Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
R,
as Claimant
against the club
A,
as Respondent
regarding an employment-related dispute arisen between the parties.
I.
Facts of the case
1.
On 16 August 2006, the country S player, R (hereinafter: the Claimant), and the country
G club, A (hereinafter: the Respondent), signed an employment contract in S language
(hereinafter: the S contract), valid for the season 2006/2007.
2.
According to the country S contract, the Claimant was entitled to receive the following:
-
a total sum of EUR 36,000 free of taxes for the period between 1 August 2006 and
30 June 2007;
the amount of EUR 1,000 net for every official match in which the Claimant
participated;
all awards payable to all players of the Respondent;
the use of an apartment and a car;
an air ticket G – S.
3.
Clause 4 of the country S contract stipulates that the player would sign a contract of the
“Superleague” with the same financial conditions as stipulated above and on the same
date as the present contract.
4.
Furthermore, on the same day, i.e. on 16 August 2006, the parties also signed an
employment contract in G language (hereinafter: the G contract) valid from the date of
its signature until 30 June 2007. The Claimant was entitled to receive the following:
-
a monthly salary of EUR 680 payable during 12 months;
a Christmas bonus of EUR 680;
an Easter bonus of EUR 340;
a vacation bonus of EUR 340;
an air round-trip ticket;
the amount of EUR 1,000 net for every official match in which the Claimant would
participate;
the amount of 6,000 as signing-on fee;
payments according to the internal regulations of the Respondent;
the use of an apartment and of a car;
the total sum of EUR 27,284.26 payable in 4 instalments, as follows:
EUR 6,821.06 on 30 August 2006;
EUR 6,821.06 on 30 November 2006;
EUR 6,821.06 on 28 February 2007;
EUR 6,821.06 on 30 March 2007.
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5.
The annexe of the internal regulations of the Respondent awarded the following
bonuses per win (for the season 2006-07):
“Qualification for the UEFA Cup
450,000 Euros (15 Euros times by 90 minutes times by 11 players)
The bonus will be paid once the team qualifies in the group stages of the UEFA Cup. If
the team does not succeed in qualifying, the bonus will be 300,000 Euros (10 Euros
times by 90 minutes times by 11 players).
Country G cup win
Bonuses for Championship Games
In the case of winning the following points, for each four games the following will be
paid:
-
12 points – 11,000 Euros
10 points – 9,000 Euros
9 points – 8,000 Euros
8 points – 6,000 Euros
7 points – 5,000 Euros
6 points – 2,000 Euros
70% of the payment will be made within the fortnight after the end of the four games,
and the remaining 30% will be paid after the qualification in the UEFA Cup, with a
deadline of the end of June.
The players will receive 100% of the bonus if they participate for at least 70 minutes of
the game.
Those players on the bench receive 50% of the bonus, and those who play for at least
20 minutes receive 100% of the bonus.
Players who do not play in all of the games will receive a percentage of the bonus in
accordance with the games they played.
The second goalkeeper will receive 60% of the bonus and the third 30%.
Players amongst those drafted do not receive bonuses, but the coach receives 10% of
the bonuses and will distribute this in the manner that he deems best amongst who did
not receive bonuses.”
6.
On 29 May 2008, the Claimant lodged a complaint before FIFA against the Respondent
claiming that the latter club did not fulfil its contractual obligations. Consequently, the
Claimant requested the outstanding amount of EUR 92,570 plus interest, made up of
the following amounts:
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a.
on the basis of the country S contract:
the amount of EUR 8,397 as remaining part of the total sum of EUR 36,000;
b.
on the basis of the country G contract:
the amount of EUR 6,000 as signing-on fee,
the amount of EUR 9,180 composed of 12 monthly salaries of EUR 680 each, an
amount of EUR 680 as Christmas payment, and the amount of EUR 340 as Easter
payment,
the total sum of EUR 22,000 based on bonuses for championship matches, made
up of EUR 2,000 for 6 points in the 1st group, EUR 2,000 for 6 points in the 2nd
group, EUR 9,000 for 10 points in the 3rd group and EUR 9,000 for 10 points in
the 4th group, according to the club’s internal regulations mentioned in the
country G contract,
the amount of EUR 22,395 for 1,493 minutes (à EUR 15) played in the
qualification for the UEFA Cup, according to the internal regulations of the
Respondent;
c.
on the basis of both contracts:
the total sum of EUR 22,000 for the participation in 21 matches of the
“Superleague” and in one match of the championship,
the amount of EUR 1,950 made up of 3 months’ rent of EUR 650 each for the
apartment rental,
one air ticket to country G in the amount of EUR 648.
7.
In this respect, the Claimant argued that the Respondent started to breach the contracts
only a few months after its conclusion.
8.
In its statement of defence, the Respondent rejected the claim arguing that the
Claimant left it without further notice. According to the Respondent, it loaned the
Claimant from the country S club, T (hereinafter: T). In this respect, the club T, the
Claimant and the Respondent apparently agreed in the loan agreement to an option
for the Respondent to buy the Claimant’s “federative and economical rights”. Even
though the Respondent wanted to register the Claimant definitively, the latter was
apparently transferred from the club T to the country E club, M. Therefore, the
Respondent allegedly lodged a claim in front of the Football Federation S (Football
Federation S; hereinafter: FFS) and of FIFA but without any result.
9.
Furthermore, the Respondent clarified that the different remuneration in the country S
and in the country G contract could be explained by the taxation. While the country S
contract stipulates a net amount, the country G contract provides for a gross amount.
Therefore, according to the Respondent, both contracts meant a total sum of
EUR 36,000.
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10.
Consequently, according to the Respondent, the total sum due to the Claimant was of
EUR 85,370.66 as set out below:
-
11.
the amount of EUR 36,000 net as “contract compensation”;
the sum of EUR 27,370.66 corresponding to the UEFA classification and other
bonuses;
the sum of EUR 22,000 corresponding to the participation in 22 games.
Moreover, the Respondent argued that the Claimant received the total sum of
EUR 44,202.13 made up of the following payments:
-
the sum of EUR 4,245.85 corresponding to monthly salaries, and
-
the “player’s participation for the professional players association” (EUR 90),
the deduction of an extra air ticket (EUR 1,272),
an air ticket to country S for the Claimant’s girlfriend (EUR 900),
the deduction for the change of an air ticket (EUR 302),
the “participation for insurance for the period 2006-07” (EUR 419.35);
the sum of EUR 39,956.28 “as payment for installments of [the Claimant’s] contract
and participations premiums. That amount includes amounts debited to the
Claimant, such as”:
expenses for the Claimant’s house and a team shirt (EUR 1,097),
an air ticket in December 2006 (EUR 482.76),
air tickets on 14 May 2007 (EUR 670),
air tickets on 21 May 2997 (EUR 370).
12.
Therefore, the Respondent concluded that the sum still due to the player amounted to
a total of EUR 41,168.53.
13.
In view of the above, the Claimant confirmed having received the amount of
EUR 30,929.76 made up of EUR 3,326.76 for air tickets for himself, his family and his
girlfriend, as well as the total amount of EUR 27,603 as part of the agreed sum of
EUR 36,000. Therefore, the outstanding amount was of EUR 89,243.24. Consequently,
the Claimant amended his claim, requesting the total sum of EUR 89,243.24 plus 5%
interest as from 30 June 2007.
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14.
In its rejoinder, the Respondent clarified that the Claimant was entitled to receive the
total amount of EUR 22,000 for participating in 22 matches, since this bonus did not
depend on the period of his participation in the matches. However, the bonus
according to the internal regulations of the Respondent was calculated by the minutes
played in a match. If the Claimant played at least 70 minutes, he should receive 100% of
the bonus. Therefore, if the Claimant missed one game, he would not be entitled to
receive the entire amount, and, as a consequence, the player in question should receive
the amount of EUR 15,720 only.
15.
Furthermore, the Respondent argued that, according to its internal regulations, 10% of
the bonus would be deducted, in order to be distributed to the players who did not
achieve this premium or who never played during the season. Therefore, the
Respondent deducted the amount of EUR 1,572 resulting in the total amount of
EUR 14,148. Moreover, it deducted 21.2% taxes, and, therefore, the amount payable to
the player was of EUR 11,148.24.
16.
Regarding the premium for the UEFA classification, the Respondent argued that the
total amount due to the Claimant was of EUR 16,222.42 (i.e. the amount of
EUR 20,586.90 less 21.2% taxes).
17.
In view of the above, the Respondent stated that the Claimant was entitled to receive
the total sum of EUR 85,370.66. Since the Respondent had allegedly already paid the
amount of EUR 44,202.13 to the Claimant, it reiterated that the latter player was
entitled to receive the amount of EUR 41,168.53.
18.
With regard to the employments contracts, the Respondent argued that it is the policy
of all country G clubs to sign a contract in the player’s language, containing the net
amounts, and, thereafter, to sign the contract of the country G League, establishing the
gross amounts.
19.
For clarification, the Respondent stated that after deducting the relevant taxes, the sum
of the three amounts stipulated in the country G contract result in the same amount
provided for in the country S contract, i.e. the sum of EUR 36,000. In particular, the
Respondent mentioned that from the amount of EUR 27,284.25 a tax of 21.2% has to
be deducted, and from the amount of EUR 9,520 a tax of 10%. Consequently, the final
amounts were of EUR 21,500 and respectively of EUR 8,568.
20.
With regard to the air tickets, the Respondent pointed out that it was clearly stipulated
in the contract that the Claimant had the right to receive one air ticket per year.
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In this
respect, the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber. The present matter
was submitted to FIFA on 29 May 2008, thus, before the aforementioned Rules entered
into force on 1 July 2008. Therefore, the Chamber referred to art. 18 par. 2 and 3 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC; hereinafter: the Procedural Rules; edition 2005) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter in
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 and 2 in combination with
art. 22 b) of the Regulations on the Status and Transfer of Players (edition 2010), the
Dispute Resolution Chamber is competent to decide on 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 edition of the regulations should be
applicable as to the substance of the matter. In this respect, it referred, on the one
hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2010 and 2009), and, on the other hand, to the fact that the present claim was
lodged in front of FIFA on 29 May 2008. The DRC concluded that the previous version of
the regulations; i.e. 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 Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter, and noted that, on
16 August 2006, the parties had signed two employment contracts in two different
languages. While the Claimant stated that both contracts should be applied
cumulatively, the Respondent insisted that the signing of two contracts was a pure
formality, and that, therefore, the amount shall be due only once.
5.
At this stage, the DRC firstly had to elaborate if it was the parties’ will to sign two
separately applicable employment contracts or to repeat the amounts due in a language
understandable for the player.
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6.
In this respect, the DRC referred to the statement of the Respondent arguing that it
would be a common “usus” in country G to sign two employment contracts: one in the
player’s language, containing the net amounts, and one of the country G league,
establishing the gross amounts. This is, after deducting a tax rate of 21.2% from the
amount of EUR 27,284.25 as well as 10% from the amount of EUR 9,520 the country G
contract would also provide a total amount of EUR 36,000.
7.
On the other hand, the Chamber noted that the Claimant based his claim on both
contracts, but did not provide any argument or explanation why the contracts should be
applicable cumulatively.
8.
By observing the exact wording of the country S contract, the members of the DRC
observed that it indeed stipulates an amount of EUR 36,000 free of taxes. Contrary to
the country S contract, the country G contract does not establish if the amounts are due
net or gross. However, the Chamber took into account that the country G contract, for
its part, provides three fixed amounts, i.e. the sum of EUR 27,284.25 as instalments, the
amount of EUR 6,000 as signing-on fee and the amount of EUR 9,520 as monthly salary.
9.
Furthermore, the Dispute Resolution Chamber concluded that after the deduction of
the respective country G taxes, the sum of the fixed amounts indicated in the country G
contract add up to a total amount of EUR 36,000 as also stipulated in the country S
contract.
10.
Moreover, the DRC referred to clause 4 of the country S contract, according to which
the parties agreed to sign thereafter a contract of the country G league with the same
financial conditions.
11.
Based on the considerations above, the members of the Chamber observed that there
were several indications that, contrary to the opinion of the Claimant, the parties
signed one and the same contract in two different languages. Consequently, the
parties’ intention was to agree a total amount of EUR 36,000 as fixed remuneration.
12.
Having stated the above, the DRC turned its attention to the complaint of the Claimant
requesting only outstanding payments in the total amount of EUR 89,243.24 plus 5%
interest as from 30 June 2007. The Respondent, for its part, contested owing said
amount, alleging that only EUR 41,168.53 were outstanding.
13.
By entering into the particular parts of the Claimant’s complaint, the Chamber noted
that he requested the amount of EUR 8,397 as remaining part of the amount of
EUR 36,000 which corresponds to the fixed remuneration. Taking into account the
statements and documentation provided by the Respondent, and referring to the
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general legal principle of the burden of proof contained 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, the members of the Dispute Resolution
Chamber determined that the Respondent could not prove having paid the total
amount of EUR 36,000 to the Claimant. Consequently, the DRC concluded and decided
that the Respondent has to pay to the Claimant the amount of EUR 8,397 as
outstanding part of the fixed remuneration.
14.
In continuation, the DRC noted that the Claimant requested the sum of EUR 66,395
corresponding to bonus payments. However, the Respondent disagreed with said
amount. In particular, it admitted to owe the total amount of EUR 22,000 net as bonus
for 22 official matches in which the Claimant had participated (hereinafter: the
participation bonus), as well as the gross amount of EUR 14,148 as bonus for won points
according to the internal regulations of the club A (hereinafter: the points bonus), and
the gross amount of EUR 20,586.90 as bonus for the qualifying for the UEFA Cup also
according to the internal regulations (hereinafter: the UEFA Cup bonus).
15.
First of all, the Chamber focused its attention to the bonus for the Claimant’s
participation in official matches, and noted, in this respect, that both parties agreed on
the same amount, i.e. the net amount of EUR 22,000. Therefore, the members of the
DRC decided that the Respondent has to pay to the Claimant the amount of EUR 22,000
as participation bonus.
16.
Subsequently and in reference to art. 12 par. 3 of the Procedural Rules, the members of
the Dispute Resolution Chamber took into account that the Claimant could not prove
that he would be entitled to an higher amount as points and UEFA Cup bonus than
confirmed by the club. Taking into account the taxes due in country G, as confirmed by
the Football Association H (FAF), i.e. the percentage of 20%, the DRC concluded that
the Claimant is entitled to receive the amount of EUR 11,318 as points bonus as well as
the amount of EUR 16,469 as UEFA Cup bonus.
17.
Finally, the members of the DRC took into account that the Claimant, in his initial claim,
had also requested an amount of EUR 2,598 for the rent as well as for the air tickets.
However, the Chamber noted that the latter player had confirmed during the
proceedings having received the amount of EUR 3,326.76 for air tickets, and, therefore,
assumed that no further payments were outstanding in this regard.
18.
Consequently, the Chamber decided that the Respondent, in accordance with the
general legal principle of pacta sunt servanda, is liable to pay to the Claimant
outstanding remuneration in the total amount of EUR 58,184.
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19.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the Chamber decided that the Respondent must
also pay to the Claimant interest of 5% per annum on said amount as from 1 July 2007.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant, R, within 30 days as from the
date of notification of this decision, the amount of EUR 58,184 as well as 5% interest
per annum on said amount as from 1 July 2007 until the date of effective payment.
3.
If the aforementioned sum is not paid within the above-mentioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its
consideration and a formal decision.
4.
The Claimant, R, is directed to inform the Respondent, Club A, 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.
5.
Any further requests filed by the Claimant, R, are rejected.
*****
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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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