Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 December 2013,
by Mr. Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player
Player H, from country R
as Claimant
against the club
Club K, from country A
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 13 January 2011, Player H, from country R (hereinafter: the Claimant), and the
Club K, from country A (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid as from the date of signature until 13
June 2011.
2.
According to clause 3 of the contract, the remuneration of the Claimant for his
services was of USD 75,000 net, payable as follows:
a. USD 17,500 payable on the signature of the contract;
b. USD 7,500 as monthly salary;
c. USD 20,000 “only in condition that the player will take part in the 70%
of all official matches”, amount to be paid until the end of the season
(hereinafter: the match appearance bonus).
3.
On 14 April 2012, the Claimant lodged a claim against the Respondent requesting
the payment of the alleged outstanding amount of USD 20,000, corresponding to
the match appearance bonus (cf. point I.2 c) above).
4.
Equally, the Claimant further requested that the Respondent should be banned
from registering new players for the next two transfer windows as well as to bear
the costs of the proceedings.
5.
In this respect, the Claimant held having played 70% of all official matches, being
thus entitled to receive the match appearance bonus in the amount of USD 20,000
by 13 June 2011, as established in the contract. However, the Respondent
allegedly failed to pay the relevant amount. The Claimant further held that the
Respondent finished the 2010/2011 season in the second position and, therefore,
he considered having fulfilled the contract “with significant results”.
6.
In its response to the claim, the Respondent rejected the Claimant´s claim stating
that the contract had an alleged duration until 31 December 2011. In this regard,
the Respondent stated that the Claimant failed to return to the club after the
2010/2011 season in order to start the pre-season. In this context, the Respondent
explained that the Claimant did not show up to the pre-season camp under the
pretext that the head coach allegedly refused his services.
7.
Furthermore, the Respondent also stated having continued to fulfil its obligations
by allegedly paying the Claimant´s salaries until the contract expired.
8.
Despite having been invited to do so, the Claimant did not provide FIFA with any
additional comments.
*****
Player H, from country R / Club K, from country A
2/5
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC
judge or the judge) analysed whether he was competent to deal with the matter
at stake. In this respect, he took note that the present matter was submitted to
FIFA on 14 April 2012. 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. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 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 2012), he is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country R player and
an country A club.
3.
Furthermore, the DRC judge analysed which 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 Regulations on the Status and Transfer of Players (edition
2012 and 2010), and considering that the present claim was lodged on 14 April
2012, 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.
4.
The competence of the DRC judge and the applicable regulations having been
established, the latter entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
5.
First and foremost, the DRC judge acknowledged that, on 13 January 2011, the
parties had signed an employment contract valid until 13 June 2011. In this
respect, the DRC judge referred to 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 and highlighted that, although the Respondent alleged that
the contract was valid until 31 December 2011, it did not submit any documentary
evidence in this regard. As a consequence, the DRC judge decided that the
contract was valid until 13 June 2011.
6.
In continuation, the DRC judge took note that according to the contract, the
Respondent was obliged inter alia to pay to the Claimant an amount of
USD 20,000 “in condition that the [Claimant] will take part in the 70% of all
official matches”, due at the end of the season.
Player H, from country R / Club K, from country A
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7.
Subsequently, the DRC judge took into consideration that according to the
Claimant, the Respondent had failed to pay the match appearance bonus in the
amount of USD 20,000 stating that he participated in 70% of the official matches
and, therefore, was entitled to receive the aforementioned amount. As a
consequence, the judge took due note that the Claimant asked to be awarded the
amount of USD 20,000.
8.
In this regard, the DRC judge further took due note that the Respondent alleged
having paid the Claimant all the remuneration due until the expiry of the
contract.
9.
Considering the contradictory position of both parties, the DRC judge recalled the
general legal principle of the burden of proof (cf. art 12 par. 3 of the Procedural
Rules) and observed that the Claimant had not presented any documentary
evidence regarding his entitlement to the bonus for match appearances, i.e. the
Claimant had not provided any documentation that he had indeed participated in
any matches.
10.
Furthermore, the DRC judge noted that the Claimant had been given the
opportunity to reply to the comments submitted by the Respondent, in particular
its statement that it paid all the amounts due to the Claimant, but that the
Claimant had failed to present its response in this respect. In this way, the DRC
judge deemed that the Claimant accepted the statements of the Respondent.
11.
In view of the foregoing, the DRC judge decided that the Claimant’s request for
the match appearance bonus should be rejected.
12.
Moreover, the DRC judge decided to reject the Claimant´s request forcosts taking
into account art. 18 par. 4 of the Procedural Rules and the Chamber´s respective
longstanding jurisprudence.
13.
Finally, the DRC judge considered the Claimant´s request for the imposition of
sporting sanctions on the Respondent and pointed out that sporting sanctions will
only be imposed in cases regarding the early termination of a contract, i.e. in cases
involving art. 17 of the Regulations. Therefore, the DRC judge rejected the request
for sporting sanctions.
14.
In view of all the above considerations, the DRC judge concluded its deliberations
in the present dispute by deciding that the claim of the Claimant is rejected.
*****
Player H, from country R / Club K, from country A
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III.
Decision of the DRC judge
The claim of the Claimant, Player H, is rejected.
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
Player H, from country R / Club K, from country A
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