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 M, from country P
as Claimant
against the club,
Club P, from country B
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 28 January 2010, Player M, from country P (hereinafter: player or
Claimant), and Club P, from country B (hereinafter: club or Respondent),
concluded an employment contract (hereinafter: the contract), valid as from
1 February 2010 until 30 June 2013.
2.
On 22 February 2011, the player and the club signed a “complementary
agreement” to the contract (hereinafter: the termination agreement), by
means of which the parties agreed on the mutual termination of the contract
effective as of 1 March 2011.
3.
Pursuant to the termination agreement, the club undertook to pay to the
player EUR 49,000, payable in two installments of EUR 25,000 and EUR 24,000
that fell due, respectively, on 23 February and 30 April 2011.
4.
On 2 August 2012, the player lodged before FIFA a claim against the club
requesting the payment of an overall amount of EUR 25,170.41, made up of
EUR 24,000 and interest on arrears in the amount of EUR 1,170.41.
5.
According to the player’s claim, the club had failed to pay the second
installment in the amount of EUR 24,000, reason for which the player put the
club in default by means of a letter in which he informed the latter of his
bank account details. In this respect, the player submitted a letter dated 16
January “2011” referring the club to the player´s country P bank account.
6.
In response to the claim, the club claimed that on 30 March 2012 it had made
a payment into the player’s bank account for an amount of currency of
country B 46,939 and submitted an apparent bank transfer order dated 30
March 2012.
7.
The player, however, rejected the club’s statement regarding payment into
his bank account in country B and stated that by the date of the alleged
payment he had already closed the relevant bank account. In this respect, the
player provided a document dated 30 December 2011 by means of which he
asked for the closure of his bank account. In addition, the player stressed that
according to the termination agreement, the due amount shall be paid into
the player’s country P bank account. Finally, the player reiterated his financial
request as set out in his claim.
Player M, from country P / Club P, from country B
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8.
In its duplica, the club dismissed as untrue that the parties had agreed on the
payment into the player’s country P bank account. In the club’s view, the
player had failed to advance sufficient evidence in order to support his
argument that he had closed his bank account in country B. In this regard,
the club pointed out that the document submitted by the player as proof of
closure of the bank account is no more than a request for the closure of the
bank account, but not a confirmation of the actual closure.
9.
Furthermore, the club argued that if the bank account was indeed closed
and, as a result, the payment made by the club could not have been
completed, then the club could not be held liable for the non-payment since
it was the act of the player that prevented the club from successfully
completing the payment.
10.
The player rejected the club’s arguments and reiterated that the parties
agreed in the termination agreement that the payment shall be made into
the player’s country P bank account. Moreover, the player referred to the
bank account closure order, and insisted that after that date no account
movements had been registered.
11.
The club for its part has not presented any further comments.
*****
Player M, from country P / Club P, from country B
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II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (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 2 August 2012.
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 of the 2008 and 2012 edition 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 par. 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 deal with the matter
at stake, which concerns an employment–related dispute with an
international dimension between a country P player and a country B club.
3.
In continuation, 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 2 August 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 DRC judge entered into the substance of the matter. In
this respect, the DRC judge acknowledged that the Claimant and the
Respondent had signed an employment contract on 28 January 2010 valid as
from 1 February 2010 until 30 June 2013.
5.
In addition, the DRC judge observed that on 22 February 2011, the parties
had concluded a complementary agreement by means of which they agreed
on the mutual termination of the contract. According to the aforementioned
termination agreement, the Respondent was to pay to the Claimant the
outstanding amount of EUR 49,000 in two instalments: (i) EUR 25,000 payable
on 23 February 2011 and (ii) EUR 24,000 payable on 30 April 2011.
Player M, from country P / Club P, from country B
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6.
In continuation, the DRC judge noted that the Claimant alleged that the
Respondent had failed to pay the second instalment as established by the
parties in the termination agreement, which should have been effectively
paid on 30 April 2011. Consequently, the Claimant seeks to be awarded the
total amount of EUR 25,170.41, made up of EUR 24,000 and interest.
7.
Equally, the DRC judge took note of the reply of the Respondent, which
asserted that it had already transferred the amount of currency of country B
46,939 to the Claimant´s country B bank account, providing as proof, an
apparent bank transfer order dated 30 March 2012.
8.
Subsequently and, in reply to the allegations set forth by the Respondent, the
DRC judge observed that the Claimant for its part, denied having received
any payment whatsoever, stressing that his country B bank account had been
effectively closed long before the date on which the Respondent claims to
have duly transferred the amount in question i.e. 30 March 2012. This said,
and in order to substantiate his case, the Claimant provided as evidence, a
bank account closure order which appears to be dated 30 December 2011.
9.
With due consideration to the above as well as to the evidence brought by
the parties on file, the DRC judge acknowledged that the Claimant stated not
having received the abovementioned amount, whereas the Respondent
stated that it had already effectively transferred the amount of currency of
country B 46,939 to the Claimant´s country B bank account. In this context,
the DRC judge observed that he had to examine whether the Respondent, by
allegedly making a payment to the Claimant’s bank account in country B, had
fulfilled his contractual obligations. In relation to the aforementioned, the
DRC judge duly noted that the termination agreement did not indicate any
specific bank account to which the relevant payments should have been
made.
10.
In this respect, the DRC judge recalled the basic principle of 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 view of the above, the DRC judge first of all concluded that the
Respondent failed to substantiate its defence, as it did not present sufficient
and proven documentary evidence in respect of the payment it sustained to
have made to the Claimant. The bank transfer order submitted as evidence by
the Respondent dated 30 March 2012 was considered as insufficient proof by
the DRC judge, further implying that if the Respondent had indeed
Player M, from country P / Club P, from country B
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transferred the amount in question as claimed, the transfer as such, would
have been a straight forward order to track and demonstrate.
12.
What is more, the DRC judge concluded that, even if the payment was made
to the country B bank account, the Respondent, by i) paying the relevant
amount almost 1 year late, by ii) not taking into account the letter sent by
the Claimant on 16 January “2011” and by iii) not enquiring to which account
the transfer should be made in light of the period of time elapsed, had taken
the risk that it paid on a bank account which was no longer used by the
Claimant. Therefore, the DRC judge held that even if the payment was
effectively made, the Respondent was the party responsible for the payment
on the incorrect bank account.
13.
Subsequently, the DRC judge concluded that the Respondent did not provide
substantial evidence of its defence and that, therefore, it could be established
that the Respondent had failed to pay to the Claimant the full amount as
agreed upon between the parties in the agreement dated 22 February 2011.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the Respondent must fulfil its obligations as per the
termination agreement concluded with the Claimant and, consequently, is to
be held liable to pay the outstanding amount of EUR 24,000 to the Claimant.
14.
In continuation, taking into account the Claimant´s request for interest as
well as the constant practice of the Dispute Resolution Chamber in this
regard, the DRC judge decided that the Claimant is entitled to receive
interest at the rate of 5% p.a. over the amount of EUR 24,000 as of 1 May
2011 until the date of effective payment.
15.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player M, is partially 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 24,000 plus 5%
interest p.a. on said amount as of 1 May 2011 until the date of effective
payment.
Player M, from country P / Club P, from country B
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3.
If the aforementioned sum plus interest is not paid within the stated time
limit, the present matter shall be submitted, upon request, to the FIFA
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.
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 M, from country P / Club P, from country B
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