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, from country A
as Claimant
against the club,
Club X, from country X
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 25 January 2016, the player A, from country A (hereinafter: Claimant) and
the club, Club X, from country X (hereinafter: Respondent), signed two
different versions of an employment contract, one in English language and
one in the country X language, valid as from 1 February 2016 until 30 June
2016.
2.
According to art. IV lit. a) of the English contract submitted by the Claimant,
the latter was entitled to a monthly salary of EUR 3,300.
3.
According to art. IV lit. b) of the English contract, the Claimant was entitled to
a bonus payment of EUR 200 “for a start in the League (when the [Claimant]
played at least 45 minutes)” and further bonus payments of EUR 300,
respectively, “for a scored goal” and “for an assist to scored goal” in the
League.
4.
According to art. IV lit. d) of the English contract, the Claimant was also
entitled to a “flat for the period of duration of this contract”, the value of
which would “not be less” than EUR 300 per month.
5.
Furthermore, art. IV lit. e) of the English contract stipulates that the Claimant’s
remuneration is to be paid “in the country X currency by the actual daily
courses of EUR currency at the ... (national bank of country X) to the bank
account of the [Claimant] on every 20th day of the month”. Art. IV lit. f)
specifies that the monthly remuneration is to be paid the 20 th day of the
month that follows the month in which the payment is due.
6.
In accordance with the country X contract submitted by the Respondent, the
Claimant was entitled to a monthly remuneration of 89,000 as well as bonus
payments. The country X contract does not include an accommodation
allowance entitlement.
7.
Following 2 previous default notices of 3 June and 11 July 2016, by email dated
21 September 2016, the Claimant reiterated to the Respondent his request for
payment, arguing that, in the meantime, outstanding payments had accrued in
the amount of EUR 10,200.
8.
On 26 September 2016, the Respondent answered by email stating that,
according to its accountant, the Claimant was to receive “125,650/EUR 4,654 (1
EUR = 27)”.
9.
On 7 October 2016, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting that the Respondent be ordered to pay the total
amount of EUR 10,200, consisting of EUR 9,900 as outstanding salaries (EUR
3,300 each month from April to June 2016) and EUR 300 as outstanding
payment for accommodation for May 2016.
Player A, from country A / Club X, from country X
2/9
10.
The Claimant further asked to be awarded 5% interest p.a. on each of the
aforementioned amounts as from the 20th day of the following month until
effective payment and that sanctions be imposed on the Respondent.
11.
More specifically, the Claimant argued that for the whole contractual duration
he was entitled to receive the total amount of EUR 20,300, consisting of EUR
16,500 as salary payments as from February 2016 until June 2016, EUR 1,200 as
payments for accommodation, and EUR 2,600 as bonuses for his performance
in relation to art. IV lit. b) of the contract, consisting of EUR 200 for February
2016, EUR 1,200 for March 2016 and EUR 1,200 for April 2016.
12.
In this respect, the Claimant explained that, at the time of lodging the claim,
out of the above-mentioned sums, the Respondent had paid him only EUR
10,100 in five instalments of different amounts without any specification as
regards the contractual entitlements. The Claimant asserted that he had been
paid EUR 1,500 on 30 March 2016, EUR 1,500 on 20 April 2016, EUR 3,100 on 6
June 2016, EUR 3,000 on 10 June 2016 and EUR 1,000 on 27 July 2016, which
payments he allocated to overdue amounts that had accrued before the date
of each payment.
13.
Furthermore, the Claimant argued that, by email dated 26 September 2016,
the Respondent acknowledged that it owed him some payments, although in
the allegedly wrong amount of EUR 4,654.
14.
In reply to the claim, the Respondent explained that the binding agreement
between the parties was not the English contract submitted by the Claimant,
but rather the country X contract submitted by the Respondent, which was
signed by the parties on 25 January 2016.
15.
With respect to the above, the Respondent argued that the two contracts bear
discrepancies, because the Respondent did not employ a full-time professional
translator. For this reason, and given that the Respondent wished to employ
the Claimant as soon as possible, the English contract provided to him was
incomplete and could not reflect in full the provisions of the country X
contract.
16.
Furthermore, the Respondent pointed out that, according to art. XI.3 of the
country X version of the contract, “in case of dispute between the language
hereof, the version in country X language prevails” and that, according to art.
XI.8 of the country X version of the contract, “in case of a conflict between the
individual counterparts hereof, the version filed in the relevant registration
section of Football Association of country X [note: the Football Association of
country X] is the ruling one”. Therefore, and given that the Respondent had
allegedly registered the country X version with its association, the Respondent
argued that the country X contract was the binding one.
Player A, from country A / Club X, from country X
3/9
17.
In continuation, the Respondent explained that, according to the country X
contract, there is no clause providing for the Claimant’s accommodation and
the bonuses are calculated in the following terms:
“the bonus for the scored goal [is] in the amount of 8,000 – and
assistance 8,000 – the bonus payment is subject to the acquisition of
points in the match of the highest football league (the League)”;
“the bonus for every match of the highest football league meaning the
acquisition of points and the [Claimant] playing at least 45 minutes, [is]
in the amount of 5,000”.
18.
The Respondent further argued that the Claimant had matured only one
bonus in April 2016 and that, for such bonus, it had paid the Claimant an
additional EUR 185 along with his monthly salary.
19.
Consequently, the Respondent held that it owed the Claimant the amount of
113,800 only, relating to part of the May 2016 remuneration (38,150) and the
June 2016 remuneration (75,650).
20.
In his replica, the Claimant first underlined that the Respondent used the
version of country X of the contract for the sole purpose of eluding its
obligations towards him. The Claimant further explained that the registration
of the country X version with the Football Association of country X did not
prove that the country X contract was intended to be the binding one,
arguing that the registration of contracts is an administrative procedure
typically out of the player’s control.
21.
More specifically, the Claimant argued that his intention had always been to
bind himself to the English version of the contract. In this regard, the Claimant
explained that the parties had always intended to have their employment
relationship governed by the English version of the contract, given that the
entirety of the pre-contractual negotiations, including the exchange of the
final draft of the contract, had referred to the English version. In this respect
and in order to support his claim, the Claimant submitted an exchange of
correspondence between his intermediary and the Respondent during the
negotiation phase, in which his intermediary, among other things, had insisted
particularly on the inclusion of an accommodation allowance clause in the
contract, due to the strong interest of the Claimant on this point.
22.
In continuation, the Claimant pointed out that the Respondent had never
provided his intermediary, who was in charge of the pre-contractual
negotiations, with the country X version of the contract. Furthermore, the
Claimant argued that he signed the country X version in addition to the
English one as a consequence of the deceiving strategy put in place by the
Respondent at the signing stage, when he was told that the two versions were
identical.
Player A, from country A / Club X, from country X
4/9
23.
In light of the above-mentioned considerations, the Claimant reiterated the
position expressed with his claim and added that the Respondent’s conduct
during the entire course of the negotiations had led him to legitimately expect
that the only binding version was the one agreed upon, i.e. the English one.
Therefore, the Claimant deemed that the Respondent’s subsequent intent to
consider the English version as invalid would stand in contrast with the
estoppel principle.
24.
In its rejoinder, the Respondent insisted that that the binding version was the
country X one, since the Football Association of country X requires all players’
contracts to be registered in country X language. The Respondent further
argued that not having checked properly what he was signing, was only the
Claimant’s fault. Furthermore, the Respondent claimed that it had informed
the Claimant several times that the binding version was the country X one.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter
at stake. In this respect, the DRC took note that the present matter was
submitted to FIFA on 7 October 2016. Consequently, the DRC concluded that
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 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 2016) the DRC is competent to deal with the matter at
stake, which concerns an employment–related dispute with an international
dimension between a player and a club.
3.
Furthermore, the DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and
par. 2 of the Regulations (edition 2016) and considering that the present claim
was lodged in front of FIFA on 7 October 2016, the 2016 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the
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 members of the Chamber entered into the substance of the
matter. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation submitted
Player A, from country A / Club X, from country X
5/9
by the parties. 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.
In this respect, first and foremost, the DRC acknowledged on a preliminary
basis that the parties did not agree on which employment contract had to be
considered at the basis of the claim, given the existence of two different
signed versions of it, one drafted in the English language and one in the
language of country X.
6.
The members of the Chamber further observed that the two above-mentioned
versions contained slightly different provisions regarding the Claimant’s
contractual entitlements. In this respect, the DRC pointed out that, while the
two versions substantially provided for the same amount concerning the
Claimant’s monthly salary, i.e. EUR 3,300, although expressed in country X’s
currency in the country X one, they diverged with respect to accommodation
and bonus entitlements, with the English version providing for
accommodation for “not […] less” than EUR 300 per month and the country X
version not including any accommodation allowance and calculating the bonus
payments in a different way.
7.
In continuation, the DRC noted that the Claimant held that the binding
contract was the English version signed by the parties, because their intention
had always been to bind themselves to that contract. In order to support his
argumentation, the Claimant explained that the entirety of the precontractual negotiations between his intermediary and the Respondent,
including the exchange of the final draft of the contract, had referred to the
English version and, thus, he legitimately expected that the English version
would regulate his employment relationship with the Respondent.
Furthermore, the Claimant argued that he signed the country X version in
addition to the English one, as a consequence of a deceiving strategy put in
place by the Respondent at the signing stage, when he was told that the two
versions were identical.
8.
On the other hand, the members of the Chamber noted that the Respondent,
for its part, held, on the basis of articles XI.3 and XI.8 of the country X contract,
that the country X version had to be considered the binding contract, given
that such contract was the one that the Respondent registered with its
association.
9.
In respect of the above, the Chamber found no basis to concur with the
Respondent’s remarks. Indeed, the DRC considered that art. XI.3 of the
country X version of the contract, which reads “in case of dispute between the
language hereof, the version in country X language prevails”, only refers to
discrepancies in language.
Player A, from country A / Club X, from country X
6/9
10.
In continuation, and with regards to the alleged registration of the country X
contract with the Football Association of country X referred to by the
Respondent in relation with art. XI.8 of the country X contract, the DRC
considered relevant to recall its jurisprudence in accordance with which the
validity of an employment contract cannot be made conditional upon the
execution of (administrative) formalities, such as, but not limited to, the
registration procedure in connection with the international transfer of a
player, which are the sole responsibility of a club and on which a player has no
influence.
11.
Having said that, the Chamber considered important to bear in mind art. 12
par. 3 of the Procedural Rules, in accordance with which any party claiming a
right on the basis of an alleged fact shall carry the burden of proof. In this
respect, the Chamber took note that the Respondent had not presented
documentation which would demonstrate that the version registered with the
Football Association of country X was indeed the country X contract. On the
other hand, however, the members of the Chamber emphasised that the
Claimant demonstrated that the parties had carried out the entirety of their
negotiations referring solely to the English version of the contract.
12.
In this context, the DRC was also mindful 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). In
this respect, the Chamber pointed out that the English contract was in fact the
version uploaded on TMS.
13.
With all these considerations in mind, the DRC could not uphold the
Respondent’s argumentation and agreed that the English version of the
contract had to be considered the one legally binding upon the parties and
governing the parties’ employment relationship.
14.
Having preliminarily established the above, the members of the Chamber
shifted their focus on the substance of the matter. In this regard, the DRC
noted that the Claimant held that, out of the total EUR 20,300 he was entitled
to as salary payments, rent allowance and bonuses, the Respondent had only
paid him EUR 10,100.
15.
In continuation, the Chamber observed that the Respondent, for its part,
acknowledged that it owed the Claimant the amount of 113,800 only and that
in support of its position, the Respondent presented an apparent in-house
accounting document which indicates payments in the total amount of
268,700, which amount would approximately correspond to the EUR 10,100
that the Claimant acknowledged having received from the Respondent.
16.
This being established, the Chamber, recalling once again art. 12 par. 3 of the
Procedural Rules, took note that the Claimant had not substantiated his
Player A, from country A / Club X, from country X
7/9
calculation of bonus entitlements in the amount of EUR 2,600 with pertinent
documentary evidence. Consequently, the members of the Chamber concluded
that, with the exception of 1 bonus payment of EUR 185, which was
acknowledged as due by the Respondent, the Claimant’s calculation of his
total contractual entitlements could not be fully upheld.
17.
In view of the foregoing and the documentation on file, the DRC concluded
that the Claimant was contractually entitled to the total amount of EUR
18,185, corresponding to: (i) salaries of EUR 16,500, (ii) accommodation of EUR
1,500 and (iii) bonus payments of EUR 185. Bearing in mind the previous
considerations, the Chamber further concurred in the conclusion that the
Claimant had received the amount of EUR 10,100 from the Respondent.
18.
Therefore, bearing in mind that the relevant employment contract does not
stipulate a clear EUR/Country X currency exchange rate as well as that no
documentation relating to any such exchange rate was presented, the
Chamber established that the Respondent failed to remit the Claimant’s
remuneration in the total amount of EUR 8,085 for the period as from April to
June 2016.
19.
On account of the above, the DRC decided that, in accordance with the
general legal principle of “pacta sunt servanda”, the Respondent is liable to
pay the amount of EUR 8,085 to the Claimant.
20.
In addition, taking into account the Claimant’s claim, the Chamber decided to
award the Claimant interest of 5% p.a. as of the day following the day on
which the relevant payments fell due in accordance with art. IV lit. f) of the
relevant employment contract.
21.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club X, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, the amount of EUR 8,085 plus 5%
interest p.a. until the date of effective payment as follows:
a. 5% p.a. on EUR 3,300 as of 21 May 2016;
b. 5% p.a. on EUR 3,600 as of 21 June 2016;
c. 5% p.a. on EUR 1,185 as of 21 July 2016.
Player A, from country A / Club X, from country X
8/9
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.
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 decis ion (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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, from country A / Club X, from country X
9/9