Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 December 2012,
by Phillipe Diallo (France), DRC judge
on the claim presented by the player,
Player N, from country C
as Claimant
against the club
Club M, from country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 24 July 2009, Club M, from country D (hereinafter: Respondent), and the
Player N, form country C (hereinafter: Claimant), concluded an employment
contract (hereinafter: the contract) valid as from 20 July 2009 until 30 May
2010.
2.
According to the contract, the Claimant was to be remunerated with the total
amount of EUR 10,000 net, payable in ten installments of EUR 1,000 each.
3.
On 25 July 2009, the parties concluded a supplementary agreement in
accordance with which the Claimant would, inter alia, receive:
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EUR 35,000, payable in ten monthly installments of EUR 3,500 each;
EUR 300 per goal scored;
EUR 300 per win.
4.
On 26 May 2011, the Claimant lodged a claim in front of FIFA, explaining that
at the end of the 2009/2010 season, the Respondent still owed him eight
salaries plus several bonuses. Therefore, the Claimant claimed the amount of
EUR 36,000 for outstanding salaries as well as the amount of EUR 7,000 for
outstanding bonuses. Equally, the Claimant claimed “an interest rate on the
above amounts” and legal fees.
5.
On 20 July 2011, the Respondent replied to the claim indicating that the
Claimant was to receive the total amount of EUR 50,700, detailed as follows:
-
6.
Nevertheless, the Respondent stated that it had already paid the Claimant the
amount of EUR 27,500 in several installments and that it had imposed
sanctions on the Claimant for the total amount of EUR 5,700, as follows:
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7.
EUR 45,000 as salary;
EUR 3,000 for 10 goals;
EUR 2,700 for 9 wins.
EUR 200 on 17 September 2009;
EUR 500 on 4 March 2010;
EUR 5,000 on 30 March 2010.
In this respect, the Respondent presented two letters addressed to the
Claimant, dated 27 August 2009 and 15 October 2009, informing the Claimant
of 2 fines imposed on him; EUR 200 for his unjustified absence from a training
session and EUR 500 for an unnecessary red card.
Player N, from country C / Club M, from country D
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8.
What is more, the Respondent indicated that on 30 March 2010 the Claimant
was “lawfully notified” about the termination of his contract and that he had
not objected to such termination. Therefore, in the Respondent’s view, no
salaries were due to the Claimant for the months of April and May 2010 and,
consequently, the amount of EUR 9,000 should be deducted from the amount
claimed by the Claimant. In this respect, the Respondent submitted a letter
dated 31 March 2010 addressed to the country D Football Association in which
the former informed the latter of the termination of the contract.
9.
In conclusion, the Respondent asserts that the remaining balance due to the
player amounts to EUR 8,500 (EUR 50,700 – EUR 27,500 – EUR 5,700 – EUR
9,000) and added that for all the earlier-mentioned payments, the Claimant
signed receipts.
10.
In his replica, the Claimant rejected all allegations of the club and reiterated
his previous position.
11.
In its duplica, the Respondent reiterated its previous position.
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 26 May 2011. 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 lit. i) in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2012) the DRC judge is competent to decide on the present
matter, which concerns an employment-related dispute with an international
dimension between a country D player and a country C 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 on the Status and Transfer of Players (editions 2010 and
2012) and considering that the present claim was lodged in front of FIFA on 26
May 2011, the 2010 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.
Player N, from country C / Club M, from country D
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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
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 24 July
2009 and 25 July 2009, the Claimant and the Respondent had concluded an
employment contract, respectively a supplementary contract, both valid for the
2009/2010 season.
6.
Equally, the DRC judge duly noted that the Claimant asserted that the
Respondent had failed to pay him eight monthly salaries corresponding to the
amount of EUR 36,000 as well as the amount of EUR 7,000 corresponding to
several bonuses.
7.
In addition, the DRC judge took note that, for its part, the Respondent
asserted that it had i) paid the Claimant the amount of EUR 27,500, ii) had
imposed fines on the Claimant in the amount of EUR 5,700, and iii) had
terminated the contract with the Claimant on 30 March 2010, the salaries for
the months of April and May 2010 therefore not being due. In view of the
foregoing, the Respondent deemed that merely the amount of EUR 8,500 was
still outstanding.
8.
In this context and after a thorough analysis of the arguments put forward by
both parties in the present matter, the DRC judge first recalled the basic
principle of the burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof.
9.
In this respect, the DRC judge noted that the Respondent did not substantiate
its defence, as it did not present any documentary evidence in respect of the
payment of EUR 27,500 it sustained to have already paid to the Claimant.
Therefore, the DRC judge decided it could not take into consideration the
argument of the Respondent that it had already paid the amount of EUR
27,500 to the Claimant.
10.
What is more, and as to the other arguments put forward by the Respondent,
the DRC judge observed that the Respondent had merely submitted three
letters signed by the Respondent in which it i) imposed several fines on the
Claimant in accordance with its “Internal Regulations” and ii) informed the
country C Football Association of the “lawful termination” of the contract
with the Claimant. In this respect, the DRC judge, once again referring to the
basic principle of the burden of proof, remarked that the Respondent did not
provide a copy of the “Internal Regulations” on which the aforementioned
Player N, from country C / Club M, from country D
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fines were apparently based. In view of the foregoing, the DRC judge deemed
that the Respondent had insufficiently corroborated the basis on which said
fines were imposed. By the same token, the DRC judge deemed that the letter
addressed to the country D Football Association was too ambiguous; in
particular, from said letter it could not be established on which basis the
contract was terminated and whether the player was at any time informed of
such termination.
11.
In view of the above, the DRC judge concluded that the Respondent had not
provided sufficient documentary evidence in support of its defence and,
therefore, the DRC judge decided that it could be established that the
Respondent had failed to pay the Claimant the amount of EUR 36,000 as
agreed upon between the parties in the contract and the supplementary
agreement. As a consequence, and in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfil its obligations
towards the Claimant and is to be held liable to pay the Claimant the
outstanding salaries in the amount of EUR 36,000.
12.
As regards the claim of the Claimant for the bonus payments of EUR 7,000, the
DRC judge once more referred to art. 12 par. 3 of the Procedural Rules and
noted that the Claimant had not provided any documentary evidence that
such bonus payments were indeed due. Therefore, the DRC judge decided to
reject this part of the Claimant’s claim.
13.
In continuation and with regard to the Claimant's request for interest, the DRC
judge decided that the Claimant is entitled to receive interest at the rate of
5% p.a. on the amount of EUR 36,000 as from 26 May 2011 until the date of
effective payment.
14.
The DRC judge further decided that the Claimant's claim for legal expenses is
rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the
respective longstanding jurisprudence of the Dispute Resolution Chamber.
15.
The DRC judge concluded his deliberations in the present matter by rejecting
any further claim of the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player N, is partially accepted.
2.
The Respondent, Club M, has to pay to the Claimant within 30 days as from
the date of notification of this decision, the amount of EUR 36,000, plus 5%
interest p.a. on said amount as from 26 May 2011 until the date of effective
payment.
Player N, from country C / Club M, from country D
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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
DRC judge of every payment received.
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Note relating to the motivated decision (legal remedy):
According to article 67 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:
Markus Kattner
Deputy Secretary General
Encl. CAS Directives
Player N, from country C / Club M, from country D
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