Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2009,
in the following composition:
Slim Aloulou, (Tunisia), Chairman
Michele Colucci (Italy), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Damir Vrbanovic (Croatia), member
on a claim presented by the player
R,
as Claimant
against the club
L,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 18 December 2006, the club, L (hereinafter: the Respondent), made an official
offer (hereinafter: official offer) to the player, R (hereinafter: the Claimant),
proposing him to enter into an employment contract valid from 1 January 2007 to
30 June 2008, for the total amount of EUR 190,000 plus bonuses.
2.
The official offer stipulated the following wages for the period between 1 January
2007 and 30 June 2007:
-
EUR 25,000 net after the Claimant’s ITC is received by the H Football
Federation;
EUR 35,000 net in equal monthly instalments.
-
In addition, the official offer provided for a payment due to the Claimant
amounting to EUR 130,000 net for the period between 1 July 2007 and 30 June
2008.
3.
On 3 January 2007, both parties concluded an employment contract (hereinafter:
the contract), valid as from the date of its signature until 30 June 2008.
4.
The contract provided for a monthly remuneration of the Claimant amounting to
EUR 700, as well as additional bonuses, in addition to EUR 190,000, due in 17
instalments as follows:
-
1st instalment of EUR 10,000 due on 30 January 2007;
2nd instalment of EUR 10,000 due on 28 February 2007;
3rd instalment of EUR 10,000 due on 30 March 2007;
4th instalment of EUR 10,000 due on 30 April 2007;
5th instalment of EUR 10,000 due on 30 May 2007;
6th instalment of EUR 10,000 due on 30 June 2007;
7th instalment of EUR 11,800 due on 30 August 2007;
8th instalment of EUR 11,800 due on 30 September 2007;
9th instalment of EUR 11,800 due on 30 October 2007;
10th instalment of EUR 11,800 due on 30 November 2007;
11th instalment of EUR 11,800 due on 30 December 2007;
12th instalment of EUR 11,800 due on 30 January 2008;
13th instalment of EUR 11,800 due on 28 February 2008;
14th instalment of EUR 11,800 due on 30 March 2008;
15th instalment of EUR 11,800 due on 30 April 2008;
16th instalment of EUR 11,800 due on 30 May 2008;
17th instalment of EUR 12,000 due on 30 June 2008.
5. On 21 December 2007, the Claimant lodged a claim against the Respondent for
alleged outstanding monies in the amount of EUR 16,400, plus interests as from
May 2007.
6. In its response to the claim, the Respondent stated that, since at the end of the
season (2006-2007) it was relegated to the second division, and in accordance
with the provisions of the contract, it was decided and agreed that the parties
will not continue with their collaboration for the season 2008-2009 (sic!).
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Moreover, the Respondent rejected the claim, underlining that the Claimant
does not specify which salaries or instalments are supposedly outstanding, and
therefore, the claim is totally vague and unsubstantiated. Consequently, the
Respondent explains that it cannot answer to the Claimant’s allegations as they
are contained in his claim. In addition, the Respondent asserted that according to
its records, the Claimant has been compensated for his services and that the
Claimant left the country without claiming anything from the Respondent.
7. In his rejoinder, the Claimant amended his request, claiming EUR 17,000 plus
interests, for the period between the beginning of the contract and 30 June
2007, since the contract was terminated after the aforesaid date. In this respect,
the Claimant stated that, from the total due amount of EUR 60,000, he received
the following payments:
-
EUR 1,000 on 11 January 2007;
EUR 15,000 on 17 January 2007;
EUR 9,000 on 26 January 2007 and
EUR 18,000 on 31 May 2007.
8. In its response, the Respondent agreed that the due amount for the period
between January 2007 and 30 June 2007 was EUR 60,000. Notwithstanding the
aforementioned, the Respondent explained that the said amount included
21.2% of taxes, since, according to tax law of H, in absence of a clear reference
to the contrary in the contract, i.e. specifying that the amount is net, amounts
are considered to be gross. Moreover, the Respondent stated that according to
legislation of H it was obliged to pay EUR 700 to the Claimant for each month
from January to June 2007, as well as some bonuses. In particular, the
Respondent asserted that the amount agreed as monthly salaries included a 10%
due as social security, which is deducted from the wage and paid by the
Respondent directly to the social security service. In this context, the Respondent
asserted that the net amounts due to Claimant were the following:
-
EUR 47,280 corresponding to contract’s instalments;
EUR 4,410 corresponding to the player’s wages.
9. Consequently, the Respondent alleged having paid to the Claimant EUR 52,400
as follows:
-
EUR 2,400 as an advance of payment on 22 December 2006;
EUR 1,000 on 11 January 2007;
EUR 15,000 on 17 January 2007;
EUR 9,000 on 26 January 2007;
EUR 7,000 on 4 April 2007;
EUR 18,000 on 31 May 2007.
Furthermore, the Respondent remarked once more that the claim remains vague
and does not specify which amounts, instalments or salaries are claimed by the
Claimant.
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II. Considerations
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 21 December 2007, thus before the aforementioned rules entered into
force on 1 July 2008. Therefore, the Chamber referred to art. 18 par. 1 and 2 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC; edition 2005; hereinafter: Procedural Rules) and took
note that the aforementioned Procedural Rules are applicable to proceedings
submitted to FIFA after the date on which they entered into force, i.e. on 1 July
2005. Consequently, the Chamber concluded that the 2005 edition of the
Procedural Rules is applicable to the matter at hand.
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 2009), 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 and a club.
3.
Furthermore, 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, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2009) and, on the other
hand, to the fact that the present claim was lodged on 21 December 2007 and that
the relevant employment contract was signed on 3 January 2007, thus before the
aforementioned rules entered into force on 1 October 2009. In view of the
aforementioned, the Chamber referred to art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (edition 2008) and concluded that the
Regulations for the Status and Transfer of Players (edition 2005; hereinafter: the
Regulations) of the said 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 and, in doing so,
examined the documentation presented by the parties throughout the proceedings
and took note that on 18 December 2006 the Respondent offered to the Claimant
to enter into an employment contract valid from 1 January 2007 to 30 June 2008.
According to the said official offer, the Claimant was entitled to receive a total net
remuneration of EUR 190,000 plus bonuses.
5.
Equally, the members of the Chamber acknowledged that, on 3 January 2007, the
parties concluded an employment contract, valid from the date of its signature until
30 June 2008, for the total amount of EUR 190,000 as well as additional bonuses.
6.
In this respect, the Chamber took note that, in accordance with the statements of
both the Claimant and the Respondent, the parties terminated their labour
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relationship on 30 June 2007, and therefore the Claimant claimed the amount of
EUR 17,000 plus interests corresponding to alleged outstanding salaries for the
period between the beginning of the contract and 30 June 2007.
7.
In continuation, the Chamber paid due consideration to the fact that the
Respondent acknowledged that the due amount for the aforementioned period is
EUR 60,000 and that the said amount should be considered to be gross, since
according to tax law of H, in absence of a clear reference to the contrary in the
contract, the amounts due include 21.2% taxes. Moreover, the Respondent alleged
that the wage agreed with the Claimant included a 10% corresponding to the social
security, which is deducted from the relevant salary by the Respondent and paid
directly to the social security service.
8.
In this respect, the Chamber noted that since the official offer was performed on 18
December 2006 and the employment contract was concluded by and between the
parties on 3 January 2007, there is a difference of 15 days between the official offer
of an employment contract and the employment contract de facto concluded by
and between the parties. Moreover, the members of the Chamber acknowledged
that the Respondent offered to the Claimant to enter into an employment contract
for the period from 1 January 2007 to 30 June 2008 and that the employment
contract was valid from the date of its signature, i.e. 3 January 2007, until 30 June
2008. Therefore, the Chamber concluded that both the official offer and the
employment contract have a similar, almost equal, duration. In addition, the
decision-making body remarked that on the one hand, the official offer amounted
to EUR 190,000 plus bonuses, and on the other hand the employment contract also
amounted to EUR 190,000 plus additional bonuses. Finally, the Chamber noted that
the employment contract did not explicitly specify whether the amounts stipulated
were gross or net, whereas the amounts in the offer were explicity referred to as
net amounts.
9.
Moreover, and with regard to the statement of the Respondent concerning the tax
law of H provisions, the members recalled the general principle of burden of proof
stipulated in the art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof. As a
consequence, the Chamber noted that the Respondent did not submit any
documentary evidence in respect of the aforementioned allegations.
10. In view of all of the above, despite the fact that the employment contract does not
contend any provision specifying whether its financial terms are to be considered as
gross or net amounts, and taking into account that the Respondent officially
offered 15 days before concluding the employment contract with the Claimant an
equal remuneration as a net amount for an almost equal period, and finally, with
due consideration to the general legal principles of in dubio contra stipulatorem
and in dubio pro operario, the members of the Dispute Resolution Chamber
concluded that the amounts on the matter at stake shall be considered as net.
11. Subsequently, the Chamber acknowledged that the remuneration for the claimed
period, i.e. until the mutual termination of the labour relationship, amounted to
EUR 60,000. In this respect, the members recalled once again the general principle
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of burden of proof. Subsequently, the members of the Chamber went on to analyse
the documentary evidence submitted by the Respondent and acknowledged that
the Respondent presented payment receipts for the partial amounts of EUR 2,400,
EUR 1,000, EUR 15,000, EUR 9,000, EUR 7,000 and EUR 18,000 corresponding to the
aforesaid period, thus, for the total amount of EUR 52,400.
12. On account of the foregoing, and since the remunerations to which the Claimant
was entitled amounted to EUR 60,000 net and the Respondent proved to have paid
EUR 52,400, the outstanding amount due to the Claimant is EUR 7,600.
13. In conclusion, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent should be held liable to pay the relevant
outstanding salaries. Therefore, the Respondent must pay to the Claimant the
amount of EUR 7,600 plus 5% of interest per year as from 30 June 2007.
14. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request lodged by the Claimant is rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is partially accepted.
2.
The Respondent, L, must pay to the Claimant, R, the amount of EUR 7,600, plus
interests at the rate of 5% per year as from 30 June 2007, within 30 days as from
the date of notification of this decision.
3.
If the aforementioned amount is not paid within the aforementioned time limit,
the matter will be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
4.
The Claimant, R, is directed to inform the Respondent, L, directly and immediately
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
5.
Any further request filed by the Claimant, R, is rejected.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 63 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
Deputy Secretary General
Encl.
CAS directives
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