Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Theodoros Giannikos (Greece), member
on the claim presented by the player
A,
as Claimant
against the club
K,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 26 July 2004, the player, A (hereinafter: the Claimant), and the club, K
(hereinafter: the Respondent), signed an employment contract (hereinafter: the
contract) valid as from the date of signature until 30 June 2006.
2.
The contract stipulated that the Claimant would receive a yearly salary amounting
to EUR 61,632 for the 2004-2005 season. For the remaining season, the contract
provided for a yearly salary of EUR 66,132 (art. 10 of the contract).
3.
Equally, art. 11 par. 2 of the contract stipulated that the Claimant would be entitled
to a premium of EUR 250 per point the Respondent would win during one season’s
championship up to and including 30 points, and, starting as from the 31st point
the Respondent would win during the respective championship, the Claimant
would be entitled to a premium amounting to EUR 375 per point.
4.
According to the written confirmation of the Football Association B (FAB), the
Claimant was registered for the Respondent as from 27 July 2004 until 16 July 2005,
date on which the International Transfer Certificate (ITC) was issued to the Football
Association E.
5.
On 12 January 2007, the Claimant filed a claim with FIFA, alleging that for the first
year of the contract he would have been entitled to a total salary of EUR 61,632,
whereas the total amount he received from the Respondent was EUR 48,448. In this
context, the Claimant maintains to have put the Respondent in default on several
occasions in September and October of 2006, but to no avail. Consequently, the
Claimant claims that the Respondent be ordered to pay the amount of EUR 13,184,
corresponding to the difference of what he should have received for the relevant
period of time and what he effectively received in terms of salary.
6.
At a later stage, in February 2009, the Claimant amended his claim and specified
that for the period between July 2004 and April 2005 he was paid the total amount
of EUR 40,615.56 and that, subsequently, in December 2005, the Respondent paid
to him an additional EUR 8,000. Consequently, the Claimant claims EUR 13,016.44 in
terms of outstanding salaries for part of the months of April and July 2005 as well
as for the months of May and June 2005. Furthermore, the Claimant sustained that,
during the whole season 2004/2005, the Respondent earned 27 points in the
championship and that he would, in addition to the outstanding salaries, be
entitled to a total amount of EUR 6,750 in terms of premiums for points earned
during the season 2004/2005.
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7.
In its response, concerning the outstanding salaries, the Respondent holds that the
Claimant only performed for the Respondent during a period of ten months, i.e. as
from 22 July 2004 until the end of April 2005. Therefore, the Respondent holds that
the Claimant is not entitled to the whole salary agreed upon by the parties under
the terms of the contract, but only to the relevant salaries on a pro rata basis, thus
EUR 61,632 x 10/12, corresponding to EUR 51,360. With regard to the outstanding
premiums, the Respondent holds that they formed an integral part of the salary
payable to the Claimant and that, consequently, they are included in the total
yearly salary of EUR 61,632 and that, in any case, according to the payslips provided
by the Claimant, the Respondent had paid the relevant premiums, reason for which
this part of the Claimant’s claim should fully be rejected. To conclude, the
Respondent holds that, as can be seen from the payslips submitted by the Claimant,
the Respondent paid to the Claimant the total amount of EUR 48,615.56, reason for
which it admits to still owe the Claimant the amount of EUR 2,744.44.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 21 par. 2
and 3 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 12 January 2007, thus before the aforementioned Rules came into force
on 1 July 2008. Therefore, the Dispute Resolution 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 (edition 2005; hereinafter: Procedural Rules) in
combination with art. 21 par. 2 and 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter
at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players. In accordance with art. 24 par. 1 and 2 in combination with
art. 22 b) of the aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate, in the presence of at least three members, on employment related
disputes between a club and a player that have an international dimension.
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3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a player holding the nationality of country A and
a club from country B regarding a dispute between the parties in connection with
an employment contract.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations on the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand, to
art. 26 par. 1 and 2 of the 2009 edition of the Regulations on the Status and
Transfer of Players and, on the other hand, to the fact that the employment
contract at the basis of the present dispute had been concluded on 26 July 2004 and
that the Claimant’s complaint had been lodged with FIFA on 12 January 2007. In
view of the foregoing, the Dispute Resolution Chamber concluded that the 2005
edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter:
the Regulations) is applicable as to the substance of the case at hand (cf. art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players [edition 2008] in
connection with art. 26 par. 1 and 2 of the Regulations).
5.
The applicable regulations and also, basically, the jurisdiction of the DRC being
established, the members of the Chamber started by acknowledging the facts of the
case as well as the documentation contained in the file.
6.
In this regard, the Chamber first of all drew its attention to the Claimant’s claim for
allegedly outstanding premiums and/or bonuses for points won during the 20042005 season, amounting to a total of EUR 6,750, and pointed out that this part of
the claim was not submitted with the initial claim on 12 January 2007, but with the
amendment of the claim in February 2009. On account of the above, the Chamber
had to analyse whether the claim in connection with the premiums and/or bonuses
related to the season 2004-2005 would be barred by the statute of limitations in
application of art. 25 par. 5 of the Regulations.
7.
The contents of art. 25 par. 5 of the Regulations stipulate that “[…] the Dispute
Resolution Chamber […] shall not hear any case subject to these Regulations if more
than two years have elapsed from the event giving rise to the dispute. Application
of this time limit shall be examined ex officio in each individual case”.
8.
In view of the quoted provision, the Chamber had to define which are “the events
giving rise to the dispute” and duly noted that the Claimant asks for the payment
of bonuses and/or premiums in relation to his activity as a professional football
player between 26 July 2004 and 16 July 2005. In this respect, the Chamber
concurred that, in any case, the event giving rise to this aspect of the dispute, i.e.
the claim for premiums and/or bonuses, must have arisen at the latest at the end of
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July 2005, since, as from this date, the player was no longer registered for the
Respondent at the Football Association B.
9.
In fact, according to the Chamber, the Claimant’s possible claim for premiums
and/or bonuses arose, at the latest, at the end of July 2005, moment in time on
which the player, since no other modalities of payment were provided for in the
contract, would have been entitled to receive his last salary and premium and/or
bonus payments pertaining to the month of July 2005.
10.
On account of all of the above, the Chamber came to the conclusion that the event
giving rise to this part of the dispute occurred, at the latest, on 31 July 2005, reason
for which the Claimant’s claim for the payment of premiums and/or bonuses
amounting to a total of EUR 6,750, must be declared barred by the statute of
limitations in application of art. 25 par. 5 of the Regulations, since this part of the
claim was lodged in February 2009 only, thus outside the time limit of 2 years,
which elapsed on 1 August 2007 at the latest.
11.
Accordingly, the Chamber declared that the Claimant’s claim amounting to
EUR 6,750, pertaining to the payment of premiums and/or bonuses in relation with
the Claimant’s activity as a professional football player in the team of the
Respondent during the 2004-2005 season, is not admissible in application of art. 25
par. 5 of the Regulations.
12.
In continuation, and entering into the substance of the matter, the Dispute
Resolution Chamber examined the documentation presented by the parties
throughout the proceedings and took note that the parties involved in the present
dispute had entered into a contractual employment relationship valid from 26 July
2004 until 30 June 2006, providing for a yearly salary amounting to EUR 61,632 for
the 2004-2005 season and for a yearly salary of EUR 66,132 for the 2005-2006 season
(art. 10 of the contract).
13.
In this context, the members took note of the Respondent’s allegation that,
contrary to the Claimant’s statements, according to which he was not paid the
whole salary he would have been entitled to during the year he served under the
contract, i.e. end of July 2004 until mid-July 2005 (EUR 61,632), it was not obliged to
pay this amount, but only an amount equaling to salaries for 10 months, since the
player was only playing for the club until the end of April 2005. Consequently, the
Respondent holds that, concerning the outstanding salaries, the Claimant only
performed for the Respondent during a period of ten months, i.e. as from 22 July
2004 until the end of April 2005. Therefore, the Respondent holds that the Claimant
is not entitled to the whole salary agreed upon by the parties under the terms of
the contract, but only to the relevant salaries on a pro rata basis, thus EUR
61,632 x 10/12, corresponding to EUR 51,360. With regard to the outstanding
premiums, the Respondent holds that they formed an integral part of the salary
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payable to the Claimant and that, consequently, they are included in the total
yearly salary of EUR 61,632 and that, in any case, according to the payslips provided
by the Claimant, the Respondent had paid the relevant premiums, reason for which
this part of the Claimant’s claim should fully be rejected. To conclude, the
Respondent holds that, as can be seen from the payslips submitted by the Claimant,
the Respondent paid to the Claimant the total amount of EUR 48,615.56, reason for
which it admits to still owe the Claimant the amount of EUR 2,744.44.
14.
In this context, the Chamber, first of all, took note that, by means of a written
confirmation of the Football Association B, it was confirmed that the Claimant was
registered for the Respondent as from 27 July 2004 until 16 July 2005, date on
which the International Transfer Certificate (ITC) was issued to the Football
Association E. Therefore, and since not proven otherwise by the Respondent (cf. art.
12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on
the basis of an alleged fact shall carry the burden of proof), the Respondent’s
argument that the employment relationship the parties had entered into on 26 July
2004 only lasted for 10 months, could not be taken into consideration, due to which
the Chamber established that the parties were tied to each other by means of the
contract for 12 months.
15.
With regard to the second argument of the Respondent, according to which the
bonus was to be understood to be included in the salary stipulated in art. 10 of the
contract, the Chamber, on the one hand, pointed out that, as a general rule, and
analyzing the structure of the contract, bonuses would be payable in addition to
the basic salary agreed upon by the parties to an employment contract and that,
since no other interpretation of the contract was made plausible by the Respondent
and no evidence to the contrary was provided or specified (cf. art. 12 par. 3 of the
Procedural Rules), this argument of the Respondent had to be rejected as well.
Indeed, the DRC was eager to emphasize that the contract, in art. 11, explicitly
stipulates that bonuses are payable. Consequently, this provision can only be
understood as an additional entitlement of the Claimant to receive monies in
relation to good performances of the team, in addition to the basic salary provided
for in art. 10 of the contract.
16.
As a consequence of the above, the DRC established that the Claimant is entitled to
receive a total salary for the time he was employed by the Respondent amounting
to EUR 61,632, in accordance with art. 10 of the contract.
17.
Bearing in mind all of the foregoing, and considering that it is established that the
Claimant’s yearly salary for the first season of the contract amounts to EUR 61,632
and that he had received EUR 48.615.56 from the Respondent, the Chamber
unanimously concluded that the Claimant is entitled to receive a total amount of
EUR 13,016 in terms of outstanding salaries.
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18.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that the claim lodged by the Claimant is accepted, insofar as it is
admissible.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted, insofar as it is admissible.
2.
The Respondent, K, has to pay to the Claimant, A, the amount of EUR 13,016
within 30 days as from the date of notification of this decision.
3.
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
for consideration and a formal decision.
4.
The Claimant, A, is directed to inform the Respondent, K, 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 article 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
Jérôme Valcke
Secretary General
Encl.
CAS directives
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