Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 October 2012,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
David Mayebi (Cameroon), member
Damir Vrbanovic (Croatia), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
R,
as Claimant
against the club,
B,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 July 2009, the player R (hereinafter: player or Claimant) and the club B,
(hereinafter: club or Respondent) signed an employment contract valid as from 1
July 2009 until 30 June 2010 (hereinafter: contract).
2.
According to the duly signed “Professional Appendix” to said contract, the player
was entitled to receive inter alia a monthly payment of EUR 500 for
accommodation.
3.
In addition, the player and the club signed a “Financial Appendix” to the contract,
in accordance with which the player was to receive, inter alia, a monthly salary of
EUR 10,000.
4.
On 11 December 2009, the player put the club in default of payment of the total
amount of EUR 32,500 relating to his salary as from September 2009 until November
2009 as well as 5 months’ accommodation allowance.
5.
On 14 January 2010, said default notice having remained unanswered, the player
lodged a claim against the club in front of FIFA for breach of contract and
compensation for breach of contract maintaining that he had complied with his
contractual obligations, whereas the club had ceased the payment of his receivables
as from September 2009.
6.
In addition, since a few months, the new coach of the club had not given him any
possibility to play with the team and the club had attempted to terminate the
employment contract with mutual consent.
7.
On 17 May 2010, the player sent a “final notice of default” to the club asking it to
pay the total amount of EUR 95,500 relating to his salary as of September 2009 until
May 2010 as well as 11 months’ accommodation allowance.
8.
On 30 September 2010, the player modified his claim pointing out that he has
trained with the club until May 2010 without having received any remuneration
during nine months.
9.
The player further pointed out that, on 3 February 2010, the club imposed upon him
a financial sanction for alleged disciplinary offences equalling 25% of his
contractual remuneration. In this respect, he submitted that he was not duly
informed about the disciplinary proceedings and possibility of appeal and that such
sanction is to be considered disproportionate.
10.
For these reasons, the player asks that the club be ordered to pay outstanding
salaries as from September 2009 until May 2010 as well as 11 months’
accommodation allowance, totalling EUR 95,500.
11.
The club, for its part, admitted that the player’s salaries as of September 2009 until
May 2010 as well as the accommodation allowance as of July 2009 until May 2010,
in the total amount of EUR 95,500, have not been paid to the player.
12.
The club submitted that the fine imposed upon the player in the amount of EUR
30,000 shall be deducted and, consequently, the club acknowledged that it owes
EUR 65,500 to the player.
13.
With respect to said fine, the club presented a copy of the decisions passed by the
club’s board on 3 February 2010, the disciplinary committee of country A’s Football
League on 15 March 2010 and the appeal body of said League on 15 April 2010.
14.
In his replica, the player refuted that the fine is to be deducted from his
outstanding receivables pointing out that the fine is disproportionate. Moreover, he
asserted that a fine of 25% of all contractual remuneration during a season is not
provided for in the FIFA Disciplinary Code.
15.
He also stressed that the fine was imposed upon him after he lodged his claim in
front of FIFA and after his remuneration had been outstanding for more than three
months. He deemed that disciplinary proceedings were started only in an attempt
to avoid having to pay the outstanding remuneration in full. Furthermore, he
pointed out that no clear information about the possibility of appeal against the
disciplinary decision had been given to him, as a result of which his appeal was
rejected due to the late payment of appeal costs.
16.
In spite of having been invited to present its final position, no further comments
were received from the club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 14 January
2010. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 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 2010) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between player R from country B and a club from country
A.
3.
Furthermore, 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 (editions
2010 and 2009), and considering that the present claim was lodged on 14 January
2010, the 2009 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 the above-mentioned facts as well as the
arguments and the documentation submitted by the parties.
5.
The members of the Chamber acknowledged that the parties were contractually
bound by means of an employment contract valid as from 1 July 2009 until 30 June
2010, a “Professional Appendix” as well as a “Financial Appendix” to said contract.
6.
The Claimant, for his part, maintains that, in spite of having put the club in default,
the Respondent has failed to pay him the total amount of EUR 95,500 relating to his
salary as of September 2009 until May 2010 as well as 11 months’ accommodation
allowance.
7.
The Chamber duly noted that the Respondent, on the other hand, admits that the
aforementioned salaries and accommodation allowance totalling EUR 95,500 have
not been paid to the Claimant. However, the Respondent wishes that the fine of
EUR 30,000, which was imposed upon the Claimant on 3 February 2010, be
deducted from the amount of EUR 95,500. Consequently, the Respondent submits
that it owes the amount of EUR 65,500 to the Claimant.
8.
The Claimant, though, vehemently rejects that the fine of EUR 30,000 is to be
deducted from his receivables, pointing out inter alia that said fine is
disproportionate and was imposed upon him after he had lodged his claim against
the Respondent in front of FIFA. The Claimant reckons that this fine was imposed
upon him in an attempt by the Respondent to balance its debt towards him.
9.
In this regard, without expressing themselves on the question as to whether or not
the fine of EUR 30,000 is to be considered proportionate and acceptable, the
members of the Chamber highlighted that said fine of EUR 30,000 was imposed on
the player by the Respondent and was subsequently confirmed by the relevant
deciding authorities of country A. In continuation, the DRC concurred that, as
opposed to the issue relating to the outstanding payments on the basis of the
employment contract, the execution of the disciplinary decision passed and
confirmed by the relevant country A’s deciding bodies does not fall within the
competence of the Dispute Resolution Chamber. Indeed, the execution of the
national decision relating to this fine is to be dealt with by the competent national
authorities. Consequently, the members of the Chamber agreed that the
Respondent’s debt of EUR 95,500 towards the Claimant on the basis of the
employment contract and said appendices cannot be compensated with the
aforementioned fine of EUR 30,000. As a result, the Chamber rejected the respective
argument of the Respondent.
10.
On account of the above, and bearing in mind the legal principle of pacta sunt
servanda, the Chamber decided to accept the Claimant’s claim and that the
Respondent is liable to pay to the Claimant the amount of EUR 95,500 on the basis
of the employment contract and the aforementioned appendices.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is accepted.
2.
The Respondent, B, has to pay to the Claimant the amount of EUR 95,500 within
30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid 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 submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
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 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 Dispute Resolution Chamber:
_____________________________
Jérôme Valcke
Secretary General
Encl: CAS directives