Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 November 2014,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, from country B
as Claimant / Counter-Respondent
against the club,
Club C, from country D
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 6 July 2011, the player from country B, Player A (hereinafter: the Claimant /
Counter-Respondent), and the club from country D, Club C (hereinafter: the
Respondent / Counter-Claimant), signed an employment contract (hereinafter:
the contract) valid as from 1 July 2011 until 30 June 2012.
2.
According to the contract, the Claimant / Counter-Respondent was entitled to
receive a monthly salary in the sum of 962,118 gross, which according to the
Claimant / Counter-Respondent amounted to 800,000 net.
3.
Furthermore, in accordance with annex II enclosed to the contract, the
Respondent / Counter-Claimant would provide the Claimant / CounterRespondent with “a flat with one and two half rooms at a quarter of the town
and places a Chevrolet type motor car owned by the Association at the
employee’s [the Claimant / Counter-Respondent] disposal the maintenance and
other costs whereof will be covered by the employee”.
4.
Article III.3 of the contract establishes that “the employer [the Respondent /
Counter-Claimant] has the right to diminish the benefits set forth in Section III
to the extent of damages caused by the employee [the Claimant / CounterRespondent] through violation of contractual obligations”.
5.
On 6 December 2012, the Claimant / Counter-Respondent lodged a claim
against the Respondent / Counter-Claimant in front of FIFA requesting
outstanding salaries in the amount of 3,609,445 plus 5% interest as from each
due date, according to the following breakdown:
- 4,000,000 net as outstanding salaries for the period as from February until
June 2012, considering a monthly salary of 800,000 net;
- 540,000 net for the rental payment of the apartment for the period as from
October 2011 until June 2012, in the monthly amount of 60,000;
- minus 130,555 net already paid by the Respondent / Counter-Claimant on 11
April 2012;
- minus 800,000 net already paid by the Respondent / Counter-Claimant on 24
August 2012.
6.
Furthermore, the Claimant / Counter-Respondent requested the amount of
EUR 250 per day of delay of the payment of the due amounts by the
Respondent / Counter-Claimant, the sum of EUR 5,000 as legal expenses, as
well as sporting sanctions for the Respondent / Counter-Claimant.
7.
According to the Claimant / Counter-Respondent, the Respondent / CounterClaimant paid his salaries with delay during the 2011/2012 season and, as from
Player A, from country B / Club C, from country D
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February 2012, it did not pay his salaries anymore. In this regard, the Claimant /
Counter-Respondent sent a letter to the Respondent / Counter-Claimant on 1
August 2012, requesting the payment of his salaries in the amount of
4,540,000. As, according to the Claimant / Counter-Respondent, he did not
receive a response to the aforementioned letter, he sent a new one on 10
September 2012, to which he did not receive a reply either.
8.
The Respondent / Counter-Claimant replied to the Claimant / CounterRespondent’s claim fully rejecting it. The Respondent / Counter-Claimant
declared that the Claimant / Counter-Respondent had been absent from
trainings, without its authorization, between 4 February and 26 March 2012
and for the whole month of June 2012. In this respect, the Respondent /
Counter-Claimant asserted that the salaries for the periods of absence of the
Claimant / Counter-Respondent were not due according to the from country D
law.
9.
Moreover, the Respondent / Counter-Claimant stated that the request for the
rental payment of the Claimant / Counter-Respondent’s apartment had no
legal basis because the monthly rental was paid directly by the Respondent /
Counter-Claimant to the owner of the apartment, by means of a separate
contract to which the Claimant / Counter-Respondent was not a party.
10.
In addition, the Respondent / Counter-Claimant indicated that the Claimant /
Counter-Respondent had the following existing debts towards it:
- 621,094 corresponding to “parking penalties, parking infringement fines and
motorway using penalties” as a result of the use of the car by the Claimant /
Counter-Respondent. The Respondent / Counter-Claimant provided a list of
alleged fines dated as from 2 June 2009 until 31 August 2012 and explained
that it had paid all the fines and penalties regarding the use of the car by the
Claimant / Counter-Respondent and that the latter had not reimbursed such
expenses, contrary to what the contract established. Furthermore, according
to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent
only returned the car on 18 September 2012 while the contract had
terminated on 30 June 2012.
- 1,120,860 corresponding to a loan that the Respondent / Counter-Claimant
gave to the Claimant / Counter-Respondent. According to the Respondent /
Counter-Claimant, it gave a loan to the Claimant / Counter-Respondent in the
amount of 1,064,000 from which the latter had only repaid the sum of
34,381. In the Respondent / Counter-Claimant’s point of view, such loan
became fully due at the end of the contract i.e. 30 June 2012, and therefore,
the Claimant / Counter-Respondent had to return the principal in the amount
of 1,029,519 plus “the related transaction interest rate due till June 30, 2012
Player A, from country B / Club C, from country D
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corresponding to the central bank prime rate stipulated by the Civil Code
(91,347 )”.
- 26,820 that the Respondent / Counter-Claimant gave the Claimant / CounterRespondent “with the obligation of subsequent accounting”. According to
the Respondent / Counter-Claimant, the Claimant / Counter-Respondent did
not meet “its accounting obligation since then, and he did not certify the
using of the amount in any manner”.
11.
In view of the above, the Respondent / Counter-Claimant specified that the
total amount due by the Claimant / Counter-Respondent is 1,768,780 while the
amount due by the Respondent / Counter-Claimant is 958,693. Consequently,
the Respondent / Counter-Claimant lodged a counterclaim against the
Claimant / Counter-Respondent, requesting the payment of the amount of
810,087 net.
12.
The Respondent / Counter-Claimant added that it had informed the Claimant /
Counter-Respondent, in writing, about the above-mentioned debt however,
according to the Respondent / Counter-Claimant, he did not pay any sum and
he only returned the car.
13.
In his reply to the counterclaim, the Claimant / Counter-Respondent firstly
declared, regarding his absence between 4 February and 26 March 2012, that
the Respondent / Counter-Claimant informed him that it would not extend the
contract and that he could negotiate with other clubs and, in this respect,
provided a document dated 3 February 2012, where the Respondent / CounterClaimant declares that the Claimant / Counter-Respondent can negotiate with
other clubs and states that it will not ask for any transfer fee for the Claimant /
Counter-Respondent. In this context, the latter travelled to country S where he
had received some offers. According to the Claimant / Counter-Respondent,
the Respondent / Counter-Claimant authorized him to travel to country S and
to take some physical tests during the months of February and March 2012.
The Claimant / Counter-Respondent declared that upon his return, the
president of the Respondent / Counter-Claimant’s club tried to modify the
conditions of his contract but he refused.
14.
Moreover, as to the absence during the whole month of June 2012, the
Claimant / Counter-Respondent explained that all the players of the
Respondent / Counter-Claimant’s club went on holidays on 5 June until 25 June
2012 and that, considering that the contract was set to end on 30 June 2012
together with the fact that the Respondent / Counter-Claimant had not paid
his salaries, he believed it was not necessary to return to the Respondent /
Counter-Claimant’s club for five days.
Player A, from country B / Club C, from country D
4/11
15.
Furthermore, the Claimant / Counter-Respondent indicated that the
Respondent / Counter-Claimant did not provide any evidence proving that it
had paid the rent of the apartment directly to the owner and that it did not
contest that it had been paying the Claimant / Counter-Respondent a monthly
amount of 60,000 as accommodation, as from 1 July 2011 until 30 September
2011. Likewise, the Claimant / Counter-Respondent added that it was him who
paid directly to the owner the rent of the apartment during the whole term of
the contract and that, in fact, he agreed with the owner to buy the apartment,
so he asked the Respondent / Counter-Claimant to continue paying the
amount for accommodation although instead of paying a rental to the owner,
he began to pay the purchase amount.
16.
Moreover, the Claimant / Counter-Respondent fully rejected the Respondent /
Counter-Claimant’s allegations regarding the fines and penalties derived from
the use of the car. The Claimant / Counter-Respondent stated, on the one
hand, that the Respondent / Counter-Claimant included in its list fines of the
year 2009, while he only arrived to the Respondent / Counter-Claimant’s club
in July 2011. On the other hand, the Claimant / Counter-Respondent declared
that the Respondent / Counter-Claimant never informed him about such fines
and that FIFA should not consider them, as the Respondent / Counter-Claimant
did not provide evidence of their existence or of their payment.
17.
Additionally, the Claimant / Counter-Respondent indicated that what the
Respondent / Counter-Claimant called a loan of money, was the delayed
payment of some of his salaries. The Claimant / Counter-Respondent insisted in
the fact that the Respondent / Counter-Claimant had not provided enough
evidence proving that it effectively gave him a loan, the reason being that it
was not a loan but only the payment of some outstanding salaries. As to the
sum of EUR 90 that the Respondent / Counter-Claimant alleged to have given
the player, he declared that such amount was used for the visa of entrance to
country T for him and one of his team colleagues.
18.
The Respondent / Counter-Claimant, in its duplica, repeated all of its previous
arguments and allegations and requested the rejection of the Claimant /
Counter-Respondent’s claim.
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 6 December 2012. Consequently, the 2012 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Player A, from country B / Club C, from country D
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Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to
the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par.
2 in conjunction with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players (edition 2014) he is competent to decide on the present
litigation, which concerns an employment-related dispute with an
international dimension between a player from country B and an club from
country D.
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 dispute which value does not exceed CHF 100,000.
4.
In continuation, the DRC judge analyzed which edition of the FIFA Regulations
on the Status and Transfer of Players should be applicable as to the substance
of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (editions 2012
and 2014), and, on the other hand, to the fact that the present claim was
lodged in front of FIFA on 6 December 2012. The DRC judge concluded that
the 2012 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.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing
so, he started by acknowledging the abovementioned facts of the case as well
as the documentation contained in the file. 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.
6.
In this respect, the DRC judge acknowledged that, on 6 July 2011, the parties
had concluded an employment contract valid as from 1 July 2011 until 30 June
2012, in accordance with which the Respondent / Counter-Claimant would pay
the Claimant / Counter-Respondent a monthly net remuneration in the
amount of 800,000. The DRC further acknowledged that the contract provided
for an apartment and a car to be put at the disposal of the Claimant / CounterRespondent by the Respondent / Counter-Claimant.
7.
The DRC judge then turned to the complaint of the Claimant / CounterRespondent, who maintained that the Respondent / Counter-Claimant had
Player A, from country B / Club C, from country D
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failed to pay him the amount of 3,609,445 corresponding to several unpaid
monthly salaries as well as accommodation expenses.
8.
In continuation, the DRC judge noted that the Respondent / Counter-Claimant,
in its statement of defence, stated that the Claimant / Counter-Respondent
had been absent from training sessions without authorization during the
period as from 4 February until 26 March 2012 and during the whole month of
June 2012 and that, in this respect, he was not entitled to receive salaries for
such period. Equally, the DRC judge turned his attention to the Claimant /
Counter-Respondent’s allegations in this respect, and noted that the latter
maintained that he had the authorization of the Respondent / CounterClaimant to be absent during the above-mentioned specific period.
9.
In this context, the DRC judge 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. In relation to the foregoing, the DRC judge took
note that the Respondent / Counter-Claimant did not provide any conclusive
evidence substantiating that the Claimant / Counter-Respondent had been
absent without authorization as from 4 February until 26 March 2012. Hence,
the DRC judge decided that the argument put forward by the Respondent /
Counter-Claimant should be disregarded. Also, the documentation presented
by the Claimant / Counter-Respondent evidencing that the Respondent /
Counter-Claimant authorized him to leave the country in order to negotiate
with other clubs remained uncontested by the Respondent / Counter-Claimant.
Therefore, the DRC judge concluded that the Respondent / Counter-Claimant
had in fact authorized the departure of the Claimant / Counter-Respondent for
the period between 4 February and 26 March 2012.
10.
Moreover, the DRC judge turned his attention to the statement of the
Claimant / Counter-Respondent that all the players of the team were on
holiday leave from 5 until 25 June 2012. In this respect, the DRC judge noted
that such allegation had remained uncontested by the Respondent / CounterClaimant as well. Indeed, the DRC judge stressed that the employment contract
was set to terminate on 30 June 2012 and, therefore, there could not be any
evident assumption from the Claimant / Counter-Respondent in the sense that
he had to return to the training sessions for a short period of time, i.e. 5 days.
11.
Furthermore, the DRC judge took note of the additional arguments of the
Respondent / Counter-Claimant, which lodged a counter-claim against the
Claimant / Respondent requesting the payment of an alleged due amount of
810,087.
Player A, from country B / Club C, from country D
7/11
12.
In this respect, the Respondent / Counter-Claimant requested the
reimbursement by the Claimant / Counter-Respondent of the amount of
621,094 allegedly corresponding to fines and sanctions derived from the use of
the car by the Claimant / Counter-Respondent. In this context, the DRC judge
firstly considered that it could not be established from the documentation
presented by the Respondent / Counter-Claimant that the Claimant / CounterRespondent indeed was responsible for the alleged traffic infringements or
that the former had indeed paid the fines on behalf of the latter. What is
more, the DRC judge wished to highlight that the list provided by the
Respondent / Counter-Claimant makes reference to fines and sanctions
imposed on dates prior to the arrival of the Claimant / Counter-Respondent to
the Respondent / Counter-Claimant’s club.
Therefore, the DRC judge
determined that the petition of the Respondent / Counter-Respondent in this
regard, could not be upheld.
13.
Additionally, the DRC judge noted that the Respondent / Counter-Claimant
sustained that it gave a loan to the Claimant / Counter-Respondent who,
apparently did not repay it in full and, thus, the Respondent / CounterClaimant considered that it had the right to claim the due amount of 1,120,860
from the Claimant / Counter-Respondent. In this regard, the DRC judge, whilst
referring once more to the basic principle of the burden of proof, determined
that the Respondent / Counter-Claimant had not provided evidence showing
that it had loaned a certain amount to the Claimant / Counter-Respondent
with the implicit obligation of the latter to return it. Thus, the DRC judge
decided that the request of the Respondent / Counter-Claimant with regard to
the reimbursement of a loan payment should be rejected.
14.
Equally, the DRC judge took note that the Respondent / Counter-Claimant
argued that the amount of EUR 90 given to the Claimant / CounterRespondent should as well be reimbursed by the latter, as he had not justified
the use of such amount. In this respect, the DRC judge noted that the Claimant
/ Counter-Respondent submitted documentation providing for a payment of
EUR 90 on his behalf and on behalf of one of his team-mates for the concept
of visa payment in country T. To this end, the DRC judge acknowledged that
the Respondent / Counter-Claimant did not contest the justification of the use
of the aforementioned amount by the Claimant / Counter-Respondent.
Therefore, the DRC judge decided that the Respondent / Counter-Claimant’s
request for reimbursement of the amount of 26,820 should be disregarded.
15.
Furthermore, the DRC judge turned to the statement of the Respondent /
Counter-Claimant regarding the payment of the accommodation expenses
directly to the owner of the relevant apartment. In this regard, the DRC judge
noted that the employment contract provided for an apartment to be put at
Player A, from country B / Club C, from country D
8/11
the disposal of the Claimant / Counter-Respondent, without specifying under
which circumstances. Then, the DRC judge turned his attention to the
undisputed fact that the Respondent / Counter-Claimant had been paying the
monthly amount of 60,000 to the Claimant / Counter-Respondent as
accommodation expenses, for the period as from July until September 2011. In
this context, the DRC judge, once more referring to art. 12 par. 3 of the
Procedural Rules, considered that it could not be established from the
documentation presented by the Respondent / Counter-Claimant that it had
duly paid the monthly expenses for the accommodation of the Claimant /
Counter-Respondent directly to the owner of the apartment.
16.
Bearing in mind the foregoing, the DRC judge established that the Respondent
/ Counter-Claimant did not comply in full with its financial obligations and
that, therefore, the Claimant / Counter-Respondent was entitled to certain
outstanding amounts. In calculating the outstanding amounts owed to the
Claimant / Counter-Respondent, the DRC judge took into consideration the
following points: (i) the Claimant / Counter-Respondent was entitled to
4,000,000 as remuneration for the period as from February until June 2012; (ii)
it was uncontested that the monthly amount for accommodation expenses was
60,000 and that the Respondent / Counter-Claimant failed to remit such
expenses to the Claimant / Counter-Respondent for the period as from October
2011 until June 2012 in the total amount of 540,000; (iii) the Claimant /
Counter-Respondent acknowledged to have received from the Respondent /
Counter-Claimant the amount of 130,555 while the contract was in force and a
further amount of 800,000 once the contract had already expired.
17.
Consequently, the DRC judge decided that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent / Counter-Claimant is
liable to pay to the Claimant / Counter-Claimant the total amount of
3,609,445.
18.
Moreover, taking into account the Claimant / Counter-Respondent’s request as
well as the constant practice of the Dispute Resolution Chamber, the DRC
judge decided that the Respondent / Counter-Claimant must pay to the
Claimant / Counter-Respondent interest of 5% p.a. on the amount of 3,609,445
as from each due date until the date of effective payment. In this respect, the
DRC judge underlined that the fine of EUR 250 per day did not have any legal
basis in the employment contract.
19.
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 long-standing and wellestablished jurisprudence of the Dispute Resolution Chamber, in accordance
with which no procedural compensation shall be awarded in proceedings in
Player A, from country B / Club C, from country D
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front of the Dispute Resolution Chamber. Consequently, the DRC judge
decided to reject the Claimant / Counter-Respondent’s request relating to legal
expenses.
20.
In relation to the sporting sanctions, the DRC judge stressed that the
imposition of sporting sanctions can only be considered in cases invoking a
breach of contract, as stipulated in art. 17 of the Regulations.
21.
Subsequently and in view of the above-mentioned considerations, the DRC
judge determined that the counter-claim lodged by the Respondent / CounterClaimant should be fully rejected.
22.
The DRC judge concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant / CounterRespondent are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant / Counter-Respondent, Player A, is partially accepted.
2.
The counter-claim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, within 30 days as from the date of notification of this decision,
the amount of 3,609,445 plus 5% interest p.a. until the date of effective
payment as follows:
a. 5% p.a. as of 11 April 2012 on the amount of 800,000;
b. 5% p.a. as of 11 May 2012 on the amount of 800,000;
c. 5% p.a. as of 11 June 2012 on the amount of 800,000;
d. 5% p.a. as of 11 July 2012 on the amount of 800,000;
e. 5% p.a. as of 1 January 2012 on the amount of 49,445;
f. 5% p.a. as of 1 February 2012 on the amount of 60,000;
g. 5% p.a. as of 1 March 2012 on the amount of 60,000;
h. 5% p.a. as of 1 April 2012 on the amount of 60,000;
i. 5% p.a. as of 1 May 2012 on the amount of 60,000;
j. 5% p.a. as of 1 June 2012 on the amount of 60,000;
k. 5% p.a. as of 1 July 2012 on the amount of 60,000.
4.
If the aforementioned sum plus interest is not paid within the stated time
limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
Player A, from country B / Club C, from country D
10/11
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant 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 motivated decision (legal remedy):
According to art. 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, from country B / Club C, from country D
11/11