Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 9 May 2011,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
T,
as Claimant
against the club,
FC E,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 1 June 2007, the player, T (hereinafter: the Claimant) and the club, FC E (hereinafter:
the Respondent), signed an employment contract (hereinafter: the contract) valid from
the date of signature until 1 August 2009.
2.
According to article 4.1-2 of the contract, the Claimant was entitled to receive, inter
alia, a monthly salary of 10,300, net of taxes, to be paid on the 15th calendar day of each
month.
3.
On 7 June 2010, the Claimant lodged a claim in front of FIFA, requesting from the
Respondent to pay him the outstanding amount of total 48,100 net plus 5% interest
p.a. as from 16 July 2009, corresponding to the salaries from January to July 2009 as
follows:
- 10,300 for January 2009;
- 4,300 for February 2009;
- 4,300 for March 2009;
- 4,300 for April 2009;
- 4,300 for May 2009;
- 10,300 for June 2009;
- 10,300 for July 2009.
4.
In his arguments, the Claimant explained that in December 2008 and January 2009 he
declined the alleged Respondent’s proposal for a contractual extension and thereupon,
the Respondent ceased paying the Claimants’ salary. Moreover, the Claimant was
allegedly barred from training and taking part in official matches with the Respondent
following the Championship match against FC S, played on 21 June 2009, i.e. the club
allegedly played official matches on 28 June 2009, 14, 21 and 26 July 2009,
Championship 2009, as well as the UEFA Champions League Qualification 2009/10 until
expiry of the contract on 1 August 2009.
5.
Furthermore, the Claimant allegedly urged the Respondent several times, between
January 2009 up to the date when he lodged his complaint, orally, to pay him the
overdue salaries, but without success.
6.
Despite having been asked by FIFA to do so, the Respondent did not submit its position.
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II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on
7 June 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 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 (hereinafter: the Regulations;
edition 2010), the DRC judge 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 DRC judge analysed which edition of the 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 (editions 2010 and 2009), and
considering that the claim was lodged on 7 June 2010, the 2009 edition of the said
regulations is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established and entering into the substance of the matter, the DRC judge
acknowledged the above-mentioned facts as well as the documentation contained in
the file.
5.
In this respect, the DRC judge took due note that the Claimant demands to be awarded
payments by the Respondent of the amount of 48,100 as outstanding salaries from
January 2009 until July 2009 with default interest of 5% p.a. as from 16 July 2009.
6.
The DRC judge took due note that, on the other hand, the Respondent never took
position on the claim lodged against it by the Claimant, despite having been asked to
do so by FIFA. Therefore, the DRC judge underlined that, in this way, the Respondent
renounced to its right to defence and, thus, accepted the allegations of the Claimant.
7.
As a consequence, the DRC judge referred to art. 9 par. 3 of the Procedural Rules and
pointed out that in the present matter a decision shall be taken upon the basis of the
documentation on file, in other words upon the documents and allegations provided by
the Claimant.
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8.
Thus, the DRC judge held that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent must fulfill its obligations as per the employment
contract concluded with the Claimant and, consequently, pay the outstanding
remuneration, which is due to the latter. In this respect, the Chamber took into account
all documentation provided by the Claimant.
9.
In this respect, the DRC judge noted that the Claimant claimed to have informed the
Respondent several times of its arrears of salary payments as from January 2009.
10.
Furthermore, the DRC judge concluded that, in line with his well-established
jurisprudence, by failing to pay the Claimant, inter alia, more than three consecutive
monthly salaries, the Respondent breached the contract without just cause.
11.
The DRC judge deemed that on the basis of the documents on file, the Respondent had
not paid the Claimant’s monthly salaries for the time period between January and July
2009, i.e. 7 months. Equally, it was uncontested by the Respondent that the Claimant
reminded it of the outstanding payments allegedly on several occasions.
12.
On this basis and in line with the principle of burden of proof according to art. 12 par. 3
of the Rules, the DRC judge highlighted that the Respondent did not provide any
reason whatsoever for its non-fulfilment of its payment obligations, as agreed upon in
the employment contract.
13.
On account of all of the above, the DRC judge considered it to be established that the
Respondent had not or only partially made payments of the salaries for the months of
January until July 2009. Therefore, the DRC judge decided that in accordance with the
Claimant’s claim the amount of 48,100 consisting of salaries or partial salaries for
January until July 2009 was outstanding.
14.
In continuation, the DRC judge noted that the Claimant furthermore claimed 5%
interest p.a. on the amount of 48,100 as from 16 July 2009.
15.
In this regard, the DRC judged noted that, according to the employment contract, it is
stipulated that the monthly salaries shall be paid out to the Claimant on the 15th
calendar day of each month. Hence, the DRC judge decided that the Respondent had to
pay default interest at a rate of 5% p.a. as from 16 July 2009, upon which the last salary
payment to the Claimant according to the contract was due on 15 July 2009.
16.
In conclusion, the DRC judge decided to accept the claim of the Claimant and that the
Respondent has to pay the amount of 48,100 as outstanding remuneration plus 5% of
interest p.a. as from 16 July 2009 on the aforementioned amount.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, T, is accepted.
2.
The Respondent, FC E, has to pay to the Claimant outstanding remuneration in the
amount of 48,100, plus interest at the rate of 5% p.a. as of 16 July 2009 on the said
amount until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum plus interest 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, T, is directed to inform the Respondent, FC E, 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
Enclosed: CAS directives
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