Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 January 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on a claim presented by
the player, B,
as Claimant
against
the club, A,
as Respondent
regarding an employment-related
dispute arisen between the parties.
I.
Facts of the case
1.
On 5 August 2004, the P player B (hereinafter: the player or the Claimant) and the
C club A (hereinafter: the club or the Respondent) concluded an employment
contract, valid as of the date of signature until 30 May 2005, which reads inter alia
as follows:
“3. A undertakes to pay to the PLAYER for the period 5.8.04 to 30.5.2005 the
total sum of 26.000 Euro net of taxes as follows: (a) 2600 Euro monthly, the
first payable on the 30/8/04 and the last on the 30/5/2005 (10 payments). In
addition to the above the PLAYER will also be entitled to all bonuses
received by all the other players of the team.
4. A undertakes to provide for the PLAYER accommodation in fully furnished
apartment in club’s expenses (cost of telephone calls and food on player’s
expenses).
5. A undertakes to provide for the PLAYER with free use of a saloon car (petrol
on player’s expenses).
(…)
9. A undertakes to pay the agreed salary and all other benefits net of tax.”
2.
On 15 March 2006, the player contacted FIFA and explained that of the amount of
EUR 26,000 net which he was entitled to receive on the basis of his employment
contract with the club, he had only received EUR 13,260 net although he had duly
fulfilled his contractual obligations. As a consequence, the player claimed the
outstanding amount of EUR 12,740. Furthermore, the player requested inter alia
that the club be obliged to submit “possible listings of bonuses for the players of
the team” and reserved his right to “the due statutory interest calculated from the
particular amounts and the maturity dates according to the contract” as well as to
increase the amount in dispute by possibly due bonuses, to be determined upon
receipt of the requested bonus lists of the club.
3.
In response to the player’s claim, the club held that the player had received in
return for his services the amount of 10,710 (according to the club EUR 17,800).
The club added that pursuant to the internal regulations of the club (a copy of the
player’s confirmation that he had studied and approved of the said internal
regulations was enclosed, however not a copy of the said regulations themselves),
the player had been entitled to receive the additional amount of 659. In this
context, the player had allegedly even been paid bonuses amounting to 888.
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Consequently, the club asserted that of the total amount of 15,479 due to the
player, he had received the amount of 11,598 [10,710 + 888].
4.
The club furthermore explained that, according to the employment contract as
well as the applicable national legislation, the club and the player had to pay a
social insurance contribution subject to the income of the player, i.e both parties
allegedly had to pay 6,3% of the player’s remuneration to the social insurance
fund. Since the player had omitted to pay the applicable amount and, in such
cases, the law allegedly obliges the employer to deduct the relevant contribution
from the employee’s wages, the club asserted having remitted 934 of the player’s
salary to the respective fund.
5.
The club also claimed having paid 276 for water and electricity for the player, costs
which had to be assumed by the player. In addition, the club had allegedly also
paid expenses in the amount of 102.53 (bill enclosed) which the player had
incurred in a hotel before an official match of the club as well as 110 for the
player’s car insurance which had allegedly been a liability of the player.
Consequently, the said amounts had been deducted from the player’s
remuneration by the club.
6.
Furthermore, according to the club, an amount of 500 had been deducted from
the player’s remuneration in accordance with the internal regulations of the club
since the club had been relegated to the second division.
7.
On account of all of the foregoing, the club maintained that the player’s
entitlements in the amount of 13,520 [11,598 + 934 + 276 + 102 + 110 + 500] had
been settled and that it, consequently, still owed the player the amount of 1,959
for full and final settlement.
8.
The club also asserted that, on or about 1 June 2005, the player’s agent sent a
letter to the club requesting payment of only 4,890, due to which the player is
allegedly stopped from claiming a higher amount in the present procedure before
FIFA (mentioned letter dated 1 June 2005 enclosed, indicating inter alia “…we
accept decision of the committee from A to cut bonuses of 50% and also we
accept penalty of the committee 500 for 1 game our player played”).
9.
In order to corroborate its allegations, the club presented several documents,
some of which were not translated into one of the official FIFA languages in spite
of FIFA’s respective request. The duly translated documents include a hotel invoice
addressed to the player for the amount of 102.53 as well as several payment
receipts for salaries carrying the letterhead of the club. The mentioned payment
receipts signed by the player sum up to the amount of 9,285, the ones not signed
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by the player amount to 2,313.
10.
Having been provided with the club’s statements, the player reiterated that his
annual remuneration of EUR 26,000 had been stated as net amount, i.e. in
consideration of any deductions due under public law. Therefore, according to the
player, the club had not been entitled to withhold the amount of EUR 1,640 from
his salary for his social insurance. Furthermore, the player insisted that, pursuant
to clause 4. of his employment contract, the club was obliged to provide
accommodation for him at its expense. As a consequence, the costs amounting to
276 for water and electricity did not have to be covered by the player. The player
asserted that the same goes for the amount of 102.53 for hotel charges, in
particular in view of the fact that, in the beginning of the relevant contractual
relationship, he had not been provided with a furnished flat and had therefore
been accommodated in a hotel, the charges of which had, as a consequence, to be
paid by the club. Likewise, by virtue of clause 5. of his employment contract, the
player deemed it was the club which had to pay the expenses related to his car,
except the respective fuel costs, as a result of which any costs for the alleged car
insurance had to be borne by the club.
11.
The player reiterated that he was not in possession of the internal regulations of
the club, which apparently provided the legal basis for his bonuses as well as the
alleged financial penalty of 500 imposed on him by the club, and asked the club to
provide him with a copy thereof. In spite of the fact that FIFA requested the club
repeatedly to present a copy of the said internal regulations, the club never
proceeded accordingly.
12.
The club also omitted to provide FIFA with any additional comments despite FIFA’s
respective requests.
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, it took note that the present matter
was submitted to FIFA on 15 March 2006. Consequently, the 2005 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at
hand (cf. art. 18 par. 2 and 3 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 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
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Players (edition 2008) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a P player and a C club.
3.
Furthermore, the Chamber analysed which 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 2008), and considering that the present claim was lodged on 15 March
2006, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Dispute Resolution Chamber proceeded to enter into the
substance of the case. In this respect, the Dispute Resolution Chamber focussed on
the questions whether the Claimant was entitled to receive, as requested, any
possibly outstanding remuneration from the Respondent on the basis of the
employment contract concluded between the mentioned parties and, if so, at
which amount.
5.
In this respect, the members of the Chamber examined the documentation
enclosed with the Claimant’s complaint and acknowledged that the employment
contract presented by the player provided for a net salary of EUR 26,000 to be
paid to the player in ten monthly instalments, the first on 30 August 2004 and the
second on 30 May 2005. From this amount, the player claimed only to have
received EUR 13,260, in spite of always having respected his contractual
obligations, due to which he claimed the remaining amount of EUR 12,740 from
the Respondent.
6.
Furthermore, the Dispute Resolution Chamber acknowledged that the player
additionally claimed an unspecified amount of bonuses from the club, without
however providing any specific documentary evidence as a basis for this claim. In
this respect, the player had requested the Respondent to issue a copy of the
internal regulations from which he derived his alleged entitlement to bonuses,
upon which the club had however failed to proceed accordingly. In this regard,
the Chamber held that, in principle, it is the obligation of the Claimant to present
the documents on which he intends to rely in order to justify his claim (cf. art. 12
par. 3 of the Procedural Rules). Moreover, the Chamber also referred to the
confirmation presented by the club, according to which the player had in fact
studied and approved the relevant internal regulations, as a consequence of which
he appeared to have been in possession of the applicable regulations at least at a
certain point of time. In any event, the members of the Chamber established that
the club had admitted that the player had the right to receive 659 as bonuses on
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the basis of its internal regulations, due to which the player’s respective
entitlement to bonuses in the aforementioned amount is uncontested.
7.
Furthermore, the Chamber took due note that, according to the Respondent, of
the total amount of 15,479 allegedly due to the player, the latter had already
received 11,598. The Respondent presented several payment receipts in order to
corroborate its respective allegation. In addition, according to the club, the
following amounts which it had paid had to be deducted from the player’s
entitlements:
934
for the player’s social insurance;
276
for water and electricity;
102,53
for a hotel in which the player stayed before an
official match of the club;
110
for the player’s car insurance;
500
penalty according to the internal regulations.
Therefore, according to the Respondent, the player is only entitled to receive
1,959 and is anyway precluded from claiming any amount above 4,890 from the
club since this was the amount which he claimed by means of a letter dated 1
June 2005.
8.
In this regard, the Dispute Resolution Chamber first of all clarified that there was
no legal basis to uphold the Respondent’s allegation that the fact that the player’s
agent had apparently requested the C club to pay only the amount of 4,890 on 1
June 2005 entailed that the player was precluded from claiming a higher amount
before FIFA.
9.
In continuation, as the player had undisputedly been entitled to receive EUR
26,000 as well as 659 from the Respondent, the Dispute Resolution Chamber
proceeded to establish which amounts had been paid to the Claimant, whether
the deductions made by the club had indeed been justified and whether any
remuneration due to the player still remained outstanding.
10.
In doing so, the Chamber first of all turned its attention to the payment receipts
presented by the Respondent, allegedly demonstrating that the Claimant had
been paid 11,598 by the club. In this respect, however, the members of the
Chamber took due note of the fact that not all of the relevant payment receipts
had been duly signed by the alleged recipient of the money, i.e. the Claimant.
Consequently, the Dispute Resolution Chamber established that only the payment
receipts carrying the signature of the Claimant could be taken into account to
provide evidence of the remuneration he had effectively received. Consequently,
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the members of the Dispute Resolution Chamber assured themselves that the
payment receipts fulfilling this requirement accounted for a total of 9,285 which
had to be considered as duly paid to the player.
11.
In continuation, the members of the Chamber analysed the deductions invoked by
the Respondent. First of all, and with regard to the amount of 934 which,
according to the club, had to be deducted from the player’s salary as a social
insurance contribution, the Dispute Resolution Chamber acknowledged that the
club had neither presented any documentary evidence in support of the player’s
alleged obligation to cover such amount nor in support of the club’s allegation
that it had indeed paid such amount on behalf of the player. Consequently, the
Dispute Resolution Chamber decided that such deduction from the Claimant’s
entitlements could not be accepted.
12.
Furthermore, in respect of the amount of 276 charged to the player for water and
electricity, the Chamber referred to the paragraph 4 of the employment contract
signed by the parties to the present dispute, according to which the club had the
obligation to provide, at its expense, a fully furnished apartment to the player.
According to the same clause, telephone calls and food had to be covered by the
player. As a logical consequence, the Chamber concluded that the costs related to
the player’s accommodation, apart from telephone charges and meals, had to be
paid by the club, thus including costs for essentials such as water and electricity.
Consequently, the Chamber decided that the player does not have to cover these
expenses.
13.
Likewise, the Dispute Resolution Chamber held that it was up to the Respondent
to pay costs related to the player’s accommodation prior to one of the club’s
official matches, due to which the player does not have to cover the hotel bill in
the amount of 102,53. Furthermore, as the employment contract concluded
between the parties held in its paragraph 5 that the club shall enable the free use
of a car to the player, merely with the exception of costs related to petrol, the
members of the Chamber agreed that it was up to the Respondent to pay the car
insurance in the alleged amount of 110.
14.
Finally, the members of the Dispute Resolution Chamber proceeded to deliberate
on the penalty of 500 the club claimed having imposed on the player. In this
respect, the Chamber took due note of the fact that, during the proceedings
before FIFA, the player had not explicitly contested the said penalty, but
requested the club to disclose its internal regulations on which the said fine is
apparently based. Furthermore, the Chamber acknowledged that, on or about
1 June 2005, the player’s agent had sent a letter to the club indicating inter alia
that “…we accept penalty of the committee 500 for 1 game our player played”.
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The player had not contested the contents of this letter or that it had been sent
on his behalf. On account of the above, the Chamber concluded that the player
recognised the fine of 500 and that it had to be deducted from his outstanding
remuneration.
15.
In light of the above considerations, the Dispute Resolution Chamber first of all
recapitulated that the Claimant was, on the basis of his employment contract
entered into with the Respondent and the information provided by the parties,
entitled to receive the amounts of EUR 26,000 and 659 from the Respondent.
Thereof, according to the Chamber, the already settled amount of 9,285 as well as
the penalty of 500 had to be deducted. Consequently, the Dispute Resolution
Chamber decided that the Respondent shall pay to the Claimant the still
outstanding amount of EUR 10,407.
16.
Finally, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims of the Claimant are rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, A, has to pay to the Claimant the amount of EUR 10,407, along
with interest at a rate of 5% per annum as of 15 March 2006 until the date of
effective payment, within 30 days as from the date of notification of this
decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted upon request to FIFA’s Disciplinary
Committee for its consideration and 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 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).
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
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