Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 26 November 2015,
by Philippe Diallo (France), DRC judge,
on the claim presented by the Claimant,
Player A, Country B,
as Claimant
against the Respondent,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1. On 29 January 2010, the Claimant from country B, Player A (hereinafter: the
Claimant), and the Respondent from country D, Club C (hereinafter: the
Respondent), signed an employment contract (hereinafter: the contract) valid as
from 1 February 2010 until 31 December 2012, i.e. for 2 years and 11 months.
2. According to art. 5.1 of the contract, the Respondent undertook to pay the Claimant
inter alia :
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EUR 8,300 gross “for each month during which the Agreement stays in force”,
payable monthly “in arrears until 10. Day of the month for the previous month”;
EUR 300 gross for each league match in the Senior team from country D the
Claimant participated in, i.e. “when the [Claimant] stays on the playing field for
minimum 45 minutes”.
3. Furthermore, art 5.3 established that “the payment of the remuneration shall be in
calculated on the basis of the average exchange rate published by the National Bank
of Country D on the business day preceding the date of the payment.”
4. On 14 December 2012, the Respondent sent the Claimant three written warnings,
asking him to be present at the Respondent on 28 December 2012, in order to
discuss the matters of his allegedly unauthorized tests with two other clubs, as well
as his unjustified absence at the “closure dinner“ on 21 November 2012. In case of
nonattendance, the Respondent would consider the imposition of disciplinary
sanctions on him.
5. On 27 December 2012, the Claimant replied to the aforementioned warnings of the
Respondent, claiming to be entitled to search for new employment in view of the
imminent expiry of his contract with Club C and not to have harmed the
Respondent’s interests, by missing the closure dinner, while on holidays.
Furthermore, the Claimant pointed out the existence of unpaid salaries, for August
2012, September 2012, part of October 2012 and November 2012, and claimed their
payment.
6. The Claimant sent the Respondent 3 more reminders, dated 14 January, 16 January
and 4 February 2013, requesting after some partial payments by the Respondent, the
payment of his salaries for October (partially), November and December 2012, which
remained outstanding.
Player A, Country B / Club C, Country D
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7. On 11 February 2013, the Respondent informed the Claimant in writing that three
disciplinary decisions had been passed by the Respondent’s board on 28 December
2012, as per which he was held liable of breaching art. 3.1.b) (complying with the
instructions of the Respondent), art. 3.3.d) (prohibition to participate in match and
training with another team without the consent of the Respondent) and art. 3.1.k)
(obligation to participate in all promotional events organized by the Respondent) of
the contract. Consequently, he was imposed 3 fines in the total amount of 45,000
(approximately EUR 11,000 on 28 December 2012).
8. Also on 11 February 2013, the Claimant rejected in writing the application of the
sanctions as “unfounded” and informed the Respondent that he would refer the
matter to FIFA.
9. On 5 March 2013, the Claimant lodged a claim in front of FIFA against the
Respondent for outstanding salaries, requesting the payment of the total amount of
EUR “13,800”, corresponding to outstanding net salaries for November and
December 2012 (2 x EUR 6,800, i.e. the net monthly salary as calculated by the
Claimant), plus interests of 5 % per year as from each due date.
10. The Claimant also asked for the dismissal of the sanctions imposed on him by the
Respondent in value of 45,000 (cf. point I.7 above.)
11. In his arguments, the Claimant claimed to have fully executed his contract with the
Respondent. In spite of the foregoing, at the end of the contractual period, the
Respondent had not paid to the Claimant his salaries for October (partially),
November and December 2012. While he requested the payment of his outstanding
remuneration, the Respondent accused him of violation of the contract, having
realized tests at two other clubs and having failed to participate in official dinner,
without the consent of the Respondent (cf. points I.4 and I.7 above.)
12. The Claimant rejected the Respondent’s accusations and claimed that looking for a
new working engagement at the end of his contractual relation cannot be regarded
as a violation of the contract.
13. The Claimant also pointed out that the fact that the salary foreseen by the contract
was gross and not net created some misunderstandings as to the paid salaries.
14. In its reply, the Respondent maintained that the Claimant violated the contract, in
particular art. 3.1.b) which established that “the Claimant shall not have a right to
participate in any football matches or sports tournaments covering other sport fields
Player A, Country B / Club C, Country D
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without the prior written consent of Club C and to start any activities which may
obstruct the execution of the obligations of the Parties contained herein.”
15. The Respondent claimed that, in spite of the invitations allegedly sent on 14
December 2012, the Claimant failed to present himself at the meeting with the
administrative board of the Respondent, scheduled for 28 December 2012. The
administrative board imposed on the Claimant a disciplinary penalty in total amount
of 45,000, in accordance with the Disciplinary Rules of the Football Association from
country D and Disciplinary Regulations of Club C Football Section.
16. The Respondent pointed out that the Claimant did not avail the opportunity to
appeal the aforementioned decision and did not pay the penalties, notwithstanding
the letter sent to inform him that the amount of the penalties would be reduced
from the contractual remuneration in case of non-payment (cf point I.7 above.)
17. The Respondent also claimed that despite of the alleged Respondent’s call, the
Claimant did not return sport equipment to the Respondent entrusted to him.
18. Additionally, the Respondent claims that it had paid to the Claimant the total
remuneration due for November and December 2012, remaining after deduction of
disciplinary penalties, without specifying any amount or any date.
19. On 2 April 2013, the Claimant confirmed that the Respondent paid to his bank
account 10,900, which would correspond to an average EUR 2,600. Thus, the
Claimant amended his claim, requesting the payment of EUR 11,200 net, plus yearly
interests of 5 %.
20. In its final position on the amended claim, the Respondent maintained its previous
argumentation and stated that it deducted the financial equivalent for the sport
equipment entrusted to the Claimant, for the amount EUR 400, from his contractual
remuneration.
21. The Respondent also indicated that the total remuneration due to the Claimant,
remaining after deduction of disciplinary penalties and financial equivalent for sport
equipment, which allegedly corresponded to a total amount of EUR 2,600, was paid
to the Claimant. Consequently, the Respondent asked for the dismissal of the
Claimant’s claim.
Player A, Country B / Club C, Country D
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II. Considerations of the DRC judge
1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the judge or
the DRC judge) analysed whether he was competent to deal with the matter at hand.
In this respect, he took note that the present matter was submitted to FIFA on 5
March 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. article 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 (editions
2012, 2014 and 2015) he is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from country B and a club from country D.
3. Furthermore, the DRC judge analyzed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with art.
26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition
2012 and 2014) and considering that the present claim was lodged on 5 March 2013,
the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4. His competence and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, he started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. However, the DRC judge emphasized 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. In this respect, the DRC judge acknowledged that the parties had
signed an employment contract on 29 January 2010, valid as of 1 February 2010 until
31 December 2012, according to which the Claimant was entitled to a gross monthly
salary of EUR 8,300. This amount corresponds to EUR 6,800 net, which is not disputed
by the Respondent.
5. The DRC judge further noted that, on the one hand, the Claimant, after amending
his claim, requested the payment of EUR 11,200 as outstanding remuneration,
corresponding to part of his remuneration for November and December 2012. On the
other hand, the judge noted that the Respondent deems that the Claimant’s claim
should be rejected, as all amounts due to him as per the contract have been paid,
after the deduction of the fines imposed on him, as detailed in point I.16 above.
Player A, Country B / Club C, Country D
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6. Having established the aforementioned, the DRC judge deemed that the underlying
issue in this dispute, considering the claim of the claimant and the allegations of the
Respondent, was to determine whether any remuneration from the employment
contract still remains outstanding, by the Respondent to the Claimant and
consequently must be paid.
7. At this point, the DRC judge deemed it appropriate to remind the parties of the
content of art. 12 par. 3 of the Procedural Rules, according to which: “any party
claiming a right on the basis of an alleged fact shall carry the burden of proof.
During the proceedings, the parties shall submit all relevant facts and evidence of
which they are aware at that time, or of which they should have been aware of they
had exercised due care.” The DRC judge was eager to emphasize that, in the present
case, the Respondent clearly bore the burden of proving the full payment of the
Claimant’s salaries or of proving evidence that their payment is in fact not due.
8. In this context the DRC judge went on to analyse the arguments and the evidence
thereof provided by the Respondent.
9. In this respect, the DRC judge went on to analyse the fines imposed on the Claimant
due to his allegedly unauthorized tests with other clubs and his alleged absence from
official dinner. In this context, the DRC judge ruled that it is important for a player to
secure a new employment at the end of his contract, provided he does not violate
the interests of his current employer. In this respect, he pointed out that Respondent
had not provided any evidence that the Claimant had harmed the interests of the
club by not attending a dinner and by realizing tests with other clubs, during the
vacation period and the last months of the contractual period. Furthermore, the
judge stressed that the Respondent also did not provide evidence of the Claimant’s
participation in the disciplinary proceedings leading to the imposition of the fines. In
light of the foregoing, the DRC judge decided to disregard the fines imposed on the
Claimant.
10. Furthermore, and in any case, the DRC judge wished to point out that the
imposition of a fine, or any other available financial sanction in general, shall not be
used by clubs as a means to set off outstanding financial obligations towards
players. Consequently, the DRC judge decided to reject the Respondent’s argument
in this connection.
11. In continuation, the DRC judge duly noted that on 5 March 2013, the Claimant
requested the payment of outstanding net salaries for November and December
2012, indicating a total amount of EUR 13,800. In this respect, the DRC noted a
mistake in the calculations of the Claimant and determined that the 2 salaries for
November and December 2012, in the amount of EUR 6,800 each, amounted in total
Player A, Country B / Club C, Country D
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to EUR 13,600. Furthermore, he noted that, in the course of the proceedings at
hand, the Claimant acknowledged having received from the Respondent a further
amount of EUR 2,600. This is not disputed by the Respondent.
12. In view of the foregoing consideration, the DRC judge decided that the Claimant is
entitled to the amount of EUR 11,000 as outstanding remuneration.
13. For all the above reasons, the DRC judge decided to partially accept the Claimant´s
claim and determined that the Respondent must pay to the Claimant the total
amount of EUR 11,000 as outstanding salaries.
14. In addition, taking into account the Claimant’s request, the DRC judge decided that
the Respondent must pay to the Claimant interest of 5% p.a. as follows:
a. 5% p.a. as of 11 December 2012 on the amount of EUR 4,200;
b. 5% p.a. as of 11 January 2013 on the amount of EUR 6,800.
15. The DRC judge concluded its deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
*****
III. Decision of the DRC judge
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 11,000 plus 5% interest p.a.
until the date of effective payment as follows:
a. 5% p.a. as of 11 December 2012 on the amount of EUR 4,200;
b. 5% p.a. as of 11 January 2013 on the amount of EUR 6,800.
3. In the event that the aforementioned sum 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 DRC judge
of every payment received.
*****
Player A, Country B / Club C, Country D
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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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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