Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 November 2013,
in the following composition:
Geoff Thompson (England), Chairman
Taku Nomiya (Japan), member
Mohamed S. Al-Saikhan (Saudi Arabia), member
Alejandro Marón (Argentina), member
Theodore Giannikos (Greece), member
Rinaldo Martorelli (Brazil), member
Johan van Gaalen (South Africa), member
Carlos González Puche (Colombia), member
Mr. John Bramhall (England), member
on the claim presented by the player,
Player D, from country P
as Claimant
against the club,
Club O, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 1 June 2012, Player D, from country P (hereinafter: the player or Claimant),
and Club O, from country C (hereinafter: the club or Respondent), concluded an
employment contract (hereinafter: the contract) valid as from “the day of
receiving the International Transfer Certificate” until 31 May 2013.
2.
In accordance with the contract, the Claimant was entitled to EUR 10,000,
payable in 10 equal installments of EUR 1,000 between 30 August 2012 and 31
May 2013.
3.
On 2 June 2012, the Claimant and the Respondent signed an additional
agreement establishing that the Claimant would receive the amount of EUR
40,000, payable in 10 equal installments of EUR 4,000 between 30 August 2012
and 31 May 2013. Furthermore, the agreement established that the Claimant
was entitled to rent “up to 600 EURO” as well as one return ticket country C –
country P.
4.
On 7 December 2012, the Claimant and the Respondent signed a “Declaration”
by means of which the Claimant acknowledged having received the amount of
EUR 598 “for the payment of full salary of April 2011/2012”. Equally, the
“Declaration” specified that “the amount of EUR 7,000 which correspond to the
last salary of the season 2011/2012, will be separated and paid in 10 equal
installment during the football period 2012/2013”.
5.
On 6 September 2013, the Claimant lodged a claim in front of FIFA against the
Respondent explaining that the latter had not fully complied with its
contractual obligations. Therefore, the Claimant requested payment of the total
amount of EUR “42,900”, calculated as follows:
- EUR 30,000
- EUR 4,500
- EUR 3,000
- EUR 510
- EUR 4,900
for the salaries of December 2012 until May 2013;
for the remaining part of the November 2012 salary;
for the rent of January to May 2013;
for a “family return ticket to country P”;
for the payments due in accordance with the
“Declaration”, whilst outlining that the club had only paid
three of those installments.
6.
In addition, the Claimant requested 5% interest “from the dates of the
installments”.
7.
Despite having been invited by FIFA to provide its position in respect of the
claim lodged by the Claimant, the Respondent did not answer, although it was
informed that in absence of a reply, a decision would be taken upon the basis
of the documents already on file.
Player D, from country P / Club O, from country C
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the
matter at stake. In this respect, it took note that the present matter was
submitted to FIFA on 6 September 2013. Consequently, the 2012 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 2012 edition 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 2012), 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 country P player and a country C club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2012), and considering that the claim was lodged
on 6 September 2013, the 2012 edition of the aforementioned regulations
(hereinafter: the 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, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
In this respect and first of all, the DRC acknowledged that on 1 June 2012 and
2 June 2012, the Claimant and the Respondent concluded, respectively, an
employment contract and an additional agreement, establishing that the
player would receive as salary the total amount of EUR 50,000, payable in 10
equal installment between 30 August 2012 and 31 May 2013. Furthermore, the
additional agreement established that the Claimant was entitled to a rent
allowance “up to 600 EURO” as well as one return ticket country C – country P.
6.
Equally, the DRC noted that on 7 December 2012, the Claimant and the
Respondent signed a “Declaration” by means of which the Claimant
acknowledged having received the amount of EUR 598 “for the payment of
full salary of April 2011/2012”. In addition, the “Declaration” specified that
“the amount of EUR 7,000 which correspond to the last salary of the season
2011/2012, will be separated and paid in 10 equal installment during the
football period 2012/2013”.
Player D, from country P / Club O, from country C
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7.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the amount of EUR 42,900
corresponding to outstanding salaries, rent allowances, one “family return
tickets to country P” and the amounts due as per the” Declaration”, asserting
that the Respondent had not fully complied with its contractual obligations
towards him.
8.
Furthermore, the DRC noted that the Respondent had been given the
opportunity to reply to the claim submitted by the Claimant, but that the
Respondent had failed to present its response to the claim. In this way, the
Chamber deemed that the Respondent renounced to its right of defence and,
thus, accepted the allegations of the Claimant.
9.
As a consequence of the preceding consideration, the DRC established that, in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision
upon the basis of the documents on file.
10.
On account of the aforementioned considerations, the Chamber established
that the Respondent had failed to fully pay the Claimant the amounts as
agreed upon in the employment contract, additional agreement and
“Declaration”, totalling the amount of EUR 42,900. Consequently, the DRC
concluded that, in accordance with the general legal principle of “pacta sunt
servanda”, the Respondent is liable to pay the Claimant the amount of EUR
42,900.
11.
Finally, and with regard to the Claimant's request for interest, the DRC decided
that the Claimant is entitled to receive interest at the rate of 5% p.a. on the
outstanding salaries as from the day after the respective due dates and, in
relation to the amounts corresponding to the “Declaration” and the flight
ticket, as from 6 September 2013.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player D, is accepted.
2.
The Respondent, Club O, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 42,900 plus 5%
interest until the date of effective payment as follows:
a. 5% p.a. as of 1 December 2012 on the amount of EUR 4,500;
b. 5% p.a. as of 1 January 2013 on the amount of EUR 5,000;
c. 5% p.a. as of 1 February 2013 on the amount of EUR 5,600;
d. 5% p.a. as of 1 March 2013 on the amount of EUR 5,600;
e. 5% p.a. as of 1 April 2013 on the amount of EUR 5,600;
Player D, from country P / Club O, from country C
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f. 5% p.a. as of 1 May 2013 on the amount of EUR 5,600;
g. 5% p.a. as of 1 June 2013 on the amount of EUR 5,600;
h. 5% p.a. as of 6 September 2013 on the amount of EUR 5,400.
3.
In the event that the aforementioned sum plus interest is not paid by the
Respondent within the stated time limit, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
4.
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
Deputy Secretary General
Encl. CAS Directives
Player D, from country P / Club O, from country C
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