Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 28 October 2011,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player
E,
as Claimant
against the club
A,
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 27 August 2009, player E (hereinafter: the Claimant), and club A (hereinafter: the
Respondent), signed an employment contract (hereinafter: the contract) valid as
from 27 August 2009 until 30 April 2010.
2. According to clause 3 of the contract, the Claimant was entitled to receive for his
services, inter alia, the amount of EUR 20,000, payable in eight monthly instalments
of EUR 2,500 each, starting on 30 September 2009, as well as a suitably furnished
apartment.
3. On 4 January 2011, the Claimant lodged a complaint before FIFA against the
Respondent claiming outstanding remuneration in the total amount of EUR 12,500,
made up of the salaries from December 2009 until April 2010. Furthermore, the
Claimant requested interest and legal fees.
4. In this respect, the Claimant stated that he had played with the team until the end of
the season 2009/2010. However, the Respondent did apparently not pay the salaries
for the period of December 2009 until April 2010.
5. Furthermore, the Claimant argued that he had asked the Respondent several times
to pay him the outstanding salaries, however, without result.
6. In its position, which was remitted after the expiry of the set deadline, the
Respondent partially accepted the claim lodged by the Claimant. In particular, it
argued that it had paid the salaries until December 2009 and that the Claimant had
confirmed to the Football Federation C (FFC) having received said payments.
7. Moreover, the Respondent stated that the Claimant had damaged the apartment,
which was made available to him by the Respondent. In particular, the Claimant
allegedly caused a damage amounting to EUR 3,000.
8. In this respect, the Respondent stated that it is willing to pay EUR 7,000 to the
Claimant.
9. Upon request, but not within the stated time limit, the Claimant provided FIFA with
his latest comments. In particular, he stated that the Respondent did not send its
position within the given deadline. Therefore, the Claimant asked to decide upon the
basis of the documents on file.
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II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge or
judge) analysed whether he was competent to deal with the case at hand. In this
respect, he firstly referred to art. 21 par. 1 and 2 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008). The present matter was submitted to FIFA on 4 January 2011, thus,
after the aforementioned Rules entered into force on 1 July 2008. Therefore, the
DRC judge concluded that the edition 2008 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.
2.
Subsequently, the DRC judge referred to art. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2010), the
DRC is competent to decide on the present litigation, concerning an employmentrelated dispute of an international dimension between a player E and club A.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players (edition 2010), the DRC judge confirmed that he may
adjudicate in the present dispute, which value does not exceed 100,000.
4.
In continuation, the DRC judge analysed which 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 2 of the Regulations on the Status and Transfer of Players (edition
2010) and also considering that the present claim was lodged in front of FIFA on
4 January 2011, the edition 2010 of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. He started by
acknowledging that the parties to the dispute had signed an employment contract
valid as from 27 August 2009 until 30 April 2010.
6.
Equally, the DRC judge observed that the parties had agreed a total remuneration
of EUR 20,000, payable in eight equal monthly instalments of EUR 2,500.
7.
In continuation, the judge noted that the Claimant lodged a claim against the
Respondent requesting the payment of the amount of EUR 12,500 plus interest,
corresponding to the unpaid instalments of December 2009 until April 2010, as well
as to be awarded legal fees.
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8.
Moreover, the judge took note of the Claimant’s position that he should not
consider the Respondent’s comments, since they were submitted after the time limit
set by the FIFA Administration had expired.
9.
First of all, the DRC judge clarified that it is at his discretion to determine whether
the Respondent’s position should be taken into account. Following that, the judge
decided that, in the case at hand, it would be unreasonable not to consider the
Respondent’s statements, which were remitted only a few weeks after the given
time limit.
10. Having said this, the judge turned his attention to the arguments of the
Respondent and noted that the latter partially accepted the claim alleging that it
had paid the salaries until December 2009. Furthermore, the judge observed that
the Respondent also intended to deduct a damage allegedly caused in the
Claimant’s apartment from the outstanding salaries and therefore, agreed to pay
the amount of EUR 7,000.
11. Furthermore, the DRC judge recalled that according to the legal principle of the
burden of proof, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
12. In view of the above, the judge concluded that the Respondent shall carry the
burden of proof that the salary of December 2009 had indeed been paid and that
the Claimant had caused damage in the amount of EUR 3,000.
13. In this respect, the DRC judge observed that the Respondent has not presented any
documentary evidence regarding a possible financial damage caused by the player.
As a consequence, the judge concluded that the Respondent was not able to prove
the existence of any expenses in this regard, and therefore, decided to reject the
Respondent’s request for deduction.
14. Thereafter, the judge also acknowledged that the Respondent was not able to
corroborate that it had paid the salary of December 2009. In particular, the DRC
judge established that the Respondent did not present any documentary evidence
at all for the payment of said salary in the amount of EUR 2,500.
15. On account of the aforementioned considerations, the judge established that the
Respondent failed to remit the Claimant’s salary of December 2009 in the amount
of EUR 2,500.
16. Moreover, the DRC judge took note that the Respondent admitted not having paid
the player’s salaries after December 2009, i.e. the salaries for January until April
2010. As a consequence, the DRC judge decided that the Respondent, in accordance
with the general legal principle of pacta sunt servanda, is liable to pay to the
Claimant outstanding salaries in the total amount of EUR 12,500.
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17. Furthermore, the judge decided that the Claimant’s claim for legal costs is rejected
in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution
Chamber’s respective longstanding jurisprudence.
18. Taking into account all the above, the DRC judge decided to partially accept the
Claimant’s claim. Consequently, the Respondent has to pay to the Claimant the
amount of EUR 12,500 plus 5% interest per annum on said amount as from
28 October 2011 until the effective date of payment.
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Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, E, is partially accepted.
2.
The Respondent A has to pay to the Claimant E, within 30 days as from the date
of notification of this decision, the amount of EUR 12,500, plus interest at the rate
of 5% per annum on said amount as of 28 October 2011 until the effective date of
payment.
3.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
Any further request filed by the Claimant E is rejected.
5.
The Claimant E is directed to inform the Respondent A immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber (DRC) judge of every payment received.
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Note relating to the motivated decision (legal remedy):
According to art. 63 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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