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,
I,
as Claimant
against the club,
K,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On an unspecified date, the country G club, K (hereinafter: the Respondent), and
the country B player, I (hereinafter: the Claimant), concluded an employment
contract (hereinafter: the contract) valid as from 31 August 2008 until 30 June
2010.
2.
In accordance with the contract, the Claimant was entitled to receive the total
amount of EUR 145,000 in 13 instalments as follows:
a. 1st instalment: EUR 10,000 payable on 30 October 2008;
b. 2nd instalment: EUR 10,000 payable on 30 December 2008;
c. 3rd instalment: EUR 10,000 payable on 31 January 2009;
d. 4th instalment: EUR 10,000 payable on 30 March 2009;
e. 5th instalment: EUR 10,000 payable on 30 April 2009;
f. 6th instalment: EUR 10,000 payable on 30 August 2009;
g. 7th instalment: EUR 10,000 payable on 30 October 2009;
h. 8th instalment: EUR 10,000 payable on 30 December 2009;
i. 9th instalment: EUR 10,000 payable on 30 January 2010;
j. 10th instalment: EUR 10,000 payable on 28 February 2010;
k. 11th instalment: EUR 15,000 payable on 30 March 2010;
l. 12th instalment: EUR 15,000 payable on 30 April 2010;
m. 13th instalment: EUR 15,000 payable on 30 May 2010.
3.
On 24 January 2012, the Claimant lodged a claim in front of FIFA indicating that
the Respondent had not paid him instalment 9 to 13, totalling the amount of
EUR 65,000. The Claimant explained that he initially received 3 cheques from the
Respondent for a total amount of EUR 54,000, however, such cheques were not
covered. Later on, the Respondent made the following payments to the Claimant
via a money transfer company totaling the amount of EUR 22,358.09:
a. EUR 5,000 on 22 November 2010;
b. EUR 4,850 on 21 December 2010;
c. EUR 3,850.59 on 15 March 2011;
d. EUR 3,850.50 on 4 April 2011;
e. EUR 4,807 on 30 September 2011.
4.
Since no further payments were received, the Claimant claims the amount of
EUR 42,641.91 plus interest from the Respondent, and explains that since the
Respondent did not indicate which outstanding installments were covered by the
payments made via a money transfer company, “these payments shall go
towards the last five overdue installments, as each payment concerns each
successive installment”. Therefore, the Claimant also requests to be awarded
“with statutory interest counted as follows”:
a. On EUR 10,000 from 31 January 2010 till 22 November 2010;
b. On EUR 5,000 from 23 November 2010;
c. On EUR 10,000 from 1 March 2010 until 21 December 2010;
d. On EUR 5,150 from 22 December 2010;
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e. On EUR 15,000 from 31 March 2010 until 15 March 2011;
f. On EUR 11,149.41 from 16 March 2011;
g. On EUR 15,000 from 1 May 2010 until 4 April 2011;
h. On EUR 11,149.50 from 5 April 2011;
i. On EUR 15,000 from 31 May 2010 until 30 September 2011;
j. On EUR 10,193 from 1 October 2011.
5.
Despite having been invited by FIFA to provide its position, the Respondent
never answered to the claim lodged against it by the player, although it was
informed that, in absence of a reply, a decision would be taken on the basis of
the documents on file.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the matter at stake. In this respect, the DRC judge
took note that the present matter was submitted to FIFA on 24 January 2012.
Consequently, the DRC judge concluded that 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 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010)
the DRC judge is competent to deal with the matter at stake, which concerns an
employment–related dispute with an international dimension between a player
and a club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may adjudicate
on the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he 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 in front of FIFA on 24 January
2012, the 2010 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
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judge started by acknowledging the above-mentioned facts of the case as well as
the documentation contained in the file.
6.
First of all, the DRC judge acknowledged that the Claimant and the Respondent
had concluded an employment contract valid as from 31 August 2008 until
30 June 2010. As to the financial terms of said employment contract, the DRC
judge took note that it had been agreed upon between the parties that the
Respondent would remunerate the Claimant with a salary of EUR 145,000
payable in 13 instalments, whereof the last five instalments totalling EUR 65,000
were due as from 30 January 2010 until 30 May 2010.
7.
The DRC judge further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the amount of EUR 42,641.91,
corresponding to outstanding salary instalments, as well as 5% interest. More
specifically, the Claimant indicated that the Respondent had paid him only
EUR 22,358.09 instead of EUR 65,000, which would correspond to the last five
contract installments and that, therefore, the amount of EUR 42,641.91
remained outstanding.
8.
Furthermore, the DRC judge noted that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited
to do so. In this way, the DRC judge deemed that the Respondent renounced to
its right of defence and, thus, accepted the allegations of the Claimant.
9.
As a consequence of the aforementioned consideration, the DRC judge
determined that in accordance with art. 9 par. 3 of the Procedural Rules, he shall
take a decision upon the basis of the documents on file; in other words, upon
the statements and documents presented by the Claimant.
10.
In view of the above, the DRC judge concluded that it could be established that
the Respondent had failed to pay to the Claimant the full remuneration as
agreed upon between the parties in the contract. As a consequence, and in
accordance with the general legal principle of pacta sunt servanda, the
Respondent must fulfil its obligations as per employment contract concluded
with the Claimant and, consequently, is to be held liable to pay the outstanding
amount of EUR 42,641.91 to the Claimant.
11.
With regards to the claimed interest, the DRC judge noted that the Respondent
had partially paid the final five installments as follows: (i) EUR 5,000 on
22 November 2010; (ii) EUR 4,850 on 21 December 2010; (iii) EUR 3,850.59 on
15 March 2011; (iv) EUR 3,850.50 on 4 April 2011 and; (v) EUR 4,807 on
30 September 2011. Consequently, the DRC judge decided that the Respondent
had to pay interest at the rate of 5% on the outstanding partial amounts as
follows:
a. 5% p.a. as of 23 November 2010 on the amount of EUR 5,000;
b. 5% p.a. as of 22 December 2010 on the amount of EUR 5,150;
c. 5% p.a. as of 16 March 2011 on the amount of EUR 11,149.41;
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d. 5% p.a. as of 5 April 2011 on the amount of EUR 11,149.50;
e. 5% p.a. as of 1 October 2011 on the amount of EUR 10,193.
12.
The DRC judge further decided that in line with the Claimant´s request for
interest for delayed payment, the Claimant is entitled to receive default interest
at the rate of 5% p.a. as follows:
a. 5% p.a. on EUR 10,000 as of 31 January 2010 until 22 November 2010;
b. 5% p.a. on EUR 10,000 as of 1 March 2010 until 21 December 2010;
c. 5% p.a. on EUR 15,000 as of 31 March 2010 until 15 March 2011;
d. 5% p.a. on EUR 15,000 as of 1 May 2010 until 4 April 2011;
e. 5% p.a. on EUR 15,000 as of 31 May 2010 until 30 September 2011.
III.
Decision of the DRC judge
1.
The claim of the Claimant, I, is accepted.
2.
The Respondent, Club K, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 42,641.91 plus 5%
interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 23 November 2010 on the amount of EUR 5,000;
b. 5% p.a. as of 22 December 2010 on the amount of EUR 5,150;
c. 5% p.a. as of 16 March 2011 on the amount of EUR 11,149.41;
d. 5% p.a. as of 5 April 2011 on the amount of EUR 11,149.50;
e. 5% p.a. as of 1 October 2011 on the amount of EUR 10,193.
3.
Within the same time limit, the Respondent has to pay to the Claimant default
interest as follows:
a. 5% p.a. as of 31 January 2010 until 22 November 2010 on the amount of
EUR 10,000;
b. 5% p.a. as of 1 March 2010 until 21 December 2010 on the amount of
EUR 10,000;
c. 5% p.a. as of 31 March 2010 until 15 March 2011 on the amount of
EUR 15,000;
d. 5% p.a. as of 1 May 2010 until 4 April 2011 on the amount of
EUR 15,000;
e. 5% p.a. as of 31 May 2010 until 30 September 2011 on the amount of
EUR 15,000.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
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time limits, 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 article 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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