Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
Leonardo Grosso (Italy), member
John Bramhall (England), member
Mohamed Mecherara (Algeria), member
Philippe Diallo (France), member
on the claim presented by the player,
A, from A
represented by Mr xxxxxx
as Claimant
against the club,
B, from B
represented by Mr xxxxxx
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 13 January 2014, the player from country A, A (hereinafter; the Claimant) and
the club from country B, B (hereinafter; the Respondent) concluded an
employment contract valid as of the date of its signature until 31 December 2014.
2.
According to clause SEGUNDA of the contract, the Claimant was entitled to
receive from the Respondent as follows: “[the Respondent] will pay to [the
Claimant] as remuneration (…) a net monthly salary of 62,500 xxx [xx],
corresponding to USD 25,000 with a pre-established value of the US dollar (…) of
xx 2.30, so xx 57,500. To said amount, the sum of xx 5,000 will be added as rent
allowance (…) therefore the total net remuneration is of xx 62,500 per month”
(free translation from xxxxx).
3.
On 17 July 2015, the Claimant lodged a claim against the Respondent requesting
the amount of USD 75,000 as per his salaries of October, November and December
2014 as well as 5% interest p.a. as of the respective due dates. In this respect, the
Claimant argued that, on 26 June 2015, he put the Respondent in default of
payment of the aforementioned amounts, however to no avail.
4.
In its reply to the claim, the Respondent stressed that the salary of the Claimant
was in xx and not in USD, therefore any amount awarded to the Claimant must be
in the former currency. In this respect, the Respondent argued that the salary of
the Claimant was of xx 62,500 with the fixed currency rate of 2.3, “so that in case
of fluctuations up or down in the currency rate, neither of the parties would be
undermined”.
5.
On account of the above, the Respondent asserted that the total amount to which
the Claimant is entitled is xx 187,500.
6.
In his replica, the Claimant stressed that the pre-established exchange rate in the
contract was precisely to protect him from the depreciation of the xx against the
USD as he is Argentinian. Therefore, the Claimant reaffirmed that his salary must
be considered in USD.
7.
In its duplica, the Respondent reiterated the arguments of its reply.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 17 July 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
Player A, country A / Club B, country B
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(hereinafter; the Procedural Rules) is applicable to the matter at hand (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 2015), 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 player from country A and a club from
country B.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2015), and considering that the claim was lodged in front of
FIFA on 17 July 2015, the 2015 edition of the aforementioned regulations
(hereinafter; the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts 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.
First of all, the Chamber acknowledged that, on 13 January 2014, the parties
concluded a contract valid until 31 December 2014 according to which the
Claimant was entitled to receive from the Respondent as follows: “[the
Respondent] will pay to [the Claimant] as remuneration (…) a net monthly salary
of 62,500 xxxxxx, corresponding to USD 25,000 with a pre-established value of the
US dollar (…) of xx 2.30, so xx 57,500. To said amount, the sum of xx 5,000 will be
added as rent allowance (…) therefore the total net remuneration is of xx 62,500
per month”.
6.
Having said this, the members of the DRC focused their attention on the claim of
the Claimant who argues that the Respondent failed to pay him his salaries of
October, November and December 2014 in the amount of USD 75,000. Conversely,
the Chamber took note that the Respondent asserted that the Claimant’s salaries
were payable in xx and not in USD. In this respect, the Chamber noted that,
according to the Respondent, the monthly salary of the Claimant was of xx 62,500
with the fixed currency rate of 2.3, “so that in case of fluctuations up or down in
the currency rate, neither of the parties would be undermined”.
Player A, country A / Club B, country B
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7.
In view of the foregoing considerations, the members of the DRC wished to
highlight, first of all, that the Respondent did not dispute the fact that it did not
pay the Claimant’s salaries of October, November and December 2014 but rather
limited its defence to argue that the salary of the Claimant was payable in xx and
not in USD. Therefore, according to the Respondent, the Claimant is entitled to
xx187,500.
8.
With the aforementioned in mind, the members of the Chamber, after a
thorough analysis of clause SEGUNDA of the contract, unanimously decided that
the salary of the Claimant was in fact payable in USD. In this respect, the Chamber
was of the opinion that the intention of the parties when agreeing to the fixed
exchange rate was, the Claimant being a foreigner, to indeed protect the salary of
the Claimant from any potential depreciation of the xx against the USD.
9.
In this context, the DRC emphasised that they cannot agree with the line of
reasoning of the Respondent as if such was the case, it would mean that the
Claimant would not receive USD 75,000 for his outstanding salaries but rather,
according to the current exchange rate, approximately USD 48,000 only. What is
more, the Chamber pointed out that if it would follow the position of the
Respondent, the Respondent would benefit from the non-timely payment of the
Claimant’s salaries.
10.
On account of the above, the members of the Chamber concurred that the
Respondent must fulfil its obligations as per the clear content of clause SEGUNDA
of the contract in accordance with the general legal principle of pacta sunt
servanda. Consequently, the Chamber decided that the Respondent is liable to
pay to the Claimant the amount of USD 75,000, corresponding to his salaries of
October, November and December 2014. Moreover, and with regard to the
Claimant's request for interest, the Chamber decided that he is entitled to receive
interest at the rate of 5% p.a. on the aforesaid amount as from the respective due
dates.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, club B, is ordered to pay to the Claimant, within 30 days as
from the date of notification of this decision, the amount of USD 75,000 plus 5%
interest until the date of effective payment as follows:
-
5% p.a. as of 1 November 2014 on the amount of USD 25,000;
5% p.a. as of 1 December 2014 on the amount of USD 25,000;
5% p.a. as of 1 January 2015 on the amount of USD 25,000.
Player A, country A / Club B, country B
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3.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned number 2. 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.
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 article 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 A / Club B, country B
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