Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 November 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tijn Boey kens (Belgium ), member
Tom is lav Kas alo (Croatia), member
Mario Gallav otti (Italy ), member
Joel Talav era Zárate (Paraguay ), member
Daan de Jong (The Netherlands ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 27 March 2016, the player A, from country B (hereinafter: the Claimant), and
the Club C from country D (hereinafter: the Respondent), signed an employment
contract valid from 1 April 2016 until 30 September 2016.
2.
In accordance with the employment contract, the Claimant was inter alia entitled
to receive “a gross monthly salary” of USD 6,500 for the duration of his contract.
3.
On 10 September 2016, the parties allegedly signed a “re-contract” which
stipulated that the “contract period will be increase 02 months (01 October 2016
to 30 November 2016)” and that “this re-contract is not a guarantee of final
contract”.
4.
According to the “re-contract”, the Respondent undertakes to pay the Claimant a
monthly salary of USD 6,500 and a daily food allowance of USD 9.00. The “recontract” further stipulates that “salary will be paid by 12th of next month except
last month”.
5.
Furthermore, the “re-contract” established that “return ticket country D-country B
will be given by the club”.
6.
On 20 March 2017, the Claimant lodged a claim before FIFA asserting that the
Respondent terminated the contract without just cause and asking that he be
awarded payment of USD 35,310 composed as follow:
a. Outstanding remuneration due totalling USD 20,310, as follows:
i. USD 19,500 in relation to three monthly salaries of 6,500 to cover
unpaid remuneration for the period starting from September 2016
until November 2016;
ii. USD 810.00 in relation to “daily food allowance” for the
aforementioned months ([USD 9.00 x30) x3];
b. Compensation for breach of contract without just cause, totaling USD
15,000, “based on the specific elements of the case”.
7. In his statement of claim, the Claimant explained that the Respondent failed to pay
entirely his monthly remuneration as from September 2016 until November 2016 (cf.
point I.7.a above). He also claims that during the pause in the championship, he was
authorised by the Respondent to return home for family reasons but the
Respondent failed to provide him with the necessary document for the visa in order
for him to return to country D.
8. According to the Claimant, he put the Respondent in default of payment of salaries
allegedly owed to him for the months of September, October and November 2016.
The Claimant further claims that the Respondent wanted to dismiss him in bad faith.
Player A, from country B / Club C, from country D
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9. The Respondent submitted its response to the claim lodged by the Claimant only
after notification of the closure of the investigation in the present matter.
10. In reply to FIFA’s pertinent request, the Claimant stated that he is currently still
unemployed.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, 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 20 March
2017. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (2017 edition; hereinafter: the
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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (2016 edition), 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 country B player and a country D club.
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 (2016
edition), and considering that the present claim was lodged on 20 March 2017, the
2016 edition of said 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, the Chamber entered into the substance of the matter. The Chamber
started by acknowledging the facts of the case, as well as the documentation
contained in the file. The Chamber, however, 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.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid from 1 April 2016 until 30 September 2016, in accordance with
which the Respondent would pay the Claimant a “gross monthly salary” of USD
6,500 for the duration of the contract.
Player A, from country B / Club C, from country D
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6.
The Chamber equally noted that on 10 September 2016, the parties had allegedly
signed a “re-contract”, which stipulated that the initial contract would be
extended for two additional months and in accordance with which the
Respondent would pay the Claimant a monthly salary of USD 6,500 and a daily
food allowance of USD 9.00, as detailed in points I.3 and I.4 above.
7.
Furthermore, the members of the DRC noted that, on 20 March 2017, the Claimant
lodged a claim against the Respondent maintaining that the Respondent had
terminated the employment contract without just cause, since the Respondent
allegedly failed to pay the entirety of his remuneration due between September
2016 and November 2016. Consequently, the Claimant claims to be owed the
remaining outstanding remuneration as well as compensation for breach of
contract without just cause on the basis of the “specific elements of the case”.
8.
Subsequently, the Chamber observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of the
Claimant within the time limit set by FIFA, i.e. 25 August 2017. In fact, the reply of
the Respondent was only received on 25 September 2017, i.e. after the closure of
the investigation phase on 14 September 2017. As a result, bearing in mind the
Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3
of the Procedural Rules, the Chamber decided not to take into account the reply
of the Respondent regarding the claim of the Claimant and established that in
accordance with the aforementioned provision, it shall take a decision on the
present dispute on the basis of the documents on file that were provided prior to
the deadline set by FIFA, in casu, on the statements and documents presented by
the Claimant.
9.
In continuation, the DRC took into consideration that according to the Claimant,
the Respondent had failed to pay his remuneration in the total amount of USD
20,310, corresponding to the unpaid salaries of September, October and
November 2016 (i.e. 3 x USD 6,500) as well as the daily food allowance for the
aforementioned months (i.e. 3 x [30 x USD 9.00]). Furthermore, the Chamber took
note that the Claimant also requested the payment of compensation for breach of
contract in the amount of USD 15,000.
10.
Taking into account the documentation presented by the Claimant in support of
his petition, the DRC first established that there was no formal termination of the
contract but only the mere allegation of the Claimant that he was authorized to
leave the club for personal reasons but could not return to the club. Consequently,
the DRC concluded that the contract rather expired on its original end date.
Player A, from country B / Club C, from country D
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11.
For the sake of the completeness of its analysis, the Chamber deemed it
appropriate to point out that, in spite of the fact that in the “re-contract” it is
stated that “this re-contract is not a guarantee of final contract”, such “recontract” contains all the essentialia negotii of a valid and binding
employment contract and is to be considered as such.
12.
On account of the aforementioned considerations, the DRC decided that the
Claimant had substantiated his claim pertaining to outstanding remuneration with
sufficient documentary evidence and that the Claimant is only entitled to the
remaining outstanding remuneration under the contract and the “re-contract”.
13.
In particular, the DRC determined that the Respondent failed to remit the
Claimant’s monthly remuneration in the total amount of USD 19,500,
corresponding to three monthly salaries as from September 2016 until November
2016, as established in the contract and in the “re-contract”. In addition, the
Chamber established that the Respondent failed to pay to the Claimant the
amount of USD 549 pertaining to the food allowance for the months of October
and November 2016 only (i.e. the duration 61 days x USD 9.00), as such benefit is
only provided for in the “re-contract”, valid from 01 October 2016 to 30
November 2016, but not in the contract.
14.
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 20,049.
15.
In conclusion, for all the above reasons, the Chamber decided to partially accept
the Claimant’s claim and to reject any further claim lodged by the Claimant.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club D, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, the amount of USD 20,049.
3.
In the event that the aforementioned sum is not paid by the Respondent 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 FIFA’s Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player A, from country B / Club C, from 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 m otiv ated 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
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, from country B / Club C, from country D
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