Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 November 2010,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
N,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 16 May 2007, the Brazilian player, N (hereinafter: the player or the Claimant),
concluded an employment contract (hereinafter: the contract) with the club, A
(hereinafter: the club or the Respondent), valid from 1 July 2007 until 31 June 2009.
2.
The contract provided for a net amount of EUR 25,000 for the season 2007/2008,
payable in 10 instalments of EUR 2,500 each as from on 30 July 2007 until 31 April 2008.
Equally, a bonus of EUR 10,000 was payable if the club remained in the first division. For
the season 2008/2009 the contract provided for a net amount of EUR 60,000, payable as
follows: EUR 5,000 on 30 June 2008 and 10 instalments of EUR 5,500 each as from on 30
July 2007 until 31 April 2008. Equally, a bonus of EUR 10,000 was payable if the club
remained in the first division.
3.
According to clause 4 of the contract incentives and bonuses are according to the
internal rules of the club.
4.
On 1 July 2007, both parties signed an additional agreement according to which the
club undertook the obligation to pay an additional amount of EUR 17,500 payable in 10
instalments of EUR 1,750 each as from on 30 July 2007.
5.
On 8 September 2009, the player contacted FIFA arguing that the club failed to pay him
the salaries of March 2009, April 2009 and May 2009 amounting each to EUR 5,500
(total EUR 16,500), Championship bonuses amounting to EUR 4,587, the bonus for the
2008/2009 season amounting to EUR 10,000 as well as the cup bonus amounting to EUR
3,700. The player requested all the aforementioned amounts plus 5% interest and legal
fees.
6.
The player explained that it had agreed orally with the club that the “football
department internal regulations” are applicable for the season 2008/2009.
7.
On 29 October 2009, the club explained that according to the contract the salaries were
payable as from July until April, therefore only the salary of March and April 2009 in the
total amount of EUR 11,000 are outstanding. Equally, the club acknowledges that the
bonus amounting to EUR 10,000 is outstanding. However, with regard to the
Championship and cup bonuses, the club vehemently contested any obligations, in
particular, considering that it never promised any bonuses to the player and that the
internal regulations have not been signed. Moreover, the club emphasised that if the
player deems that he is entitled to any additional bonuses he should provide the
relevant evidence. Finally, the club explained that the player had been fined in the
amount of EUR 3,000 since he participated in a strike and had refused to participate in
the trainings. As a result, the club offers to solve the matter by paying the outstanding
amounts of EUR 11,000 and EUR 10,000 after deducting the fine in the amount of EUR
3,000, i.e. the amount of EUR 18,000.
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8.
On 4 August 2010, the player explained that the club did not provide any evidence with
regard to the salary due on 28th February, the salary due on 31 March and the salary due
on 30 April 2009. Therefore, 3 salaries are still outstanding. Moreover, the player again
emphasised that according to the internal rules of the club and the “Regulations
Compulsory Bonus”, if the club finished at the end of the Cypriot Championship
2008/2009 within the 5-8 place, then the amount of EUR 170 will be paid for every
point. In this respect, the player provided a breakdown of the alleged matches and
points calculating the total championship bonuses due to him to EUR 4,587. Finally, and
with regard to the cup bonuses the player again insisted that it had been agreed orally.
9.
On 25 August 2010, the club informed FIFA that after a detailed examination through
its accounting it discovered that an additional amount of EUR 4,500 is owed to the
player. Therefore, the club admits that it owes to the player the amount of EUR 15,500
as outstanding salaries and the bonus of EUR 10,000. However, the club again
emphasised that no further bonuses had been agreed and would be due.
10.
On 17 September 2010, the player informed FIFA that he accepts as a settlement the
payment of the outstanding salaries amounting to EUR 16,500 and the bonus
amounting to EUR 10,000.
11.
Although invited by FIFA the club never provided any further statement and the player
requested a formal decision.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on 8
September 2009. Consequently, the 2008 edition of 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. 21 paras. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 paras. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 paras. 1 and 2 and art. 22 lit. b) of the
Regulations on the Status and Transfer of Players he is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between a Brazilian player and a Cypriot club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status
and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present
employment-related dispute.
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4.
Furthermore, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26
paras. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering
that the present claim was lodged on 8 September 2009, the 2008 edition of the said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the facts of the case as well as the documentation contained
in the file.
6.
In particular, the DRC judge acknowledged that the Claimant and the Respondent
signed an employment contract on 16 May 2007 and valid as from 1 July 2007 until 31
June 2009, in accordance with which the player was entitled to receive for the season
2007/2008 the total amount of EUR 25,000 as well as a bonus of EUR 10,000 and for the
season 2008/2009 the total amount of EUR 60,000 as well as a bonus of EUR 10,000. Also
the DRC judge acknowledged that on 1 July 2007, both parties signed an additional
agreement according to which the club undertook the obligation to pay an additional
amount of EUR 17,500 payable in 10 instalments of EUR 1,750 each as from on 30 July
2007.
7.
The DRC judge noted that the player claims that the Respondent failed to fulfil its
contractual obligations. In particular, the Claimant explained that the Respondent had
failed to pay him the salaries of March 2009, April 2009 and May 2009 amounting each
to EUR 5,500 (total EUR 16,500), Championship bonuses amounting to EUR 4,587, the
bonus for the 2008/2009 season amounting to EUR 10,000 as well as the cup bonus
amounting to EUR 3,700. The player requested all the aforementioned amounts plus
5% interest and legal fees. In particular, the Claimant explained that it had agreed
orally with the club that the “football department internal regulations” are applicable
for the season 2008/2009.
8.
The Respondent, for its part, underlined that according to the contract the salaries were
payable as from July until April, therefore only the salary of March and April 2009 in the
total amount of EUR 11,000 are outstanding. Equally, the club acknowledges that the
bonus amounting to EUR 10,000 is outstanding. However, with regard to the
Championship and cup bonuses, the club vehemently contested any obligations, in
particular, considering that it never promised any bonuses to the player and that the
internal regulations have not been signed. Moreover, the club emphasised that if the
player deems that he is entitled to any additional bonuses he should provide the
relevant evidence. Finally, the club explained that the player had been fined in the
amount of EUR 3,000 since he participated in a strike and had refused to participate in
the trainings. As a result, the club offers to solve the matter by paying the outstanding
amounts of EUR 11,000 and EUR 10,000 after deducting the fine in the amount of EUR
3,000, i.e. the amount of EUR 18,000.
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9.
Moreover, the decision-making body acknowledged that the Claimant explained that
the Respondent did not provide any evidence with regard to the salary due on 28th
February, the salary due on 31 March and the salary due on 30 April 2009. Therefore, 3
salaries are still outstanding. Equally, the DRC judged noted that the Respondent
acknowledged that an additional amount of EUR 4,500 is still due to the Claimant and
therefore the Respondent acknowledged that it still owes the amount of EUR 15,500 as
well as the bonus in the amount of EUR 10,000. Finally, the DRC judge took due note
that the Claimant informed FIFA that he accepts as a settlement the payment of the
outstanding three salaries amounting to EUR 16,500 and the bonus amounting to EUR
10,000 and that the Respondent never provided any further statement.
10.
In continuation, the DRC judge referred to the contract at the basis of the dispute and
underlined that the Claimant was entitled to receive during the season 2008/2009 a
salary amounting to EUR 5,500 as well as a bonus in the amount of EUR 10,000.
Moreover, the DRC judge considered that it is uncontested by both parties that the
bonus in the amount of EUR 10,000 is due to the Claimant as well as the fact that the
Claimant rendered his services until the expiry of the contract. In continuation, the
decision-making body emphasised that, as a general principle, a club is obliged to
remunerate a player, as agreed between the parties, for the period of time during
which he has rendered his services to the club, unless the club can justify the nonpayment of the agreed remuneration.
11.
In this respect, the DRC judge considered, on the one hand, that the Claimant argues
that the three salaries due on 28th February, on 31 March and on 30 April 2009 each in
the amount of EUR 5,500 have not been paid by the Respondent. On the other hand,
the DRC judge noted that the Respondent has not provided any documentary evidence
with regard to the payment of the aforementioned salaries.
12.
As a result, the DRC judge concluded that the Respondent is obliged to pay to the
Claimant the three outstanding salaries in the amount of EUR 16,500 as well as the
bonus in the amount of EUR 10,000.
III.
Decision of the DRC judge
1.
The claim of the Claimant, N, is accepted.
2.
The Respondent, Club A, has to pay to the Claimant, N, the amount of EUR 26,500
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the above-mentioned deadline, interest at
the rate of 5% per year will apply as of expiry of the stipulated time limit and the
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present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
4.
The Claimant, N, is directed to inform the Respondent, Club A, 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.
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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
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