Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 2 October 2012,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player S, from country G,
as Claimant
against the club,
Club W, from country C,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 8 July 2009, the player S from country G (hereinafter: the Claimant), and the club W
from country C (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract), valid as from the date of signature until 31 May 2010.
2.
According to art. 3 of the contract, the Respondent undertakes to provide the Claimant
with, inter alia, the total amount of EUR 25,000 net, payable in 10 monthly instalments of
EUR 2,500 net each, as from 31 August 2009.
3.
On 9 July 2009, the parties concluded a “side agreement” (hereinafter: the agreement),
valid as from the date of signature until 31 May 2010.
4.
Article 3 of the agreement stipulated that the Respondent shall pay the Claimant, inter
alia:
- EUR 10,000 in case of a successful medical check and after the receipt of the
International Transfer Certificate (ITC);
- EUR 7,500 payable on 15 August 2009;
- EUR 38,000, payable in 10 equal monthly instalments of EUR 3,800 each, as from 31
August 2009;
- several bonuses stipulated in the contract.
5.
On 30 July 2010, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting the payment of the total amount of EUR 23,370 net, plus interests of 5% p.a.
as of the maturity date of each obligation, made up of:
- EUR 21,450 in outstanding salaries, corresponding to his partial salary for February
2010 (EUR 3,000) and his salaries of March 2010 until May 2010 (3 x EUR 6,150);
- EUR 1,920 as bonuses, plus interest of 5% p.a. as of 1 June 2010.
6.
The Claimant provided a document issued by the Respondent on 12 May 2010, signed by
the Claimant himself and by the general manager of the Respondent, in which the latter
admits owing him the amount of 23,370, as described above.
7.
By means of his correspondence dated 25 May 2010, the Claimant reminded the
Respondent of its arrears in the amount of EUR 23,370, but received no response in this
regard.
8.
In addition, the Claimant claims having been contacted by the tax authorities from
country G, who requested either the payment of taxes over the amounts paid to him
under the contract with the Respondent or the proof that such payments have already
been made in country C. Therefore, the Claimant urges the Respondent to either provide
Player S from country / Club W from country C
2/6
such evidence or to proceed with the payment of the due amount to the competent
authorities. Such amount is estimated by the Claimant in EUR 20,535, based on a tax rate
of 50% applied over the amounts he actually received (EUR 50% of EUR 18,900 = EUR
9,450) and the amounts that are still outstanding (50% of EUR 23,370 = EUR 11,085). In
addition, he requests from the Respondent the amount of EUR 1,000 for the issuance of a
statement regarding his salary payments.
9.
In its response, the Respondent admits having debts towards the Claimant in the amount
of EUR 23,370 and offers the payment of such amount in 10 equal instalments. An
amicable settlement, however, could not be reached by the parties.
II. Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on 30
July 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 3 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition 2009) (hereinafter:
the Regulations), he is competent to decide on the present litigation, to the extent that
concerns an employment-related dispute with an international dimension between a
player from country G and a club from country C.
3.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter concerning the contractual dispute between
the parties. In this respect, he confirmed that, in accordance with art. 26 par. 1 and par. 2
of the Regulations (edition 2009) and considering that the present matter was submitted
to FIFA on 30 July 2010, the 2009 edition of said 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 judge entered into the substance of the matter. In doing so, he started
to acknowledge the facts of the case as well as the documents contained in the file.
5.
In this respect, the DRC judge acknowledged that it was undisputed by the parties that
they had signed an employment contract on 8 July 2009, valid as from the date of
signature until 31 May 2010, and according to which the Claimant was entitled to
Player S from country / Club W from country C
3/6
receive, inter alia, the total amount of EUR 25,000 net, payable in 10 monthly
installments of EUR 2,500 each, as from 31 August 2009.
6.
In addition, the DRC judge equally acknowledged that it was undisputed between the
parties that they concluded a “side agreement” on 9 July 2009, valid as from the date of
signature until 31 May 2010, and as per which the club undertook to pay player, inter
alia, EUR 10,000 in case of a successful medical check and after the receipt of the
International Transfer Certificate (ITC); EUR 7,500 payable on 15 August 2009; EUR
38,000, payable in 10 equal monthly installments of EUR 3,800 each, as from 31 August
2009 and several bonuses.
7.
The DRC judge further noted that the Claimant claims that the Respondent has failed to
pay him his partial salary for February 2010 (EUR 3,000), his salaries of March 2010 until
May 2010 (3 x EUR 6,150), as well as bonuses in the amount of EUR 1,920. Therefore, by
means of his claim of 30 July 2010, the Claimant request that the Respondent should pay
him the total amount of EUR 23,370 net, plus interests of 5% p.a. as of the maturity date
of each obligation.
8.
In this respect, the DRC judge acknowledged the content of the Respondent’s
correspondence dated 12 May 2010, signed by the Claimant himself and by the general
manager of the Respondent, and provided by the Claimant, by means of which the
Respondent confirms to owe the Claimant the amount of EUR 23,370, as described above.
9.
Furthermore, the DRC judge took note of the fact that the Claimant claims that, in spite
of the content of the aforementioned correspondence as well as of the Claimant’s
alleged reminder in this regard, dated 25 May 2010, the Respondent did not acquit its
debts towards him.
10. Subsequently, the DRC judge took note of the fact that the Respondent admits having
debts towards the Claimant in the amount of EUR 23,370 and offers the payment of such
amount in 10 equal instalments.
11. In addition, the DRC judge noted that Claimant equally claims having been contacted by
the tax authorities of country G, regarding the payment of the taxes over the amounts
due to him as per the contract, and therefore, urges the Respondent to either provide
evidence of the payment of the amount estimated in EUR 20,535 or to proceed with such
payment. Moreover, the Claimant requests from the Respondent the amount of EUR
1,000 for the issuance of a statement regarding his salary payments.
12. Subsequently, the DRC noted that an amicable settlement, however, could not be
reached by the parties.
Player S from country / Club W from country C
4/6
13. Having established the aforementioned, the DRC judge observed that the fact the
Respondent has unpaid amounts towards the Claimant in the amount of EUR 23,370 is
not disputed by the Respondent and that the parties were only in disagreement as to
what concerns the manner in which such payment would be concluded.
14. Finally, and with regard to the claim of the Claimant concerning the payment of taxes
over the amount due to him as per the contract, the DRC judge recalled the general
principle of burden of proof stipulated in the 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 burden of proof. As a consequence, the Chamber noted that the Claimant did not
submit any documentary evidence in respect of the aforementioned allegations and
therefore, his request in this regard had to be rejected.
15. Therefore, the DRC judge concluded that the Respondent, in accordance with the basic
legal principle of pacta sunt servanda, must fulfill its obligations as per the contract
signed with the Claimant and, consequently, pay the outstanding remuneration which is
due to the latter, in the total amount of EUR 23,370 net, plus 5% interest p.a. until the
date of effective payment as follows:
- 5% p.a. as of 1 March 2010 over the amount of EUR 3,000;
- 5% p.a. as of 1 April 2010 over the amount of EUR 6,150;
- 5% p.a. as of 1 May 2010 over the amount of EUR 6,150;
- 5% p.a. as of 1 June 2010 over the amount of EUR 6,150;
- 5% p.a. as of 1 June 2010 over the amount of EUR 1,920.
16. For all the above reasons, the DRC judge decided to partially accept the claim of the
Claimant and to reject any further claims of the Claimant.
*****
III. Decision of the DRC judge
1.
The claim of the Claimant, player S, is partially accepted.
2.
The Respondent, club W, is ordered to pay to the Claimant, player S, within 30 days as
from the date of notification of this decision, outstanding remuneration in the amount
of EUR 23,370, plus 5% interest p.a. until the date of effective payment as follows:
- 5% p.a. as of 1 March 2010 over the amount of EUR 3,000;
- 5% p.a. as of 1 April 2010 over the amount of EUR 6,150;
- 5% p.a. as of 1 May 2010 over the amount of EUR 6,150;
- 5% p.a. as of 1 June 2010 over the amount of EUR 6,150;
- 5% p.a. as of 1 June 2010 over the amount of EUR 1,920.
Player S from country / Club W from country C
5/6
3.
If the aforementioned sums plus interest are not paid within the above-mentioned time
limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
4.
Any further claims lodged by the Claimant, player S, are rejected.
5.
The Claimant, player S, is directed to inform the Respondent, club W, immediately and
directly of the account number to which the remittances are 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
Player S from country / Club W from country C
6/6