Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 December 2011,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
X,
as Claimant
against the club,
Z,
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 8 July 2009, the player X (hereinafter: the Claimant) and the club, Z
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid as from the 8 July 2009 until 30 May 2010.
2.
According to article 2 of the contract, as a reward for the services rendered by the
Claimant to the Respondent, the latter shall pay the Claimant the following
amounts: “For the football season 2009/2010, for 9 months the amount of 12,000
Euros in 10 equal monthly installments of 1,200 Euros per month, each one
payable at the last day of the month starting from August 2009 and ending on
May 2010”.
3.
According to article 4 of the contract, “the Contracting Parties agree and accept
that at pay-day of salaries or bonuses the Club may withhold any counter-claims
against the Player as a result of disciplinary sanctions or debts of the Player
towards the State deriving from fiscal issues or any other obligation of the Player,
according to the Laws of the State”.
4.
On 1 June 2010, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting from the latter the amount of EUR
6,600 allegedly corresponding to half of the Claimant’s salary for the month of
September plus the salaries for the months of January, February, March, April, and
May 2010.
5.
On 5 August 2010, the Respondent replied to the claim lodged against it and
stated that it had paid the Claimant the amount of EUR 6,550 as salaries between
8 August 2009 and 3 March 2010.
6.
In continuation, the Respondent argued that the Claimant had breached the
contract, since he stopped providing his services to the Respondent by the end of
March.
7.
The Respondent further stated that the board of the Respondent “due to
relegation of the team to Division C imposed sanctions on all the players including
the applicant as well according to paragraph 4 of the said agreement. Particularly
the Club imposed penalty an/or fine the amount of EUR 1,200 as a result of
disciplinary offence of the player”.
8.
The Respondent indicated that, therefore, the Claimant “is not entitled to claim
the salaries of April and May 2010 since it provided no services to club Z and acted
in violation of the said agreement”.
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9.
On 7 February 2011, the Claimant informed FIFA that the Respondent had paid
him the amount of EUR 2,500.
10.
On 21 July 2011, the Claimant provided further comments in response to the
allegations of the Respondent of 5 August 2010. In this respect, the Claimant
argued that the Respondent did not present any evidence in support of its
allegations and stated that no fine was imposed on him as a result of a disciplinary
sanction. The Claimant also indicated that he never breached his contract or left
the club in March. Finally, the Claimant emphasized that the Respondent had
promised him orally to pay the rest of its debt towards him.
11.
In spite of having been invited to provide its final comments, the Respondent did
not provide any final comments.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, the DRC judge took note that the present matter was
submitted to FIFA on 1 June 2010. Consequently, the DRC judge concluded that
the 2008 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 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010) the DRC judge 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 judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations (editions 2009 and 2010) and considering that the present claim
was lodged in front of FIFA on 1 June 2010, the 2009 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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
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judge started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
5.
In this respect and first of all, the DRC judge acknowledged that, on 8 July 2009,
the Claimant and the Respondent had concluded an employment contract valid as
from 8 July 2009 until 30 May 2010. Equally, the DRC judge noted that the
contract established a total remuneration of EUR 12,000 payable in 10 equal
monthly installments of EUR 1,200, each one to be paid at the last day of the
month.
6.
Subsequently, the DRC judge observed that the Claimant is requesting the
payment of his alleged outstanding salaries in the total amount of EUR 6,600,
thereby asserting that the Respondent had not yet paid this amount.
7.
Finally, the DRC judge took note that, for its part, the Respondent admitted it did
not yet pay all the relevant salaries to the Claimant; however, the Respondent
justified the non-payment by arguing that the Claimant stopped to provide his
services to the Respondent by the end of March and that the amount of EUR 1,200
was deducted from his salaries due to sanctions imposed to all the players,
including the Claimant.
8.
With due consideration to the above, the DRC judge examined the documentation
submitted by the parties in the present proceedings and noted that the
Respondent had not provided any documentary evidence in order to prove the
above-mentioned allegations. Consequently, and bearing in mind the general
legal principle contained in art. 12 par. 3 of the Procedural Rules, which stipulates
that any party claiming a right on the basis of an alleged fact shall carry the
burden of proof, the DRC judge concluded that the argumentation of the
Respondent had to be rejected.
9.
On account of the aforementioned consideration, the DRC judge established that
the Respondent had failed to pay to the Claimant his monthly salaries in the total
amount of EUR 6,600. Consequently, and taking into account that, in the
meantime, the Respondent had paid the Claimant the amount of EUR 2,500, the
DRC judge concluded that, in accordance with the general legal principle of
“pacta sunt servanda”, the Respondent is liable to pay the Claimant the amount
of EUR 4,100.
III.
Decision of the DRC judge
1.
The claim of the Claimant, X, is accepted.
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2.
The Respondent, Z, has to pay to the Claimant the amount of EUR 4,100,
within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the abovementioned time limit and the present matter shall be submitted, upon request, to
FIFA’s 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 DRC
judge of every payment received.
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Note relating to the motivated decision (legal remedy):
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According to article 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
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