Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 11 March 2011,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player
A,
as Claimant
against the club
FC S,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 8 August 2008, the club, FC S. (hereinafter: the Respondent), and the player, A
(hereinafter: the Claimant), signed an employment contract (hereinafter: the
contract)
valid
from
1
August
2008
until
30 June 2010.
2.
According to the contract, the Claimant was entitled to receive between 31 August
2008 and 30 June 2009 a monthly salary amounting to 30,000 net until payable the
last business day of each month.
3.
The contract also determined that the Claimant was entitled to a signing-on fee in
the total amount of 200,000 for the first year, payable as follows:
a)
50,000, which was paid to the player’s bank account;
b)
50,000 payable at the end of August 2008;
c)
100,000 payable at the end of February 2009.
4.
Still in accordance with the contract, the signing-on fee as well as the salary for the
second year of the contract were to be negotiated at the end of the first season.
Moreover, it was also established that ”the contract for the second year [is] to be
negotiated and agreed upon by both parties at the end of the season”.
5.
On 3 June 2009, the Claimant lodged a claim before FIFA requesting:
-
the payment of seven outstanding monthly salaries of 30,000 each,
amounting in total to 210,000, corresponding to the period between the
months of November 2008 and May 2009;
-
the payment of the second and third instalments of the signing-on fee in the
amount of 150,000.
6.
The Claimant alleged in particular that the Respondent failed to pay the second and
the third instalments of the signing-on fee, as well as the monthly salaries from
November 2008 until May 2009, clearly violating the contract.
7.
Despite having been invited by FIFA to do so, the Respondent did not present any
reply to the claim of the Claimant.
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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, he took note that the present matter was submitted to FIFA
on 3 June 2009. Consequently, 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
par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010), he is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a player and
a club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he referred, on one hand, to art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009 and
2010) and, on the other hand, to the fact that the present claim was lodged on 3
June 2009, but that the relevant employment contract at the centre of the dispute
was signed on 8 August 2008. Therefore, the DRC judge concluded that the 2008
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 8 August 2008, in accordance with which the Claimant was
entitled to receive, inter alia, a monthly salary amounting to 30,000 between 31
August 2008 and 30 June 2009, as well as a signing-on fee in the amount of 200,000,
payable in several instalments.
5.
The DRC judge noted that the Claimant held in particular that the Respondent
failed to pay the second and third instalments of the signing-on fee, totalling
150,000, as well as the monthly salaries from November 2008 until May 2009,
totalling 210,000.
6.
The Respondent failed to present its response to the claim of the Claimant, in spite
of having been invited to do so. In this way, to the DRC judge, the Respondent
renounced to its right to defence and thus, accepted the allegations of the
Claimant.
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7.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take
a decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
8.
Taking into account the documentation presented by the Claimant in support of his
position, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to outstanding salaries with sufficient documentary evidence.
9.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s monthly salaries for seven months,
from November 2008 until May 2009, as well as the second and third instalments of
the signing-on fee.
10.
Consequently, the DRC judge decided that the Respondent, in accordance with the
general legal principle of pacta sunt servanda, is liable to pay to the Claimant the
total amount of 360,000. Therefore, the DRC judge established that the Claimant’s
claim is accepted.
III.
Decision of the DRC judge
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, FC S, has to pay to the Claimant, A, the amount of 360,000, within
30 days as from the date of notification of this decision.
3.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
The Claimant, A, is directed to inform the Respondent, Club FC S, 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.
*****
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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 DRC judge
Markus Kattner
Deputy Secretary General
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