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
V,
as Claimant
against the club
A,
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 16 July 2009, the country C club, A (hereafter: the Respondent), and the country B
player, V (hereafter: the Claimant), concluded an employment contract (hereafter: the
contract) valid from 1 August 2009 until 30 April 2010.
2.
According to point 3 lit. a) and b) of the contract, the Claimant was entitled to a
remuneration of EUR 20,000, of which EUR 2,000 would be payable in advance and the
remaining amount of EUR 18,000 would be paid in nine instalments, i.e. a monthly
salary EUR 2,000.
3.
On 6 May 2010, the Claimant filed a claim in front of FIFA, requesting from the
Respondent to fulfil all its financial obligations amounting to EUR 10,000, together
with interests until the final payment for each month. In particular, the Claimant
claimed the amount of EUR 2,000 as outstanding salary for December 2009 as well as
the amount of EUR 8,000 as outstanding salaries for the period from January until
April 2010, i.e. EUR 2,000 per month. Finally, the Claimant requested legal fees for the
pertinent case.
4.
On 27 May 2010, the Respondent rejected the claim and alleged that the Claimant has
signed a final settlement, dated 23 March 2010, by means of which the parties
apparently agreed on an outstanding amount of EUR 5,500, to be paid as follows:
a) EUR 1,000 as 1st instalment, payable on 30 April 2010;
b) EUR 1,000 as 2nd instalment, payable on 30 May 2010;
c) EUR 3,500 as 3rd instalment, payable on 12 July 2010.
5.
According to the Respondent, the Claimant apparently asked the Respondent for
permission to leave country C, on 24 March 2010, which he received on the same date.
After getting permission, the Claimant apparently left the country without signing the
final settlement. Therefore the player received a fine amounting to EUR 2,000 from
the Respondent’s committee and another fine amounting EUR 500 from the Football
Association C. Additionally, the Respondent deems that the Claimant was not entitled
to be remunerated with the monthly salary for April 2010 since he left country C on 23
March 2010. As a result, the Respondent is willing to pay the Claimant the amount of
EUR 5,500 in three instalments, as mentioned in the final settlement dated 23 March
2010.
6.
On 4 October 2010, the Claimant insisted on his claim and argued that the final
settlement was never signed by him.
7.
Even though the Respondent was invited by FIFA to present its last position, the latter
did not present any final comments.
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II.
Considerations of the Dispute Resolution Chamber (DRC) judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
dispute at hand. In this respect, he took note that the present matter was submitted to
FIFA on 6 May 2010. Consequently, the 2008 edition 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 (cf. art. 21 par. 2
and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 b) of the Regulations on the Status and Transfer of Players, he is
competent to decide on the present litigation, which concerns an employment-related
dispute with an international dimension between a player and a club.
3.
Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players and
considering that the present claim was lodged on 6 May 2010, the 2009 edition of said
Regulations (hereinafter: the Regulations) is applicable to the present matter as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter.
5.
In this respect, the DRC judge acknowledged that, on 16 July 2009, the parties had
signed an employment contract, valid from 1 August 2009 until 30 April 2010. In
accordance with this contract, the Claimant was entitled to receive the total
remuneration of EUR 20,000, EUR 2,000 payable in advance, and the remaining
amount of EUR 18,000 on a monthly basis during 9 months, i.e. EUR 2,000 per month.
6.
The DRC judge noted that the Claimant claims that the Respondent failed to pay his
salaries in the total amount of EUR 10,000 which amount includes the five final
instalments (i.e. for the months of December 2009 until April 2010) of EUR 2,000 each.
Consequently, the Claimant, inter alia, asks to be awarded payment of the amount of
EUR 10,000 plus interests and legal fees.
7.
The Respondent, for its part, rejected the claim of the Claimant in the amount of EUR
10,000, and alleged that the parties signed a final settlement, dated 23 March 2010, by
means of which the parties apparently agreed on an outstanding amount of EUR 5,500
to be paid in three instalments.
8.
Moreover, the Respondent’s explained that the Claimant apparently asked the
Respondent for permission to leave country C on 24 March 2010, which was permitted
on the same date. Apparently the Claimant left the country straightaway and did not
sign the final settlement. Therefore, the player received a fine amounting to EUR
2,000 from the Respondent’s committee and the Football Association C punished the
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Claimant with a fine amounting EUR 500. Finally, the Respondent argued that since
the Claimant left on 23 March 2010 he was not entitled to be remunerated with the
monthly salary for April 2010.
9.
As result, the DRC judge took note that the Respondent is willing to pay the
outstanding amount of EUR 5,500 as mentioned in the final settlement.
10.
In view of the above, 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).
11.
In this regard, the judge concluded that the Respondent shall carry the burden of
proof that it only owes the amount of EUR 5,500 to the Claimant.
12.
In view of all of the above, the DRC judge started by emphasizing that the settlement
agreement is not signed by both parties and therefore is not valid.
13.
Moreover, the DRC judge noted that the Respondent has not provided any
documentary evidence to prove that it has paid to the Claimant the claimed
remuneration for the period of time as of December 2009 until expiry of the contract
or that it had a valid reason for not fulfilling its contractual obligations.
14.
Besides, the DRC judge also took into account that the Respondent has not provided
any documentary evidence with regard to its allegations in connection with the fines
imposed on the Claimant.
15.
In view of all of the above, the DRC concluded that the Respondent has to pay to the
Claimant the claimed amount of EUR 10,000 plus 5% interest.
16.
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
17.
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 10,000 plus 5% interest.
III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, V, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant the amount of EUR 10,000 within
30 days as from the date of notification of this decision.
3.
Any further requests filed by the Claimant are rejected.
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4.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
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 DRC judge of
every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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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