2015, the salary of the player will begin follow these conditions:
the salary of the player will begin at 20,000 US Dollars (or approximately
600,000 in the currency of Country D) if the player already meet the
requirements of Condition 1.1
the salary of the player will begin at 13,000 US Dollars (or approximately
390,000 in the currency of Country D) if the player is in condition 1.3
the salary of the player will begin at 10,000 US Dollars (or approximately
300,000 in the currency of Country D) if the player fails to meet the
requirements of all conditions from season 2014”.
3.
Pursuant to art. 3 of the contract, the Respondent committed to provide the
player with “house and car”.
4.
Moreover, according to art. 4 of the contract, the Claimant was entitled to “300
US Dollars (or approximately 9,000 in the currency of Country D) for winning,
goal and assist bonuses”.
5.
Furthermore, pursuant to art. 5 of the contract, the Claimant was entitled to the
following sign-on fee:
“in season 2014 […] 40,000 US Dollars (or approximately 1,200,000 in the
currency of Country D) within 10 December 2014.
5.1 If the player can reach at least 15 goals for season 2014, the player will
receive 60,000 US Dollars (or approximately 1,800,000 in the currency of Country
Player A, Country B / Club C, Country D
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D) in season 2015. In case the player cannot reach 15 goals in season 2014, the
player will receive 40,000 US (or approximately 1,200,000 in the currency of
Country D) within January 2015”.
6.
On 27 May 2016, the Claimant put the Respondent in default for the payment
of the amount of USD 15,339, allegedly corresponding to his salary of December
2015, to bonuses related to matches played between November and December
2015 and to the rent of a house for three months, until the month of December
2015.
7.
On 3 October 2016, the Claimant lodged a claim in front of FIFA against the club
for outstanding remuneration, requesting the payment of USD 15,339 plus 5%
interest, broken down as follows:
a)
USD 13,334 as outstanding salary for the month of December 2015;
b)
USD 1,500 for bonuses in accordance with art. 4 of the contract, related
to three matches allegedly played between November and December
2015. In particular, the Claimant provided a list of such matches and of
the bonuses allegedly due for the “winning, goal and assist bonuses”
pursuant to art. 4 of the contract;
c)
USD 505 as accommodation allowance for the period between October
and December 2015.
8.
In his claim, the Claimant affirmed that, as of the month of August 2014, the
Respondent “voluntarily” increased the player’s salary from USD 14,000 to USD
20,000 pursuant to art. 1.1 of the contract. However, according to the Claimant,
for the month of December 2015 it made a payment of USD 6,666 only. In
particular, in order to corroborate his allegation, the Claimant submitted some
undated payment statements issued by the Respondent, some of which indicate
a salary of 420,000 in the currency of Country D and six of them of 600,000 in
the currency of Country D.
9.
The Respondent replied that, as of August 2014, it increased the salary of the
Respondent not pursuant to art. 1.1 of the contract, but rather because the
player allegedly asked the club for financial support, as he was apparently
facing “some financial and family problem”. In particular, the Respondent
maintained that the Claimant scored 9 goals in the first half of 2014 season and,
pursuant to art. 1.2 of the contract, as of August 2014 he would have been
entitled to a salary of USD 10,000 if the Respondent had not accepted his
request. As a consequence of the above, the Respondent concluded that, for the
season 2014, it overpaid the Claimant by USD 60,000 (6 months with a monthly
salary of USD 20,000 instead of USD 10,000). In this respect, the Respondent
submitted its list of the matches played and of the goals scored by the player
during the seasons 2014 and 2015. According to such list, the player scored 8
goals in the first half of the season 2014.
Player A, Country B / Club C, Country D
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10.
Moreover, the Respondent maintained that the Claimant scored 18 goals during
the entire 2014 season and argued that, pursuant to art. 1.3 of the contract, he
would have been entitled to a monthly salary of USD 13,000 at the beginning of
the 2015 season. Nonetheless, the Respondent stated that, as the player
allegedly requested to maintain the salary at USD 20,000 also for the season
2015 “because of the same problems”, the Respondent and the Claimant made
a “special agreement” by means of which the club accepted to pay him a salary
of USD 20,000 for the first ten months of the season 2015 and of USD 11,666
and USD 6,666 for the months of November and December 2015 respectively.
11.
In particular, the Respondent argued that the lower salary for the last two
months depended on the possible lack of the League of Country D matches
during such months and by the higher salary previously received by the
Claimant. As a consequence of the above, the club concluded that, for the
season 2015, it overpaid the player by USD 70,000 (i.e. 10 months with a
monthly salary of USD 20,000 instead of USD 13,000).
12.
In his replica, the Claimant denied having requested any salary increase or
having concluded any special agreement with the club. Moreover, the Claimant
argued that the salary increase occurred as of July 2014 and derived from an
offer made by the club’s president, which the Claimant accepted, according to
which the condition under art.1.1 would have been considered as met if the
player had scored 10 goals in the first half of season 2014. In this regard, the
Claimant emphasized having met such condition and, as evidence, submitted
news taken from the web indicating that, in addition to the 8 goals listed by the
club in its reply, in the first half of season 2014 he scored further 3 goals.
13.
The Claimant further argued that the condition under art. 1.1 was met and,
pursuant to art. 2 of the contract, he was entitled to a salary of USD 20,000 also
for the season 2015.
14.
Furthermore, the Claimant argued that the clauses of the contract stipulating a
salary decrease depending on the player performance were invalid. Hence, the
Claimant rejected the Respondent’s allegations according to which he was
entitled to a lower salary for the second half of the season 2014 and for the
entire 2015 season.
15.
In continuation, the Claimant argued that the Respondent acknowledged that
the “conditions set out in the contract” were met as, for the season 2015, it paid
him a sign-on fee of USD 60,000, pursuant to art. 5.1 of the contract.
16.
In its duplica, the Respondent recalled its previous arguments and maintained
that the player had scored only 7 goals in the first 19 matches of League of
Country D of season 2014. In particular, the Respondent insisted that the
condition under art. 1.1 of the contract was not met and the Claimant received
more than what he was entitled to according to the contract.
Player A, Country B / Club C, Country D
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17.
Moreover, the Respondent stressed that no agreement had been concluded
between the Respondent and the Claimant for the amendment of the condition
under art. 1.1 of the contract.
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 3 October 2016. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
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
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016 – hereinafter: Regulations), 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 3 October 2016, 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 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.
First, the Chamber noted that, on 8 December 2013, the Claimant and the
Respondent entered into a contract, valid as from 1 January 2014 until 31
December 2015, i.e. for season 2014 and season 2015.
6.
In this context, the members of the Chamber noted that, according to the
contract, the Claimant was entitled to:
Player A, Country B / Club C, Country D
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-
-
for season 2014, a monthly salary of USD 14,000, to be increased to the
amount of USD 20,000 upon the condition that “the player can reach 12
goals or more in 19 matches of League of Country D when the first half of
season 2014 ends”;
for season 2015, a monthly salary of USD 20,000, provided that the player
met the aforementioned condition.
7.
Moreover, the members of the Chamber took note that both the parties
acknowledged that the Respondent paid the following salaries to the Claimant:
i) USD 20,000 as of the month of August 2014 during the entire season 2014 and
the first ten months of season 2015; ii) USD 6,666 for the month of December
2015.
8.
In continuation, the Chamber noted that the Claimant requested the payment
of USD 13,334 for the monthly salary of December 2015, bonuses pursuant to
art. 4 of the contract in the amount of USD 1,500 and an accommodation
allowance in the amount of USD 505 for the period between October and
December 2015.
9.
Equally, the DRC took note of the position of the Respondent, which contested
that the Claimant was entitled to the requested outstanding salary and
maintained that the salary of the player was increased to USD 20,000 in August
2014 because the club accepted the alleged Claimant’s request of increase due
to “financial and family problem”. However, the Respondent affirmed that the
player and club eventually concluded a “special agreement”, whereby the
Claimant accepted a decrease of his monthly salary to USD 11,666 for November
2015 and to USD 6,666 for December 2015.
10.
In view of the aforementioned dissent positions of the parties, the members of
the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according
to which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof. The application of the said principle in the present
matter led the members of the Dispute Resolution Chamber to conclude that, in
view of the fact that it was undisputed that the Claimant received a monthly
salary of USD 20,000 as from August 2014 until October 2015, it was up to the
Respondent to prove that, for the month of December 2015, the Claimant was
entitled only to the amount of USD 6,666.
11.
Having stated the above, the members of the Chamber concurred that the
Respondent did not substantiate his allegations, as it did not present any
evidence in respect of the “special agreement”, by means of which the Claimant
allegedly accepted to receive a salary of USD 6,666 only, for the month of
December 2015. The DRC felt comforted with its conclusion considering that as
of August 2014 until October 2015 the conduct of the parties clearly
demonstrates that the Claimant was entitled to a salary of USD 20,000.
Player A, Country B / Club C, Country D
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12.
On account of the aforementioned considerations, the DRC concluded that,
since that the parties set the player’s salary at USD 20,000 on August 2014 and
the Respondent had not been able to prove its argumentation that the parties
had beforehand agreed on a salary of USD 6,666 only for the month of
December 2015, the Respondent had to pay the Claimant the remaining
outstanding amount. As a consequence, the members of the Chamber
concurred that, in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations and, consequently, is to be
held liable to pay the outstanding salary in the amount of USD 13,334, as
requested by the Claimant.
13.
In continuation, as to the claim for outstanding match bonuses as per art. 4 of
the contract, taking into account the documentation presented by the Claimant
in support of his petition, the DRC concluded that the Claimant had presented
sufficient documentary evidence in accordance with art. 12 par. 3 of the
Procedural Rules. The members of the Chamber were comforted with such
conclusion by the fact that the information presented by the Respondent with
regard to the relevant matches played by the player with the club confirmed
that the requested match bonuses were indeed due.
14.
Consequently, bearing in mind the aforementioned considerations, the
Chamber decided that the Respondent, in addition to the outstanding salary of
USD 13,334, shall also pay the Claimant outstanding match bonuses in the
amount of USD 1,500.
15.
Furthermore, as to the requested accommodation allowance, the members of
the Chamber emphasised that, according to the relevant clause in the contract,
i.e. art. 3, the Respondent only committed to provide the Respondent with
“house and car”. Consequently, in the absence of any monetary value in the
contractual condition relating to an accommodation and of any documentary
evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the
Chamber had to reject this part of the Claimant’s claim.
16.
In view of the above, the DRC concluded that it could be established that the
Respondent had failed to pay the Claimant the agreed outstanding salary in the
amount of USD 13,334 and bonuses in the amount of USD 1,500. Thus, in
accordance with the general legal principle of pacta sunt servanda, the
Respondent is to be held liable to pay the total amount of USD 14,834 to the
Claimant.
17.
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 total
outstanding amount due by the Respondent, i.e. USD 14,834, as of 1 January
2016, until the date of effective payment.
Player A, Country B / Club C, Country D
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18.
Finally, the Dispute Resolution Chamber concluded its deliberations in the
present matter by establishing that any further claim lodged by the Claimant is
rejected.
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 14,834 plus 5% interest
p.a. as from 1 January 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.
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 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
Player A, Country B / Club C, Country D
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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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