Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 December 2012,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player
Player F, from country S
as Claimant
against the club
Club G, from country M
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 16 July 2008 and on 15 August 2008, Player F, from country S (hereafter: the
Claimant), and Club G, from country M (hereinafter: the Respondent), concluded
respectively an employment contract and an annex thereto (hereinafter: the
contract) valid as from 16 July 2008 until 31 July 2010.
2. According to the annex to the contract, the Claimant was entitled to receive for
his services, inter alia: EUR 40,000 as remuneration for the 2008/2009 season,
payable in instalments, namely a first instalment of EUR 10,000 upon signing of
the contract and 10 subsequent equal monthly instalments of EUR 3,000 each;
and EUR 30,000 for the 2009/2010 season.
3. On 28 July 2010, the Claimant lodged a petition before FIFA against the
Respondent claiming outstanding remuneration. In particular, the Claimant
asserted that the Respondent had only paid him EUR 38,000 out of the EUR
40,000 salary agreed for the 2008/2009 season; and EUR 11,700 out of the EUR
30,000 salary agreed for the 2009/2010 season. In addition, the Claimant reported
that in April and May 2009 he was fined EUR 1,000 without any written
explanation.
4. Prior to his claim, the Claimant had put the Respondent in default by means of a
letter sent to the latter on 19 July 2010, whereby the Claimant required the
Respondent to pay outstanding salaries in the amount of EUR 21,300 within eight
days and warned the Respondent that failure to do so would prompt the
Claimant to bring his claim before FIFA.
5. In this respect, the Claimant stated that the Respondent refused to pay the
abovementioned sums for various reasons (cf. par. I./7. below)
6. In view of the foregoing, the Claimant requested the DRC to order the
Respondent to pay outstanding salaries in the amount of EUR 21,300, made up of
EUR 2,000 for the 2008/2009 season and EUR 19,300 for the 2009/2010 season,
plus 5% interest p.a. from 1 May 2009 until the date of payment; and to consider
further disciplinary sanctions against the Respondent.
7. In its reply, submitted on 29 November 2010, the Respondent explained that since
the Respondent’s plan to reach a rank in the country M competition that would
secure the participation in the European competitions, a target set in the
Respondent’s “Premium Rulebook”, had failed, the salary of all players for the
months of April and May 2009 was reduced by 30%. The Respondent claimed
that such reduction resulted from its disciplinary committee’s decision of 15 June
2009, a copy of which was submitted together with the Respondent’s submission,
to fine the coaching staff and players.
Player F, from country S / Club G, from country M
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8. Also, according to the Respondent, due to the economic crisis it was forced to
further amend the contractual obligations for the 2009/2010 season, and so it
was agreed by means of a decision of the Respondent’s management dated 3 July
2009 to reduce the agreed financial terms by 30% while offering the players,
who did not accept the new terms, the possibility of freely leaving the club;
however, no compensation was agreed to be offered in that case. The
Respondent stated that the Claimant accepted the amendments and continued
his cooperation with the club. Furthermore, the Respondent submitted a
document referred to as “declaration” dated 25 February 2010 by means of
which, according to the Respondent, the members of the team (including the
Claimant) acknowledged that there were no unsettled obligations towards them
until that date.
9. Finally, the Respondent stated that the Claimant reported health problems in
August 2009. Consequently, in order to find out the underlying cause, the
Respondent arranged medical examinations in country M; however, these were
unsuccessful in diagnosing the problem. For this reason, the Claimant went to
country S to seek medical advice but when he returned to country M he simply
informed the Respondent that nothing had been found. As a consequence, the
Respondent made a proposal to amend the contract as regards the payment
scheme and the overall remuneration by way of an annex. According to the new
arrangement, the salary for the month of August 2009 was set at EUR 500 and,
thereafter, the Claimant’s salary shall be linked to his participation in the team’s
matches, ie on the basis of time effectively played, and shall be paid after each
match. In this regard, while the Respondent acknowledged that the amendment
was never signed by the Claimant, it stressed that the Claimant acted accordingly
and that this undoubtedly showed the Claimant’s consent.
10. In view of the above, the Respondent asked that the Claimant’s petition be
dismissed and, in particular, argued that given that the Claimant was among the
signatories of the above-mentioned declaration, the amounts claimed until 25
February 2010 must in no event be taken into consideration.
11. In his replica, the Claimant stressed that the decisions of the club dated 15 June
2009 and 3 July 2009 to reduce the Claimant’s salary were taken by the club
without the consent and knowledge of the Claimant and for this reason must be
considered as non-binding. Further, the Claimant pointed out that in the
document referred to as “declaration” there was no indication as to its nature
and that he was asked to sign off on the “declaration” following the completion
of a medical test. Finally, the Claimant asserted that he left for treatment to
Belgrade with the Respondent’s consent and that the confirmation for this is that
no disciplinary measures were taken against him as a result of his absence. The
Player F, from country S / Club G, from country M
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Claimant indicated that he refused to sign the amendment suggested by the
Respondent.
12. In its duplica, the Respondent merely stated that it acknowledged that “earnings
for the months April and May reduced by 50%, together with payments for
insurance from January to May” were outstanding.
II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC
judge) analysed whether he was competent to deal with the case at hand. In
this respect, he firstly took note that the present matter was submitted to FIFA
on 28 July 2010. Therefore, 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 and 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
litigation, concerning an employment-related dispute of an international
dimension between a country S player and a country M club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players (edition 2012), the DRC judge confirmed that
he may adjudicate in the present dispute, which value does not exceed currency
of country H 100,000.
4.
In continuation, the DRC judge analysed which edition of the regulations 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 also considering that the
present claim was lodged in front of FIFA on 28 July 2010, 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 F, from country S / Club G, from country M
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5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. He started
by acknowledging that the parties to the dispute had signed an employment
contract valid as from 16 July 2008 until 31 July 2010.
6.
Equally, the DRC judge observed that the parties had agreed an overall
remuneration for the term of the contract amounting to EUR 70,000, made up
of: EUR 40,000 as remuneration for the 2008/2009 season, payable in
instalments, namely a first EUR 10,000 instalment upon signing of the contract
followed by 10 equal monthly instalments of EUR 3,000 each; and EUR 30,000
for the 2009/2010 season. However, the DRC judge noted that as regards the
2009/2010 season no payment schedule had been agreed.
7.
In continuation, the DRC judge noted that the Claimant lodged a claim against
the Respondent requesting the payment of the amount of EUR 21,300,
corresponding to unpaid salary instalments, namely EUR 2,000 for the 2008/2009
season and EUR 19,300 for the 2009/2010 season, plus 5% interest p.a. from 1
May 2009 until the date of payment. Furthermore, the DRC judge noted that
the Claimant had requested disciplinary sanctions against the Respondent.
8.
Equally, the DRC judge observed that the Claimant, prior to lodging his petition
before FIFA, had put the Respondent in default by means of a letter, sent on 19
July 2010, unsuccessfully requiring the settlement of the outstanding salary
instalments within eight days from receipt of the letter.
9.
Having said this, the DRC judge turned his attention to the arguments of the
Respondent and, in particular, took note that, according to the Respondent, the
reduction of the Claimant’s salary has resulted from two decisions, dated 15
June 2009 and 3 July 2009, taken by the Respondent in order to, respectively: i)
fine the coaching staff and players for failing to reach a rank in the country M
competition allowing them to take part in the European competitions; and ii)
cope with the economic crisis. Further, the DRC judge observed that the
Respondent claimed that the Claimant was a signatory of a declaration dated 25
February 2010 by means of which, according to the Respondent, the Claimant
had acknowledged that there were no unsettled obligations towards him until
that date. Finally, the DRC judge noted that the Respondent claimed that,
following the health problems suffered by the Claimant, it had made a proposal
to amend the contract of the Claimant by way of an annex, effective as of
August 2009, as regards the overall remuneration as well as the payment
scheme.
Player F, from country S / Club G, from country M
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10. In this context, the DRC judge recalled that according to the legal principle of
the burden of proof, any party claiming a right on the basis of an alleged fact
shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
11. In view of the above, the DRC judge concluded that the Respondent shall carry
the burden of proof as regards the due notification of the abovementioned
decisions to the Claimant as well as in relation to the other arguments put
forward by the Respondent in the present matter.
12. In this respect, the DRC judge ascertained that the Respondent was unable to
prove that the relevant decisions had been duly notified to the Claimant.
Further, the DRC judge stated that it could be drawn from the submissions of
the parties during the investigation that the decisions were only made available
to the Claimant as an enclosure to the Respondent’s letter dated 23 July 2010.
Finally, the DRC judge remarked that the Respondent had not submitted any
documentary evidence which would support the basis on which said deductions
were made. In view of all the foregoing, the DRC judge decided that the
reductions of the salary could not be considered legitimate.
13. Subsequently, the DRC judge ascertained that in the original version of the
document referred to as “declaration”, there did not seem to be any statements
about unsettled obligations. As a matter of fact, the DRC judge concluded that
said document was a rather simple list containing names next to the
corresponding signatures. Therefore, the DRC judge came to the conclusion that
the Respondent was not able to prove that the Claimant, as a signatory of the
“declaration”, had acknowledged that there were no unsettled obligations
towards him until that date.
14. Thereafter, in relation to the alleged amendment to the financial terms of the
contract, the DRC judge observed that the Respondent has not presented any
documentary evidence regarding a possible amendment to the contractual
arrangements in place between the parties and equally noted that the Claimant
denied having ever accepted such an amendment. Indeed, the DRC judge
pointed out that the Respondent, in its submission dated 29 November 2010,
acknowledged that the amendment was never signed by the Claimant. Against
this background and once again referring to the burden of proof, the DRC
judge stated that the Respondent’s argument in this respect cannot be upheld.
15. Finally, the DRC judge stressed that on the basis of the principle of pacta sunt
servanda the contractual arrangements shall be honored by the parties.
Player F, from country S / Club G, from country M
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16. Consequently, the DRC judge decided that the Respondent is liable to pay to the
Claimant outstanding salaries in the total amount of EUR 21,300.
17. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a..
18. Finally, in relation to the Claimant’s request for sporting sanctions, the DRC
judge referred to art. 17 of the Regulations and outlined that sporting sanctions
only apply to those matters involving an early termination of an employment
contract without just cause.
*****
III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, Player F, is accepted.
2.
The Respondent, Club G, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 21,300, plus 5%
interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 1 May 2009 on the amount of EUR 1,000;
b. 5% p.a. as of 1 June 2009 on the amount of EUR 1,000;
c. 5% p.a. as of 28 July 2010 on the amount of EUR 19,300.
3.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned number 2 are not paid by the Respondent within the stated
time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
Player F, from country S / Club G, from country M
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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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player F, from country S / Club G, from country M
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