Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 November 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mohamed Al-Saikhan (Saudi Arabia), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 9 March 2010, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid from 11 March 2010 until
31 December 2012.
2.
In addition, also on 9 March 2010 the parties signed a document named “Annex
n°1 to the Labor contract from 9 March 2010” (hereinafter: the annex), according
to which the Claimant is entitled to, inter alia, a monthly remuneration of EUR
51,725 “(before deduction of individual income tax), 50% of which the salary
composes, and the rest 50% - additional premiums, paying to the Football player
upon the condition of the proper performance by the Football player of his
obligations under the Contract, i.e., upon the condition, that the Football player
doesn’t have any disciplinary punishments”.
3.
According to art. 1.6. of the annex “ All payments, indicated in the Contract and
Annexes to it, are performed in the currency of country D. In that case, if the due
sums are indicated in the foreign currency, the payment is performed in the
currency of country D at the rate of the Central Bank of country D on the day of
charge in accordance with the active legislation, the Club deducts the individual
income tax from the sums, paid to the Football player.”
4.
Art. 2.3 further stipulates that “The Football player is aware, that in accordance
with the tax legislation of country D, in that case, if during the granting of
benefits (renting of the apartment etc), the income in kind appears, The club is
obliged to deduct the individual income tax from the Remuneration of the
Football player”.
5.
On 31 March 2011, the parties signed an “Additional agreement to the Labor
contract dd. 9 March 2010)” (hereinafter: the additional agreement), valid as from
1 April 2011, according to which the Respondent undertakes to pay the Claimant,
Player A, country B / Club C, country D
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inter alia, a monthly salary of EUR 55,725 “1.3 (…) (before deduction of individual
income tax), 50% of which the salary composes, and the rest 50% - additional
premiums, paying to the Football player upon the condition of the proper
performance by the Football player of his obligations under the Contract, i.e.,
upon the condition, that the Football player doesn’t have any disciplinary
punishments”.
6.
On 24 February 2012, the parties concluded a “Cancellation agreement to the
Labor Contract dd.09.03.2010)” (hereinafter: the termination agreement), by
means of which they agreed the following:
a) “2. Due to premature termination of the Labor contract the Club shall pay
to the Football player the compensation in amount of his monthly salary
multiplied by 4 (four).
b) 3. Besides, the Club shall pay to the Football player his salary for February
2012, taking in mind that the Football player has worked during this
month.
c) 4. Both payments stated in clauses 2 and 3 above shall be paid within 20
days following the day of cancellation”, i.e. 15 March 2012.
7.
On 14 March 2014, the Claimant submitted a claim against the Respondent in
front of FIFA, requesting the total amount of EUR 278,625 (5 x EUR 55,725, cf.
point I.5. above), plus 5% interest p.a. as from 16 March 2012. Equally, the
Claimant requested that all costs of the proceedings be borne by the Respondent.
8.
In this regard, the Claimant explained that this amount is due to him according to
the termination agreement (cf. point I.6. above) but the Respondent failed to pay
him any amounts arising from such agreement.
Player A, country B / Club C, country D
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9.
In spite of having been granted a 20 days deadline on 19 March 2014 to reply to
the claim, the Respondent only reacted to it one day after the closure of the
investigation, i.e. on 19 June 2014, stating that it had not received the Claimant’s
claim, what was confirmed by the Football Association of country D.
10.
In its reply, the Respondent rejected the Claimant’s claim and holds having
fulfilled all its contractual obligations. According to the Respondent, as per the
termination
agreement
and
the
additional
agreement,
the
Claimant’s
remuneration was “set in gross amount of EUR 55,725 – 50% of which composed
the salary. Thus, the amount of monthly salary was determined in amount of EUR
27,862.50 gross”. Additionally, the Respondent underlines that the term
“Remuneration” is a definition explained in clause 1.2 of the annex:
“Remuneration is a monthly amount that is composed from salary and additional
premiums, payable upon the condition of proper performance by the Player of his
contractual duties. Salary composes 50% of the amount of Remuneration.”
Therefore, the Claimant was entitled to a total amount of EUR 138,170.14, broken
down as follows:
a) EUR 96,961.50, allegedly corresponding to the amount of compensation
according to clause 2 of the termination agreement, i.e. salary of EUR
27,862.5 x 4 – 13% tax;
b) EUR 41,208.64 corresponding to “Remuneration for February 2012 (salary
of EUR 27,862.50 + additional premium of 27,862.50): 20 work days in
February x 17 days that the Claimant worked in February 2012 – 13%
tax)”.
11.
The Respondent holds having paid to the Claimant the amount indicated in point
I.10. above and provided a bank statement in support of its allegations. In
particular, the Respondent provided a payment order dated 14 March 2012 in
Player A, country B / Club C, country D
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favour of the Claimant in the amount of 5,445,478, on which under the section
Beneficiary is mentioned “Payment to the card account of employee, payment for
February 2012”. In addition, the Respondent provided FIFA with an email
conversation dated 7 June 2012, in which the Claimant informed the Respondent
that “I checked at my bank account, and, until today, I received total of
544547875 (…), after calculation it is easy to see that I still didn’t receive the total
amount, as agreed”. In addition, the Claimant states, “I needed to receive 5
salaries in the name of contract cancellation, because I counted the salary of
February (Article 3) “. For all the above-mentioned reasons, the Respondent
considers that the claim of the Claimant must be rejected.
12.
In his replica, the Claimant first contests the admissibility of the Respondent’s
position since it has been submitted after the granted deadline. The Claimant
further argues that his claim is mainly based on the termination agreement dated
24 February 2012 (cf. point. I.6. above) and refers to an amount of compensation
and not a salary. For this reason, since “(…) the salary is just a figure to calculate
the amount of the COMPENSATION (…) the compensation cannot be evaluated as
a NET or a GROSS amount”. Additionally, the Claimant holds that no deduction
shall be made to an amount of compensation which is a net amount and the
Respondent is responsible for the additional taxes.
13.
Furthermore, the Claimant points out that in view of the documents provided by
the Respondent (cf. point I.11. above), it is clear that the payment was related to a
previous due amount by the Respondent and that there is no mention that the
payment is the amount of compensation stated in accordance with the
termination agreement.
14.
In its duplica, the Respondent first underlines that it cannot be deprived from its
right to be heard because of the failure of its national federation to forward it
the claim on time.
Player A, country B / Club C, country D
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15.
The Respondent further states that it had the obligation to deduct the tax from
the Claimant’s income “irrespective of the Claimant’s residential status as well as
irrespective of legal nature of the compensation”, in accordance with the Tax
Code of country D. According to the Respondent, the cancelation agreement
constitutes an integral part of the contract and thus, by signing the contract, the
Claimant agreed and was aware of the applicable tax in accordance with art. 1.6
and 2.3 of the annex.
16.
Moreover, the Respondent holds that the Claimant wrongly states in his replica
that the payment dated 14 March 2012 was related to another due amount for
the reason that the Respondent did not have any other debt in favour of the
Claimant and this payment is indeed the compensation due to the Claimant in
accordance with the termination agreement. For all these reasons, the
Respondent deems that the Claimant’s claim must be rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or 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 14 March 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (editions 2012, 2014 and 2015) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country B
and a club from country D.
Player A, country B / Club C, country D
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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, 2014 and 2015), and considering that the present claim was lodged
on 14 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 into the substance of the matter. In doing so, it
started to acknowledge the facts of the case as well as the documents contained
in the file.
5.
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.
6.
First and foremost, the Chamber acknowledged that the parties had terminated
their employment relation by mutual consent by entering on 24 February 2012
into a termination agreement, the terms of which are detailed in point I. 6. above.
7.
In continuation, the members of the Chamber noted that the Claimant contacted
FIFA on 14 March 2014 indicating that the Respondent had not fulfilled its
obligations as established in the termination agreement, since it had not paid the
agreed amounts. Consequently, the Claimant asks that the Respondent be
ordered to pay the total amount of EUR 278,625 corresponding to four monthly
salaries (cf. point I.6.a. above) plus his salary for February 2012 (cf. point I.6.b.
above).
Player A, country B / Club C, country D
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8.
In addition, the members of the Chamber noted that the Claimant rejected the
admissibility of the Respondent’s answer to the claim since it was submitted after
the granted deadline. However the Respondent holds that it never received the
claim of the Claimant and moreover, the Football Union of country D confirmed
having not forwarded it to its affiliated club. In view of the foregoing, the
members of the DRC deemed the answer of the club admissible since it was
received within the second deadline granted by FIFA and that a party cannot be
deprived of its right to be heard because of an admitted failure of its National
Association. As a consequence, the Respondent’s answer must be taken into
consideration and a decision shall be taken based on all the elements on file.
9.
Subsequently, the DRC noted that, the Respondent, for its part, holds that it has
no debts toward the Claimant since the contract stipulates that the Claimant’s
remuneration is composed of 50% of his salary and 50% of additional premiums
(cf. points I.2. and I.5. above). Moreover the club presented a receipt dated 14
March 2012 for an amount of 5,445,478, approximately EUR 141,400, which was
transferred to the player and allegedly represents the total amount due to him.
10.
In view of the dissenting viewpoint of the parties with respect to the
interpretation of the clauses 2. and 3. of the termination agreement, i.e, the
amount of the Claimant’s salary, the Chamber first focussed its attention on said
contractual clauses.
11.
First of all, the members of the Chamber noted that both clauses 2. and 3. of the
termination agreement refer to the Claimant’s monthly salary, as the basis to
calculate the amount still due to him after the termination. Therefore the DRC
deemed it necessary to analyse the content of the additional agreement of 31
March 2011, which modified the financial terms of the annex of 9 March 2010 (cf.
point I.5 above). The DRC noted that according to the additional agreement, the
payment of 50% of the Claimant’s remuneration was dependent on “the proper
performance of the player’s obligations under the Contract, i.e., upon the
Player A, country B / Club C, country D
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condition, that the Football player doesn’t have any disciplinary punishments”. In
this respect, the Chamber first noted that such clause allowed the Respondent to
withhold 50% of the Claimant’s salary in case of an alleged disciplinary breach,
which was deemed already at this point as an excessive amount, independent of
the severity of a disciplinary violation eventually committed by the Claimant.
Bearing in mind the legal principle of in dubio pro operario and in dubio contra
stipulatorem, the members of the DRC deemed that such clause is not acceptable
for its potestative nature in favour of the Respondent. In any case, the DRC
recalling the content of art. 12 par. 3 of the Procedural Rules, according to which
“any party claiming a right on the basis on an alleged fact shall carry the burden
of proof”, pointed out that the Respondent did not provide any evidence of any
disciplinary breaches committed by the Claimant, and therefore there would be
no reason for a reduction of his monthly remuneration.
12.
Equally, the Chamber addressed the Respondent’s argument that it had to deduct
taxes on the remuneration stipulated in the additional agreement and
consequently on the agreed compensation in the termination agreement. In this
respect, despite the fact that clause 1.3 refers to “deduction of individual income
tax”, the Chamber highlighted that the Respondent did not provide clear
evidence of its obligation to deduct tax on the player’s salary or of any effective
payments made in this respect. In light of the above, and still bearing in mind the
principles of the burden of proof, in dubio pro operario and in dubio contra
stipulatorem, the Chamber concluded that this argument of the Respondent must
also be rejected.
13.
Having established the foregoing, the Chamber was confident to conclude that
the wording of the termination agreement, in particular in the definition of the
amounts still due to the Claimant, is insufficiently clear and for this reason, it must
be interpreted in favour of the Claimant.
Player A, country B / Club C, country D
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14.
In view of all the foregoing, the Chamber concluded that the player’s monthly
salary corresponds to EUR 55,725, without any deduction, and this amount serves
as the basis to calculate the amount still due to the Claimant in accordance with
the termination agreement.
15.
Subsequently, the Chamber went on to calculate which amount was still due to
the Claimant by the Respondent as per the termination agreement. In this respect,
and taking into consideration the argumentation detailed in points II.9. to II.13.
above, the Chamber concluded that the total amount payable to the Claimant in
accordance with the termination agreement is EUR 278,625, i.e. 5 x EUR 55,725.
16.
At this point, the Chamber pointed out that in the present case, the Respondent
bore the burden of proving the payment of any amounts due to the Claimant. In
this respect, the DRC noted that the Respondent in fact provided evidence that it
paid the Claimant the amount of 5,445,478 on 14 March 2012, and that the
Claimant acknowledged receipt of such amount, alleging however that it
corresponded to late payments as per the contract.
17.
The Chamber in this regard noted that such payment was made by the
Respondent on 14 March 2012, i.e. undoubtedly after the conclusion by the
Claimant and the Respondent of the termination agreement, in which they
voluntarily stipulated the total amount still due by the Respondent to the
Claimant after the termination. Thus the DRC concluded that such payment by the
Respondent (corresponding to approximatively EUR 141,400) was related to the
termination agreement and, therefore, had to be deducted from the total
amount due to the Claimant as per such agreement.
Player A, country B / Club C, country D
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18.
On account of the aforementioned considerations, the Chamber decided 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 137,225 which
corresponds to EUR 278,625 minus the payment of EUR 141,400 made by the
Respondent on 14 March 2012, in accordance with the termination agreement.
19.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
EUR 137,225 as of 16 March 2012, until the date of effective payment.
20.
Finally, the DRC decided that the Claimant’s claim pertaining to legal costs is
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s longstanding respective jurisprudence.
21.
The DRC 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 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 137,225 plus 5% interest
p.a. as from 16 March 2012.
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.
Player A, country B / Club C, country D
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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
Acting Secretary General
Encl.: CAS directives
Player A, country B / Club C, country D
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