Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 November 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
Player Z, from country S
as Claimant
against the club,
Club G, from country C
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 March 2011, Player Z, from country S (hereinafter: the Claimant), and the
country C club, Club B, currently known as Club G (hereinafter: the
Respondent), signed an employment contract (hereinafter: the contract) valid
as from the day of signing until 31 November 2011.
2.
According to clause 7 par. 1 of the contract, the Claimant was entitled to a
monthly salary in the amount of USD 10,000.
3.
Clause 7 par. 12 of the contract establishes that the contract “will be extended
automatically from 01 December 2011 to November 31, 2012 upon Party B [the
Claimant] reaches 60% appearance during the contract period”.
4.
On 4 December 2012, the Claimant lodged a claim against the Respondent in
front of FIFA, asserting that the contract had been automatically extended
until 31 November 2012 on the basis of clause 7 par. 12 of the contract.
5.
After modifying his initial petition, the Claimant requested outstanding
salaries in the amount of USD 130,000 “with interest per year minimum %5
from the date on application to FIFA”, according to the following breakdown:
- USD 10,000 corresponding to “first year monthly outstanding salary”;
- USD 120,000 corresponding to the period as from “1st December 2011 to
31 November 2012”;
6.
After the closure of the investigation-phase, the Respondent replied to the
Claimant’s claim and informed that in June 2011, Club G took over Club B as
the new legal successor of the latter. According to the Respondent, the
Claimant was not included in the list of players that were acquired together
with the Respondent’s club and, “in order to protect the interests of the player
[the Claimant]” both parties initially negotiated “a new contract” without
finally reaching an agreement.
7.
In view of the above and as, according to the Respondent, the Claimant
wished to continue in the Respondent’s club, the Respondent committed to
pay the Claimant the amount specified in the contract until 31 November 2011
but, thereafter, the Claimant “did not rejoin our team before the start of the
new season, that is to say, the country S player tacitly approved the abovementioned contract had ended on 31 November 2011”.
8.
In this regard, the Respondent considered that there was no employment
relationship between the Claimant and the Respondent for the period as from
1 December 2011 until 31 November 2012.
Player Z, from country S / Club G, from country C
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9.
The Claimant, in his replica, highlighted the aforementioned clause 7 par. 12
of the contract and insisted on the fact that he had reached the 60% of
appearances during the contract period so, therefore, the contract was
automatically extended until 31 November 2012.
10.
Moreover, the Claimant stated that the new owner of the Respondent “also
will be bound with previous signed agreements of the club”.
11.
Despite having been invited by FIFA to reply to the Claimant’s replica, the
Respondent did not provide any further comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter 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 4 December 2012. 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 and 2014 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 2014) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, the Chamber analysed which edition of the Regulations on
the Status and Transfer of Players should be applicable as to the substance of
the matter. In this respect, it 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 4 December 2012. Therefore, the DRC 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.
4.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the Chamber entered into the substance
of the matter. In doing so, it started by acknowledging the abovementioned
facts of the matter as well as the documentation contained in the file.
However, the Chamber 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.
Player Z, from country S / Club G, from country C
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5.
In this respect, the members of the Chamber acknowledged that the parties
had signed a valid employment contract on 1 March 2011 according to which
the Claimant would receive a monthly remuneration in the amount of USD
10,000. In addition, the members of the Chamber noted that the employment
contract, which was set to expire on 31 November 2011, would be
automatically extended until 31 November 2012 in the event that the Claimant
appeared in at least 60% of the matches “during the contract period”.
6.
The Chamber then turned its attention to the complaint of the Claimant, who
stated that the Respondent failed to pay him one monthly salary for the year
2011 and the whole remuneration of the year 2012. In this respect, the DRC
duly noted that the Claimant asserted that the employment contract had been
automatically extended until 31 November 2012, maintaining that the
condition for such extension had been indeed fulfilled.
7.
In this regard, the Chamber duly noted that, on account of the above, the
Claimant is seeking payment of the total amount of USD 130,000 plus 5%
interest.
8.
Equally, the members of the Chamber observed that the Respondent, for its
part, in spite of having been invited to do so, failed to present its response to
the claim of the Claimant within the relevant time-limit. In fact, the reply of
the Respondent was only received after the investigation-phase of the matter
had already been concluded. As a result, the Chamber decided not to take into
account the reply of the Respondent and established that, in accordance with
art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of
those documents on file that were provided prior to the closure of the
investigation-phase, in casu, upon the statements and documents presented by
the Claimant.
9.
In this context, the Chamber acknowledged that the Claimant stated not
having received the amount of USD 10,000 for one monthly salary of the year
2011.
10.
With due consideration to all the above, the Chamber concluded that it could
be established that the Respondent had failed to pay the Claimant his salaries
in the amount of USD 10,000 corresponding to one monthly remuneration of
the year 2011.
11.
Subsequently, the members of the Chamber acknowledged that the Claimant,
besides claiming part of his remuneration of the year 2011, requested as well
the full amount of the year 2012, while affirming that the contract was
automatically extended and, therefore, that there was an existing employment
relationship between the parties effective until 31 November 2012.
Player Z, from country S / Club G, from country C
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12.
In this respect, the DRC recalled the basic principle of 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.
13.
With due consideration to the above, the members of the Chamber stressed
that the Claimant did not sufficiently substantiate his claim, as he did not
present any evidence in respect of his statement that he had reached “60% of
the appearances”.
14.
In view of the above, the Chamber concluded that the Claimant has not
provided evidence of his allegations and that, therefore, it could not be
established that the employment relationship between the Respondent and
the Claimant had been extended to the 2012 season and that, thus, the latter
had rendered his services to the Respondent as from 1 December 2011 until 31
November 2012, as asserted by the Claimant. In other words, the members of
the Chamber determined that it was not sufficiently proven by the Claimant
that there was an ongoing employment relationship between the Claimant
and the Respondent, binding both parties for the above-mentioned period of
time.
15.
Having established the foregoing, the DRC determined that it could only be
established that the Respondent had failed to pay to the Claimant part of the
amounts agreed upon between the parties in the agreement, i.e. one monthly
salary of the first year. As a consequence, and in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfil its
obligations as per the contract concluded with the Claimant and,
consequently, is to be held liable to pay the outstanding amount of USD
10,000 to the Claimant.
16.
In addition, and with regard to the Claimant's request for interest, the
Chamber decided that the Claimant is entitled to receive interest at the rate of
5% p.a. on the amount of USD 10,000 as from 4 December 2012 until the date
of effective payment.
17.
The Chamber concluded its deliberations in the present matter by establishing
that any further claim of the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player Z, is partially accepted.
2.
The Respondent, Club G, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, outstanding remuneration in the
Player Z, from country S / Club G, from country C
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amount of USD 10,000 plus 5% interest p.a. on said amount as from 4
December 2012 until the date of effective payment.
3.
If 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
the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
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. 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 Z, from country S / Club G, from country C
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