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
L,
as Claimant
against the club
P,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 19 September 2008, the player, L (hereinafter: the Claimant), and the club, P
(hereinafter: the Respondent), signed an employment contract (hereinafter: the
contract) valid as from the date of signature for the season 2008/09.
2.
According to art. 2.1 of the contract, the Claimant was entitled to receive, inter alia,
the total amount of EUR 15,000, payable in ten equal instalments of EUR 1,500.
3.
On 24 August 2009, the Claimant lodged a complaint before FIFA against the
Respondent claiming that the latter did not fulfil its obligations and requested to
be awarded the outstanding amount of EUR 4,500 made up of the salary for the
months of April, May and June 2009.
4.
In this respect, the Claimant provided a copy of the monthly payments sheets, which
he signed every month after receiving his salary, except for the months of April,
May and June 2009.
5.
Moreover, the Claimant presented a letter dated 17 August 2009, in which he
informed the Respondent of its arrears of payment in the amount of EUR 4,500.
6.
In its reply, the Respondent rejected the claim arguing that the Claimant left to
country F on 6 April 2009 without asking the permission to do so. Apparently, the
Claimant only called a club member on the same evening to inform him that he had
left to the country F for personal reasons and could not inform the Respondent
before. Furthermore, the Respondent argued that the Claimant left the car, which
the Respondent rented for him, at the airport the day he left to county F. On his
return, the Claimant apparently could not find his car and since he had left it
unlocked and with the keys inside, the car was stolen. Therefore, the insurance
company did not cover this incident and sent an invoice dated 12 August 2009 to
the Respondent charging EUR 2,911.71. Moreover, the Respondent received various
traffic tickets from the Claimant in the total amount of EUR 400.
7. Furthermore, the Respondent argued that on 21 May 2009, the Claimant drove his
family to the airport and once again left the car unlocked and unattended, for
which he received another fine in the total amount of EUR 50.
8.
In view of the above, the Respondent stated that it informed the Claimant about
the fines and offered to pay EUR 1,188.29 to the Claimant after deducting
EUR 2,911.71 for the stolen car and EUR 400 for various traffic tickets from the total
amount of EUR 4,500.
9.
In its replica, the Claimant argued that he would never have left to country F
without asking permission of his superiors and that he asked his coach, Mr M, and
the Respondent’s manager, Mr S. The Claimant provided a copy of an exchange of
e-mail with the Respondent’s manager dated 18 August 2010, in which the latter
confirmed that he and the coach allowed him to go on vacation on
6 April 2009.
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10. Furthermore, the Claimant stated that he had left the car locked in the secure
parking space of the airport and that the only key inside the car was his apartment
key. Returning from country F, one of his luggages was searched and opened from
which a little cosmetics bag with EUR 500 and the car key was stolen. Regarding the
stolen car, the Claimant stated to have declared about the stolen luggage at the
airport which informed the car rental company that the car key was inside the
stolen bag.
11. Moreover, the Claimant stated that his rental apartment provided by the
Respondent had been robbed during his absence. Apparently, goods in the value of
EUR 3,721.34 were stolen. The Claimant attached a copy of an exchange of e-mail
with an inspector, Mr A, in which the inspector confirmed that the case is still
ongoing and he also attached a document with the stolen goods listed.
12. In this respect, the Claimant claimed that the Respondent did not have an insurance
for the apartment, which he considered as irresponsible, since it would be the
Respondent’s duty to rent an insured apartment for the Claimant and his family.
Therefore, the Claimant claimed additionally the reimbursement of the stolen items
in the amount of EUR 3,721.34.
13. Furthermore, the Claimant stated that he received the fine on 21 May 2009,
because he had helped his wife to get out their baby and the luggage and
therefore had left the car unattended for a moment.
14. As a result, the Claimant increased his claim in the amount of EUR 7,821.34, made
up of the outstanding salaries in the amount of EUR 4,500 plus the stolen goods
from the apartment in the amount of EUR 3,721.34, from which he deducted
EUR 400 for the traffic tickets.
15. In its rejoinder, the Respondent stated that it verified with the coach, Mr. M, that
he had given a verbal permission to the Claimant to leave the country. Regarding
Mr. S, the Respondent stated he is just another player registered with the
Respondent, not the manager as mentioned by the Claimant. However, the
Respondent argued that the Claimant did not respect the formalities to ask the
permission to leave, but in spite of this, the Respondent has not taken any
disciplinary actions against the Claimant.
16. Regarding the non-payment of the Claimant’s salary, the Respondent argued that
the Claimant received his salary regularly until the incident with the stolen car.
Moreover, the Respondent stated that the Claimant accepted to make good for the
damages caused and that he did not complain about not receiving his salary until
the end of the contract. Furthermore, the Respondent argued that the insurance
company is not liable for the stolen car, since it was the Claimant’s negligence
which caused the incident. Moreover, the Respondent argued that in the doubtful
event that the Claimant left the car keys in the luggage that was stolen, the
Claimant would still have to take the responsibility for the incident.
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17. Moreover, the Respondent stated that it is not responsible for the personal
belongings which got stolen from the rented apartment, since there were no signs
of a break-in. The Respondent stressed that there is no clause in the employment
contract obliging the Respondent to insure the Claimant’s personal belongings in
his apartment.
18. Finally, the Respondent accepted to pay the amount of EUR 1,188.29, which until to
date the Claimant refused.
*****
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II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect,
he firstly 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).
The present matter was submitted to FIFA on 24 August 2009, thus, after the
aforementioned Rules entered into force on 1 July 2008. Therefore, the DRC judge
concluded that the edition 2008 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 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 2010), the DRC is
competent to decide on the present litigation, concerning an employment-related
dispute of an international dimension between a player and a club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players (edition 2010), the DRC judge confirmed that he may
adjudicate in the present dispute, which value does not exceed 100,000.
4.
In continuation, the DRC judge analysed which regulations 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 2009) and also considering that the present claim was lodged in
front of FIFA on 24 August 2009, the previous edition (2008) of the Regulations on
the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. He started by
acknowledging that the Claimant and the Respondent had signed an employment
contract, valid as from 19 September 2008 until the end of the season 2008/09.
6.
Equally, the DRC judge observed that the parties had agreed a remuneration of
EUR 15,000, payable in ten equal instalments of EUR 1,500.
7.
In continuation, the DRC judge noted that the Claimant lodged a claim against the
Respondent requesting, inter alia, the payment of an amount of EUR 4,500,
corresponding to the unpaid instalments of April, May and June 2009.
8.
Furthermore, the DRC judge took into account that the Respondent, on the one
hand, confirmed the non-payment of three salaries and, on the other hand, did not
contest that they are generally due.
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9.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s monthly salaries in the total amount
of EUR 4,500.
10. Consequently, the DRC judge concluded that the Respondent, in accordance with
the general legal principle of pacta sunt servanda, is, in general, liable to pay to the
Claimant outstanding salaries in the total amount of EUR 4,500.
11. Moreover, the DRC judge noted that the Claimant also demanded a compensation
amounting to EUR 3,721.34, corresponding to goods which had been stolen during
a break-in at his apartment. In this respect, he took into consideration that
according to the Claimant, the Respondent had failed to insure the apartment
provided to him and therefore, should bear the damage arisen.
12. With regard to this specific part of the claim, the DRC judge referred to art. 22 of
the Regulations and consequently emphasized that, as a general rule, he is not
competent to decide upon matters of insurance, but that such affairs fall into the
jurisdiction of the competent national authorities.
13. Therefore, he decided that the aforementioned request of the Claimant cannot be
dealt with by the DRC judge.
14. In continuation, the DRC judge turned his attention to the position of the
Respondent, according to which it intended to reduce the fines amounting to
EUR 400 caused by the Claimant from the outstanding remuneration. The fines
apparently were sent to the Respondent, since the latter had provided the Claimant
with a car.
15. Equally, the DRC judge noted that the Claimant agreed to his duty to pay the fines
in the total amount of EUR 400.
16. Therefore, the DRC judge concluded that according to the mutual agreement of the
parties, the Claimant has to reimburse the fines in the amount of EUR 400 to the
Respondent.
17. Furthermore, the DRC judge took into account that according to the Respondent,
the costs for the stolen car should also be deducted from the outstanding salaries,
since the insurance refused to bear the damage due to the player’s negligence.
18. In this respect, the DRC judge referred again to art. 22 of the Regulations, as well as
to point 12 above and inevitably concluded that this specific request of the
Respondent cannot be dealt with by the DRC judge due to the lack of jurisdiction.
19. Taking into account all the above, the DRC judge finally decided to partially accept
the Claimant’s claim. Consequently, the Respondent has to pay to the Claimant the
difference between the outstanding salaries and the fines, i.e. the amount of
EUR 4,100.
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Decision of the DRC judge
1.
The claim of the Claimant, L, is partially accepted.
2.
The Respondent, P, has to pay to the Claimant, L, the amount of EUR 4,100 within
30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the above-mentioned deadline,
interest at the rate of 5% per year will apply as of expiry of the stipulated time
limit and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
4.
Any further claim filed by the Claimant is rejected.
5.
The Claimant, L, is directed to inform the Respondent, P, 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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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