Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 September 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Jerom e Perlem uter (France), member
Elv is Chetty (S ey chelles ), member
S tefano S artori (Italy ), member
Takuy a Yam azaki (Japan), member
on the matter between the player,
Play er A, Country B,
as Claimant
and 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 22 June 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 its date of signature until 21 June 2019.
2.
According to art. 7 of the contract, the Claimant was entitled to a monthly
salary of 166,667, to be paid half on the 25th day of each month and half on
the 10th day of the following month.
3.
On 22 June 2015, the Claimant and the Respondent also signed the
“Attachment 1 to the Employment Agreement dated June 22, 2015”
(hereinafter: the Attachment).
4.
Article 2 of the Attachment stipulates the following:
“2.1 Types and incentive premium rates to be paid to [the Claimant] as a player
of the main team of the club in addition to the monthly salary per the
employment agreement.
2.1.1. [the Claimant] who fulfils his obligations per the employment agreement
in a proper way is to be paid a monthly incentive premium, which, in the
aggregate with the monthly salary per the employment agreement, makes up
33.525 (thirty-three thousand five hundred twenty-five) Euros, i.e. the amount
of the monthly incentive premium shall be calculated as follows: the sum
33.525 (thirty-three thousand five hundred twenty-five) Euros less the sum
resulting after division of the sum 166.667 ([Claimant’s] monthly salary) by the
official rate of the Central Bank of Country D, Currency of Country D/Euro on
the last day of the month under review.
[…] 2.3. All Euro payments are to be made in in accordance with the rate of
the Central Bank of Country D, Currency of Country D/Euro on the last day of
the month under review.
Pursuant to art. 2.4 of the Attachment, the aforementioned monthly incentive
premium was payable on the 10th day of the following month.
Furthermore, “2.5. The named amounts of the incentive premiums […] include
all taxes payable by [the Claimant] (who is recognized) as a taxpayer), which
(the taxes) must be calculated, withheld and transferred by Club (that is
recognized as a tax agent) to the Budget System of Country D in accordance
with the Legislation of Country D.
2.6. Parties acknowledge that according to the Tax Legislation of Country D
[Claimant’s] incomes per the present Attachment are taxable at the rate of
Player A, Country B / Club C, Country D
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13% (thirteen percent) after the [Claimant] receives a work permit by the
Federal Migratory Service of Country D as a highly qualified specialist”.
5.
On 17 August 2017, the Claimant sent a letter to the Respondent, requesting
the payment, within 10 days, of outstanding remuneration in the amount of
“approximately Euros 47,000”, for the contractual period until the end of
January 2017, when he was allegedly transferred to the Club of Country E,
Club F. In particular, the Claimant claimed that the Respondent did not pay
him the incentive premiums set out in the Attachment to the contract entirely.
6.
On 31 August 2017, the Respondent sent a letter to the Claimant, by means of
which it rejected his requests. In particular, the Respondent pointed out that
the contract had been terminated by mutual agreement on 30 January 2017
and, on the same date, the club and Club F had concluded an agreement for
the transfer of the player.
7.
On 20 September 2017, the player lodged a claim in front of FIFA against the
club for outstanding remuneration, requesting “EUR 47,179 (3,039,110.84 in
accordance with the rate of the Central Bank of Country D, Currency of
Country D/Euro on 31 January 2017)”, corresponding to his outstanding
remuneration until the end of January 2017.
8.
In his claim, the Claimant affirmed that, for the period between June 2015 and
January 2017, he was entitled to a remuneration in the total amount of
40,671,553.73, but received 37,631.655,38 only. In this context, the Claimant
submitted a list indicating the dates and the amounts of every payment he
allegedly received from the Respondent, together with the relevant bank
receipts.
9.
More specifically, the Claimant maintained that he was entitled to a monthly
remuneration in the amount of EUR 33,525, composed of the sum between the
monthly salary provided in the contract and the incentive premium set out in
art. 2 of the Attachment.
10.
Moreover, in order to support his argumentation, the Claimant submitted the
following table indicating, inter alia, the payments he was allegedly entitled to
for the period between 22 June 2015 and January 2017:
Player A, Country B / Club C, Country D
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Furthermore, the Claimant submitted copy of the exchange rates of foreign
currencies (including Euro) against the Currency of Country D, “printed out on
25 October 2017 from the official website of the Central Bank of Country D for
“each last day of the month” in the period between June 2015 and January
2017, which match the information contained in column 6 of the table above.
11.
Despite having been invited by the FIFA administration to do so, the club did
not reply to the claim.
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 20 September 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 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 2018), the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
Player A, Country B / Club C, Country D
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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 2018), and considering that the present claim was
lodged on 20 September 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 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 the employment relationship between the
Claimant and the Respondent was governed by a contract valid as from 22
June 2015 until 21 June 2019, which was terminated at the end of January
2017.
6.
In continuation, the Chamber acknowledged that, on 20 September 2017, the
Claimant lodged a claim against the Respondent in front of FIFA, alleging that,
on that date, the amount “EUR 47,179 (3,039,110.84 in accordance with the
rate of the Central Bank of Country D, Currency of Country D/Euro on 31
January 2017)”, corresponding to his outstanding remuneration until the end
of January 2017, was outstanding.
7.
In this context, the Chamber first referred to art. 25 par. 5 of the Regulations,
according to which the Dispute Resolution Chamber shall not hear any case
subject to the Regulations if more than two years have elapsed since the event
giving rise to the dispute. Considering that the claim of the Claimant was
lodged in front of FIFA on 20 September 2017 only, the Chamber found that it
could not enter into any claim for remuneration that fell due prior to 20
September 2015.
8.
Taking into account the previous consideration, the Chamber preliminarily
concluded that the Claimant’s request for the remuneration accrued until the
date of 20 September 2015 was barred by the statute of limitations in
accordance with art. 25 par. 5 of the Regulations.
Player A, Country B / Club C, Country D
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9.
In continuation, the members of the Chamber took note that, according to the
contract and its Attachment, the player’s monthly remuneration was composed
of a monthly salary indicated in Currency of Country D and by an incentive
premium agreed in euros however payable in Currency of Country D. In this
regard, the DRC acknowledged that, as stipulated under art. 2 of the
Attachment (cf. point I.4. above), the sum of the player’s monthly salary and
incentive premium amounted to EUR 33,525 per month. Thus, the members of
the Chamber concurred that the Respondent had to pay the Claimant a
monthly remuneration corresponding to the aforementioned amount, in
Currency of Country D.
10.
Furthermore, the DRC observed that, in his claim, the Claimant argued that the
amounts paid by the Respondent in Currency of Country D did not cover the
amounts contractually agreed in euros. In particular, the player claimed that,
pursuant to the applicable exchange rate, the conversion from euros to
Currency of Country D resulted in outstanding remuneration due.
11.
Subsequently, the Chamber observed that the Respondent, for its part, failed
to present its response to the claim of the player, in spite of having been
invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the
Claimant.
12.
Furthermore, as a consequence of the aforementioned consideration, the
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural
Rules, it shall take a decision upon the basis of the documents already on file,
in other words, upon the statements and documents presented by the
Claimant.
13.
In view of the aforementioned considerations, in respect of the question as to
whether or not the amounts paid by the Respondent in Currency of Country D
corresponded to the amounts contractually agreed in euros, 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 it was up to the Claimant to prove that the amounts paid by the
Respondent in Currency of Country D did not cover the amounts contractually
agreed in euros.
14.
Having stated the above, the members of the Chamber noted that the
Claimant presented a detailed description of the exchange rates which were
applicable to each monthly payment and, what is more, submitted
Player A, Country B / Club C, Country D
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documentation issued by the Central Bank of Country D confirming that the
exchange rates applied by the Claimant were, in fact, correct.
15.
On account of the aforementioned considerations, the DRC concluded that,
the Claimant proved, to the Chamber’s comfortable satisfaction, that the
amount paid by the Respondent in Currency of Country D did not correspond
to the amount contractually agreed.
16.
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. However, the DRC also recalled that the remuneration
accrued until the date of 20 September 2015 was barred by the statute of
limitations and, consequently, concluded that the Respondent is to be held
liable to pay the Claimant the outstanding remuneration accrued as of the
date of 21 September 2015.
17.
On account of the aforementioned considerations and taken into account that,
according to the Claimant, he did not receive outstanding remuneration in the
amount of 3,039,110.84 for the period between 22 June 2015 until the end of
January 2017, the members of the Chamber concluded that, for the period
between 21 September 2015 and the end of January 2017, the Claimant did
not receive the pro rata amount of 2,719,203.
18.
Consequently, the members of the Chamber unanimously decided that the
Claimant is entitled to receive from the Respondent outstanding remuneration
in the amount of 2,719,203.
19.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted, insofar as it is
admissible.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, outstanding remuneration in the
amount of 2,719,203.
3.
In the event that the aforementioned amount 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
Player A, Country B / Club C, Country D
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submitted, upon request, to the FIFA 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 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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