Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 November 2012,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
Player A, from country P
as Claimant
against the club
Club L, from country P
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 29 August 2007, Player A, from country Q (hereinafter: the Claimant), and Club L,
from country P (hereinafter: the Respondent), concluded an employment contract titled
“Contract for Professional Football Playing” (hereinafter: the contract) valid until 30
June 2012.
2.
The article 4 of the contract, stipulated that “The Club shall ensure the living premises
for the Player according to the generally acceptable standards, at the domicile of the
Club, i.e. in the city of country P, for the period of contract duration. The player shall
bear the maintenance costs of the flat.”
3.
Furthermore, the article 5 of the contract established the remuneration payable to the
player for each season as well as that the monthly salaries would be paid in currency of
country P.
4.
On 15 May 2010, the parties concluded an “Agreement regarding termination of
contract for professional football playing by mutual agreement” (hereinafter: the
termination agreement), which entered into effect as of 30 June 2010, by means of
which the parties terminated the contract.
5.
According to the articles 2 and 3 of the termination agreement, the Claimant was
entitled to receive the following remuneration:
- USD 15,000 gross, to be paid on 30 May 2010;
- USD 15,000 gross, to be paid on 30 June 2010;
- USD 12,500 gross, as appearance bonus to be paid by no later than 30 June 2010.
6.
Moreover, the article 6 of said termination agreement established the following: “Club
states that the Player has no disciplinary record and that no disciplinary proceedings are
pending against him.”
7.
On 27 October 2010, the Claimant lodged a claim against the Respondent in front of
FIFA, claiming outstanding remuneration in the amount of USD 27,500 plus 5% interests
as of the due date.
8.
In this context, the Claimant alleged that the Respondent only accomplished with the
first payment stipulated on the termination agreement but failed to pay the amount of
USD 15,000 as well as the amount of USD 12,500 related to appearance bonus, both
amounts due on 30 June 2010.
9.
Additionally, the Claimant requested that the payment of the amount of USD 27,500
shall be done net as well as that the Respondent shall bear the costs for the present
proceeding.
10.
The Respondent remitted us its position rejecting the Claimant’s claim. In this regard,
the Respondent agreed with the declarations made by the Claimant concerning the
Player A, from country Q / Club L, from country P
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contract, the termination agreement and the remuneration therein established as well
as that it had already paid the first amount of USD 15,000, which was due on 30 May
2010. However, the Respondent held that any further payments were stopped because
as the Claimant departed from country P, he and his family allegedly left a “big mess”
in the apartment provided to him by the Respondent, since “many equipments were
broken and the flat was dirty”. In its support, the Respondent enclosed the document
denominated “handover and acceptance certificate” signed on 9 October 2010 by the
lessor and the lessee, i.e. the Respondent, which lists that a few “equipment” of the
apartment were missing.
11.
Moreover, the Respondent affirmed that the Claimant did not pay any maintenance
costs for the apartment to which he was obliged to. In this respect, the Respondent
attached a document signed by the Claimant, on 28 February 2008, by means of which
the Claimant allegedly agreed that the Respondent deducts from his remuneration the
amount of currency of country P 150 for the costs related to the use of the apartment.
Equally, said document stated that “I oblige the Lessee [i.e. the Respondent] to pay the
aforementioned amount to the Lessor on my behalf”.
12.
Additionally, the Respondent submitted a document which lists the payments made by
the “Lessee” and the amounts that the “Lessee” should have paid concerning the rent
for the years 2009 and 2010 as well as charges related to heating, water, electricity and
cable TV. In this regard and based on the latter, the Respondent asserted that the lessor
of the apartment requested it to pay the costs for the cleaning and damages as well as
to cover maintenance costs described in said document. Therefore, the Respondent held
having paid to the lessor the amount of currency of country P 6,703.53.
13.
Further, the Respondent declared that after deducting the expenditures borne by it as
well as taxes, it made a money transfer to the Claimant’s bank account, on
17 November 2010, in currency of country P in accordance with article 358 § 1 of the
country P civil code as well as the article 5 of the contract. In its support, the
Respondent enclosed a copy of an “electronic transfer confirmation”, dated 17
November 2010 in the amount of currency of country P 19,350.90.
14.
In addition, the Respondent stated that according to the country P Tax and Social Law,
taxes and social contributions were deducted from the Claimant’s salary, arguing that,
in country P, taxes and other public contributions are paid in advance by the employer,
while the employee is then “entitled to lodge a request to country P government to
return the taxes paid in country P in accordance with the international agreement
signed by Republic of country P”. The Respondent did not submit any evidence in this
regard.
15.
The Claimant submitted his comments, insisting his claim. In response to the position
presented by the Respondent, the Claimant alleged that the termination agreement,
which is the only document that shall be considered since it was the last signed by the
parties, does clearly quote that he has no disciplinary records and that no disciplinary
proceedings are pending against him. Equally, the Claimant pointed out that the
Player A, from country Q / Club L, from country P
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termination agreement does not mention any pending payments of him related to the
rental agreement.
16.
Moreover, the Claimant affirmed that the documents presented by the Respondent
solely demonstrate that the rental agreement was concluded by the Respondent and
the lessor and that the Claimant did not intervene at all in said agreement.
Additionally, the Claimant considered totally inappropriate from the Respondent to try
to impute to him debts concerning the rental agreement, considering that all pending
issues related to the contractual relationship between the parties were discussed at the
moment when the termination agreement was concluded.
17.
Furthermore, the Claimant declared that the taxes cannot exceed the amount
recognised by the Respondent as debt towards him at the conclusion of the termination
agreement. In this respect, the Claimant set forth that if at all taxes should be deducted,
it shall be remarked that the Respondent neither specified which would be the amount
to deduct from the amount of USD 27,500 nor at least the percentage determined by
the country P law. Thus, the Claimant stated that the tax issue is only an excuse of the
Respondent to avoid paying the agreed amount.
18.
Finally, the Claimant asserted that the amount in country P currency allegedly paid by
the Respondent is not recognized by him and that the mentioned amount, converted
into U.S. dollar, does not even correspond to a quarter of the sum agreed on the
termination agreement. Equally, the Claimant emphasized that on the termination
agreement the parties agreed upon amounts in U.S. dollar. In addition, the Claimant
alleged that the payment presented by the Respondent was made to an account in
country P, while the Respondent was accurately informed at the conclusion of the
termination agreement to which account it should have done the payment, which is an
account not in country P. The Claimant did not provide any evidence in this regard.
19.
The Respondent presented its final comments by means of which it maintained its
previous position. In this context, concerning the termination agreement the
Respondent declared that the termination agreement only established that there were
no other obligations apart from the ones specified in said agreement. However,
according to the Respondent, there were no provisions regarding the existence or
non-existence of players’ obligations and thus, it has to be assumed that such
obligations may exist. In conclusion, the Respondent held that there were specific
obligations between the parties concerning the lease agreement.
20.
Furthermore, the Respondent affirmed that the fact that the rental agreement was
concluded between it and the lessor has no impact to the fact that, according to the
contract, the Claimant was responsible to bear the maintenance costs arising from the
rental agreement. In this respect, the Respondent also pointed out that the “protocol of
termination of lease agreement”, by means of which the lessor allegedly indicated the
damages caused by the Claimant, was only issued after the Claimant left country P.
Player A, from country Q / Club L, from country P
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21.
In continuation, the Respondent alleged that the bank deposit was made to the
account to which it used to accomplish the payments of the Claimant’s salaries, since
the Claimant did not at all inform it about his new bank account.
22.
Moreover, the Respondent emphasized that due to the fact that the Claimant left
country P, the latter ceased to be a country P tax resident. On the account of the
aforesaid, the Respondent held that it had to pay higher tax rates on behalf of the
Claimant as well as “fulfil and complete the due tax for player from the beginning of
the year 2010”, since the amounts specified on the termination agreement were gross.
Additionally, according to the Respondent, it sent “written tax settlements” to the
Claimant’s address in country Q as well as country P, but it never received a receipt
confirmation. The Respondent did not submit any evidence in this regard.
23.
In conclusion, the Respondent stated that the amount of USD 15,000, which was to be
paid to the Claimant on 30 June 2010, has been compensated by the payment of taxes
that were due by the Claimant. In its support, the Respondent attached an “electronic
transfer confirmation”, according to which it allegedly paid on 20 July 2010 to the Tax
office in country P the amount of currency of country P 34,386. Further, the Respondent
asserted that from the due amount of USD 12,500, also due on 30 June 2010, it
deducted the amount of currency of country P 6,703.53 (cf. point 12), concerning the
damages caused by the Claimant to the flat as well as that it is undisputed that the
Claimant never paid any maintenance cost. Consequently, the Respondent declared that
the residual amount due to the Claimant was paid to him on 17 November 2010 in the
amount of currency of country P 19,350.90.
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 27 October 2010, thus after
1 July 2008. 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. 1 and 2 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 the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an country Q player and a
country P club.
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 (edition 2010) and,
considering that the present claim was lodged on 27 October 2010, the 2010 edition of
Player A, from country Q / Club L, from country P
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the Regulations on the Status and Transfer of Players (hereinafter: the 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 doing so, the
Chamber started to acknowledge the facts of the case as well as the documents
contained in the file.
5.
In this respect, the Chamber recalled that it was undisputed by the parties that, on
29 August 2007, the Claimant and the Respondent signed an employment contract
setting out a period of validity until 30 June 2012. According to the contract, the
members of the DRC noted that, inter alia the Respondent would have ensured a living
premise for the Claimant, of which the Claimant would have had to bear the
maintenance costs, as well as that the monthly salaries would have been paid in
currency of country P.
6.
Equally, the DRC took note that it was also undisputed by the parties that, on 15 May
2010, the Claimant and the Respondent terminated the contract, by signing the
termination agreement, which entered into effect as of 30 June 2010, as well as that the
remuneration established in said termination agreement, was also undisputed, by both
parties. In this respect, the members of the Chamber remarked that according to the
termination agreement the parties stipulated the following three instalments,
USD 15,000 gross payable on 30 May 2010, USD 15,000 gross payable on 30 June 2010
and USD 12,500 gross as appearance bonus payable by no later than 30 June 2010, to be
paid by the Respondent to the Claimant
7.
At this point the DRC reviewed the claim of the Claimant who held that he would still
be entitled to receive from the Respondent the amount of USD 27,500, consisting of the
aggregate amount of the payment in the amount of USD 15,000 due on 30 June 2010 as
well as the payment regarding appearance bonus in the amount of USD 12,500 due
until later than 30 June 2010, both established in the termination agreement. Equally,
the DRC noted that the Claimant alleged being entitled to default interest of 5% as of
the due date.
8.
Subsequently, the members of the Chamber took note that the Respondent mainly
agreed with the declarations made by the Claimant regarding the outstanding amounts
in relation to the termination agreement. However, according to the Respondent, it had
deducted from the residual amount regarding the termination agreement the amounts
paid by the Respondent regarding taxes as well as regarding costs related to the
apartment provided to the Claimant. In particular, the DRC recalled that the
Respondent held having deducted the amount of currency of country P 6,703.53 on the
basis of the damages caused to the apartment and of the unpaid maintenance costs due
by the Claimant as well as the amount of currency of country P 34,386 related to tax
debts also due by the Claimant. Finally, the Chamber took note that the Respondent
alleged having made a money transfer to the Claimant’s bank account in the amount of
currency of country P 19,350.90 corresponding to the outstanding remuneration after
the relevant deductions.
Player A, from country Q / Club L, from country P
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9.
At this point, considering the contradictory positions of both parties, the DRC held that
it was necessary to analyse whether the Respondent could have deducted the amounts
related to taxes and to the apartment costs from the outstanding remuneration due in
accordance with the termination agreement in the aggregate amount of USD 27,500.
10.
First, the DRC proceeded to analyse whether the deduction of the amount of
currency of country P 6,703.53 was justified.
11.
At this point, the DRC took into account that the Respondent alleged that the Claimant
left the apartment provided by the Respondent in bad conditions and thus, the
Respondent itself had to cover the costs for cleaning, maintenance and damages
concerning the apartment.
12.
In this respect, the DRC remarked that in its support, the Respondent enclosed a
document denominated “handover and acceptance certificate”, signed on 9 October
2010 by the lessor and the lessee, the last one being the Respondent, which listed that a
few “equipment” of the apartment were missing. However, the Chamber noted that
said document did not specify any amount for the missing items.
13.
In this respect, the DRC made reference to art. 12 par. 3 of the Procedural Rules which
establishes that any party claiming a right on the basis of an alleged fact shall carry the
burden of proof and, therefore, concluded that the Respondent failed to demonstrate
that the Claimant caused any damages to the apartment.
14.
Furthermore, the member of the Chamber referred to a further document presented by
the Respondent, which listed payments made by the “Lessee” as well as amounts that
the “Lessee” should have paid concerning the rent for the years 2009 and 2010. In this
regard, the Chamber contemplated that said document indeed indicated a result of
“6,703” as “total arrears as of 31st May 2010”, but that the currency was no specified.
15.
Additionally, the DRC recalled the fact that the Respondent held having paid the
amount of currency of country P 6,703.53 to the Lessor, concerning costs for the
cleaning and damages as well as maintenance costs, without providing any
documentary evidence of such payment.
16.
On account of the above-mentioned facts, the members of the DRC, referring once
again to art. 12 par. 3 of the Procedural Rules, considered that the Respondent failed to
demonstrate having paid the amount of currency of country P 6,703.53 concerning the
costs for the cleaning and the damages as well as the maintenance costs. Consequently,
the relevant amount cannot be deducted from the outstanding remuneration due to
the Claimant.
17.
In continuation, the Chamber proceeded to analyse whether the deduction of the
amount of currency of country P 34,386 regarding taxes was justified.
Player A, from country Q / Club L, from country P
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18.
In this regard, the members of the DRC observed that the Respondent having paid the
amount of currency of country P 34,386, on 20 July 2010, to the Tax office of country P,
concerning taxes debts that were alleged due by the Claimant. In this respect, the DRC
took note that the Respondent enclosed an “electronic transfer confirmation”, which
proved the payment of the amount of currency of country P 34,386, on 20 July 2010, to
the Tax office in country P.
19.
To this effect, the Chamber held that it had to examine whether the payment
accomplished to the Tax office of country P, on 20 July 2010, was effectively made in
relation with tax debts due by the Claimant.
20.
In this respect, the members of the Chamber referred once again to the contents of art.
12 par. 3 of the Procedural Rules and pointed out that the documentation presented by
the Respondent concerning the above-mentioned matter, does neither demonstrate nor
indicate that the amount of currency of country P 34,386 was related to tax debts due
by the Claimant and, therefore, cannot be deducted from the outstanding
remuneration due to the Claimant.
21.
At this moment, the members of the DRC recalled that the Respondent declared having
made a money transfer to the Claimant’s bank account in the amount of currency of
country P 19,350.90, corresponding to the residual outstanding amount after deducting
the apartment related costs and the taxes, enclosing a copy of an “electronic transfer
confirmation” dated 17 November 2010, which description stated “passing according to
the agreement concluded on 15th May 2010”.
22.
In this respect, the Chamber acknowledged that the Claimant stated that the amount in
currency of country P allegedly paid by the Respondent is not recognized by him.
Additionally, the DRC remarked that the Claimant emphasized that according to the
contract, the parties agreed upon amounts in U.S. dollar and that the alleged payment
was made by the Respondent to a bank account in country P, even though it had been
accurately informed, at the conclusion of the termination agreement, to which bank
account it should have had accomplished the payments, which was not an account in
country P. In this respect, the members of the DRC noticed that on the termination
agreement there was no indication regarding any bank account.
23.
Moreover, the members of the Chamber noted that the Respondent affirmed having
accomplished the bank deposit to the bank account to which it used to do the payments
of the Claimant’s salaries as well as that it stated not having been informed by the
Claimant about any new bank account.
24.
In this regard, the members of the Chamber considered that, literally, the Claimant
stated that he did not recognize said amount what however does not mean that he has
not received it. Equally, the DRC, taking into consideration the contents of the
termination agreement, observed that in said agreement there was no indication at all
to which bank account the therein agreed payments should be made. Therefore, the
members of the DRC, referring once again to art. 12 par. 3 of the Procedural Rules,
concluded that the Claimant did not provide any evidence that he informed the
Player A, from country Q / Club L, from country P
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Respondent about a new bank account to which the payment of the sums agreed in the
termination agreement should be done.
25.
On the other hand, the members of the DRC considered that the Respondent indeed
demonstrated having made a bank transfer to the Claimant’s account in the amount of
currency of country P 19,350.90.
26.
In consideration of the above-mentioned facts, the members of the DRC decided to take
into consideration the payment made by the Respondent on 17 November 2010, in the
amount of currency of country P 19,350.90, which on the mentioned date was
equivalent to USD 6,645.
27.
In conclusion, the Chamber established that, considering the documentation presented
by both parties as well as the above-stated arguments, the Respondent failed to pay to
the Claimant the amounts of USD 15,000 and USD 12,500 related to appearance bonus,
both due on 30 June 2010, but indeed paid the amount of USD 6,645, on 17 November
2010. As a consequence, the Claimant is still entitled to receive the amount of
USD 20,855 (USD 15,000 + USD 12,500 = USD 27,500 – USD 6,645).
28.
Consequently, the Chamber decided to partially accept the claim of the Claimant and
concluded that the Respondent is liable to pay him the amount of USD 20,855.
29.
Concerning the interests claimed by the Claimant, the DRC noted that the contract did
not provide for any specific interest rate in case of late payment. Consequently, the
DRC, in accordance with the constant practice of the Dispute Resolution Chamber,
decided to award to the Claimant default interest at a rate of 5% p.a. as from the due
dates, taking into consideration the partial payment made on 17 November 2010 in the
amount of USD 6,645.
30.
Additionally, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
31.
The DRC concluded its deliberations by rejecting any further claim of the Claimant.
******
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club L, from country P, has to pay to the Claimant, Player A, within
30 days as from the date of notification of this decision, the amount of EUR 20,855 plus
5% interest p.a. as follows:
Player A, from country Q / Club L, from country P
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-
5% interest p.a. as of 1 July 2010 until 17 November 2010 over the amount of
EUR 27,500;
-
5% interest p.a. as of 18 November 2010 until the date of effective payment over the
amount of EUR 20,855.
3.
If the amount due in accordance with point 2 and the relevant interests are 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
are rejected.
5.
The Claimant, Player A, is directed to inform the Respondent, Club L, from country P,
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.
claims
lodged
by
the
Claimant,
Player
A,
*******
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
Player A, from country Q / Club L, from country P
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Secretary General
Encl.: CAS directives
Player A, from country Q / Club L, from country P
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