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
Z,
as “Claimant”
against the club
D,
as “Respondent”
regarding an employment-related dispute
between the parties.
I.
Facts of the case
1.
On 1 July 2005, the country S player, Z (hereinafter: the Claimant), and the country C
club, D (hereinafter: the Respondent) concluded an employment contract valid for the
season 2005-2006. It was also agreed that the Respondent maintained an exclusive right
to renew the contract for the season 2006-2007, option which was exercised by the
Respondent.
2.
According to the employment contract, the Claimant was entitled to receive as salary,
for the season 2006-2007, the amount of 20,000 payable in ten equal monthly
installments of 2,000 each, the first payable on 31 August 2006 and the following on
the last day of each month, with a 5 days “grace period”.
3.
On 5 June 2009, the Claimant lodged a claim in front of FIFA against the Respondent
for breach of contract, arguing that the Respondent had failed to pay him his salary for
the months of March, April and May 2007 in the total amount EUR 10,251 “equal to
6,000”. The Claimant therefore requested the following amounts:
4.
EUR 10,251.61 equivalent to 6,000 as outstanding salaries,
damages,
sanctions against the club,
any other remedy,
costs.
Although having been invited by FIFA to provide its position in the present matter, the
Respondent did not answer to the claim lodged against it.
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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 5 June 2009. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 conjunction with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players, edition 2012 (hereinafter: the
Regulations), he is competent to decide on the present litigation, 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 should be
applicable as to the substance of the matter. In this respect, he confirmed that in
accordance with art. 26 par. 1 and par. 2 of the Regulations (editions 2008, 2009, 2010
and 2012), and considering that the present matter was submitted to FIFA on 5 June
2009, the 2008 edition of said Regulations is applicable to the present matter 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. In doing so, he
started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file.
5.
In this respect, the DRC judge first of all acknowledged that on 1 July 2005, the parties
signed an employment contract valid for the duration of the season 2005-2006, and that
this contract was renewed for one additional season, i.e. the season 2006-2007.
According to said contract, the Claimant was entitled to receive as salary, during the
season 2006-2007, the amount of 20,000 payable in ten equal monthly installments of
2,000 each, the first one payable on 31 August 2006 and the following on the last day of
each month, with a 5 days “grace period”.
6.
In continuation, the DRC judge recalled the contents of the Claimant’s claim, who alleged
that his salary for the months of March, April and May 2007 remained unpaid and that
consequently, the Respondent must pay him the amount of EUR 10,251.61 equivalent to
6,000 as outstanding salaries, as well as “damages”. Furthermore, the Claimant requested
sporting sanctions to be imposed on the Respondent, as well as the reimbursement of his
legal costs.
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7.
Finally, the DRC judge underlined that the Respondent, for its part, failed to present its
response to the claim of the Claimant, in spite of having been invited to do so. In this
way, so the DRC judge deemed, the Respondent renounced its right to defence and,
thus, accepted the allegations of the Claimant. As a consequence of the
aforementioned consideration, the DRC judge established that in accordance with
art. 9 par. 3 of the Procedural Rules he shall pass a decision upon the basis of the
documents already on file, in other words, upon the statements and documents
presented by the Claimant.
8.
The aforementioned having been established, the DRC judge first of all deemed that
he must analyse the preliminary issue of prescription. In this regard, he recalled that
according to art. 25 par. 5 of the Regulations, FIFA’s competent deciding bodies shall
not hear any case subject to the Regulations if more than two years have elapsed
since the event giving rise to the dispute. The same provision further provides that
the application of this time limit shall be examined ex officio in each individual case.
9.
In this context, the DRC judge was eager to emphasise that the facts giving rise to the
dispute in casu were the non-payment by the Respondent of the Claimant’s salary for
March, April and May 2007, and that according to the employment contract, these
payments were due at the latest 5 days after the last day of the respective month,
this is, for the month of March 2007, on 5 April 2007; for the month of April 2007, on
5 May 2007; and for the month of May 2007, on 5 June 2007. In continuation, the
DRC judge recalled that the Claimant lodged his claim against the Respondent on 5
June 2009. Therefore, the DRC judge came to the conclusion that at the moment the
Claimant lodged his claim with FIFA, more than two years had elapsed since the due
dates of the salaries of March and April 2007.
10.
In view of the above, the DRC judge decided that the part of the Claimant’s claim
pertaining to the salaries of March and April 2007 is to be considered as time-barred
and therefore cannot be heard by him.
11.
In continuation, the DRC judge established that contrary to the claim relating to the
non-payment of the salaries of March and April 2007, the part of the Claimant’s claim
pertaining to the salary of May 2007 is not barred by the statute of limitations, with
the latter salary payment being due at the latest on 5 June 2007, while the Claimant’s
claim was lodged in front of FIFA on 5 June 2009. Thus, the DRC judge, recalling the
fact that the Respondent had not presented any reply to the Claimant’s claim and
should be deemed to have accepted the allegations of the latter, concluded that the
salary of May 2007 in the amount of 2,000 remained outstanding and that, in
accordance with the legal principle of pacta sunt servanda, the Respondent is liable
to pay the Claimant said amount.
12.
Turning his attention to the other requests of the Claimant, the DRC judge decided
that he must reject the claim regarding “damages” due to its lack of specification
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and in view of the contents of art. 9 par. 2 in combination with art. 9 par. 1 lit. g) of
the Procedural Rules.
13.
Equally, the DRC judge decided that he must reject the claim relating to “costs” in
accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber, including the DRC
judge.
14.
Finally, and with regard to the Claimant’s claim for sporting sanctions to be imposed
on the Respondent, the DRC Judge was eager to emphasise that, in view of the fact
that the present matter does not pertain to an early termination of the contract
concluded between the parties, no such sporting sanctions are applicable. Indeed, the
DRC judge underlined that clubs may be imposed sporting sanctions under the
Regulations, specifically art. 17 par. 4, only in the event that they have committed a
breach in the form of a unilateral and premature termination of the contract.
However, in casu, the contract binding the parties of the dispute was carried out until
its normal expiry. Therefore, the DRC judge decided to reject the Claimant’s
respective claim.
15.
The DRC judge concluded his deliberations by establishing that the claim of the
Claimant is partially accepted and that the Respondent must pay the Claimant the
outstanding amount of 2,000 corresponding to the May 2007 salary under the
employment contract concluded between the parties.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Z, is partially accepted.
2.
The Respondent, club D, has to pay to the Claimant the amount of 2,000 within 30
days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the above-mentioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
4.
Any further claims lodged by the Claimant, Z, are rejected.
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5.
The Claimant is directed to inform the Respondent, club D, immediately and directly
of the bank 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 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
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