Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 October 2015,
in the following composition:
Geoff Thompson (England), Chairman
Taku Nomiya (Japan), member
Theodore Giannikos (Greece), member
Eirik Monsen (Norway), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
Facts relating to the preliminary issue of competence:
1.
On 28 August 2013, the player from country B, Player A, (hereinafter: player or
Claimant), and the club from country D, Club C (hereinafter: club or Respondent),
concluded an employment contract (hereinafter: contract) which stipulates in its
article 16 that “In case of any dispute for any reason between two parties of
contract, firstly Disciplinary Committee of Club will resolve it, if dispute wasn’t
solved, the Disciplinary Committee of the relevant federation as the impartial judge
will resolve it and the sentence of the Federation’s Disciplinary Committee will be
definite and both parties can not object about it or if dispute was not yet resolved,
it would be submitted to FIFA Arbitral Tribunal FIFA Bodies (FIFA Player’s Status and
FIFA Dispute Resolution Chamber) accordance with FIFA Regulations”.
2.
The club contested the competence of FIFA to deal with the claim lodged by the
player against it in front of FIFA, arguing that due to art. 16 of the contract, the
player “was obliged to submit the dispute to the Club’s Disciplinary Committee and
in case the dispute remained unsolved he would be entitled to submit it to the
following body and so”.
3.
Moreover, the club indicated that it started parallel legal proceedings against the
player in country D.
4.
The player, for his part, contested that any procedure is pending in country D and
held that FIFA is competent to deal with the present matter.
Facts relating to the substance of the matter:
5.
On 28 August 2013, the player and the club signed the contract valid from 28 August
2013 until the end of the season 2013/2014.
6.
According to the Transfer Matching System (TMS), the football season 2013/2014 in
country D ended on 22 May 2014.
7.
According to the contract, the club undertook to pay the player the total amount of
4,050,000,000 for the sporting season 2013/2014, payable as follows:
- 1,620,000,000 “will be paid to the player after doing successfully medical tests”;
- 2,430,000,000 in 9 monthly instalments of 270,000,000 (September 2013 to May
2014).
Player A, country B / Club C, country D
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8.
Art. 6 of the contract states that: “If the goalkeeper does not receive any goals in
home or away matches, club will pay (20,000,000) as rewards. It should be noted that
rewards by Article 6 will be made on monthly basis.”
9.
Art. 9.2 of the contract defines that: “Club is allowed to deduct the fine stated by
team’s supervisor based on attendance report which indicates player does not pay
attention to educational goals and instructions and that he malingers or result
poorly in the matches”.
10.
On 1 July 2014, the player lodged a claim in front of FIFA against the club for
outstanding remuneration and requested to be awarded payment of 2,020,000,000
plus 5% interest p.a. as of 28 August 2013. In addition, the player requested that the
club should be ordered to bear the costs of the proceedings and “to compensate the
Claimant for all costs in connection with the present proceedings.”
11.
The player claimed outstanding salary payments in the amount of 1,920,000,000 and
bonus payments in the amount of 100,000,000.
12.
In his arguments, the player stated that he only received a total of 2,130,000.000 in
various payments, between 17 October 2013 to 10 April 2014, instead of the
contractually agreed 4,050,000,000, which results in outstanding salaries of
1,920,000,000.
13.
Moreover, the player claimed not having received match bonuses in connection with
art. 6 of the contract in the amount of 100,000,000 for the following matches:
- 20,000,000 for the game against Club E on 12 September 2013 (2:0 victory);
- 20,000,000 for the game against Club F on 3 October 2013 (0:0 draw);
- 20,000,000 for the game against Club G on 9 January 2014 (1:0 victory);
- 20,000,000 for the game against Club H on 16 January 2014 (0:0 draw);
- 20,000,000 for the game against Club I on 31 January 2014 (0:0 draw).
14.
In its reply, the club stated that it deducted 20% of the player’s salary due to alleged
low performances of the player.
Player A, country B / Club C, country D
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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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 1 July 2014.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21 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 (edition
2015) the Dispute Resolution Chamber would, in principle, be competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and an club from country
D.
3.
In continuation, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding body on the basis of art. 16 of the employment
contract.
4.
In this regard, the DRC noted that the Claimant rejected such position and insisted
that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players, it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs, has been established at national level
within the framework of the association and/or a collective bargaining agreement.
With regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010
dated 20 December 2005.
6.
While analysing whether it was competent to decide on the matter at hand, the
members of the Chamber outlined that the Respondent has not submitted any
documentation demonstrating that the deciding body under the Football
Federation of country D meets the aforementioned standards.
7.
Moreover, the DRC noted that the Respondent alleged having started parallel
proceedings regarding the present matter in country D, which was contested by the
Claimant. In this context, the members of the Chamber pointed out that the
Respondent failed to provide any evidence in support of said allegation.
Player A, country B / Club C, country D
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8.
Subsequently, the DRC referred to art. 12 par. 3 of the Procedural Rules, in
accordance with which the any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
9.
In addition, the Chamber outlined that article 16 of the employment contract does
not explicitly refer to a national dispute resolution chamber or any similar
arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations.
The members of the Chamber further took into account that article 16 of the
employment contract includes a reference to FIFA.
10.
On account of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of
the Regulations on the Status and Transfer of Players, to consider the present matter
as to the substance.
11.
In continuation, 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
2015), and considering that the present claim was lodged on 1 July 2014, the 2012
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
12.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
13.
Having said this, the Chamber recalled that the parties had signed an employment
contract valid as from 28 August 2013 until the end of the season 2013/2014, i.e. 22
May 2014.
14.
In continuation, the DRC acknowledged that, in accordance with the employment
contract the Respondent was obliged to pay to the Claimant, inter alia, the amount
of 4,050,000.000 as remuneration.
15.
Furthermore, the Chamber noted that the parties agreed upon a bonus payment in
the amount of 20,000,000 for the player in case he “does not receive any goals in
home or away matches”.
Player A, country B / Club C, country D
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16.
In this respect, the Chamber took into consideration that according to the Claimant,
the Respondent had failed to pay his remuneration in the amount of 1,920,000,000
as well as bonus payments totalling 100,000,000 for five specified games.
Consequently, the Claimant requested to be awarded payment of the total amount
of 2,020,000,000.
17.
Subsequently, the DRC observed that the Respondent, for its part, stated that it
deducted 20% of the player’s salary due to the player’s alleged low performance.
18.
In this regard, the Chamber referred to its jurisprudence in accordance with which a
decrease in, or deduction from, payments to a player by a club on the basis of a
player’s alleged low performance cannot be accepted, due to the unilateral and
arbitrary character of the club’s decision.
19.
On a side note, even if low performance would constitute a valid reason for a
reduction in remuneration, the Chamber pointed out that the Respondent had not
presented any documentation in respect of its allegations relating to the alleged low
performance of the Claimant.
20.
Having established the above, and bearing in mind that the Respondent had not put
forward any other reason in connection with the non-payment of the monies
claimed to be outstanding by the Claimant, the DRC concluded that the Respondent
had not presented any valid reasons for the non-payment of the Claimant’s
remuneration.
21.
Therefore, the members of the Chamber concluded that the Respondent had failed
to pay to the Claimant the amount of 2,020,000,000 corresponding to outstanding
salaries in the amount of 1,920,000,000 as well as bonus payments in the amount of
100,000,000.
22.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the contract concluded
with the Claimant and, consequently, the Chamber decided that the Respondent
must pay the outstanding remuneration in the total amount of 2,020,000,000 to the
Claimant.
23.
Taking into consideration the Claimant’s claim related to interest as well as the
Chamber’s constant jurisprudence in this regard, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amount of 2,020,000,000
as of the date the claim was lodged, i.e. 1 July 2014, until the date of effective
payment.
Player A, country B / Club C, country D
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24.
In addition, as regards the claimed procedural costs, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the Chamber decided to reject the Claimant’s request relating to procedural costs.
25.
The DRC 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 A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
2,020,000,000 plus 5% interest p.a. as of 1 July 2014 until the date of effective
payment.
4.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
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6.
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 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 Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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