Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 November 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
Player N, from country R
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On an unspecified date, Player N, from country R (hereinafter: the Claimant), and
Club L, from country C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid as of 16 February 2013 until 31 December
2013.
2.
According to the contract, the Claimant is to receive the following fixed
remuneration:
EUR 500,000 as sign-on fee, due by 28 February 2013;
EUR 1,000,000 as total salary.
3.
Article 4.5 of the contract stipulates inter alia that “all salary and bonus are net”.
4.
On 22 July 2013, the parties put an end to the contract by signing a termination
agreement (hereinafter: the termination agreement).
5.
As per article 1 of the termination agreement, “Party A [the Respondent] should
give Party B [the Claimant] 500,000 EURO as compensation within 30 days after
signing this agreement”.
6.
On 10 March 2014, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the payment of EUR 239,859.33 corresponding to
outstanding amounts based on the termination agreement, plus 5% interest p.a., as
well as legal costs to be borne by the Respondent.
7.
The Claimant holds that the Respondent only paid the amount of EUR 260,140.67. In
particular, the Claimant listed the payments made by the Respondent between 16
August 2013 and 12 December 2013.
8.
Therefore, the Claimant deems that the amount of EUR 239,859.33 remains
outstanding.
9.
In its statement of defence, the Respondent explains having deducted the amount
of EUR 223,135.12 from the compensation due to the Claimant, pursuant to the
Chinese personal income tax applied to foreigners. In this respect, the Respondent
refers to article 5 of the Regulations for Implementation of the Law of the People’s
Republic of country C on Individual Income Tax according to which “income from
personal services provided inside the People’s Republic of country C because of
tenure of an office, employment or performance of a contract, etc…, whether the
place of payment is inside the People’s Republic of country C or not, shall be income
derived from sources inside the People’s Republic of country C”.
Player N, from country R / Club L, from country C
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10.
Consequently, the Respondent alleges that the after-tax compensation amounts to
EUR 276,865. Therefore, the respondent deems that considering the amount already
paid to the player – which it states being EUR 260,611.29 – only the amount of EUR
16,253.71 remains outstanding.
11.
Finally, the Respondent asserts being willing to pay the aforementioned amount
within fifteen working days.
12.
In his replica, the Claimant holds that when signing the termination agreement, the
parties agreed upon a compensation corresponding to the residual value of the
contract, which is in a net amount pursuant to article 4.5 of the contract.
13.
The Claimant also provides bank statements evidencing that the payments made by
the Respondent between August and December 2013 amount to EUR 260,140.67,
and not the amount stated by the Respondent.
14.
The Claimant further sustains that the country C law should not apply since the
Respondent submitted its position to the FIFA administration and thus, only the
FIFA Regulations shall be applicable.
15.
In spite of having been invited to do so, the Respondent did not submit its final
comments pertaining to the matter at stake.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 10 March 2014.
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 stake (cf. art. 21 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 is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a country R 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, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2012 and 2014), and considering that the present claim was lodged in front of FIFA
Player N, from country R / Club L, from country C
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on 10 March 2014, the 2012 edition of said Regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered the substance of the present 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.
5.
In this respect and in a first instance, the DRC acknowledged that the Claimant and
the Respondent had concluded an employment contract valid as from 16 February
2013 and set to run until 31 December 2013.
6.
Equally, the Chamber took note that, on 22 July 2013, the parties put an end to the
contract by signing a termination agreement according to which the Respondent
had undertaken to pay the amount of EUR 500,000 as compensation within 30 days
after the signing of said termination agreement.
7.
Subsequently, the DRC observed that the Claimant seized FIFA indicating that the
Respondent had not fulfilled its obligation of payment as established in the said
termination agreement, since it paid the Claimant a partial amount of EUR
260,140.67. Therefore, the Claimant requested to be paid the alleged remaining
amount of EUR 239,859.33 as well as interest at the rate of 5%.
8.
On the other hand, the Chamber deemed it fit to recall that the Respondent
rejected the Claimant’s claim relating to the said outstanding amount of EUR
239,859.33. According to the Respondent, the amount of EUR 223,135.12 was
deducted from the relevant compensation pursuant to the Chinese personal income
tax policy which applies to foreigners, and the amount of EUR 260,611.29 had been
already paid to the Claimant. Therefore, the Respondent deemed that only the
amount of EUR 16,253.71 was outstanding.
9.
At this point and for the sake of good order, the Chamber 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 from an alleged fact shall carry the
respective burden of proof.
10.
In this respect, the Chamber deemed that the Respondent bore the burden of proof
regarding the fulfilment of all payments mentioned as outstanding by the Claimant.
In the present case, the Chamber noted that the Respondent did not provide any
evidence regarding the alleged payment of the total amount of EUR 260,611.29 to
the Claimant. The DRC also took into consideration the payment slips provided by
the Claimant evidencing that the Respondent in fact paid a total amount of EUR
Player N, from country R / Club L, from country C
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260,140.67. The Chamber further observed that the Respondent did not provide the
DRC with its final comments pertaining to the said payment slips.
11.
In continuation, the Chamber took note of the Respondent’s argument, according
to which the amount of EUR 223,135.12 had been retained by the Respondent in
order to comply with its obligation to pay taxes over the compensation due to the
Claimant. In this respect, bearing in mind the legal principle of burden of proof and
the wording of art. 12 par. 3 of the Procedural Rules, the DRC considered that the
Respondent did not provide any documentation pertaining to its alleged obligation
to deduct taxes from the amount payable to the Claimant as compensation. In
addition, the Chamber observed that such deduction was not stipulated in the
contract which provides for net amounts as per article 4.5 of the contract.
Consequently, the Chamber concluded that the aforementioned argument of the
Respondent could not be upheld.
12.
On account of the aforementioned considerations, the DRC established that the
Respondent had failed to pay to the Claimant the remaining amount of EUR
239,859.33 in accordance with the termination agreement. Consequently, the
Chamber concluded that, in accordance with the general legal principle of “pacta
sunt servanda”, the Respondent is liable to pay to the Claimant the amount of EUR
239,859.33.
13.
In continuation and taking into account the Claimant's request for interest, the DRC
decided that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of EUR 239,859.33 as from 10 March 2014 until the date of effective
payment.
14.
In addition, as regards the claimed legal costs, the Chamber referred to art. 18 par. 4
of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the Chamber decided to reject the Claimant’s request relating to legal expenses.
15.
The DRC concluded his deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of EUR 239,859.33 plus 5% interest p.a. as
from 10 March 2014 until the date of effective payment.
Player N, from country R / Club L, from country C
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3.
In the event that the aforementioned amount plus interest is not paid 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.
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player N, from country R / Club L, from country C
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