Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 20 July 2012,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
A,
as Claimant
against the club,
H,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 30 January 2003, the country B player A (hereinafter : the Claimant) and the
country C club H (hereinafter : the Respondent), signed an employment contract
valid as from the date of signature until 31 July 2005.
2.
According to the contract, the Claimant was entitled to receive, inter alia:
- for the season 2002/2003 including 31 July 2003 a monthly salary of EUR 6,500
gross to be paid in accordance with the issued invoice, within 8 days of its
due date;
- for the seasons 2003/2004 and 2004/2005 a monthly salary of EUR 5,000 gross
until the moment the player has played 50% of the in-season matches. If the
player plays more than 50% in-season matches, he is entitled to receive EUR
6,500 gross per month and as from that moment on is entitled to receive the
difference between the salaries paid until then and the salary he is entitled
to, i.e. the difference of gross amount of EUR 1,500 per month to be paid in
accordance with the issued invoice, within 8 days of its due date;
- accommodation of EUR 200 per month;
- bonus according to the club’s rules.
3.
Furthermore, the contract states that all amounts in Euros shall be paid in the
currency equivalent according to the rate as applicable on the date of payment.
4.
On 13 July 2005, the Claimant lodged a complaint in front of FIFA for breach of
contract by the club and, after amending his claim several times, requested the
amount of 1,185,937 plus interest as of 1 June 2005 as well as legal fees, made up
of:
700,560.73 for the period of January 2004 until December 2004;
364,910.28 for the period of January 2005 until May 2005;
33,760 for the “cycles V-VIII”;
30,439 bonus for Cup of country C;
56,266 bonus for the Respondent’s first position.
5.
In its support, the Claimant provided the original as well as a copy of the
following invoices allegedly issued to the Respondent and signed by the Claimant,
which have apparently remained unsettled:
-
for the claim for the period of January 2004 until December 2004:
Date
3 February 2004
Title
Contractual Obligation 01/04
Amount
60,803.75
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1 March 2004
1 April 2004
3 May 2004
1 June 2004
1 July 2004
2 August 2004
1 September 2004
1 October 2004
2 November 2004
1 December 2004
3 January 2005
9 December 2004
-
Title
Amount
Contractual Obligation 01/05 & lease 61,629.29
Contractual Obligation 02/05 & lease 60,978.63
Contractual Obligation 03/05 & lease 60,428.41
Contractual Obligation 04/05 & lease 58,872.89
Contractual Obligation 05/05 & lease 59,472.20
Total 301,381.42
for the claim of the “cycles V-VIII” and bonus:
Date
9 December
2004
6.
60,325.83
58,816.20
59,424.98
58,437.90
58,318.48
58,734.05
58,565.92
59,499.35
59,401.73
60,130.21
62,528.77
18,305.49
733,292.66
for the claim for the period of January 2005 until May 2005:
Date
1 February 2005
1 March 2005
1 April 2005
2 May 2005
1 June 2005
-
Contractual Obligation 02/04
Contractual Obligation 03/04
Contractual Obligation 04/04
Contractual Obligation 05/04
Contractual Obligation 06/04
Contractual Obligation 07/04
Contractual Obligation 08/04
Contractual Obligation 09/04
Contractual Obligation 10/04
Contractual Obligation 11/04
Contractual Obligation 12/04 & lease
Attribute for lease (10 months)
Total
Title
“cycles V-VIII”
Country C Cup
1st Position
VAT (22%)
Amount
33,760.13
30,009.01
56,266.89
12,0036.03
Total 146,443.96
With regard to the amount owed by the Respondent for the period of January
2004 until December 2004, the Claimant stated that the Respondent allegedly
issued a debt confirmation towards the Claimant for the amount of 700,560.73,
which is, however, apparently in possession of the Football Association C (FAC).
The Claimant provided a document allegedly issued by the Respondent, addressed
to him and stating that “In relation to the issuing of a license for the period
2005/2006, we require you to confirm to our auditors that we owe you the
amount of 700,560.73 for contractual obligations which shall become due by the
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date agreed in our contract, and that you agree to defer payment of the subject
debt until 30 June 2005. Insofar as you are not in agreement with this, we kindly
ask that you notify our auditors about the amounts due according to contracts
and annexes to contracts. Sign the enclosed form and return it directly in the
enclosed envelope […]. Please return the form at the latest by 15 February 2005 to
our auditors.” The Claimant further stressed that he refused to sign the debt
confirmation, since he did not want the Respondent to obtain a license for the
following competitive season and that for this reason he was fined by the
Respondent.
7.
Furthermore, the Claimant provided a letter dated 3 June 2005 sent to the
Respondent, in which he reminded the latter of its arrears in the amount of
1,206,434.04 plus bonuses for the period up to December 2004 as well as for the
contractual period in 2005.
8.
Moreover, the Football Federation of B provided FIFA with a copy of a letter dated
15 July 2005, which it sent on behalf of the Claimant to the Football Federation C
(FAC), reminding the Respondent of its arrears in the amount of 1,026,434.06, i.e.
EUR 137,707.30 and asking them to urgently intervene and cooperate. According
to the Claimant, no answer was ever received from either the Football Association
C or the Respondent.
9.
In its reply to the claim, the Respondent argued that the Claimant was fined four
times during the period of May until November 2004 and was ordered to pay to it
a total amount of EUR 70,800, i.e. 531,000. In this respect, the Respondent
provided four decisions of the Respondent’s board, dated 4 May 2004, 9 July 2004,
24 September 2004 and 3 November 2004 respectively, according to which the
Claimant allegedly breached the club’s Disciplinary Rules, behaved irresponsibly,
did not return the Respondent’s equipment and did not join a team’s trip.
10.
Moreover, the Respondent stated that in the meantime it paid the Claimant some
amounts and provided two “letters of guarantee” dated 22 February and 3 May
2005. According to the first letter, the Respondent guaranteed to pay the
Claimant on his bank account the amount of 48,800 for amounts falling due on 22
March 2005. In the second letter dated 3 May 2005, the Respondent guaranteed to
pay the player 97,600 for the amounts falling due on 4 August 2005.
11.
The Respondent further provided a copy of a bank statement dated 11 January
2005, according to which it apparently paid the Claimant the amount of
28,565.92. In addition, the Respondent provided a bank receipt dated 17 May 2005
for the period of January until May 2005, according to which it allegedly paid the
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Claimant the total amount of 146,400, made up of 48,800 each on 22 February
2005, 22 March 2005 and 3 May 2005.
12.
Furthermore, the Respondent acknowledged to be indebted towards the Claimant
in the amount of 410,312.95. In this regard, the Respondent acknowledged that it
owed the Claimant, for the months of January 2004 until December 2004,
700,560.73 minus the club’s fines of 531,000, which would amount to 169,560.73.
This amount would add to the Claimant’s entitlement for the months of January
2005 until May 2005 of 240,752.22, which would result in a total amount of
410,312.95.
13.
In his replica, the Claimant pointed out that he was never summoned to any
disciplinary procedure by the Respondent and thus no disciplinary procedure was
conducted against him before the Respondent or any other body of the Football
Association C. Furthermore, the Claimant argued that the Respondent’s
statements regarding the fines imposed on him were not in line with the Football
Associations C’s Disciplinary Rules. Therefore, the Claimant stressed that he was
never fined by the Respondent and that the latter’s arguments are not supported
by any documentary evidence.
14.
In its final position, the Respondent maintained its previous position.
15.
Furthermore, the Football Federation B provided FIFA with a copy of the
Claimant’s “allowance (releasing document)” stamped and signed by the
Respondent and dated 17 June 2005, according to which the Claimant played his
last official match on 20 May 2005 and according to which the Claimant played
with the Respondent until 17 June 2005 “by the end of the time period the
contract has been concluded”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the DRC) analysed which Procedural Rules were applicable to the case
at hand. In this respect, it took note that the present matter was submitted to FIFA
on 13 July 2005. Consequently, the 2005 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, edition 2008, in combination with 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 and 2 in
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combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2010), the Dispute Resolution Chamber is competent to adjudicate
on the present employment related dispute between a player and nationality and
a club.
3.
In continuation, the Chamber analysed which regulations were 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
(editions 2010, 2009, 2008 and 2005), and considering that the present claim was
lodged on 13 July 2005, the 2005 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this regard,
the members of the Chamber started by acknowledging the above-mentioned
facts and documentation contained in the file.
5.
First and foremost, the Chamber noted that the Claimant claimed that the
Respondent had breached the employment contract concluded between the
parties by failing to pay him the outstanding amount of 1,185,937 plus interest as
of 1 June 2005 as well as legal fees, made up of salaries for the period of January
2004 until May 2005 as well as bonuses. The Claimant therefore requested
payment of the latter amount plus interest as of 1 June 2005, as well as legal fees.
6.
The Chamber acknowledged that the Respondent, on the other hand, admitted
that it owed the Claimant, for the months of January 2004 to December 2004, an
outstanding amount of 700,560.73, but that said amount should be reduced by
four fines which were issued by the Respondent against the Claimant during the
period of May until November 2004 in the total amount of 531,000, since the
Claimant allegedly breached the Respondent’s Disciplinary Rules. Moreover, the
Respondent stated that the Claimant is entitled to receive 240,752.22 for the
months of January 2005 until May 2005 and thus concluded that the total
outstanding amounts towards the Claimant is 410,312.95 (169,560.73 +
240,752.22).
7.
In view of the above, the DRC analysed that the parties agree on the fact that the
Respondent is in default of payment of certain monies, but that they have
divergent opinions as to the exact amount of monies which are outstanding.
Therefore, the Chamber concluded that it had to establish which is to be
considered as the outstanding amount due by the Respondent to the Claimant.
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8.
In this respect, the Chamber, first of all, examined the amount of salaries which
were due to the Claimant based on the employment contract. By doing so, the
Chamber recalled that the Respondent was obliged to pay to the Claimant, inter
alia, a monthly salary of EUR 5,000 gross until the moment the player has played
50% of the in-season matches. Moreover, he is entitled to receive a monthly salary
of EUR 6,500 gross if he plays more than 50% in-season matches and as from that
moment on is entitled to receive the difference between the salaries paid until
then as well as bonus according to the club’s rules.
9.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant until May 2005 under the terms of the
employment contract entered into by the parties to the present dispute as well as
taking into account the documentation presented by the parties.
10.
In this respect, the Chamber carefully examined the documentation on file as well
as the submissions of the parties. In doing so, the Chamber took due note that, in
principle, it was not disputed by the parties that the Respondent owed the
Claimant the amount of 700,560.73, however, the Respondent alleged that this
amount should be mitigated with the alleged fines issued by the Respondent
against the Claimant during the employment relationship.
11.
In this regard, the Chamber referred to the basic principle of burden of proof,
according to which a party claiming a right based on an alleged fact shall carry the
respective burden of proof (art. 12 par. 3 of the Procedural Rules). The Chamber
was of the opinion, that the Respondent carried the burden of proof as regards
the alleged argumentation regarding the fines issued against the Claimant for the
breach of its Disciplinary Rules.
12.
In this respect, the Chamber noted that the only documentary evidence provided
by the Respondent to support its arguments that the Claimant behaved
irresponsibly, did not return the Respondent’s equipment and did not join a
team’s trip are the Respondent’s decisions signed only by the latter. Therefore, the
Chamber decided that the alleged fines were of highly subjective nature entailing
that, de facto, it is left to the complete and utter discretion of the Respondent
whether or not the fines are justified. In this regard, the DRC also noted that the
Respondent failed to provide a copy of the Disciplinary Rules on which it based its
alleged fines and thus failed to provide any substantiated documentary evidence.
13.
Consequently, the Chamber concluded that the Respondent failed to provide
sufficient documentary evidence to prove that the fines were justified and thus
could not take into account the above-mentioned allegations. Consequently, the
Chamber decided that the Respondent could not provide sufficient evidence that
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the amount of 531,000 should be deducted from the amounts claimed by the
claimant as being outstanding for the period of January 2004 until December 2004
and that the total amount claimed should be mitigated by the alleged fines.
14.
In view of all the aforementioned considerations, the Chamber established that
the amount of 700,560.73 was due by the Respondent for the period of January
2004 until December 2004.
15.
Furthermore, the Chamber continued to analyse if the claimed amounts for the
period of January 2005 until May 2005 as claimed by the Claimant were to be
considered outstanding.
16.
In this regard, the Chamber took into account the documentation provided by the
parties and noted that on the one hand, the Claimant requests the amount of
364,910.28 as outstanding for the above-mentioned period and, on the other
hand, the Respondent acknowledges to owe only 240,752.22, since it provided a
bank receipt dated 17 May 2005, according to which it allegedly paid the Claimant
the total amount of 146,400, made up of free payment of 48,800 each on 22
February 2005, 22 March 2005 and 3 May 2005 respectively.
17.
In view of this, the Chamber concluded that according to art. 12 par. 3 of the
Procedural Rules, the Respondent could provide sufficient documentary evidence
that it paid the Claimant a part of the outstanding amount for the said period
with the copy of the bank receipt provided. Therefore, the DRC concluded that the
undisputed amount of 240,752.22 was to be paid by the Respondent to the
Claimant.
18.
Referring to the alleged obligation of the Respondent to pay the Claimant
additional amounts for the “cycles V-VIII” as well as bonuses, the DRC found that
there was neither a contractual basis to the “cycles V-VIII”, nor any documentary
evidence provided by the Claimant in this regard. The members of the DRC once
again recalled art. 12 par. 3 of the Procedural Rules and the principle of burden of
proof, and pointed out that no documentary evidence that the Respondent would
be liable to pay the aforementioned amounts was presented by the Claimant.
Hence, in the light of art. 12 par. 3 of the Procedural Rules the amount of 120,465
for the “cycles V-VIII” as well as bonus, cannot be granted to the Claimant.
19.
In view of all the above considerations, the Chamber decided that the total
amount of 941,312.95, made up of outstanding salaries for the period of January
2004 until May 2005, plus 5% interest p.a. as of 1 June 2005 was to be paid by the
Respondent to the Claimant.
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20.
Lastly, the Chamber turned its attention to the Claimant’s request for sporting
sanctions to be imposed on the club in line with art. 17 par. 4 of the Regulations,
which was rejected by the DRC, in view of the fact that the latter provision is
applicable only in case of early termination of the employment relationship.
Considering that the claimant did not allege that the employment contract had
been prematurely terminated by either of the parties, the Chamber concluded
that the provisions of art.17 par. 4 of the Regulations do not apply to the case at
hand.
21.
In addition, the members of the Chamber decided that the Claimant’s request for
legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and
its respective longstanding jurisprudence.
22.
On account of all the above, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay him an amount of 941,312.95,
plus interest of 5% p.a. on the said amount as of 1 June 2005 until the date of
effective payment.
23.
The Chamber concluded its deliberations by deciding that any further claims of the
Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, Club H, has to pay to the Claimant, A, within 30 days as from the
date of notification of this decision, the amount of 941,312.95, plus interest of 5%
p.a. on the said amount as of 1 June 2005 until the date of effective payment.
3.
If the aforementioned amount plus interest is not paid within the abovementioned time limit, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for its consideration and a formal decision.
4.
Any further claims lodged by the Claimant, A, are rejected.
5.
The Claimant, A, is directed to inform the Respondent, Club H, 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. 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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