Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 November 2016,
in the following composition:
Thomas Grimm (Switzerland), Chairman
Alejandro Marón (Argentina), member
Mario Gallavotti (Italy), member
Carlos Puche (Colombia), member
Eirik Monsen (Norway), member
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
According to the information available in the Transfer Matching System (TMS),
the Player of Country B, Player A (hereinafter: the Claimant), concluded an
undated contract with the Club of Country D, Club C, (hereinafter: the
Respondent), valid as from 6 September 2015 until 15 July 2016.
2.
According to the contract, the Claimant was entitled to a total remuneration in
the amount of USD 80,000, payable as follows:
USD 32,000, “at the final ratification of the contract”;
USD 36,000, in monthly instalments in the amount of USD 3,600 each;
USD 12,000 “at the end of the league”.
3.
On 24 May 2016, the Claimant lodged a claim against the Respondent on the
grounds that he “did not take all [his] salary of the contract”.
4.
In particular, the Claimant attached a document apparently signed by himself,
referred to as “Financial Report”, by means of which he stated that “Knowing that
the principal amount is ninety-six million (…) equivalent to the time of signing the
contract eighty thousand US dollars”, he “has received his salary equivalent to
[USD 45,000] and the rest of his salary [USD 35,000]”
5.
More specifically, the Claimant stated that he received the following amounts:
Amount
Payment date
USD 23,000
25 September 2015
USD 4,000
1 December 2015
USD 5,000
15 January 2016
USD 9,000
1 April 2016
USD 4,000
15 May 2016
6.
Despite being requested to do so, the Respondent failed to provide any comments
to the claim lodged by the Claimant.
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, it took note that the present matter was submitted to FIFA on 24 May
2016. Consequently, the 2015 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. art. 21 of the 2015
edition 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
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Player A, Country B / Club C, Country D
Players, edition 2016, 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 of Country B and a Club of Country D.
3.
The competence of the Chamber having been established, the Chamber analysed
which edition of the Regulations on the Status and Transfer of Players 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 2015 and 2016), and considering that the present matter was
submitted to FIFA on 24 May 2016, the 2015 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
4.
Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence which it considered
for the assessment of the matter at hand. In particular, the Chamber recalled that
in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use,
within the scope of proceedings pertaining to the application of the Regulations,
any documentation or evidence generated or contained in the Transfer Matching
System (TMS).
5.
In this respect, the Chamber acknowledged that, according to the information
contained in TMS, the parties to the dispute had signed an employment contract,
valid as from 6 September 2015 until 15 July 2016.
6.
Subsequently, the DRC noted that the Respondent failed to present its response
to the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the DRC was of the opinion that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
7.
Furthermore, as a consequence of the aforementioned consideration, the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules,
he shall take a decision upon the basis of the documentation already on file; in
other words, upon the statements and documents presented by the Claimant.
8.
In continuation, the members of the Chamber acknowledged that, in accordance
with the employment contract as available in the TMS, the Respondent was
obliged to pay to the Claimant the total amount of USD 80,000 for the whole term
of the contract.
9.
In this respect, the DRC took into consideration that according to the Claimant,
the Respondent only paid him the total amount of USD 45,000, but that the
remaining amount of USD 35,000 was still outstanding. Consequently, the
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Player A, Country B / Club C, Country D
Claimant requested to be awarded with the payment of the total amount of USD
35,000.
10. Taking into account the documentation presented by the Claimant in support of
his petition and that the Respondent failed to present its position as to the Claim
lodged by the Claimant, the DRC concluded that the Claimant had substantiated
his claim pertaining to outstanding remuneration with sufficient documentary
evidence.
11. On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s pending remuneration in the total
amount of USD 35,000.
12. Consequently, the DRC decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant
outstanding remuneration in the total amount of USD 35,000.
13. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
USD 35,000.
3.
In the event that the aforementioned sum is not paid within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
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Player A, Country B / Club C, Country D
4.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. 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. 58 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 (CAS)
Avenue de Beaumont 2
CH-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:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives
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Player A, Country B / Club C, Country D