Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou, (Tunisia), Chairman
Theo van Seggelen, (Netherlands), member
Jon Newman (United States of America), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
N,
as Claimant
against the club,
Z,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 16 July 2007, the player, N (hereinafter: the Claimant), and the club, Z
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid until 31 July 2010.
2.
Moreover, the contract’s financial terms pertaining to the season 2007/2008 were
stipulated in an annex to the contract, by means of which the Respondent was
obliged to pay to the Claimant EUR 150,000.
3.
At the end of the 2007/2008 season the Claimant was loaned to the club, E
(hereinafter: E).
4.
On 21 January 2009, the Claimant lodged a claim against the Respondent for
alleged outstanding salaries amounting to EUR 62,500, corresponding to 5 [sic!]
salaries, i.e. March, April, May and June 2008, plus 5% of interest per year.
Additionally, the Claimant requested to declare the Respondent liable for the
termination of the contract. Finally, the Claimant claimed that sporting sanctions
be imposed on the Respondent.
5.
According to the Claimant, he never received a copy of the contract concluded
with the Respondent. However, the Claimant stated that the contract value for
the 2007/2008 season amounted to EUR 150,000, reason for which his monthly
salary amounted to EUR 12,500.
6.
Moreover, the Claimant asserted that he only received his salaries of January and
February 2008, but that his salaries corresponding to March, April, May and June
2008 remained outstanding, even though he rendered his services to the
Respondent during the aforementioned period.
7.
Finally, the Claimant asserted that the labour relationship between the parties was
terminated due to the Respondent’s breach and therefore the Respondent cannot
request his return.
8.
In its response to the claim, the Respondent rejected the allegations of the
Claimant, asserting that there is no reason to release the Claimant from his
contract with the Respondent since the Respondent complied with its financial
obligations.
9.
In his rejoinder, the Claimant stated that the Respondent has not presented any
evidence in order to prove its allegations.
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10.
In its final position, the Respondent presented a copy of the contract and its
respective annex, along with supposed proofs of payment. Thus, the Respondent
asserted once again to have complied with its financial obligations. In this regard,
the Respondent presented the relevant receipts from the Tax Office, showing the
taxes paid by the Respondent concerning the Claimant’s earnings for the period
from September 2007 to June 2008.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The
present matter was submitted to FIFA on 21 January 2009, thus after 1 July 2008.
Consequently, the Chamber concluded that the 2008 edition of the Procedural Rules
is applicable to the matter at hand.
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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2009), 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 player and a club.
3.
Furthermore, the Chamber 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, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2009) and, on the other
hand, to the fact that the present dispute was brought to FIFA on 21 January 2009,
thus before the aforementioned rules entered into force on 1 October 2009. In view
of the aforementioned, the Chamber referred to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2008) and took note that
the said Regulations are applicable to any case brought to FIFA before the
Regulations on the Status and Transfer of Players (edition 2009) came into force.
Therefore, the members concluded that the edition 2008 of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) are applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and, in doing so,
examined the documentation presented by the parties throughout the proceedings
and took note that on 16 July 2007 the parties entered into an employment
contract valid until 31 July 2010. Additionally, an annex to the employment
contract, stipulating, inter alia, the latter’s financial terms was submitted by the
Respondent. In this respect, the members took note that, in accordance with the
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terms contained in the said document, the Respondent was obliged to pay to the
Claimant for the season 2007/2008 a total remuneration amounting to EUR 150,000.
5.
Equally, the members of the Chamber acknowledged that, at the end of the
aforementioned season, the Claimant was loaned to E.
6.
In continuation, the Chamber, on the one hand, took note that the Claimant, based
on his total remuneration of EUR 150,000 for the period of one season, alleged that
his monthly salary amounted to EUR 12,500 and consequently, claimed 5 [sic!]
allegedly outstanding salaries amounting to EUR 62,500 corresponding to his wages
of March, April, May and June 2008.
7.
On the other hand, the Chamber took due note that the Respondent asserted to
have complied with its financial obligations.
8.
In this respect, the Chamber acknowledged that the Respondent submitted receipts
from the Tax Office, which show the taxes paid by the Respondent in relation to the
earnings of the Claimant. In this regard, the Chamber concluded that the
documents submitted on file showed that the total amount of EUR 16,034 was paid
by the Respondent to the Tax Office for the period from March to June 2008. In
view of the foregoing, the Chamber remarked that the final aim of the payment of
taxes by the Respondent is to benefit the Claimant, therefore, such payment was
made in the Claimant’s favour.
9.
On account of the above, the Chamber recalled the general legal principle of
burden of proof stipulated in art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. As a consequence, the Chamber noted that the documentary
evidence submitted by the Respondent only referred to the taxes paid by the
Respondent to the Tax Office. However, no documentary evidence had been
submitted with regard to any payment made by the Respondent to the Claimant.
10. In view of all of the above, the members of the Dispute Resolution Chamber
concluded that the since the remuneration for the claimed period of time (4
months) amounted to EUR 50,000 and the Respondent proved to have paid to the
relevant tax authorities the amount of EUR 16,034 in favour of the Claimant, the
outstanding amount due by the Respondent to the Claimant is EUR 33,966.
11. In conclusion, on account of all of the above-mentioned considerations, the
Chamber decided that the Respondent did not fully comply with it contractual
obligations and shall therefore be held liable to pay the relevant outstanding
salaries. Therefore, the Respondent must pay to the Claimant the amount of EUR
33,966 plus 5% of interest per year as from 1 June 2008.
12. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request lodged by the Claimant is rejected.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, N, is partially accepted.
2.
The Respondent, Z, must pay to the Claimant, N, the amount of EUR 33,966, plus
interests at the rate of 5% per year as from 1 June 2008, within 30 days as from
the date of notification of this decision.
3.
Any further claim lodged by the Claimant, N, is rejected.
4.
If the aforementioned amount is not paid within the aforementioned time limit,
the matter will be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
5.
The Claimant, N, is directed to inform the Respondent, Z, directly and immediately
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
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Note relating to the motivated decision (legal remedy):
According to art. 63 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).
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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
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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