Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2012,
in the following composition:
Geoff Thomson (England), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the player,
X,
as Claimant
against the club,
Y,
as Respondent
I.
regarding an employment-related dispute
arisen between the Claimant and the Respondent
Facts of the case
1.
On
19
January
2009,
the
country
A
player,
X
(hereinafter:
the Claimant X), and the country S club, Y (hereinafter: the Respondent Y), concluded
an employment contract (hereinafter: the contract) valid retroactively from
2 January 2009 until 30 June 2009.
2.
The contract established a total remuneration in the amount of EUR 100,000 for the
period of the contract, payable in six instalments, “within 15 (fifteen) days of a month
following the month in which the remuneration is payable”.
3.
Furthermore, according to article IX section 3 of the contract, “The contracting parties
agreed on the contractual penalty in the amount of EUR 10,000 (in words: ten thousand
Euros), which shall be paid by the Player to the Club for every single breach of
obligations according to Article IV, sections 1 g), o), q), r) of the Contract”. In this
respect, and in particular, article IV, section 1 r), of the contract stated that the Claimant
shall “pay the club penalties imposed by the club based on a current internal document
and pay fines for disciplinary offences imposed by the Football Association S [Football
Association S] to the club due to fault on the player’s part”.
4.
Moreover, in compliance with article V, section 2 f) of the Respondent’s organisational
code, which is applicable as of 18 February 2008, “Disciplinary measures are sanctions of
a financial nature and General manager is entitled to impose such a measure on all
players or coaches due to the breach of the player’s or coach’s duties regulated in the
contracts. Disciplinary measure may be imposed up to the triple of the player’s or
coach’s remuneration per month.”
5.
On 3 July 2009, the Respondent sent a letter to the Claimant, by means of which it
stated that “on June 26th 2009 when you came to take over your remuneration for
May 2009 you have acted in an inappropriate manner to the officials of the football
club Y by being rude and not responsive. Due to this fact the management of the club
have decided to impose disciplinary measure on you in accordance with article V section
2 letter f) of the Organizational Code of the Club in the form of the fine in the amount
of 12,000 €.
Football club also received from Mr. N (an owner of the apartment used by you) the
claim for recovery of material damage caused in the apartment. The amount of damage
was stated on the amount of 6.009,5 €.
Football club had to repair the defects on the car used by you and this repair cost the
club 644 €.
On grounds of above mentioned the football club Y will cut your remuneration for the
June 2009 in the amount of 18,653.5 €”.
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6.
On 7 September 2009, the Claimant answered to the letter of the Respondent
(cf. point I.5) also through a letter, opposing to the deduction of the amount of
EUR 18,653.5 from the salary of June 2009. In this letter the Claimant stated that he did
not act in an inappropriate way and in particular, held that “although my intention was
respectful, it is possible that my attitude and body language showed to the club officers
have been misunderstood due to my national idiosyncrasy and my lack of knowledge of
the language”. The Claimant further denied having caused any damages to the
apartment or to the car he used during the contract. In addition, the Claimant
emphasized that the damages were not proved and the disciplinary measure was
imposed without any hearing, disrespecting his right of defence. Finally, the Claimant
insisted on the payment of the outstanding remuneration regarding the salary of
June 2009.
7.
On 29 April 2010, the Claimant lodged a claim in front of FIFA against the Respondent
for outstanding remuneration in the amount of EUR 40,000, corresponding to the
months of May 2009 and June 2009, plus interest as from the due dates of each
payment.
8.
According to the Claimant, the monthly salary amounted to EUR 20,000 each. In
continuation, the Claimant held that, after the end of the contract period, the
Respondent still owed him the salaries for the months of May and June 2009. In this
context, the Claimant affirmed that he requested the Respondent the payment of the
salaries outstanding to that date, but that the Respondent informed him of its decision
to reduce the amount of EUR 18,653.50 from his remuneration regarding the month of
June 2009 (cf. point I.5).
9.
On account of the above, the Claimant declared having refused the arguments of the
Respondent and also having denied any responsibility for the damages caused to the
apartment and to the car as well as highlighted that the disciplinary measure was
imposed without any hearing (cf. point I.6). Additionally, the Claimant stated that, as he
returned from his holidays in June, the Respondent allegedly told him that the car was
at the maintenance however, the car was being used by other people pertaining to the
club.
10.
On 15 November 2011, after the investigation-phase was closed, the Respondent
provided its position holding that it had already paid four instalments to the player, on
the following dates:
-
EUR 20,019 on 19 March 2009;
EUR 20,000 on 16 April 2009;
EUR 20,000 on 21 May 2009;
EUR 20,000 on 26 June 2009.
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11.
Furthermore, the Respondent declared that the first three instalments were paid to the
Claimant’s bank account and the fourth instalment, i.e. the salary for the month of May
2009, was paid in cash because the Claimant allegedly cancelled his bank account. In
this regard, the Respondent set forth that, at the moment of the payment in cash of the
salary for the month of May 2009, the Claimant refused to sign the confirmation receipt
for the amount of EUR 20,000 and behaved very rude towards the Respondent’s
“officials”. The Respondent affirmed that its “officials” had witnessed and recorded
these events and provided documents in this regard, but such documents were not
translated into one of the official FIFA languages (English, Spanish, French or German).
12.
On account of the aforesaid, the Respondent declared that it then decided to impose a
disciplinary measure to the player amounting to EUR 12,000, in compliance with
article VI, section 1 r) of the contract and article V, section 2 f) of the Respondent’s
organisational code.
13.
Additionally, the Respondent alleged that the owner of the apartment that was used by
the Claimant during the contract period requested compensation for several damages
that were allegedly caused to the apartment amounting to EUR 6,009.50. The
Respondent also affirmed that the Claimant caused damages to the car he used, and
that the repair of said damages amounted to EUR 644. The Respondent provided
documents allegedly concerning the aforementioned amounts, but said documents
were not translated into one of the official FIFA languages.
14.
On account of the above, the Respondent held that the request for the monthly salary
of May 2009 should be rejected, since it was already paid to the Claimant. According to
the Respondent, this fact can also be drawn from the Claimant’s letter dated
7 September 2009 (cf. point 6), in which he allegedly apologised for having being rude
to the officials and requested only the payment of EUR 18,653.50.
15.
Finally, regarding the request for the monthly salary of June 2009, the Respondent
alleged having decided to deduct the amount of EUR 18,653.50 (cf. points I.12 and I.13.)
from the last instalment due to the Claimant, and thus it accepted that it would still
have to pay the amount of EUR 1,328 to the Claimant.
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 case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 29 April 2010, thus after
1 July 2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural
Rules) are applicable to the matter at hand (cf. article 21 par. 1 and 2 of the Procedural
Rules).
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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 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2010) 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
player and a 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 2010) and,
considering that the present claim was lodged on 29 April 2010, the 2009 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 Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
Chamber started to acknowledge the facts of the case as well as the documents
contained in the file.
5.
In this respect, the Chamber recalled that it was undisputed by the parties that, on
19 January 2009, the Claimant and the Respondent signed an employment contract
setting out a period of validity as from 2 January 2009 until 30 June 2009.
6.
In continuation, the members of the Chamber remarked that the claim was lodged by
the Claimant after the ordinary termination of the contractual term and that the
Claimant held to be entitled to the salaries stipulated on the contract as outstanding
remuneration in the amount of EUR 40,000. The DRC took note that the Claimant
affirmed that the Respondent failed to pay his monthly salaries for the months of
May and June 2009, each in the amount of EUR 20,000. Equally, the DRC noted that the
Claimant alleged being entitled to default interest as of the due dates of the respective
payments.
7.
Subsequently, the members of the Chamber took note that the Respondent alleged
having paid to the Claimant’s bank account, three instalments in the amounts of
EUR 20,019, EUR 20,000 and EUR 20,000, respectively on the dates of 19 March 2009,
16 April 2009 and 21 May 2009. On the other hand, the members of the DRC
acknowledged that the Respondent declared having paid the fourth instalment, on
26 June 2009, in the amount of EUR 20,000, namely the salary for the month of
May 2009, in cash because the Claimant supposedly cancelled his bank account, however
the Claimant allegedly refused to sign the receipt confirmation when he received the
payment of EUR 20,000, being very rude towards its “officials”.
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8.
The DRC consequently noticed that due to what had occurred, the Respondent decided
to impose a disciplinary measure to the Claimant for violation of discipline in the
amount of EUR 12,000, in compliance with art. VI par. 1 lit. r) of the contract and
art. V, section 2 f) of the Respondent’s organisational code.
9.
Moreover, the members of the Chamber took note that the Respondent affirmed that
the owner of the apartment used by the Claimant, requested the amount of
EUR 6,009.50, for several damages that the Claimant allegedly caused to said apartment.
In the same context, the DRC noted that the Respondent also alleged that the Claimant
caused damages to the car that it provided to him, amounting to EUR 644.
10.
The DRC finally took note that the Respondent declared having decided to deduct from
the Claimant’s last salary, i.e. the salary for the month of June 2009 in the amount of
EUR 20,000, the amount of EUR 18,653.50, consisting of EUR 12,000 corresponding to
the fine for violation of discipline, EUR 6,009.50 corresponding to the damages caused
to the apartment and EUR 644, related to the damages caused to the car (cf. point I.12.
and I.13). Finally, the DRC noted that the Respondent was willing to pay the residual
amount of EUR 1,328, as salary for the month of June 2009 (cf. point I.15).
11.
At this point, considering the contradictory positions of both parties, the DRC held that
it was necessary to analyse whether or not the monthly salaries of May and June 2009
remained outstanding.
12.
In continuation, the Chamber proceeded to analyse the claim for the salary of May
2009, in the amount of EUR 20,000. In this regard, the members of the DRC observed
that the Respondent rejected the Claimant’s petition for the payment of the salary for
the month of May 2009, affirming that it had already paid him said remuneration.
13.
To this effect, the Chamber held that it had to examine whether or not the Respondent
had effectively paid the amount of EUR 20,000 on the alleged date, corresponding to
the payment of the Claimant’s salary for the month of May 2009.
14.
On account of the aforementioned, the members of the Chamber recalled that the
Respondent alleged having already paid the amount of EUR 20,000 corresponding to
the salary for the month of May 2009, on 26 June 2009, but that the Claimant refused to
sign the receipt confirmation as well as behaved rude towards the Respondent’s
“officials” (cf. point I.11 and II.7). In this context, the Chamber referred to art.12 par. 3
of the Procedural Rules, which establishes that any party claiming a right on the basis of
an alleged fact shall carry the burden of proof, and considered that the Respondent did
not provide any evidence which demonstrates that it had effectively paid to the
Claimant the salary for the month of May 2009. In the same context, the DRC
acknowledged the fact that according to the Respondent, the Claimant’s behaviour was
witnessed and recorded by its “officials”. However, the DRC highlighted that the
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documents in this regard were not provided into one of the official FIFA languages and
therefore, could not be taken into consideration since they were not in conformity with
art. 9 par. 1 e) of the Procedural Rules.
15.
For the sake of good order, the Chamber took note that according to the Respondent
the effective payment of the salary of May 2009 could be drawn from the fact that the
Claimant, through his correspondence dated 7 September 2009, allegedly apologised for
his behaviour and requested only the payment of EUR 18,653.50, which would
correspond to the sum that should be deducted from the Claimant’s last salary, i.e. the
salary for the month of June 2009. However, the Chamber held that it could not draw
such conclusion and that this allegation is not backed by any evidence whatsoever.
16.
On account of the aforesaid, the DRC decided that the Respondent failed to
demonstrate that the payment of the salary for the month of May 2009 was carried out,
thus it considered that the salary for the month of May 2009 remained unpaid.
17.
In continuation, the members of the DRC reviewed the request for the salary of
June 2009. At this point, the DRC recalled that the Respondent held having decided to
deduct the amount of EUR 18,653.50 of the salary for the month of June 2009,
consisting of EUR 12,000 corresponding to the disciplinary measure for violation of
discipline, EUR 6,009.50 corresponding to the damages caused to the apartment and
EUR 644, related to the damages caused to the car.
18.
In this respect, the DRC proceeded to analyse the disciplinary measure for the alleged
violation of discipline amounting to EUR 12,000 imposed by the Respondent to the
Claimant that had been deducted from the Claimant’s salary for the month of June
2009.
19.
In this respect, the Chamber recalled that the Respondent alleged having decided to
impose the disciplinary measure amounting to EUR 12,000 after that the Claimant
refused to sign the receipt confirmation when collecting his salary for the month of
May 2009 as well as acted in an inappropriate way towards the Respondent’s “officials”.
20.
In this regard, the DRC highlighted that the Claimant held that the disciplinary measure
was imposed by the Respondent unilaterally without inviting him to a hearing
regarding the imposition of such measure and therefore, he could not defend himself.
Equally, the members of the Chamber, referring again to art. 12 par. 3 of the Procedural
Rules, considered that the Respondent failed to submit any evidence regarding the
imposition of the disciplinary measure. Furthermore, the Chamber recalled that the
evidence presented by the Respondent, allegedly concerning the behaviour of the
Claimant at the moment when he collected the salary for the month of May 2009,
cannot be taken into account, since it is not translated into one of the FIFA official
languages (cf. art. 9 par. 1 e) of the Procedural Rules; cf. point II. 14). Finally, the DRC
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considered the fact that the disciplinary measure in the amount of EUR 12,000 was
equivalent to more than half of one monthly salary.
21.
On account of the aforementioned, the DRC concluded that the Respondent failed to
demonstrate that the imposition of the disciplinary measure was justified.
22.
Subsequently, the DRC started to analyse the deduction related to the damages caused
to the apartment (EUR 6,009.50) as well as to the car (EUR 644) allegedly caused by the
Claimant. In this regard, the DRC retained that the documents provided in this regard
could also not be taken into consideration, because they have not been translated into
one of the official FIFA languages as required by art. 9 lit. e) of the Procedural Rules.
Therefore, the Chamber decided that the Respondent failed to demonstrate that the
damages caused to the apartment as well as to the car were caused by the Claimant.
23.
On account of all the above, the DRC referred to the fact that it remained undisputed
by the Respondent that it had not yet paid the salary of June 2009. Subsequently, the
members of the Chamber recalled that the deduction in the total amount of
EUR 18,653.50 (EUR 12,000 + EUR 6,009.50 + EUR 644), carried out by the Respondent
from the total amount of EUR 20,000 (cf. point II.17), was neither justified nor backed
by any evidence. Therefore, the members of the DRC decided that the Respondent still
has to pay the full amount of the salary for the month of June 2009, since the latter
remained unpaid as well.
24.
In conclusion, the Chamber established that, considering the documentation presented
by both parties as well as the above-stated arguments, the Respondent failed to pay to
the Claimant the last two monthly salaries, each in the amount of EUR 20,000,
corresponding to the outstanding salaries for the months of May and June 2009.
25.
Concerning the interests claimed by the Claimant, the DRC noted that the contract did
not provide for any specific interest rate in case of late payment. Consequently, the DRC
decided to award, in accordance with the constant practice of the Dispute Resolution
Chamber, default interest at a rate of 5% p.a. to the Claimant as from the first day after
the respective due dates of each installment.
26.
Consequently, the Chamber decided to accept the claim of the Claimant and that the
Respondent is liable to pay him the amount of EUR 40,000. Additionally, the DRC
decided that the Claimant’s petition for default interest is accepted and that the
Respondent is liable to pay 5% p.a. interests over the amount of EUR 20,000, as of
16 June 2009, as well as 5% p.a. interests over the amount of EUR 20,000, as of
16 July 2009.
******
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is accepted.
2.
The Respondent, Club Y, has to pay to the Claimant, X, within 30 days as from the
date
of
notification
of
this
decision,
the
amount
of
EUR 40,000 plus 5% interest p.a. until the date of effective payment as follows:
-
5% interest p.a. as of 16 June 2009, over the amount of EUR 20,000;
-
5% interest p.a. as of 16 July 2009, over the amount of EUR 20,000.
3.
If the aforementioned amount plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
The
Claimant,
X,
is
directed
to
inform
the
Respondent,
Club Y, 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. 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
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