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
Alejandro Marón (Argentina), member
Taku Nomiya (Japan), member
Mohamed S. Al-Saikhan (Saudi Arabia), member
Johan van Gaalen (South Africa), member
Carlos González Puche (Colombia), member
John Bramhall (England), member
on the claim presented by the player,
Player J, from country F
as Claimant
against the club,
Club P, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 23 January 2012, Player J, from country F (hereinafter: Claimant) and the Club
P, from country G (hereinafter: Respondent) signed an employment contract valid
as from the day of signature until 30 June 2012 (hereinafter: contract).
2.
In accordance with the contract, the Claimant was entitled to receive inter alia the
amount of EUR 35,560 in six instalments as from January 2012 until June 2012; the
first instalment of EUR 10,000 falling due on 23 January 2012.
3.
On 18 December 2012, the Claimant put the Respondent in default of payment of
the amount of EUR 35,560.
4.
This default notice having remained unanswered, on 18 February 2013, the
Claimant lodged a claim against the Respondent in front of FIFA asking to be
awarded payment of the aforementioned amount of EUR 35,560 plus interest at
5% p.a. as of 18 December 2012.
5.
In addition, the Claimant asks to be awarded the amount of EUR 10,000 as
compensation for frivolous defence as well as the amount of EUR 10,000 as
compensation for moral damages.
6.
Furthermore, the Claimant asks that the Respondent be ordered to remit the
relevant salary account statements and social contribution documents related
thereto.
7.
The Respondent, for its part, maintains that the first instalment of EUR 10,000,
which fell due with the signature of the contract, was paid to the Claimant by
means of a cheque.
8.
At the time of its reply to the claim, the Respondent indicated that it was waiting
for the relevant documents to be issued by its bank. At the same time it reserved
its right to present these documents once they were received from the bank. No
further documents, however, were ultimately presented by the Respondent.
9.
The Respondent admits that it owes the amount of EUR 25,560 to the Claimant
and rejects any further claim lodged by the latter.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 18
February 2013. Consequently, the Rules governing the procedures of the Players’
Player J, from country F / Club P, from county
Page 2 of 5
Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
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 F player and a country G club.
3.
In this respect, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 22 November 2013 by means of which the parties
were informed of the composition of the Chamber, the member Mr G and the
member Mr M refrained from participating in the deliberations in the case at hand,
due to the fact that the member Mr G has the same nationality as the Respondent
and that, in order to comply with the prerequisite of equal representation of club and
player representatives, also the member Mr M refrained from participating.
4.
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 2012),
and considering that the present claim was lodged on 18 February 2013, the 2012
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
5.
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 the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. The Chamber, however,
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.
6.
The DRC acknowledged that the Claimant and the Respondent had concluded an
employment contract valid as of 23 January 2012 until 30 June 2012. The financial
terms of the agreement provided inter alia that the Respondent remunerate the
Claimant EUR 35,560 payable in six months instalments: the first being of EUR 10,000
payable on 23 January 2012, and thereafter five monthly instalments of EUR 5,112
each until 30 June 2012.
7.
The Chamber then observed that the Claimant lodged a claim in front of FIFA against
the Respondent seeking payment of the amount of EUR 35,560, indicating that the
Claimant had never received any payment from the Respondent.
8.
Subsequently, the Chamber noted that the Respondent, in its defence, disputed the
amount claimed, stating a cheque for EUR 10,000 had been paid. It did not dispute,
however, that the monthly instalments of EUR 5,112 from February until June 2012
had not been paid.
Player J, from country F / Club P, from county
Page 3 of 5
9.
In this context, the Chamber recalled the basic principle of the 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.
The Chamber noted that, although having been invited to do so, the Respondent did
not provide any documentary evidence in support of its claim.
11.
Consequently, the Chamber considered that the Respondent had not sufficiently
substantiated its defence, as it did not present any conclusive documentary evidence
which could corroborate that certain amounts should be deducted from the
outstanding salaries claimed.
12.
In view of all of the above and, in particular, taking into account that the Respondent
did not contest that the remaining relevant salaries had remained unpaid, the
Chamber decided that, in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its contractual obligations towards the Claimant
and is to be held liable to pay the Claimant the total amount of EUR 35,560.
13.
In continuation, taking into account the Claimant’s request for interest and in
accordance with its constant practice, the Chamber decided that the Claimant is
entitled to receive a 5% interest p.a. of the total amount of EUR 35,560, due from 18
December 2012 until the date of effective payment.
14.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player J, is partially accepted.
2.
The Respondent, Club P, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount EUR 35,560 plus interest at the
rate of 5% p.a. applicable as of 18 December 2012 until the date of effective
payment.
3.
In the event that the amount plus interest due to the Claimant is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
Any further request filed by the Claimant is rejected.
Player J, from country F / Club P, from county
Page 4 of 5
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 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:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player J, from country F / Club P, from county
Page 5 of 5