Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed in Zurich, Switzerland, on 3 October 2018,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Play er 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 cas e
1. On 20 July 2015, the player of Country B, Player A (hereinafter: the Claimant), and
the club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract valid as from 1 August 2015 until 31 May 2016.
2. According to art. 6 of the employment contract, the Claimant was entitled, inter
alia, to a total remuneration of 349,260 in the currency of Country D, in ten equal
monthly instalments of 34,926 in the currency of Country D each.
3. According to the same provision, said amounts were “gross payments from which
the [Respondent] shall deduct income Tax and National Insurance as set down by
law”.
4. According to art. 4 of the employment contract, “the [Respondent] undertakes
[…] 1) to insure the [Claimant] at its expense, beginning from the day this
Agreement begins and until the day its validity ends, including during the official
season following the end of the period of this Agreement, against personal
accidents causing death and/or disability and/or loss of the [Claimant]’s ability to
work, in adequate amounts that shall not be less than that specified in the Law of
Sports -1988 and in the Regulations derived therefrom and to cover all of the
[Claimant]’s activities, in Country D and abroad, both within the framework of
Country D’s National Club. 2) The [Claimant] confirms that the terms and amounts
of the insurance coverage taken out for him by the [Respondent], as stated above,
and which has been shown to him, is to his full satisfaction and that he will not
have any claims and/or demands whatever against the [Respondent] and/or the
Association in this regard”.
5. On 29 September 2017, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded the total amount of EUR 12,890, plus 5%
interest p.a. as of 1 June 2016 and reimbursement of legal costs in the amount of
EUR 1,000.
6. More specifically, the Claimant argued that the Respondent had not paid him the
salaries for October 2015, November 2015 and May 2016, plus “the car use costs”.
Moreover, the Claimant argued that he had asked the Respondent multiple times
to pay but that the latter had refused to do so, stating that, during the relevant
period of time, the Claimant was injured and, therefore, an insurance company
should have paid him.
7. With regards to the above, the Claimant specified that, during the whole
employment relationship, the Respondent failed to remit him the total amount of
54,144 in the currency of Country D, representing the above-mentioned salaries
and the car costs. The Claimant further argued that “according to the official data
of the International financial market and economy, 1 Euro equals 4,20 in the
currency of Country D”, and consequently claimed EUR 12,890.
Player A, Country B / Club C, Country D
2/9
8. Furthermore, the Claimant explained that the Respondent’s position concerning
the payment during the time he was injured stands in contrast with the
employment contract, which does not provide for an insurance company to pay
on behalf of the Respondent.
9. In its reply, the Respondent asked that the claim be rejected for the amount
claimed. Subsidiarily, it held that, “if it is decided that the [Respondent] has to pay
for the period in which he was incapable of working”, the Claimant should only
be entitled to 14,653 in the currency of Country D.
10. More in particular, the Respondent explained that it had paid the Claimant 8 of
the 10 months of the season concerned and that it had an insurance in place for
the event that players of the team got injured. The Respondent argued that, in
such case, it was exempted from paying the Claimant his salary while the
insurance was supposed to pay the latter a compensation based on his monthly
remuneration.
11. In continuation, the Respondent recalled that the Claimant was injured twice and
that, consequently, he could not train or play, respectively, between 17 August
and 18 September 2015 and between 31 January and 28 February 2016. In this
respect, the Respondent argued that the insurance made a payment towards the
player for each injury (i.e. for 2 months), totalling, after tax deduction, net 39,491
in the currency of Country D.
12. In his replica, the Claimant entirely reiterated his position and, acknowledging the
receipt of the insurance’s payment of 39,491 in the currency of Country D on 7
June 2016, added that his financial requests were net of that payment. In other
words, the Claimant specified that he was demanding only the residual amounts
of his salaries after what the insurance had paid. More in particular, the Claimant
explained that, according to the employment contract, 3 full salaries would have
totalled 104,778 in the currency of Country D, whereas he was only requesting
54,144 in the currency of Country D.
13. Furthermore, the Claimant added that the Respondent recognised being in debt
towards him through a letter it sent to him on 1 November 2017, where it offered
to settle the dispute by paying him 14,653 in the currency of Country D.
14. In its duplica, the Respondent maintained that the parties had signed a “precontract” which was not mentioned by the Claimant.
15. In this respect, the Respondent explained that, according to said “pre-contract”,
the Claimant was entitled to EUR 7,000 per month for ten months, i.e. EUR 70,000.
Furthermore, according to the Respondent, the exchange rate to be considered in
this case should be EUR 1 = currency of Country D 4,13. Therefore, according to
the Respondent, the Claimant was entitled to a total remuneration of 289,100 in
the currency of Country D for 10 months.
Player A, Country B / Club C, Country D
3/9
16. Furthermore, the Respondent argued that, for the time in which the Claimant was
not injured, it remitted the latter payments for the total net amount of 259,910 in
the currency of Country D. Consequently, the Respondent concluded that, after
the insurance payment (i.e. 39,491 in the currency of Country D), the Respondent
had received more than what he was entitled to, i.e. 299,401 in the currency of
Country D compared to 289,100 in the currency of Country D allegedly established
in the “pre-contract”.
II.
Cons iderations of the DRC judge
1.
First of all, the 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 29 September 2017. Consequently, the DRC judge
concluded that the 2017 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 2017 and
2018 editions of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 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 2018) he 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.
3.
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, the DRC judge confirmed that in accordance with art. 26
par. 1 and par. 2 of said Regulations (editions 2016 and 2018) and considering
that the present claim was lodged in front of FIFA on 29 September 2017, the
2016 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.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the DRC judge emphasised that in the following considerations he will
refer only to the facts, arguments and documentary evidence, which he
considered pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC judge acknowledged that, on 20 July 2015, the Claimant
and the Respondent signed an employment contract, pursuant to which the
Respondent undertook, inter alia, to pay to the Claimant a total remuneration
Player A, Country B / Club C, Country D
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of 349,260 in the currency of Country D, in ten equal monthly instalments of
34,926 in the currency of Country D each.
6.
In continuation, the DRC judge noted that, according to the Claimant, during
the course of the employment relationship, the Respondent failed to remit him
the total amount of 54,144 in the currency of Country D, representing his
salaries for October 2015, November 2015, May 2016 and the car costs. In this
respect, the DRC judge noticed that the Claimant requested to be awarded said
amount in EUR, namely EUR 12,890.
7.
Furthermore, the DRC judge took note that the Respondent, for its part,
claimed that it had paid the Claimant 8 out of 10 months during which he
performed his services and that, for the 2 months in which he could not due to
his injury, an insurance paid him on behalf of the Respondent, thus relieving the
latter from any indebtedness towards the Claimant in that respect.
8.
With regards to the above, the DRC judge observed that the Respondent
explained that the insurance paid the Claimant a total amount of 39,491 in the
currency of Country D and that the Claimant acknowledged having received
said sum. However, the DRC judge also took note that the Claimant added that
he was demanding the residual amounts after what the insurance had paid.
9.
The DRC judge further pointed out that the Respondent, with its last
submission, argued that the parties had signed a “pre-contract” which had not
been mentioned by the Claimant and according to which the latter was entitled
to the total amount of EUR 70,000 for the entire employment relationship. The
DRC judge observed that, according to the Respondent, said total amount
corresponded to 289,100 in the currency of Country D, applying the exchange
rate of EUR 1 = currency of Country D 4,13. Therefore, the DRC judge noted that
the Respondent claimed having fulfilled all the financial obligations it had
towards the Claimant, given that the latter had allegedly received more than
what he was entitled to in accordance with the “pre-contract”.
10.
In light of the aforementioned, the DRC judge emphasised the need to address
the following series of issues: a. what was the binding document defining the
contractual obligations of the parties?; b. was the Respondent entirely
exempted from paying the Claimant’s salaries during the months in which he
was injured?; c. was the Claimant entitled to any outstanding remuneration?; d.
finally, should the previous question be answered in the affirmative, to which
amount and in which currency?
11.
With regards to the first issue, the DRC judge recalled that, with its last
submission, the Respondent produced a signed copy of a so-called “precontract” that the parties signed on 30 June 2015, arguing that the Claimant’s
entitlements were bindingly outlined in said document rather than in the
employment contract of 20 July 2015. In this respect, the DRC judge had to
observe, as a preliminary remark, that what the Respondent considered to be
Player A, Country B / Club C, Country D
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the sole document defining the financial obligations of the parties had been
submitted by the latter only with its last submission rather than, as one would
expect, with its reply to the claim.
12.
Most importantly, the DRC judge underlined that said document, rather than a
binding employment contract, appears to be a simple letter of commitment to
conclude a contract, whereby the Respondent outlined the financial relationship
between the parties “in case if the [Claimant] […] will sign an agreement with
us for the season 2015/2016” and specified that “the signing of the contract
with the [Claimant] is conditional to the results of the medical tests […]”. In
other words, the DRC judge observed that the “pre-contract” itself suggests
that it was meant to be replaced by the ensuing employment contract, which
was in fact concluded almost a month after.
13.
Moreover, the DRC judge, mindful that in accordance with art. 6 par. 3 of
Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or
evidence generated or contained in the TMS, recalled that the contract of 20
July 2015 was the only one uploaded in the TMS.
14.
Consequently, the DRC judge established that the parties intended and agreed
that the employment contract signed on 20 July 2015 included the sole financial
obligations of the Respondent towards the Claimant, i.e., inter alia, a total
remuneration of 349,260 in the currency of Country D, in ten equal monthly
instalments of 34,926 in the currency of Country D each.
15.
In continuation, the DRC judge analysed whether the Respondent could validly
uphold being exempted from the obligation to remit the Claimant his salaries
for the period of time in which the latter could not perform his services.
16.
In this respect, the DRC judge turned his attention to, and deemed it
worthwhile to recall, the only insurance-related clause envisaged in the
employment contract, i.e. art. 4, which reads as follows: “the [Respondent]
undertakes […] 1) to insure the [Claimant] at its expense, beginning from the
day this Agreement begins and until the day its validity ends, including during
the official season following the end of the period of this Agreement, against
personal accidents causing death and/or disability and/or loss of the [Claimant]’s
ability to work, in adequate amounts that shall not be less than that specified in
the Law of Sports -1988 and in the Regulations derived therefrom and to cover
all of the [Claimant]’s activities, in Country D and abroad, both within the
framework of Country D’s National Club. 2) The [Claimant] confirms that the
terms and amounts of the insurance coverage taken out for him by the
[Respondent], as stated above, and which has been shown to him, is to his full
satisfaction and that he will not have any claims and/or demands whatever
against the [Respondent] and/or the Association in this regard”.
Player A, Country B / Club C, Country D
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17.
Consequently, the DRC judge, after having analysed the literal tenor of the
above-mentioned clause, had to conclude that nowhere therein was to be
found any indication that, in case of injuries, an insurance company would take
over the Respondent’s obligations to pay the Claimant’s salaries.
18.
Moreover, the DRC judge, bearing in mind art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof, observed that the Respondent did not
provide any alternative evidence corroborating the allegations on the basis of
which it would be exempted from its main obligation or even showing which
percentage of the salary had to be paid by the insurance.
19.
On account of all the above considerations, the DRC judge could not uphold the
Respondent’s argumentation on the point. Consequently, the DRC judge
concluded that the Respondent was bound to pay the Claimant’s salaries in full
even during the months in which the latter was injured.
20.
The foregoing being established, the DRC judge turned his attention to the
question as to whether the Claimant was entitled to any outstanding
remuneration and, in the affirmative, to the amount.
21.
In this respect, the DRC judge first and foremost observed that it remained
uncontested that the Claimant received a payment of 39,491 in the currency of
Country D. Furthermore, the DRC judge, mindful of the above-mentioned
provision of the Procedural Rules, noted that the Respondent produced
documents attesting payments made towards the player, allegedly covering the
entire employment relationship, for a total amount of 259,910 in the currency
of Country D. Consequently, after having carefully considered the evidence
before him, it appeared to the DRC judge that the Claimant had received from
the Respondent the total amount of 299,401 in the currency of Country D for
the whole length of the employment relationship whereas, according to art. 6
of the employment contract, he was entitled to 349,260 in the currency of
Country D, thus 49,859 in the currency of Country D more.
22.
In relation to the above, and for the sake of completeness, the DRC judge took
into account the question of whether the Claimant’s salaries were to be
considered gross or net. In this respect, the DRC judge was eager to underline
that, although the second part of art. 6 of the employment contract seems to
indicate otherwise, said amounts had to be considered net in light of the
payments actually performed by the Respondent.
23.
More specifically, the DRC judge noticed that, not only did the payment slips
submitted by the Respondent not allow to retrieve a uniform ratio between net
and gross amounts to be applied as tax deduction to other payments (for
instance 39,491 in the currency of Country D paid by the insurance), but they
were also not consistent with a different interpretation of the contract, showing
on average payments around net 35,000 in the currency of Country D.
Player A, Country B / Club C, Country D
7/9
24.
The DRC judge further underlined that the calculation of the Claimant’s
outstanding entitlements was carried out taking into account only the salaries
due and effectively paid, while the “car use costs” alleged by the Claimant with
his claim were disregarded, as the Claimant failed to provide a specific amount
related to such costs as well as any evidence corroborating the related
entitlement and the costs effectively incurred.
25.
Finally, the DRC judge observed that the Claimant requested to be awarded the
amount of EUR 12,890 as outstanding remuneration. However, the DRC judge
found it important to note that nowhere in the employment contract was
provided that the Claimant’s salaries had to be paid in a currency other than
currency of Country D.
26.
On account of the above considerations and the documentation on file, the DRC
judge decided that, in accordance with the general legal principle of “pacta
sunt servanda”, the Respondent is liable to pay the amount of 49,859 in the
currency of Country D to the Claimant.
27.
In addition, taking into account the Claimant’s claim, the DRC judge decided to
award the Claimant interest of 5% p.a. as of the day following the expiry of the
employment contract.
28.
In addition, as regards the claimed legal expenses, the DRC judge referred to
art. 18 par. 4 of the Procedural Rules as well as to the longstanding and wellestablished jurisprudence of the Dispute Resolution Chamber, in accordance
with which no procedural compensation shall be awarded in proceedings in
front of the Dispute Resolution Chamber and the DRC judge. Consequently, the
DRC judge decided to reject the Claimant’s request relating to legal expenses.
29.
The DRC judge concluded his deliberations in the present matter by rejecting
any further claim of the Claimant.
III.
Decis ion of the DRC judge
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, outstanding remuneration in the amount of
49,859 in the currency of Country D, plus 5% interest p.a. as from 1 June 2016
until the date of effective payment.
3. In the event that the above-mentioned amount plus interest due to the Claimant
is not paid by the Respondent within the stated time limit, the present matter
Player A, Country B / Club C, Country D
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shall be submitted, upon request, to FIFA’s 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 DRC
judge of every payment received.
*****
Note relating to the m otiv ated decis ion (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 (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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