Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 May 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Gerardo Movilla (Spain), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
on the claim presented by the player,
X, XX,
as “Claimant”
against the club,
Y, YY,
as “Respondent”
regarding a dispute arisen pertaining to an employment contract
signed between the parties involved.
I.
Facts of the case
1.
The player, X (hereafter: the Claimant), born on 15 December 1973, and the
Currency in Yriot club, Y (hereafter: the Respondent), signed an employment
contract (including an additional agreement) on 7 July 2005 valid until 31 May
2006. According to these agreements, the Claimant was to be paid a gross salary
of CURRENCY IN Y 13,400 or CURRENCY IN Y 1,219 per month, due on the last day
of each month. Furthermore, in art. 6 of the employment contract, the parties
agreed that the Claimant would receive bonuses in accordance with the internal
club regulations. Under art. 1 of the additional agreement, the parties agreed that
the Claimant would receive a further amount of CURRENCY IN Y 10,000, payable
in installments of CURRENCY IN Y 909 per month. In addition, the Respondent
promised the Claimant free use of a car as well as CURRENCY IN Y 350 a month
towards accommodation.
2.
A copy of the said agreements was remitted to the Dispute Resolution Chamber.
3.
On 10 July 2006, the Claimant submitted a claim to FIFA against the Respondent,
stating that until then he had received salary payments amounting to CURRENCY
IN Y 22,302 only. He claimed that the Respondent owed him his salary for the
months of April and May 2006, amounting to CURRENCY IN Y 4,948.
4.
The Claimant also maintained that the Respondent owes him bonuses amounting
to CURRENCY IN Y 1,000 and that the Respondent had told him in December 2005
that he was owed bonuses amounting to CURRENCY IN Y 800. In 2006, his
entitlement to a bonus had been increased by CURRENCY IN Y 200.
5.
The Claimant is therefore claiming the following:
a)
b)
c)
6.
It was obvious that the Respondent had not complied with its
financial obligations in accordance with the agreements concluded on
7 July 2005;
The Respondent should pay him CURRENCY IN Y 4,948 as outstanding
salary, including interest since the due date (namely 11.5% on
CURRENCY IN Y 2,474 as from 30 April 2006 and 11.5% on CURRENCY
IN Y 2,474 as from 31 May 2006);
The Respondent should pay him bonuses of CURRENCY IN Y 1,000.
The Respondent admitted that it owed the Claimant salary amounting to
CURRENCY IN Y 4,948. The amount would be paid in two instalments and in
accordance with the payment schedule to be drawn up by FIFA.
Player X, XX / Club Y, YY
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7.
With regard to the Claimant’s claim to match bonuses, the Respondent maintained
it was under no compulsion to make such payments. The Claimant had not signed
or accepted the internal club’s regulations. Besides, the Claimant had played only
one match for the Respondent for which a bonus was due.
8.
The Claimant then replied that he would not insist on the match bonuses as long
as the Respondent would pay the outstanding amounts in two instalments,
namely:
- CURRENCY IN Y 2,474 incl. interest at 11.5% as from 30 April 2006 up to 15
October 2006.
- CURRENCY IN Y 2,474 incl. interest at 11.5% as from 31 May 2006 up to 10
November 2006.
9.
As the Respondent failed to comment on this latest request from the Claimant, the
latter stated on 30 October 2006 that he no longer accepted payment in
instalments on account of the Respondent’s failure to react. Instead, he insisted on
all of the demands he had made in his original claim.
10.
The Respondent again confirmed that it owed the Claimant salary amounting to
CURRENCY IN Y 4,948. However, according to the Respondent, additional interest
at 11.5% was unacceptable and that the Claimant would not be entitled to the
bonuses claimed.
11.
Furthermore, the Respondent asserted that according to art. 11 of the
employment contract concluded with the Claimant, the YY Football Association
was responsible for settling any disputes. In other words, FIFA was not responsible
for deciding the case.
12.
The Claimant refuted the Respondent’s argument that FIFA was not responsible
for judging the case at hand. Firstly, the objection had been raised too late and,
secondly, FIFA was responsible for judging international labour law disputes in
accordance with the Regulations for the Status and Transfer of Players. This case
involved a dispute between a XX player and a Currency in Yriot club.
13.
The Respondent upheld its statements and now claimed that the interest claimed
by the Claimant was not owed as the regulations did not provide for any demands
for interest. Furthermore, it again pointed out that the Claimant had failed to
prove his entitlement to bonuses, as he had never taken part in any of the
Respondent’s official matches.
Player X, XX / Club Y, YY
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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 July 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005, hereinafter: 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 a XX player and a YY 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 July 2006,
the previous version of the regulations (edition 2005; hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
4.
In continuation, the members of the Chamber referred to the argument of the
Respondent by means of which the latter disputed the competence of the Dispute
Resolution Chamber to deal with this affair since, according to clause 11 of the
relevant employment contract signed between the parties, jurisdiction over
disputes arisen between the two parties shall have the judicial bodies of the YY
Football Association.
5.
In this respect, the members referred to art. 22 lit. b of the Regulations as well as
to the well established jurisprudence of the Dispute Resolution Chamber according
to which, in general, in employment-related disputes between a club and a player
that have an international dimension, i.e. the parties do not belong to the same
country, both parties were entitled to refer the dispute to FIFA’s bodies, unless an
independent arbitration tribunal respecting the principle of equal representation
of players and clubs with an independent chairman has been established at
national level.
Player X, XX / Club Y, YY
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6.
The members acknowledged that, the Respondent was unable to prove that an
independent arbitration tribunal in compliance with the requirements of the
FIFA’s Regulations has been established in YY. As a consequence, the members
established that the Respondent’s objection to the competence of FIFA to deal
with the matter has to be rejected and that the matter can be considered as to the
substance.
7.
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 started by acknowledging that the Claimant and the Respondent
signed on 7 July 2005 an employment contract as well as an additional agreement
valid until 31 May 2006.
8.
In continuation, the members of the Chamber acknowledged the Claimant’s
allegations according to which the Respondent failed to pay him his monthly
salaries for the months of April and May 2006, each in the amount of CURRENCY
IN Y 2,474 totalling to the amount of CURRENCY IN Y 4,948. In addition to that,
the Claimant requests interest of 11.5% on these two amounts since the date the
payments were due, i.e. on 30 April and 31 May 2006 respectively. Finally, the
Claimant maintains being entitled to a still outstanding bonus payment in the
amount of CURRENCY IN Y 1,000.
9.
Turning its attention to the Respondent’s position, the Chamber could note that
the latter, in the first instance, does not deny being liable to pay to the Claimant
the two monthly salaries of April and May 2006 in the amount of CURRENCY IN Y
2,474 each. Actually, the Respondent even stated that it would pay these amounts
in two instalments in accordance with a payment schedule to be drawn up by
FIFA. However, the Respondent rejected the Claimant’s request to receive a bonus
payment. In its subsequent submission, the Respondent on the one hand argued
that an interest rate of 11.5% is unacceptable and on the other hand insisted that
no bonus payment is due to the Claimant.
10.
In this respect, the Chamber then expressed its regret that the parties eventually
did not come to an agreement for a payment plan in order to settle the matter,
and that the matter had to be submitted to the Dispute Resolution Chamber for a
formal decision. Nevertheless, the Chamber duly noted that the parties to the
dispute agreed that an amount of CURRENCY IN Y 4,948 is still outstanding.
Player X, XX / Club Y, YY
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11.
In view of the above, the deciding authority held that the Respondent must pay to
the Claimant the outstanding amount of CURRENCY IN Y 4,948.
12.
In continuation, the deciding body went over to underline that the interest rate of
11.5% claimed by the Claimant on the two amounts due are not proportionate
and therefore will be reduced to a reasonable amount.
13.
Furthermore, the members of the Chamber passed over to the question whether
the Respondent, as claimed by the Claimant, is liable to pay to the Claimant a
bonus amounting to CURRENCY IN Y 1,000.
14.
In this connection, the Chamber stated that in accordance with art. 12 par. 2 of
the Procedural Rules and the legal principle of the burden of proof, which is a
fundamental part of every legal system, a party asserting a fact has the obligation
to prove the same.
15.
In accordance with the above-mentioned principle, the Claimant has the burden
of proof regarding his right to receive the claimed bonus.
16.
The deciding body noted, however, that the Claimant could not corroborate with
documentary that he is entitled to receive the claimed bonus and therefore could
not uphold the position of the Claimant in this respect.
17.
As a consequence to all of the above, the Dispute Resolution Chamber decided
that the Respondent has to pay to the Claimant the sum of CURRENCY IN Y 4,948
in two instalments. Moreover, the Chamber established that a default interest
payment of 5% p.a. as from the relevant due dates, i.e. as from 30 April and 31
May 2006 respectively, must be applied.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is partially accepted.
2.
The Respondent, Club Y, has to pay the total amount of CURRENCY IN Y 4,948 to
the Claimant, player X, within 30 days of notification of the present decision.
3.
The Respondent, Club Y, has to pay to the Claimant, player X, a default interest
payment of 5% p.a. on the amount of CURRENCY IN Y 2,474 as from 30 April 2006
as well as a default interest payment of 5% p.a. on the amount of CURRENCY IN Y
2,474 as from 31 May 2006.
Player X, XX / Club Y, YY
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4.
Any further claims lodged by the Claimant, player X, are rejected.
5.
In the event that the above-mentioned amount is not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary Committee
for consideration and a formal decision.
6.
The Claimant, player X, is instructed to inform the Respondent, Club Y, directly
and immediately of the account number to which the remittance is to be made
and to notify the Dispute Resolution Chamber of every payment received.
7.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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
Player X, XX / Club Y, YY
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