Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player F, from country A
as Claimant
against the club,
Club N, from country S
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 14 July 2010, Player F, from country A (hereinafter: the Claimant), and Club
N, from country S (hereinafter: the Respondent), signed an employment
contract valid as from 15 July 2010 until 14 July 2011, according to which the
Claimant was entitled to the following:
-
2.
On 30 August 2011, the Claimant lodged a claim against the Respondent in
front of FIFA claiming that, upon the expiry of the contract, the Respondent
had failed to fully comply with its financial obligations, still owing him the
total outstanding amount of USD 775,000:
-
3.
USD 50,000 as monthly salary to be paid at the end of each month;
USD 200,000 to be paid in December 2010;
USD 200,000 to be paid in February 2011;
USD 100,000 to be paid in April 2011;
Four business class return-air tickets per year (family incl.).
USD 250,000 corresponding to 5 monthly salaries;
USD 200,000 corresponding to the payment which fell due in
December 2010;
USD 200,000 corresponding to the payment which fell due in February
2011;
USD 100,000 corresponding to the payment which fell due in April
2011;
USD 25,000 corresponding to the flight tickets.
According to the Claimant, on 19 July 2011, after the expiry of the contract, he
formally notified the Respondent of its arrears. In response, on 21 July 2011,
the Respondent provided the Claimant with a payment proposal offering the
following amounts:
- US$ 100000 (One Hundred Thousand US Dollars) – One week from today
- US$ 200000 (Two Hundred Thousand US Dollars) – 15th November 2011
- US$ 200000 (Two Hundred Thousand US Dollars) – 15th February 2012
- US$ 146588 (One Hundred Forty Six Thousands Five Hundred and Eighty Eight
US Dollars) – 15th May 2012”.
4.
The aforementioned payment proposal presented by the Respondent was
rejected by the Claimant, as the latter deemed to have been owed more than
the amounts recognised and proposed by the Respondent.
Player F, country A / Club N, from country S
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5.
In view of the Claimant´s discrepancies with the Respondent and the latter’s
alleged failure to acquit its debts, the Claimant lodged a claim in front of FIFA
requesting to be awarded the total amount of USD 775,000 plus interest.
6.
In its reply, the Respondent did not contend that it still owed the Claimant a
substantial amount of money and emphasized, in reference to the payment
proposal, that it had always wished to acquit its debts with the Claimant.
7.
However, according to the Respondent´s bank account statements, the
Claimant had received all his corresponding salaries up until March 2011; only
his salaries for April, May, June and July (14 days) 2011 remained unpaid i.e.
3,5 months were still outstanding rather than the 5 months requested by the
Claimant. In this respect, the Respondent submitted a bank account statement
dated 25 June 2011 indicating “February and March 2011 salaries” for an
amount of USD 100,000.
8.
Moreover, the Respondent sustained that in April 2011, after having kicked an
opponent during a match, the “country S Football Association Technical
Committee” decided to suspend the Claimant for two games. As a result of
“violating internal conduct regulations” the Respondent fined the Claimant
with a 25% deduction from his April 2011 salary.
9.
In addition, the Respondent pointed out that on the day the Claimant and his
family returned home, the average costs of the flight tickets amounted to
approximately USD 13,273 and not USD 25,000, as claimed by the Claimant. In
this respect, the Respondent provided an e-mail from a commercial manager
of Qatar Airways dated 14 September 2011.
10.
Having said this, the Respondent further emphasized that ever since the
beginning of August 2011, it had been in continuous contact with the
Claimant´s agent, with whom a verbal agreement had apparently been
reached. A signed copy of the payment agreement was then sent to said agent
for signature. However, after receiving said agreement, the agent apparently
demanded the amount of USD 220,000 to be transferred, an amount which
was effectively paid the next day. In this regard, the Respondent submitted a
copy of an e-mail exchange dated 4 September 2011 as well as a copy of bank
statement dated 5 September 2011 for an amount of USD 220,000.
11.
According to the Respondent, it showed tremendous good will and therefore
does not understand why the agent failed to sign the agreement after having
received the requested down payment of USD 220,000.
Player F, country A / Club N, from country S
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12.
In light of the above-mentioned and after a careful study of its financial
records, the Respondent is of the firm belief that it only owes the Claimant the
amount of USD 454,106.60, calculated as follows:
USD 173,333.30 for three and half salaries
+ USD 500,000 for the contract down payments
+ USD 13,273.30 for the business class air tickets
- USD 12,500 regarding the 25% penalty deduction of April 2011
- USD 220,000 regarding the amount transferred on 5 September 2011.
13.
In reply, the Claimant rejects the Respondent’s comments, claiming to have
never negotiated or agreed with the latter on any sort of payment schedule.
The Claimant does not accept the Respondent´s delayed payment proposal
whilst fully ratifying his initial request.
14.
In its final comments, the Respondent disregards the Claimant’s comments by
emphasizing that the Claimant had once again failed to present any sort of
substantiation regarding the claimed amounts. The Respondent endorses its
previous position and maintains that it is still committed to pay the Claimant,
on the basis of the financial documents presented, the amount of USD
454,106.60 which it considered to be the correct and only amount due.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 30 August 2011. 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 of the 2008 and 2012 editions of the Procedural
Rules).
Player F, country A / Club N, from country S
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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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012), the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between an country A player and a country S club.
3.
Furthermore, the Chamber 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, the Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2010 and 2012), and considering that the claim was lodged on 30 August 2011,
the 2010 edition of the aforementioned regulations (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, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file. However, the Chamber emphasised that
in the following considerations it will refer only to the facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
First of all, the members of the Chamber acknowledged that, on 14 July 2010,
the Claimant and the Respondent had concluded an employment contract
valid as from 15 July 2010 until 14 July 2011, according to which the Claimant
was entitled to receive the following:
-
6.
USD 50,000 as monthly salary to be paid at the end of each month;
USD 200,000 to be paid in December 2010;
USD 200,000 to be paid in February 2011;
USD 100,000 to be paid in April 2011;
Four business class return-air tickets per year.
The Chamber further observed that the Claimant claims that upon the expiry
of the contract, the Respondent still owed him the total amount of USD
775,000. The Respondent for its part did not contest that it still owed money to
the Claimant, but merely disputed the total amount due to the Claimant;
indeed, the Respondent is of the opinion that merely the amount of
454,106.60 is still due to the Claimant.
Player F, country A / Club N, from country S
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7.
On account of the above, the Chamber duly noted that it had to examine
which amount was still outstanding to the Claimant. In this regard, the
Chamber referred to the rule of the burden of proof mentioned in 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.
8.
The Chamber first pointed out that, on the one hand, the Claimant requested
the amount of USD 250,000 for 5 monthly salaries, but that, on the other
hand, the Respondent had provided evidence for the payment of 2 of those 5
monthly salaries. Nevertheless, the Chamber noted that, in its position, the
Respondent recognised that it still owed the Claimant USD 173,333.30
corresponding to 3,5 months of salaries. In view of the foregoing, the DRC
decided that the amount of USD 173,333.30 shall be considered as the
outstanding amount regarding the monthly payments due to the Claimant
under the employment contract.
9.
As to the down payments that fell due in December 2010, February 2011 and
April 2011, the Chamber noted that this particular debt, in the amount of USD
500,000, had also been recognised by the Respondent.
10.
In relation to the flight tickets, the Chamber took into account that the
Respondent had provided evidence that said tickets amounted to USD
13,273.30 only, rather than the unsubstantiated claim of the Claimant who had
indicated that the flight tickets amounted to USD 25,000. In view of the
foregoing, the Chamber determined that the Respondent owed the Claimant
the amount of USD 13,273 in flight tickets.
11.
On account of the preceding paragraphs, the Chamber determined that, in
principle, the outstanding remuneration to the Claimant amounted to USD
686,606.60 (USD 173,333.30 + USD 500,000 + USD 13,273.30). Nevertheless, the
Chamber observed that the Respondent deemed that the amounts of USD
12,500 and USD 220,000 should be deducted, since it i) had fined the Claimant
for his misbehaviour, and ii) had made a partial payment of USD 220,000 to
the Claimant’s apparent agent.
12.
In this context, the Chamber first assessed the fine imposed on the Claimant in
the amount of USD 12,500 corresponding to part of his April 2011 salary. The
Chamber duly observed that the Claimant had not contested the relevant fine
and, therefore, it decided to accept the fine imposed by the Respondent on
the Claimant. As a result, the amount of USD 12,500 is to be deducted from
the outstanding remuneration in the amount of USD 686,606.60.
Player F, country A / Club N, from country S
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13.
As to the apparent payment of the amount of USD 220,000 to the alleged
agent of the Claimant, the Chamber thoroughly analysed the documentation
presented by the Respondent in this respect and concluded that the latter had
not provided any documentation from which it could be established that the
relevant agent was in fact the agent of the Claimant, nor that the Claimant
had authorised the Respondent to make any payments to this apparent agent.
In other words, the Respondent had not proved to the Chamber’s satisfaction
that, with the payment transferred to the agent, it had in fact settled a part of
the debt it had towards the Claimant. As a consequence, the Chamber was
unanimous in its decision that it could not accept the Respondent’s submission
that the amount of USD 220,000 should be deducted from the total amount it
owed the Claimant.
14.
As a result, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of USD
674,106.60 to the Claimant as outstanding remuneration plus 5% interest as
from 30 August 2011.
15.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player F, is partially accepted.
2.
The Respondent, Club N, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of USD 674,106.60 plus
5% interest p.a. on said amount as of 30 August 2011 until the date of
effective payment.
3.
If the aforementioned sum plus interest is not paid within the stated time
limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player F, country A / Club N, from country S
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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
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player F, country A / Club N, from country S
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