Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 December 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Damir Vrbanovic (Croatia), member
Philippe Piat (France), member
on the claim presented by the player,
Player P, from country I
as Claimant
against the club,
Club T, from country A
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 31 August 2012, Player P, from country I (hereinafter: the Claimant), and Club T,
from country A (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract) valid as from 1 August 2012 until 1 August 2013.
2.
According to art. 11 of the contract, the Claimant is entitled to 10 monthly salaries of
EUR 3,000 gross, payable from August 2012 until May 2013, no later than the 15th day
of the following month.
3.
Notwithstanding the foregoing, art. 11 of the contract also provides the following:
“Article 11. Duties of the Club. 1. The Player’s remuneration for the work done in
favour of the Club will be: e) Depending on the organization during the football games
and Superleague Championship, the Player will be rewarded with monthly
remuneration as follows:
I.
When activated as a holder in formation, will be rewarded with 100% of the
predetermined monthly amount;
II.
When activated as a substitute, he will be rewarded at the extent of 70% of
predetermined monthly amount;
III.
In case of his not activating, he will be rewarded at the extent of 30% of
predetermined monthly amount.”
4.
On 24 February 2014, the Claimant lodged a claim against the Respondent in front of
FIFA requesting to be awarded the total amount of EUR 12,940.10 plus “relevant legal
interests”, according to the following breakdown:
-
EUR 10,800 for four monthly outstanding salaries for August 2012, March, April
and May 2013;
EUR 730 for the unpaid part of the salary of February 2013;
EUR 1,110.10 for legal interests until 28 January 2014 as per art. 120 of the
country A Labour Code;
EUR 300 for legal fees.
5.
In this regard, the Claimant explained that the Respondent did not pay his salary of
August 2012 and his salaries from March until May 2013, in spite of having put the
Respondent in default. Additionally, the Claimant asserts that the Respondent made in
June 2013 a partial payment in connection with his salary of February 2013 and would
still owe him EUR 730 for such month.
6.
In its reply, the Respondent argues that, in accordance with art. 11.1.e) of the contract
(cf. point I.3. above), the Claimant would be entitled, in principle, to EUR 7,650 gross in
connection with the alleged unpaid salaries. The foregoing would be based, according
to the Respondent, on its allegation that the Claimant would have not played any
match on August 2012, February 2013 and May 2013. Therefore, the Claimant was
entitled to EUR 900, i.e. 30% of EUR 3,000, for those months. Regarding April 2013, the
Claimant would have been part of the starting line-up in all the official matches and,
therefore, would be entitled to 100% of EUR 3,000. As regards to March 2013, the
Respondent explains that because there were 4 official matches during that month and
the Claimant was part of the starting line-up in only 2 of them, the Respondent divided
EUR 3,000 by 4, so that for each match the Claimant would be entitled to EUR 750.
Player P, from country I / Club T, from country A
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However, since he did not play in two of them, the Claimant would be entitled only to
30% of EUR 750 for the two official matches he did not play, i.e. EUR 225 each.
7.
Moreover, the Respondent asserts that since the salary was established on a gross basis,
21.2% needs to be discounted as income tax (i.e. 10%) and health insurance (i.e.
11.2%). Therefore, the net amount payable to the Claimant would be EUR 5,928.20.
8.
Finally, the Respondent acknowledges a debt of EUR 4,645 in favour of the Claimant
considering that it paid on 18 June 2013 currency of country A 278,851 to the Claimant
on account of his salary of February 2013 (cf. point I.4. and I.5. above). It also claims that
the interest rate that should be applied is 5% p.a. and that no legal expenses should be
awarded as per FIFA’s procedural rules.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 24 February
2014. Consequently, the 2012 edition of the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural
Rules) is applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions
2012 and 2014) the Dispute Resolution Chamber is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international
dimension between an country I player and an country A club.
3.
Furthermore, the Chamber analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2014; hereinafter: the Regulations), and considering that the present
claim was lodged on 24 February 2014, the 2012 edition of said Regulations is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber 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.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 31 August 2012, they signed an employment contract, valid as from 1
August 2012 until 1 August 2013.
6.
The DRC further noted that the parties also do not dispute the fact that the Claimant’s
monthly salary amounts to EUR 3,000 gross, payable from August 2012 until May 2013,
no later than the 15th day of the following month.
Player P, from country I / Club T, from country A
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7.
Finally, the Chamber acknowledged that it was equally undisputed by the parties that
the Claimant had to pay country A income tax, which corresponds to 10% of his gross
monthly salary.
8.
Subsequently, the Chamber recalled that the Claimant maintains that the Respondent
owes him EUR 11,530 for outstanding remuneration and EUR 1,110.10 for legal interests
based on country A law.
9.
Furthermore, the DRC noted that the Respondent acknowledges the existence of
outstanding amounts in favour of the Claimant for each monthly salary claimed by him,
stating an amount lower than the one requested by the Claimant as a consequence of
applying art. 11.1.e) of the contract (cf. point I.3. above) and a 11.2% discount for
health insurance contributions.
10.
Likewise, the Chamber took into consideration the argument of the Respondent as to
the inapplicability of art. 120 of the country A Labour Code for the calculation of
interests on the outstanding amounts in favour of the Claimant.
11.
Having established the aforementioned, the DRC deemed that the central issue in the
matter at stake would be, thus, to determine the amount of outstanding remuneration
owed by the Respondent to the Claimant. In order to do so, the DRC would first need to
assess the validity and enforceability of art. 11.1.e) of the contract.
12.
In this context, the Chamber recalled that according to art. 11.1.e) of the contract, the
Respondent is entitled to unilaterally decrease the basic salary due to the Claimant if
the latter does not appear in the starting line-up for the matches of the Respondent,
which is a technical decision to be exclusively made by the Respondent.
13.
Regardless of the question as to whether such measure as set out in the
aforementioned contractual term would be applicable to the situation in the present
matter, the Chamber agreed that a decrease in any payments to the Claimant by the
Respondent is not validly applicable on the basis of the aforementioned art. 11.1.e) due
to the unilateral and arbitrary character of such clause.
14.
In addition, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the burden of
proof, the Chamber deemed that the Respondent had not presented any
documentation which would demonstrate that the discount to be applied as health
insurance contribution corresponds to 11.2% of the gross monthly salary of the
Claimant.
15.
In view of the foregoing, the members of the Chamber agreed that art. 11 of the
contract (cf. point I.2. above) unambiguously stipulates that the Respondent has to pay
a monthly gross remuneration of EUR 3,000 to the Claimant, from which a 10% must be
deducted as income tax. Therefore, the net monthly remuneration owed to the
Claimant corresponds to EUR 2,700.
16.
Furthermore, the Chamber highlighted that, although the Respondent did not submit
any evidence in that regard, the Claimant acknowledged a partial payment of his
monthly remuneration of February 2013.
Player P, from country I / Club T, from country A
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17.
On account of the aforementioned considerations, the DRC established that the
Respondent had failed to pay to the Claimant outstanding remuneration in the amount
of EUR 11,530, corresponding to his net monthly salaries of August 2012, part of
February 2013 and March, April and May 2013. Consequently, the DRC concluded that,
in accordance with the general legal principle of “pacta sunt servanda”, the
Respondent is liable to pay to the Claimant the amount of EUR 11,530.
18.
In addition, the DRC took into consideration art. 104 of the Swiss Code of Obligations,
which sets forth that “a debtor in default on payment of a pecuniary debt must pay
default interest of 5% per annum even where a lower rate of interest was stipulated by
contract. Where the contract envisages a rate of interest higher than 5%, whether
directly or by agreement of a periodic bank commission, such higher rate of interest
may also be applied while the debtor remains in default.”
19.
In this context, the members of the Chamber noted that the contract does not stipulate
any rate of interest in case of default and that the one established in the country A
Labour Code cannot be upheld because it was not included in any contractual clause
signed between the parties. Thus, the DRC deemed that the Respondent is liable to pay
to the Claimant interest at a rate of 5% p.a. as from the respective due dates until the
date of effective payment.
20.
Finally, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of
the Procedural Rules as well as to its long-standing and well-established jurisprudence,
in accordance with which no procedural compensation shall be awarded in proceedings
in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to
reject the Claimant’s request relating to legal expenses.
21.
The DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, is partially accepted.
2.
The Respondent, Club T, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 11,530 plus 5% interest p.a. until the
date of effective payment as follows:
a.
5% p.a. as of 16 September 2012 on the amount of EUR 2,700;
b.
5% p.a. as of 16 March 2013 on the amount of EUR 730;
c.5% p.a. as of 16 April 2013 on the amount of EUR 2,700;
d.
5% p.a. as of 16 May 2013 on the amount of EUR 2,700;
e.
5% p.a. as of 16 June 2013 on the amount of EUR 2,700.
3.
In the event that the amount due to the Claimant plus interest in accordance with the
above-mentioned number 2. is not paid by the Respondent 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 claims lodged by the Claimant are rejected.
Player P, from country I / Club T, from country A
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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 Dispute
Resolution Chamber 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player P, from country I / Club T, from country A
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