Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 2 October 2012,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
P,
as Claimant
against the club,
D,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 29 December 2009, the country P player, A (hereinafter: player or Claimant), and the
country C club, D (hereinafter: club or Respondent), signed an employment contract,
valid as of the date of signature until the end of the 2010/11 season.
2.
On 30 March 2010, the parties signed an agreement regarding the mutual termination
of the employment contract (hereinafter: termination agreement), in accordance with
which the player was entitled to receive the total amount of EUR 5,000 until 31 May
2010. Furthermore, according to the termination agreement, in the event that the club
did not pay the amount of EUR 5,000 until 31 May 2010, the player was entitled to
receive the total sum of EUR 10,000 that was owed to him as outstanding salaries.
3.
On the basis of the above-mentioned facts, on 29 October 2010, the player lodged a
claim against the club in front of FIFA maintaining that the club had not respected the
time limit of 31 May 2010 and requesting that the club be ordered to pay the total
amount of EUR 10,000. The player also requested to be awarded interest on the above
amount, legal fees and any other or further remedy that the FIFA Dispute Resolution
Chamber deems appropriate.
4.
In reply to the claim, the club submitted that the termination agreement was signed
under the condition that the player would return the keys of the car provided to him by
the club. The club explained that the car was returned by the player one and a half
month later, which caused them an additional cost of EUR 690. Furthermore, the club
sustained that the car had damages amounting to EUR 1,380 and that it was agreed
with the player that the car should be repaired and the relevant costs deducted from his
emoluments.
5.
Moreover, the club sustained that a letter was sent to the player requesting him to visit
the club’s offices so as to receive the payment of EUR 2,930, but that the player declined
to do so.
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 29
October 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the
Procedural Rules).
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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 lit. (b) of the Regulations on the Status and Transfer of Players (edition 2010) 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 (edition 2010)
and considering that the present claim was lodged on 29 October 2010, the 2010 edition
of said Regulations (hereinafter: 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. In this respect, the
DRC judge acknowledged that the Claimant lodged a claim against the Respondent
requesting the payment of the amount of EUR 10,000 on the basis of the termination
agreement, plus interest and the reimbursement of legal fees.
5.
The DRC judge turned his attention to the arguments of the Respondent and noted that
according to the latter, damages allegedly caused by the Claimant to the car as well as a
rental fee for the late return by the Claimant of the vehicle shall be deducted from the
amount of EUR 5,000 and therefore, the Respondent agreed to pay the amount of EUR
2,930.
6.
In continuation, 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).
7.
In view of the above, the DRC judge concluded that the Respondent shall carry the
burden of proof in connection with its allegations as regards additional costs for the
above-mentioned vehicle.
8.
In this respect, first of all, the DRC judge noted that the termination agreement did not
contain any conditions to be fulfilled by the player in connection with the car that was
apparently put at the player’s disposal. In addition, regardless of the above and of the
question if such alleged damages could at all be taken into account, the DRC judge
observed that the Respondent had not presented any documentary evidence
demonstrating that it had, in fact, sustained a financial damage caused by the player. As
a consequence, the DRC judge decided to reject the Respondent’s argument.
9.
In continuation, the DRC judge acknowledged that the Respondent had not contested
that no payment was made to the Claimant prior to 31 May 2010. In particular, the DRC
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judge established that the Respondent’s failure to make the payment of EUR 5,000
within the contractual time limit entitled the player to receive the amount of EUR
10,000 in accordance with the termination agreement.
10.
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 the
amount of EUR 10,000.
11.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must
pay to the Claimant interest of 5% p.a. as of 29 October 2010 until the date of effective
payment.
12.
Furthermore, the DRC 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.
13.
Taking into account all of the above, the DRC judge decided to partially accept the
Claimant’s claim and that the Respondent has to pay to the Claimant the amount of
EUR 10,000 plus 5% interest per annum on said amount as of 29 October 2010 until the
effective date of payment.
14.
The DRC judge concluded the deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, club D, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of EUR 10,000 plus 5% interest per annum as
of 29 October 2010 until the date of effective payment.
3.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
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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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