Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh al Housani (UAE), member
Ivan Gazidis (USA), member
on the claim presented by the player
S,
as Claimant
against the club
Q,
as Respondent
I.
regarding a contractual dispute between the parties
Facts of the case
1.
On 1 March 2005, the player S (hereinafter: “the Claimant”) concluded an
employment contract with the club Q (hereinafter: “the Respondent”) for the
period from 1 March 2005 until 31 October 2005.
2.
This employment contract stipulated that the player would receive a monthly
salary of USD 10,000, as well as three return flight tickets between C and H.
3.
In a claim dated 10 October 2006, the Claimant demanded that the Respondent
pay him the sum of USD 5,000, corresponding to half of his salary for October
2005, as well as USD 1,500 for his flight tickets. He also demanded that the
Respondent pay him a year’s interest.
4.
The Respondent rejected the Claimant’s claim and confirmed that it had retained
the sum of USD 6,000 that belonged in principle to the Claimant. However, the
Respondent emphasised that it only owed the Claimant USD 1,000 for a flight
ticket because it had overpaid him by USD 500 the previous month. The
Respondent also confirmed that it owed the Claimant salary payments amounting
to USD 5,000. However, the Respondent claimed that the Claimant’s agent had
asked it to hold back the remainder of the Claimant’s salary, the sum of USD
6,000, to cover the agent’s commission, which allegedly amounted to USD 8,000,
corresponding to 10% of the Claimant’s salary. Moreover, the Respondent claimed
that the Claimant therefore owed it USD 2,000, the remainder of the sum that the
Respondent had apparently paid to the Claimant’s agent. In this regard, the
Respondent attached the mandate concluded between the agent and the
Claimant for the period from 1 March 2005 until 1 March 2006, which stipulated
that only the client (the Claimant) could remunerate the agent for services
rendered and that the agent was to receive commission of 10% of the Claimant’s
gross annual salary for negotiating the employment contract.
5.
In response to this, the Claimant said that he had had a contract with this agent,
but that it had been the duty of the Respondent to pay the agent. He maintained
that he had not signed this mandate and suggested that somebody had probably
changed the first page. However, according to the documents on file, the
mandate bears the Claimant’s signature. Furthermore, the Claimant emphasised
that even if he had had to pay his agent, it would have been his duty to do so and
not the Respondent’s. With regard to the allegation of the Respondent to have
overpaid the Claimant by USD 500 the previous month, the Claimant pointed out
that he had not received the relevant amount.
6.
The Respondent has not replied to this last statement of the Claimant.
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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 10 October 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005, hereafter: 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
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 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 2008), and considering that the present claim was lodged on 10 October
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 Chamber entered into the substance of the matter. The members
of the Chamber carefully studied the facts outlined above as well as the entire
documentation on file.
5.
To begin with, the Chamber acknowledged that the Respondent acknowledges to
owe the player the amount of USD 5,000 in salaries, but that it claims to have
withheld the said amount in order to satisfy the debts of the player towards his
players’ agent.
6.
In this respect, the Chamber pointed out that the Respondent had a contractual
relationship with the Claimant based on the employment contract concluded
between them. Based on this contract, the Respondent owes the Claimant the
salaries stipulated in said contract.
7.
With regard to the argument that the Respondent withheld the said amount in
order to pay the debts of the player towards his players’ agent, the Chamber
wished to stress that it was not the Respondent’s contractual obligation to pay the
players’ agent of the player. The Chamber emphasized that this conclusion was
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corroborated by the representation agreement concluded between the Claimant
and the said players’ agent, which stipulates that only the client, i.e. the Claimant,
may remunerate the players’ agent for the work he has accomplished, as well as
by art. 19 par. 4 of the Players’ Agents Regulations (edition 2008; cf. also art. 12
par. 3 of the edition 2001) that established the same criteria.
8.
On account of the above, the Chamber concluded that the Respondent was
obliged to pay the amount of USD 5,000 to the Claimant and was not entitled to
withhold the said amount in order to cover possible claims of the Claimant’s
players’ agent.
9.
Continuing, the Chamber took note of the fact that the Claimant was also asking
for USD 1,500 for air fare tickets. In this respect, the Chamber noted that the
Respondent also acknowledged this amount claimed, but contested that it owed
the entire amount since it had allegedly paid USD 500 too much the month
before. On the other hand, the Chamber also noted that the Claimant had
contested having received the said USD 500 as a reaction to this allegation by the
Respondent. Furthermore, the Chamber pointed out that the Respondent did not
succeed in proving that it had paid the disputed amount of USD 500.
10.
Consequently, the Chamber concluded that the Claimant has a right to receive
USD 1,500 for air fare tickets from the Respondent, since the Respondent hat
acknowledged owing the amount to the Claimant, but being unable to prove to
have paid the alleged amount of USD 500.
11.
With regard to the claim of the Claimant for a year’s interest over the amount
due, the Chamber declared that according to its longstanding practice, the
Claimant is entitled to receive 5% per annum over the total owed amount of USD
6,500 as from 31 October 2005 for the period of one year.
12.
On account of all of the above, the Chamber decided to fully accept the claim
lodged by the Claimant against the Respondent and ordered the Respondent to
pay the Claimant the amount of USD 6,500, plus 5% per annum over the amount
of USD 6,500 as from 31 October 2005 for the period of one year.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, S, is accepted.
2.
The Respondent, Q, has to pay to the Claimant, S, the amount of USD 6,500
within 30 days as from the date of notification of this decision.
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3.
The Respondent, Q, has to pay to the Claimant, S, interest of 5% p.a. over USD
6,500 as from 31 October 2005 until 30 October 2006;
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, S, is directed to inform the Respondent, Q, 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:
_________________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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