Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Wouter Lambrecht (Belgium), 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
arisen between the parties
I.
Facts of the case
1.
On 21 August 2014, the Player of Country B Player A (hereinafter: the player or
Claimant) and the Club of Country D Club C (hereinafter: the club or Respondent)
signed an employment contract, valid as from 21 August 2014 until 31 May 2017
(hereinafter: the contract).
2.
According to the contract, the player was entitled to receive, inter alia, the total
amount of EUR 1,200,000, payable as follows:
during the 2014/2015 season, in the period between August 2014 and May 2015,
10 monthly salaries of EUR 40,000, due on the 30th day of each month;
during the 2015/2016 season, in the period between August 2015 and May 2016,
10 monthly salaries of EUR 40,000, due on the 30th day of each month;
during the 2016/2017 season, in the period between August 2016 and May 2017,
10 monthly salaries of EUR 40,000, due on the 30th day of each month.
3.
Article 3 of the contract, referred to as ‘Special Provisions’, provides inter alia for the
following: ‘The Player will receive victory bonuses on the same level as his
teammates’.
4.
On 30 July 2015, the player lodged a claim before FIFA against the club, claiming
outstanding remuneration, requesting the total amount of EUR 200,000, as follows,
consisting of 5 monthly salaries of EUR 40,000 each, related to the period between
January 2015 until May 2015, due on the 30th day of the respective month.
5.
In his claim, the player explains that the club failed to pay him the salaries for the
months January, February, March, April and May 2015, in the total amount of EUR
200,000. The player holds to have put the club in default on 29 June 2015 for said
outstanding amount.
6.
In its reply, the club holds to have paid the player in the period between August
2014 and May 2015, in which it had to pay the player the total amount of EUR
400,000, only the amount of EUR 308,930. The club specifies said amount as follows:
Amount
Date
Conversion
13,500
5 September 2014
(EUR 4,744)
EUR 20,000
2 October 2014
(EUR 20,000)
13,500
20 October 2014
(EUR 4,706)
1,500
23 October 2014
(EUR 526)
7,500
31 October 2014
(EUR 2,684)
EUR 17,000
6 November 2014
(EUR 17,000)
Player A, Country B / Club C, Country D
2
EUR 20,000
20 November 2014
(EUR 20,000)
EUR 40,000
12 December 2014
(EUR 40,000)
EUR 15,000
26 December 2014
(EUR 15,000)
30,000
21 January 2015
(EUR 11,061)
20,000
29 January 2015
(EUR 7,432)
25,000
13 February 2015
(EUR 8,854)
EUR 50,000
6 March 2015
(EUR 50,000)
7,000
16 March 2015
(EUR 2,523)
EUR 86,500
30 March 2015
(EUR 86,500)
20,000
1 April 2015
(EUR 7,118)
25,000
24 April 2015
(EUR 8,558)
EUR 3,600
28 May 2015
(EUR 3,600)
Total
EUR 310,306
7.
As a result, the club holds that it owes the player only the amount EUR 91,070 (that
is, EUR 400,000 as total contractual value -/- EUR 308,930 as amount paid, with
conversions made by the club) and states that it will pay this amount ‘as soon as
possible’.
8.
In his replica, the player holds that the club mixes up (a) the salaries it had to pay to
him and which were payable in EUR, and (b) the match bonuses he was entitled to
and which were - according to the player - payable in Currency E. In this respect, the
player submitted two declarations of former players of the club, which confirm that
the payments of the salaries took place in EUR and that the payment of the match
bonuses took place in Currency E.
9.
Furthermore, the player argued that the club falsified the payment receipts dated 6
November (in the amount of EUR 17,000), 20 November (in the amount of EUR
20,000) and 26 December 2014 (in the amount of EUR 15,000), by adding the word
‘Euros’ after he signed these documents.
10.
The player explains that he indeed signed these three receipts, but that at the
moment of signing, the word ‘Euros’ was not mentioned. In this respect, the player
provided a copy of the payment receipt dated 26 December 2014 he claims to have
signed, with payment number 000174. On said document, the word ‘Euros’ is not
added, contrary to the payment receipt with payment number 000174 the club
submitted, which contains the word ‘Euros’. As a result, the player concludes that
Player A, Country B / Club C, Country D
3
the total amount of these payment receipts is not EUR 52,000 related to salary
payments, but 52,000 (approximately EUR 18,372), related to match bonuses.
11.
In addition, the player argued that on 22 January 2015, he sent a WhatsApp message
to the club’s president, stating that he had only received EUR 60,000 as salary
payments and that all other amounts paid to him were ‘team victory bonuses’.
12.
Furthermore, the player explained and explicitly confirmed that in the period
between August 2014 and May 2015, he received the following payments, in the
total amount of EUR 200,000:
an amount of EUR 20,000 on “10.02.2014”;
an amount of EUR 40,000 on 12 December 2014,
an amount of EUR 50,000 on 6 March 2015;
an amount of EUR 86,400 on 30 March 2015 and;
an amount of EUR 3,600 on 28 May 2015.
13.
In its duplica, the club argues that the salaries the player was contractually entitled
to, were sometimes paid in Currency E. Furthermore, the club stated that the
declarations of the two former players of the club cannot be considered as objective,
because one of the players ‘is engaged in a lawsuit against the Club’.
14.
Furthermore, the club does not deny having ‘added the word of Euro’ to said
payment receipts, however that it did only so for reasons of ‘legal adding due to the
accounting department’s transaction’. Moreover, the club stresses that the ‘money
transfer made to the player’ on 26 December 2014, was ’15.000 Euros in fact’.
15.
In conclusion, the club states that on 22 January 2015 not ‘4 monthly salaries’, but
only ‘(less than) 3 monthly salaries’ were outstanding and that ‘the progress payment
by the date of 22 January 2015 is 250.000 Euros’, as well as that ‘The Club paid
135.730 Euro taking it out of monthly salaries’.
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 30 July 2015.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2015; 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 and 2 in combination with
art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016)
the Dispute Resolution Chamber is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a Player of Country B and a Club of Country D.
Player A, Country B / Club C, Country D
4
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
2016), and considering that the present claim was lodged on 30 July 2015, the 2015
edition of said regulations (hereinafter: 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 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.
5.
In this respect, the Chamber acknowledged that on 21 August 2014, the parties
signed an employment contract valid between 21 August 2014 and 31 May 2017. In
accordance with said contract, the player was entitled to receive, inter alia, the total
amount of EUR 400,000, payable in 10 monthly instalments of EUR 40,000 in the
period between August 2014 and May 2015.
6.
In continuation, the members of the Chamber noted that the player alleged that
until 29 July 2015, the club had only paid him in relation to the 2014/2015 season,
the amount of EUR 200,000 and therefore, failed to pay him the remaining salaries
in the amount of EUR 200,000. Consequently, the player asked to be awarded with
the payment of EUR 200,000.
7.
Equally, the members of the Chamber took note of the reply of the club, which
asserted that it had already paid the player, by means of 18 separate payments made
to the player in the period between 5 September 2014 and 28 May 2015, the total
amount of EUR 308,930. In this respect, the club submitted various payment receipts
of said payments. In consequence, the club concluded that the amount due to the
player, related to the period between August 2014 and May 2015, would only be
EUR 91,070.
8.
With due consideration to the above, the members of the Chamber further took into
account that the player did not contest that the club made 18 different payments to
him in the period between 5 September 2014 and 28 May 2015, but that he only
contested the nature and the currency of said payments.
9.
First of all, the members of the Chamber recalled the basic principle of burden of
proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a
party claiming a right on the basis of an alleged fact shall carry the respective burden
of proof.
10.
In this context, the Chamber noted that the player – in relation to the 18 payments
the club alleges to have made to him between August 2014 and May 2015 – explicitly
Player A, Country B / Club C, Country D
5
confirms that to have received the following payments, up to a total amount of EUR
200,000:
-
a payment of EUR 20,000 on 2 October 2014;
a payment of EUR 40,000 on 12 December 2014;
a payment of EUR 50,000 on 6 March 2015;
a payment of EUR 86,400 on 30 March 2015 and;
a payment of EUR 3,600 on 28 May 2015.
11.
In this respect, the Chamber wished to point out that the club states that on 30
March 2015, it paid the player the amount of EUR 86,500, however that it only
provided a payment receipt for a payment of EUR 86,400. Taking into consideration
art. 12 par. 3 of the Procedural Rules, the members of the Chamber decided that said
payment receipt could only prove that the club paid the player EUR 86,400. As a
result, and based on the payment receipts submitted by the club and the remarks of
the player in this respect, the Chamber concluded that the club with
abovementioned 5 payments, paid the total amount of EUR 200,000 to the player.
12.
In addition, the members of the Chamber turned their attention to the 10 payments
made by the club to the player in Currency E, in the period between August 2014
and May 2015. As to the player’s argument that these payments were related to
match bonuses and not to salary payments, the Chamber noted that the player did
not substantiate his defence, as he did not present any evidence in support of his
position that these payments were not related to salary payments.
13.
Consequently, the DRC considered that the player had not sufficiently substantiated
this part of his claim as to the Chamber’s satisfaction, as he did not present any
conclusive documentary evidence, which could corroborate that the aforementioned
payments were only related to match bonuses, and therefore could not be
considered as salary payments. As a result, the members of the Chamber were of the
opinion that the 10 payment receipts for the above-mentioned payments, up to the
total amount of 163,000 equal according to the club to EUR 56,830, are to be
regarded as salary payments. Moreover, the Chamber noted that the player did not
challenge the conversion of the currency.
14.
Subsequently, the members of the Chamber took note of the player’s argument, that
the payments made on 6 November 2014, 20 November 2014 and 26 December 2014,
were not made in EUR as the club states, but in Currency E. As a result thereof, the
player argues that these payments only amounted to 52,000, and not to EUR 52,000
as argued by the club.
15.
Along those lines, the members of the Chamber turned their attention to the
player’s argument, that the aforementioned payment receipts he signed after
receiving a payment from the club, did not mention any currency, but that the
payments were made in Currency E and not in EUR. What is more, the Chamber also
noted that the club explained that, after the player signed the relevant payments
receipts, it added the word ‘Euro’ for reasons of ‘accountancy’, because no other
currency was indicated on the signed payment receipts.
Player A, Country B / Club C, Country D
6
16.
In this respect, the Chamber deemed it fit to emphasise that a party signing a
document of legal importance, such as a payment receipt, which is not duly specified,
as a general rule, does so on its own responsibility and is consequently liable to bear
the possible legal consequences arising from the execution of such document.
17.
Consequently, the Chamber concluded that the argument of the player that the
payments made on 6 November, 20 November and 26 December 2014 were made in
Currency E and not in EUR, could not be upheld. As a result, the Chamber established
that these payment receipts amount to EUR 52,000.
18.
In view of all the above, the members of the Chamber concluded the club could
prove at the Chamber’s satisfaction, that it paid the player the total amount EUR
308,830.
19.
As a result thereof, the Chamber established that the club, in the 2014/2015 season,
had failed to pay to the player the amount of EUR 91,170, in relation to salary
payments under the contract concluded between the parties on 21 August 2014.
20.
Consequently, and in accordance with the general legal principle of pacta sunt
servanda, the club must fulfil its obligations as per the contract concluded with the
player and, consequently, is to be held liable to pay the outstanding amount of EUR
91,170 to the player.
21.
Finally, the Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the player is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 91,170.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. is not paid by the Respondent within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limit and 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.
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.
*******
Player A, Country B / Club C, Country D
7
Note relating to the motivated decision (legal remedy):
According to art. 58 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:
Marco Villiger
Deputy Secretary General
Encl.
CAS directives
Player A, Country B / Club C, Country D
8