Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 May 2012,
by Philippe Diallo (France), DRC judge
on the claim presented by the player
C,
as Claimant
against the club
A,
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
Facts of the case
1.
On 6 January 2009, the player, C (hereinafter: the Claimant), and the club A
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract), valid as from the date of signature until 31 May 2010.
2.
The Clause 3 of the contract established inter alia the following remuneration:
Season 2008/2009:
- EUR 20,000 payable in 5 equal monthly instalments of EUR 4,000 each, in
which the first instalment shall be paid on 31 January 2009;
Season 2009/2010:
- EUR 40,000 payable in 10 equal monthly instalments of EUR 4,000 each, in
which the first instalment shall be paid on 31 August 2009.
3.
In addition, the contract further stipulated that the Respondent shall provide
the Claimant, inter alia, with the following:
-
-
4.
“a maximum total amount of EUR 7,000 until the end of his contract for air
tickets to Country B” for himself, his wife, his two children and his house
keeper;
EUR 300 as bonus for “every match the team wins with his participation in
the remaining 10 (ten) matches until the end of phase 1 of season 20082009 in Country P championship only if the team gains one of the first four
positions until the end of this 10 (ten) matches and the first 26 (twenty six)
matches of season 2009-2010 in Country P championship only if the team
gains one of the first four positions until the end of this 26 (twenty six)
matches”.
On 7 January 2009, a supplementary agreement (hereinafter: the agreement),
was signed between the parties in which the Respondent, additionally to the
amounts established in the contract, undertook to pay the following
remuneration:
-
EUR 30,000 as a signing on fee, payable in two equal instalments
respectively due on 7 January 2009 and on 6 April 2009;
Season 2008/2009:
- EUR 45,000 to be paid in 5 equal monthly instalments of EUR 9,000 each, in
which the first instalment shall be paid on 31 January 2009;
Season 2009/2010:
- EUR 105,000 to be paid in 10 equal monthly instalments of EUR 10,500
each, in which the first instalment shall be paid on 31 August 2009.
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5.
On 6 October 2010, the Claimant lodged a complaint against the Respondent
before FIFA, claiming the total outstanding amount of EUR 37,500 plus interest,
as follows:
-
-
EUR 29,000 corresponding to the two last salaries of the season 2009/2010,
regarding two monthly instalments of EUR 4,000 each, as specified in the
contract, as well as two monthly instalments of EUR 10,500 each, as
specified in the agreement;
EUR 7,000 for the flight tickets;
EUR 1,500 as bonus for five victories during the season 2009/2010, EUR 300
each, for games in which the Claimant participated.
In addition, the Claimant requested EUR 7,000 for the legal expenses he has
incurred as well as the procedural costs.
6.
In this respect, the Claimant held that the Respondent had failed to pay the last
two monthly salaries regarding the season 2009/2010 in accordance with the
contract and the agreement, as well as the flight tickets to Country B for him
and his family in the amount of EUR 7,800. In this regard, the Claimant
submitted a receipt from a travel agency, dated 13 May 2010, amounting to EUR
7,800 for the flight tickets. Finally, the Claimant explained having requested
only
EUR 7,000 respecting the minimum amount agreed in the contract.
7.
Furthermore, the Claimant informed that there were allegedly five victories in
2009/2010 which he would have been entitled to receive bonuses considering
that he played and that the Respondent ranked in one of the first places in the
league, which were allegedly never paid by the Respondent. In this regard, the
Claimant provided two documents extracted from internet websites, one stating
the number of goals and won matches played by the Claimant and one that
allegedly showed the Respondent’s position for season 2009/2010.
8.
The Respondent replied, partially accepting the claim. In this regard, the
Respondent recognized having failed to pay the remuneration regarding one
month only, amounting to EUR 14,500. The Respondent did not submit any
documentation in this regard.
9.
Furthermore, the Respondent rejected the other requests made by the Claimant.
In particular, the Respondent held that the Claimant is not entitled to receive
any bonus, since “the Club did not gain any of the first four positions of the
championship of Country P” for season 2009/2010 and allegedly the lists
presented by the Claimant referred to season 2008/2009. Finally, the
Respondent held that, according to the contract, the Claimant was entitled to
receive travel expenses up to a maximum total amount of EUR 7,000, for the
whole contract which allegedly had already been paid in May 2009. The
Respondent did not submit any evidence.
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I.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (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 6 October 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: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of
the Procedural Rules).
2.
Subsequently, the DRC judge 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), he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player
from country B and a club from Country P.
3.
Furthermore, the DRC judge analysed which 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 Regulations on the Status and Transfer of Players
(edition 2010), and considering that the present claim was lodged on 6 October
2010, the 2010 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 DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging all the facts and documentation submitted by
the parties.
5.
Equally, the DRC judge acknowledged that the Claimant and the Respondent
had concluded a contract valid as from 6 January 2009 until 31 May 2010.
Moreover, the DRC judge acknowledged that in addition to the contract, an
agreement was signed on 7 January 2009, which established additional
remuneration to the contract.
6.
In this regard, the DRC judge analysed both the contract and agreement and
acknowledged that the Claimant was entitled to receive the amount of EUR
40,000 for the season 2009/2010 and EUR 7,000 for flight tickets as per the
contract as well as the amount of EUR 105,000 for the season 2009/2010 as per
the agreement.
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7.
The DRC judge took note that the Claimant alleged that despite having
honoured the contract, the Respondent did not fulfill its contractual obligations,
by failing to pay the two last monthly salaries in accordance with the contract
and the agreement, in the aggregate amount of EUR 29,000, flight tickets
amounting to EUR 7,000 and bonuses amounting to EUR 1,500. Furthermore,
the DRC judge acknowledged that the Claimant additionally requested EUR
7,000 concerning legal expenses and procedural costs.
8.
In this respect, considering the request for the outstanding salaries in the
amount of EUR 29,000, the DRC judge took due note that the Respondent
partially accepted the Claimant’s claim by asserting to owe the Claimant only
one monthly installment in the amount of EUR 14,500. However, the
Respondent did not provide any evidence regarding any payments. In this
context, the DRC judge 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 determined that the Respondent did not prove
that it paid any of the salaries claimed. Therefore, the Respondent is liable to
pay the amount of EUR 29,000 as outstanding salaries concerning the contract
and the agreement.
9.
Regarding the Claimant’s request for EUR 7,000 regarding flight tickets, the DRC
judge noted that the Respondent held that the amount of EUR 7,000 for travel
expenses was the maximum amount payable for the whole contract period and
alleged having paid such amount in May 2009. However, it did not submit any
evidence. In this respect, the DRC judge referred again to art. 12 par. 3 of the
Procedural Rules and considered that, at one hand, the Claimant submitted a
receipt in the amount of EUR 7,800 for travel expenses dated 13 May 2010 and,
on the other hand, the Respondent did not submit any evidence. As a
consequence, the DRC judge decided that the Respondent is liable to pay EUR
7,000 to the Claimant for travel expenses, as claimed.
10.
In continuation, the DRC proceeded to analyze the request for outstanding
bonuses in the amount of 1,500. In this regard, the DRC judge took note that
the Respondent asserted that the Claimant was not entitled to bonuses for
season 2009/2010, since the club did not ranked in one of the first places of the
league and also that the list presented by the Claimant corresponded to season
2008/2009. At this moment, the DRC judge once again referred to art. 12 par. 3
of the Procedural Rules and considered that the documents submitted by the
Claimant did not prove his entitlement to receive the relevant bonuses. The DRC
judge highlighted that the documents were internet extracts that did not
indicate the relevant season. Therefore, he considered that the Claimant could
not establish that the bonuses were due, thus the request must be rejected.
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11.
Concerning the interest 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 rate of 5% p.a. to
the Claimant as from the first day after the respective due dates of each
installment regarding the salaries.
12.
Consequently, the Chamber decided to partially accept the claim of the
Claimant and that the Respondent is liable to pay him the amount of EUR
29,000 plus interest at 5% p.a. as from when the amounts were due until the
date of effective payment as well as EUR 7,000 as flight expenses plus 5% p.a.
on said amount as from the date of the decision until the date of effective
payment.
13.
With regard to the Claimant’s claim for the reimbursement of legal expenses,
the DRC judge recalled the contents of art. 18 par. 4 of the Procedural Rules,
which clearly stipulates that no procedural compensation is awarded in
proceedings in front of the DRC. Therefore, the DRC judge had no other
alternative than to reject this part of the claim, even though the Respondent did
not contest the claim in this regard.
II.
Decision of the DRC judge
1.
The claim of the Claimant, C, is partially accepted.
2.
The Respondent, club A, has to pay to the Claimant, C, within 30 days as from
the date of notification of this decision, the amount of EUR 29,000 plus 5%
interest p.a. until the date of effective payment as follows:
- 5% interest p.a. as of 1 May 2010 over the amount of EUR 4,000;
- 5% interest p.a. as of 1 May 2010 over the amount of EUR 10,500;
- 5% interest p.a. as of 1 June 2010 over the amount of EUR 4,000;
- 5% interest p.a. as of 1 June 2010 over the amount of EUR 10,500.
3.
The Respondent, club A, has to pay to the Claimant, C, within 30 days as from
the date of notification of this decision, the amount of EUR 7,000 plus 5%
interest p.a. on said amount as from the date of the decision until the date of
effective payment.
4.
If the aforementioned amount 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.
5.
Any further claims filed by the Claimant, C, are rejected.
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6.
The Claimant C 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 DRC judge of every payment received.
*****
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 DRC judge
Jérôme Valcke
Secretary General
Encl. CAS directives
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