Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 December 2013,
by Theo Van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player S, from country H
as Claimant
against the club,
Club P, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 1 July 2011, Club P, from country C (hereinafter: the Respondent or the
club), and Player S, from country H (hereinafter: the Claimant or the player),
concluded an employment contract (hereinafter: the contract) valid as from
the date of signature until 31 May 2013.
2.
According to the contract, the Claimant was, inter alia, to be remunerated by
the Respondent as follows:
a) The total amount of EUR 45,000 for the season 2011-2012, payable in 10
monthly installments of EUR 4,050 and a signing fee of EUR 4,500;
b) The total amount of EUR 50,000 for the season 2012-2013, payable in 10
monthly installments of EUR 5,000.
3.
On 30 April 2012, the Respondent and the Claimant concluded an agreement
(hereinafter: the agreement), by means of which the Respondent agreed to
pay to the Claimant outstanding remuneration for the season 2011-2012
amounting to EUR 25,400 as follows:
a)
The amount of EUR 5,000 with a cheque dated 28 May 2012;
b)
The amount of EUR 10,000 with a cheque dated 18 June 2012;
c)
The amount of EUR 10,000 with a cheque dated 19 September 2012.
In return, the player gave the amount of EUR 400 “as a contribution” to the
club.
4.
On 18 July 2013, the Claimant lodged a claim before FIFA, claiming the amount
of EUR 56,000 plus interest at a rate of 5% p.a., indicating that the Respondent
had breached the contract as well as the agreement and never paid him the
following:
a) The outstanding remuneration for the sporting season 2011-2012
amounting to EUR 25,400;
b) The outstanding remuneration for the sporting season 2012-2013
amounting to EUR 30,600, indicating he had only received the amount
of EUR 19,400.
5.
In reply to the player’s claim, the club stated that, according to its financial
records, it had paid the entire amount due to the player and requested that
the claim of the latter for “EUR 51,000” should be dismissed.
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 18 July 2013. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Player S, from country H / Club P, from country C
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Resolution Chamber (edition 2012; 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 an country H 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 (edition 2012) and
considering that the present matter was submitted to FIFA on 18 July 2013, the
2012 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the 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 acknowledged that the parties had signed an
employment contract on 1 July 2011, in accordance with which the player was
entitled to receive, inter alia, the amount of EUR 95,000 as total remuneration
for the term of the contract.
6.
In addition, the DRC judge observed that the parties had concluded a private
agreement on 30 April 2012, which stipulated that the Respondent would pay
to the Claimant the outstanding amount of EUR 25,400 in the following three
instalments, (i) EUR 5,000 with a cheque dated 28 May 2012; (ii) EUR 10,000
with a cheque dated 18 June 2012 and; (iii) EUR 10,000 with a cheque dated 19
September 2012. Furthermore, the player gave the amount of EUR 400 “as a
contribution” to the club.
7.
In continuation, the DRC judge noted that the Claimant alleged that the
Respondent had failed to pay the outstanding amount of EUR 25,400 for the
sporting season 2011-2012, established by the parties in the private
agreement, as well as the amount of EUR 30,600 for the sporting season 20122013. Consequently, the Claimant asked to be awarded with the payment of
the total amount of EUR 56,000, plus interest.
Player S, from country H / Club P, from country C
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8.
Equally, the DRC judge took note of the reply of the Respondent, which
asserted that, according to its financial records, it had no outstanding financial
obligations towards the player and, therefore, the claim should be dismissed.
9.
With due consideration to the above, the DRC judge acknowledged that the
Claimant stated not having received the abovementioned amount, whereas
the Respondent claimed that it had no outstanding debts towards the player.
10.
In this respect, the DRC judge 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.
11.
In relation to the preceding paragraph, the DRC judge noted that the
Respondent did not substantiate its defence, as it did not present any evidence
in respect of any payments it sustained to have made to the player.
12.
In view of the above, the DRC judge concluded that the Respondent had not
provided evidence of its defence and that, therefore, it could be established
that the Respondent had failed to pay to the Claimant the amounts as agreed
upon between the parties in the contract dated 1 July 2011 and the agreement
dated 30 April 2012. As a consequence, and in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfil its
obligations as per the contract and the private agreement concluded with the
Claimant and, consequently, is to be held liable to pay the outstanding
amount of EUR 56,000 to the Claimant.
13.
With regard to the claimed interests, the DRC judge decided that the
Respondent had to pay default interest at a rate of 5% p.a. as of 18 July 2013
on the amount of EUR 56,000.
14.
Finally, the DRC judge determined that the Claimant has to return the relevant
cheques issued by the Respondent.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player S, is accepted.
2.
The Respondent, Club P, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 56,000 plus 5%
interest p.a. on said amount as from 18 July 2013 until the date of effective
payment.
Player S, from country H / Club P, from country C
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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.
The Claimant is directed to return to the Respondent the cheques dated 28
May 2012, 18 June 2012 and 19 September 2012, within 30 days as from the
date of notification of this decision.
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.
*****
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 S, from country H / Club P, from country C
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