Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 June 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
K,
as Claimant
against the club,
A FC,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 5 September 2005, the club A FC (hereinafter: the club or the Respondent) and
the player K (hereinafter: the player or the Claimant) signed an employment
contract, valid from 5 September 2005 until 30 June 2006. Under the terms of this
contract, it was agreed that the player would receive as salary the amount of
5,000 payable in ten instalments of 500 the 30th day of each month.
2.
On 25 February 2008, the player submitted a complaint to FIFA against the club on
the grounds that the club had not paid him the salaries of February, March, April,
May and June 2006. Therefore, the player claims payment of the total amount of
2,500.
3.
In reply to the claim, the club submits that the claim of the player cannot be dealt
with since the time limit to lodge a petition had expired. On the other hand, the
club claims having fulfilled all of its contractual obligations towards the player and
that it thus does not owe any monies to the player.
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 25 February 2008. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2005, hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules, edition 2008).
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 and par. 2 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 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 25 February
2008, the current version of the regulations (edition 2008; 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 started by acknowledging that the Respondent and the Claimant
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signed on 5 September 2005 an employment contract valid from 5 September
2005 until 30 June 2006.
5.
Furthermore, the Chamber noted that this contract stipulated, among other
things, that the Claimant was entitled to receive 5,000 from the Respondent in ten
monthly instalments of 500 falling due on the 30th day of each month.
6.
In continuation, the Chamber acknowledged that on 25 February 2008 the
Claimant submitted a claim to FIFA against the Respondent, demanding that the
Respondent be ordered to pay the outstanding five last instalments of 500 each
totalling 2,500 and relating to the months of February 2006 to June 2006.
7.
Considering the club’s statements, the Chamber noted that the club alleges having
paid all the monies it owed to the player, without, however, providing any proof
in support of such allegations. In this regard, the members of the Chamber
deemed it appropriate to recall the principle of burden of proof stipulated in art.
12 par. 3 of the Procedural Rules, according to which any party claiming a right on
the basis of an alleged fact shall carry the burden of proof. The club having failed
to submit any documentary evidence corroborating its statement that it had duly
paid the relevant monies to the player, the Chamber had no alternative but to
accept the player’s claim.
8.
In continuation, the Dispute Resolution Chamber held that, in accordance with the
basic legal principle of pacta sunt servanda, the Respondent must fulfill its
obligations as per the employment contract entered into with the Claimant and,
consequently, pay the outstanding remuneration which is due to the latter.
9.
Reverting to the club’s allegation that the present claim has been lodged outside
the limitation period (cf. art. 25 par. 5 of the Regulations), for the sake of good
order only, the Chamber pointed out that the player’s claim was lodged on 25
February 2008 on the basis of facts that occurred the earliest on 28 February 2006.
Consequently, such argument had to be rejected.
10.
In view of all the above, the Chamber decided that A FC is liable to pay to K the
total amount of 2,500.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player, K, is accepted.
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2.
The Respondent, the club, A FC, has to pay to the Claimant the amount of 2,500
within 30 days as from the date of notification of this decision.
3.
In the event that the amount of 2,500 is not paid by the Respondent within the
above-mentioned time limit, 5% interest p.a. will fall due as of expiry of the
above-mentioned time limit and the present matter shall be submitted upon
request to the FIFA Disciplinary Committee for its consideration and decision.
4.
The Claimant is directed to inform the Respondent 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.
*****
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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