Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mick McGuire (England), member
Carlos Soto (Chile), member
Zola Malvern Percival Majavu (South Africa), member
Ivan Gazidis (USA), member
on the claim submitted by
the player F,
as “Claimant”
against
the club I,
as ”Respondent”
regarding an employment-related dispute.
I.
Facts of the case
1.
On 8 July 2005, the Respondent I and the Claimant F signed an employment
contract valid from the same date until 30 June 2007. This contract stipulated,
among other things, that the Claimant would receive a net salary of EUR 80,000
for both the 2005-2006 and the 2006-2007 seasons. According to the said contract,
the payments were to be effected as follows:
For the 2005-2006 season:
-
EUR 20,000, on 30 September 2005;
EUR 20,000, on 30 November 2005;
EUR 20,000, on 31 January 2006;
EUR 20,000, on 31 March 2006;
For the 2006-2007 season:
-
EUR 20,000, on 30 September 2006;
EUR 20,000, on 30 November 2006;
EUR 20,000, on 31 January 2007;
EUR 20,000, on 31 March 2007.
The employment contract in question also stipulated that the Claimant would
receive regular net monthly emoluments of EUR 640, which were to be paid no
later than the end of each month (first payment on 31 July 2005) of the year.
Moreover, the contract stipulated that a bonus of EUR 20,000 would be paid in
the event of qualification for the UEFA Cup.
2.
On 9 October 2007, the Claimant submitted a claim against the Respondent to
FIFA, demanding that:
a.
the Respondent be ordered to pay the sum of EUR 92,360, for outstanding
salary payments, emoluments and various bonuses, that is:
i.
a total sum of EUR 54,680, consisting of the outstanding salary
payments, emoluments and bonuses for the 2005-2006 season,
divided as follows:
1.
net salary payments of EUR 32,000;
2.
monthly emoluments totaling EUR 7,680 (12 x EUR 640);
3.
and a bonus of EUR 15,000 for qualifying for the UEFA Cup at the
end of the 2005-2006 season;
2
ii.
in addition to a total sum of EUR 37,680, consisting of outstanding
salary payments, emoluments and bonuses for the 2006-2007 season,
divided as follows:
1.
net salary payments of EUR 30,000;
2.
and monthly emoluments totaling EUR 7,680 (12 x EUR 640);
b.
the Respondent be ordered to reimburse the player the EUR 15,000 that it
had cost him to protect his rights;
c.
the Respondent be ordered to pay EUR 500 per day for each day the
payment owed to the player was overdue, in accordance with the verdict to
come;
d.
all the appropriate disciplinary measures be taken against the Respondent.
3.
The Claimant maintains that by the date he lodged his claim (9 October 2007), he
had received only EUR 98,000 of the EUR 160,000 due in salary payments.
Moreover, the Claimant claims not to have received any of the EUR 15,360
(EUR 640 x 12 x 2) due in monthly emoluments during the 2005-2006 and 20062007 seasons. Finally, he claims not to have received the bonus of EUR 15,000 for
qualification for the UEFA Cup.
4.
In a letter dated 10 July 2007, the Claimant served the Respondent with formal
notice of his demand for payment, to which the club has apparently not
responded.
5.
Despite being issued with injunctions by FIFA dated 2 June, 14 and 28 July 2008 to
reply to the claim lodged by the Claimant, the Respondent has failed to respond.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 9 October 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18
par. 2 and 3 of the Procedural Rules).
3
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 2008) 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 and a club.
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 2008), and considering that the present claim was lodged on
9 October 2007, the previous version of the regulations (edition 2005; 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. The members
of the Chamber started by acknowledging that the Respondent and the Claimant
signed on 8 July 2005 an employment contract valid from this date until
30 June 2007.
5.
Furthermore, the Chamber noted that this contract stipulated, among other
things, that the Claimant would receive a net salary of EUR 80,000 for both the
2005-2006 and the 2006-2007 seasons. Moreover, the Chamber noted that the
employment contract in question also stipulated that the Claimant would receive
regular net monthly emoluments of EUR 640, which were to be paid no later than
the end of each month (first payment on 31 July 2005) of the year. Finally, the
Chamber noted that the contract stipulated that a bonus of EUR 20,000 would be
paid in the event of qualification for the UEFA Cup.
6.
In continuation, the Chamber acknowledged that on 9 October 2007 the Claimant
submitted a claim to FIFA against the Respondent, demanding that the
Respondent be ordered to pay the sum of EUR 92,360, for outstanding salary
payments, emoluments and various bonuses, whereas the Claimant claimed a
bonus of EUR 15,000 for qualifying for the UEFA Cup at the end of the 2005-2006
season. Furthermore, the Chamber acknowledged that on 8 September 2008 the
Claimant specified his claim asking a bonus of EUR 20,000 for qualifying for the
UEFA Cup at the end of the 2005-2006 season, as stipulated in the contract.
Therefore, the Chamber acknowledged that the Claimant increased the total
amount in dispute to a sum of EUR 97,360.
7.
In this respect, the Chamber observed that the Respondent never took position in
the dispute, despite having been asked to do so by FIFA on several occasions and
4
underlined that in this way the Respondent renounced to its right to defense and,
thus, accepted the allegations of the Claimant.
8.
As a consequence, the Chamber concluded that the Claimant has not received a
part of his salary for the 2005-2006 season amounting to EUR 32,000, all monthly
emoluments for the 2005-2006 season amounting to EUR 7,680, as well as the
bonus for qualifying for the UEFA Cup at the end of the 2005-2006 season
amounting to EUR 20,000, and that the Claimant has not received a part of his
salary for the 2006-2007 season amounting to EUR 30,000 as well as all monthly
emoluments for the 2006-2007 season amounting to EUR 7,680. The Chamber
concluded therefore that a total amount of USD 97,360 remains outstanding.
9.
With regard to the requested emoluments for the 2005-2006 season and in
accordance with art. 25 par. 5 of the Regulations, the Chamber pointed out that
three emoluments (due per 31 July, 31 August and 30 September 2005) were
statute-barred (prescripted), since the Claimant had submitted his claim on
9 October 2007.
10.
Finally, with regard to the requested reimbursement of the costs amounting to
EUR 15,000 the Claimant had to spend to protect his rights as well as to the
penalty of EUR 500 per day for each day the payment owed to the player was
overdue, in accordance with the verdict to come, the Chamber pointed out in
accordance with its jurisprudence that it denies to award the Claimant the claimed
costs. In this respect, the Chamber took in particular note that the Claimant did
not claim any interests, but a penalty. As a consequence, the members of the
Chamber agreed that the demands concerning costs and penalty cannot be taken
into consideration.
11.
On account of the above, having thus analyzed the various aspects of the present
claim, the Chamber concluded its deliberations by announcing that the Claimant’s
claim was partially accepted.
12.
Taking into account all of the above, the Dispute Resolution Chamber decided
that the Respondent must pay the amount of USD 95’440 to the Claimant.
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant F is partially accepted.
2.
The Respondent I has to pay the amount of EUR 95,440 to the Claimant within 30
days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to
FIFA’s Disciplinary Committee for consideration and 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 Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
6