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 player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 26 November 2013, the Player of Country B, Player A (hereinafter: the Claimant)
and the Club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid from 1 December 2013 until
30 November 2014.
2.
According to article 2 of the contract, the Claimant was entitled inter alia to a salary
in accordance with “Schedule A” and benefits in accordance with “Schedule B”.
3.
Schedule A of the contract established a monthly salary of USD 7,000 payable until
7th day of the following month.
4.
Schedule B of the contract established inter alia that the Claimant was entitled to
the following:
- Insurance cover as decided by Football Association of Country D must be
purchased for the Claimant;
- “free medical benefit inclusive of hospitalization expenses to the [Claimant],
his wife and dependent children by the medical officer appointed by the
[Respondent]. (…) The maximum liability of the [Respondent] under this Clause
shall not exceed 1,200 per year”;
- 1 return flight ticket Country E – Country D – Country E;
- accommodation “House (sharing with other players unless with family)”;
- Medical insurance.
5.
On 25 April 2015, the Claimant lodged a claim before FIFA against the Respondent
for outstanding remuneration, claiming the amount of 10,357.50, which allegedly
corresponds to the difference between the amount of 24,167.50 (cf. point I./7.
below) and the amount of 13,810 (cf. point I./8. below), plus interest.
6.
In this respect, the Claimant held having contacted the Respondent via the Football
Association of Country D to request the payment of the outstanding amount, to
which the Respondent replied denying owing him any amounts and enclosing
documents to justify the deductions it made concerning flight tickets,
accommodation expenses and insurance expenses.
7.
According to the Claimant, the Respondent wrongfully deducted the total amount
of 24,167.50 from the monthly salaries due for October and November 2014
concerning flight tickets.
8.
Moreover, the Claimant held that he was entitled to one flight ticket according to
the Schedule B and thus, the Respondent could only deduct the other flight tickets
paid to the Claimant in the total amount of 13,810 composed of the following:
- 3,780 – flight City F-City G on 25 June 2014;
- 6,180 – flight City G – City H on 6 July 2014; and
- 3,850 – flight City H – City G on 2 August 2014.
Player A, Country B / Club C, Country D
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9.
With respect to the documents relating to accommodation expenses presented by
the Respondent in front of the Football Association of Country D, the Claimant held
having never been informed that he had to pay for the apartment he stayed at
during the contractual period. Moreover, the Claimant denied that he had asked to
change rooms in the hospital during his treatment which had allegedly enhanced
the insurance costs.
10. The Respondent rejected the Claimant’s claim, stating having fulfilled all of its
financial obligations towards the Claimant.
11. According to the Respondent, although it had to pay only one flight ticket to the
Claimant, he had returned 5 times to his country and the flight tickets were paid by
the Respondent as well as a flight ticket to the benefit of his wife.
12. Moreover, the Claimant allegedly refused to pay for his expenses in the hotel he was
staying. In particular, the Respondent stated that it only had the obligation to
provide the room.
13. Finally, the Respondent affirmed that, during his treatment in the hospital, the
Claimant allegedly asked to change rooms, which was not covered by the insurance
and thus, increased the expenses incurred.
14. In support of its position, the Respondent enclosed several documents issued by the
Respondent itself as well as invoices and receipts. The Respondent submitted inter
alia the following documentation:
- Receipts issued by a travel agency, indicating the name of the Claimant, as
follows:
a) dated 10 February 2014 in the amount of 5,800;
b) dated 23 June 2014 in the amount of 3,780;
c) dated 5 July 2014 in the amount of 6,180;
d) dated 29 July 2014 in the amount of 3,850;
e) dated 11 September 2014 in the amount of 4,000;
- Invoice for flight tickets issued by the Respondent, signed by the Claimant,
dated 3 February 2014 in the amount of 3,728;
- Email dated 27 November 2013 containing a flight ticket for the amount of
EUR 615,99;
- Invoice issued by Medical Centre of State in Country D in the amount of
5,110.8, indicating the name of the Claimant.
15. Even though invited to do so, the Claimant did not submit further comments.
II. Considerations of the DRC judge
1.
First of all, 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 25 April 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
Player A, Country B / Club C, Country D
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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
2015) he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Player of
Country B and a Club of 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
(2015), and considering that the present claim was lodged on 25 April 2015, the
2015 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. 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.
5.
In this respect, the DRC judge acknowledged that the parties to the dispute had
signed an employment contract valid from 1 December 2013 until 30 November
2014. In particular, the DRC judge took note that Schedule A established a monthly
salary of USD 7,000, while Schedule B established inter alia the player’s entitlement
to 1 return flight ticket Country E – Country D – Country E.
6.
Furthermore, the DRC judge took note that the Claimant lodged a claim against the
Respondent requesting that the latter be ordered to pay outstanding remuneration
in the amount of 10,357.50.
7.
Subsequently, the DRC judge noted that the Respondent, for its part, rejected the
claim and held having fulfilled all of its financial obligations towards the Claimant.
8.
In continuation, the DRC judge noted that, according to the Claimant, the
Respondent had wrongfully deducted amounts from his salaries concerning October
and November 2014. However, the Claimant acknowledged that the Respondent
was entitled to deduct the amount of 13,810 regarding three flight tickets (3,780 +
6,180 + 3,850) paid by the latter.
9.
On the other hand, the DRC judge took note that the Respondent affirmed having
paid 5 flight tickets to the Claimant and one to his wife. Moreover, the Respondent
affirmed that the Claimant had failed to pay his expenses of the hotel he was
staying at during the contractual period. Finally, the Respondent held that hospital
expenses were increased due to the Claimant’s fault.
10. Subsequently, the DRC judge referred to art. art. 12 par. 3 of the Procedural Rules
which stipulates that any party claiming a right on the basis of an alleged fact shall
carry the burden of proof.
Player A, Country B / Club C, Country D
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11. First and foremost, the DRC judge highlighted that the Respondent had neither
denied having deducted the total amount of 24,167.50 from the salaries of October
and November 2014 nor submitted any document regarding the payment of the
relevant monthly salaries.
12. In continuation, the DRC judge was eager to emphasise that, on the one hand, the
Claimant himself had accepted that the Respondent could deduct three flight
tickets, which respective receipts were provided by the Respondent. On the other
hand, the DRC judge took note that the Respondent had also submitted various
receipts issued by a travel agency, emails, invoices issued by the Respondent and by
the medical centre, documents not signed by the Claimant and/or the purpose of
payment of the amounts indicated therein could not be ascertained, and which,
thus, do not demonstrate the Respondent’s entitlement to deduct such amounts
from the Claimant’s receivables. Consequently, the DRC judge concluded that the
Respondent had deducted the amounts contained in these receipts without a valid
reason.
13. Consequently, the DRC judge concluded that only the receipts relating to the
amounts acknowledged by the Claimant, i.e. those related to the amounts of 3,780,
6,180 and 3,850, could be taken into account as well as the invoice in the amount of
3,728, duly signed by the Claimant.
14. Therefore, the DRC judge decided that Respondent had paid the aggregate amount
of 17,538 as flight tickets to the Claimant, which were not established in the
contract.
15. At this point, the DRC judge recalled that the Respondent had deducted the amount
of 24,167.50 from the Claimant’s salaries of October and November 2014.
16. Consequently, on account of the above and considering the financial terms of the
contract , the DRC judge decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is still liable to pay to the Claimant an
amount corresponding to 6,629.50 (24,167.50 – 17,538).
17. In this regard, the Chamber was eager to emphasise that, in accordance with its
well-established jurisprudence in this respect, it cannot grant any amounts of money
in a currency other than the currency agreed upon in the relevant employment
contract. Consequently, the Claimant’s monthly remuneration being contractually
due in USD, on account of the above, the DRC judge decided that the Respondent
has to pay the amount of USD 2,000 to the Claimant.
18. Furthermore, taking into account the Claimant’s petition and the constant practice
of the Dispute Resolution Chamber, the DRC judge decided to award the Claimant
interest at the rate of 5% p.a. on the amount of USD 2,000, as from the date on
which the claim was lodged until the date of effective payment.
19. Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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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 USD 2,000 plus 5% interest p.a.
on said amount as from 25 April 2015 until the date of effective payment.
3.
In the event that the amount plus interest due to the Claimant 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 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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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