Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), Member
Carlos Soto (Chile), Member
Mario Gallavotti (Italy), Member
Sofoklis Pilavios (Greece), Member
on the claim presented by
the player, T,
as Claimant
against
the club, FC Z
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 10 July 2004, the R player T (hereinafter: the player) and the S club FC Z
(hereinafter: the club) signed an employment contract valid as of 1 July 2004
until 30 June 2005 and providing for the automatic extension of the
contractual term until 30 June 2006.
2.
According to item 1 of Annex 3 to the labour contract, the player was to
receive the following payments:
Fix salary
Expenses
Car expenses
Apartment
Premium guarantee
Furniture
Total
198,000
24,000
12,000
36,000
36,000
20,000
326,000
(12 x 16,500)
(12 x 2,000)
(12 x 1,000)
(12 x 3,000)
(12 x 3,000)
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3.
Item 2 of Annex 3 to the employment contract stipulates the following:
“Premiums: according to the premium regulations of the 1st team,
which is negotiated at the beginning of a season by the coordinationcommittee (…)”.
4.
In item 3 of Annex 3 to the employment contract, the parties agreed upon
the following terms:
“In case the employee is transferred before expiry of the present
contract to a second club against payment of a transfer compensation,
he shall receive 25% of the net transfer compensation”.
5.
The player also enclosed a copy of the “Premium regulations for the 1st team
players / staff season 2004/2005”, stipulating inter alia that, should the club
win the S championship, its players having participated in 41-60% of all
matches during the season were to receive 24,000.
6.
On 11 December 2006, the player lodged a claim against the club before
FIFA. He explained that he was transferred from FC Z to M in the beginning
of 2006, and that the two clubs involved had agreed upon a transfer
compensation amounting to EUR 500,000.
7.
The player enclosed a confirmation of M dated 31 March 2006, according to
which the G club had paid a compensation amounting to EUR 500,000 for
the transfer of the player (in two instalments amounting to EUR 250,000
each, paid on 31 January 2006 and 31 March 2006, respectively).
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8.
In this regard, the player held that the club had not paid him the 25% of the
relevant transfer compensation, amounting to EUR 125,000, in accordance
with item 3 of Annex 3 to the employment contract, although the club had
been reminded of its respective contractual obligation on various occasions.
Consequently, the player claimed the relevant amount from the club, along
with 5% interest as of 15 May 2006.
9.
Furthermore, the player pointed out that the club had won the S
championship 2005/2006. In this regard, the player referred to item 2 of
Annex 3 to his employment contract in connection with the club’s premium
regulations for the season 2005/2006, according to which a player is allegedly
entitled to a championship premium in the amount of 24,000 if he
participates in 41 – 60% of all championship matches. The player held that
he had not received the premium regulations for the season 2005/2006, but
that the premium regulations for the season 2004/2005, a copy of which the
player enclosed with his petition, are the same as for the following season.
10.
The player argued that he had played 15 matches of a total of 36 matches in
the season 2005/2006, corresponding to 41,66% of all championship
matches, and that therefore he was entitled to receive the aforementioned
premium. In support of his statement, the player enclosed official statistics of
the S Football League for the season 2005/2006.
11.
In this context, the player emphasised that in the relevant provision, contrary
to the rule governing premiums for the Champions League qualification,
there was no reference to a possible condition that a player still had to be an
employee of FC Z at the moment of the achievement of the championship in
order to receive the relevant premium.
12.
The player stated that he had not received the premium although he had
claimed its payment from the club. Consequently, he requested that the club
be ordered to pay the premium amounting to 24,000, along with 5% interest
as of 15 June 2006.
13.
On 2 April 2007, the club rejected the player’s claim and emphasised that the
parties had agreed in the relevant employment contract that the player was
to receive, in case of a transfer before the expiry of the term of the contract,
25% of the net transfer compensation. The club held that in order to
calculate the net amount, all costs which the club incurred in connection
with the player’s transfer had to be deducted. In particular, the parties had
agreed that the amounts paid by the club to the player for his marketing
rights would have to be considered in the calculation of the net transfer
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compensation and would therefore have to be deducted of the gross
amount. According to the club, such calculation is an established practice.
14.
In this respect, the club held that the player had been transferred to M due
to his own will in the middle of the season 2005/2006. However, in the
beginning of the said season he had received remuneration for his
marketing rights from the club for the entire season 2005/2006, in the
amount of 182,001. Since the player had left the club before the end of the
season, the club was of the opinion that the player had to reimburse the
surplus of the advance he had received, in the amount of 78,784.
15.
Consequently, according to the club, the calculation of the net transfer
compensation in the present case and the player’s corresponding entitlement
is as follows:
1st instalment M
2nd instalment M
Gross transfer compensation
./. Payment for marketing rights in connection
with player’s transfer to FC Z (2004/2005)
./. Payment for marketing rights in connection
with player’s transfer to FC Z (2005/2006)
Net transfer compensation
388,250
354,420
742,670
156,000
103,217.10
483,452.90
Player’s share of the transfer compensation (25%)
120,863.20
./. Surplus of marketing rights paid to the player for the
season 2005/2006 (24 January until 30 June 2006)
78,784
Player’s total entitlement
42,079.20
16.
Furthermore, with regard to the championship premium for the season
2005/2006, the club confirmed that it had won the championship of the
relevant season and that a premium was to be paid to the players according
to the premium regulations. However, such championship premium was only
an entitlement of those players which belonged to the club’s team in the
moment it won the championship. The player had left the club prior to the
club’s capture of the championship 2005/2006. Accordingly, he had no right
to receive any championship bonus for the season 2005/2006.
17.
Finally, the club held that, at the time of the transfer of the player to M, FC Z
had been in a training camp in the U. In order for the G club to be able to
present the player as soon as possible to the public and to field him in an
upcoming friendly match, the player was, by way of an exception, authorised
to immediately leave the training camp and join his new club, although the
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transfer formalities had not yet been dealt with. Still in the training camp,
the player and the club allegedly agreed that the player would not claim any
amounts whatsoever from the club. In this respect, the club held that the
player had promised to come to Z before the beginning of the second half of
the season 2005/2006 in order to confirm such agreement in writing. The
club alleged that the player had however omitted to do so and now claimed,
in bad faith, allegedly outstanding receivables from the club. Consequently,
the club requested that all claims of the player were to be rejected.
18.
In his reply, the player contested that he had ever agreed to including his
marketing rights into the calculation of the net transfer compensation. He
pointed out that there was obviously no agreement between the parties in
this respect and that his marketing rights had absolutely nothing to do with
his transfer to M. The player furthermore denied that such procedure would
correspond to a common practice. In addition, the player held that he had
not received any payments for his marketing rights from the club, since he
had consigned these rights to a third party which had concluded a separate
agreement with the club in relation to the relevant marketing rights.
Therefore, the player concluded that a possible claim of the club in relation
to such rights could in any case not be deducted from his entitlements.
19.
Furthermore, the player held that during the period of 10 July 2004 until 23
January 2006, the club had been able to profit of his marketing rights.
Consequently, the club had received a countervalue for the amount it paid
for the marketing rights and was therefore not entitled to deduct this
amount from the gross transfer compensation. Consequently, according to
the player, the calculation of the net transfer compensation by the club,
resulting in an amount of 483,452,90, is absurd and wrong. The reasoning
behind the term “net transfer compensation” used in item 3 of Annex 3 to
the employment contract was that the player would receive 25% of the
amount the club effectively received from the G club, i.e. in consideration of
any costs the club incurred in connection with the transfer, such as bank
expenses, tax payments etc. In the present case, however, the club had
received the full amount of EUR 500,000 from M.
20.
In continuation, the player asserted that the club had used an erroneous
exchange rate and that the EUR 500,000 paid by the G club in fact
corresponded to 807,500.
21.
With regard to the championship premiums, the player reiterated that the
only condition for the payment of such premiums was a participation in 4160% of all championship matches. This condition was fulfilled in the present
case.
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22.
Furthermore, the player contested that he had renounced his entitlements
towards the club. Consequently, the player insisted in all his claims against
the club.
23.
In its rejoinder, the club held that the payment for marketing rights was a
transfer investment of the club, which had to be considered in the
calculation of the net transfer benefit in case of the transfer of a player. In
this context, the club held that it was irrelevant whether the payments for
such marketing rights were made directly to the player or to a third party. In
any case, it was the player himself who had requested the club to pay the
marketing rights to a company based in N, allegedly for tax reasons.
24.
The club furthermore contested that it had received the full amount of EUR
500,000 from M, as the latter had deducted the solidarity contribution in the
amount of EUR 25,000 from the transfer compensation.
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 11 December 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 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 para. 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 R player and a S 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 paras. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 11 February
2006, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Entering into the substance of the matter, the Dispute Resolution Chamber
commenced its deliberations by proceeding to a thorough analysis of the
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circumstances given in the matter at hand. In this respect, the members of the
Chamber noted that the player, who had been employed by the club until the
beginning of 2006, when he was transferred to M, claimed allegedly outstanding
monies from the S club. In particular, he claimed on the one hand an allegedly
contractually due participation to the transfer compensation which M paid the
club for his transfer and, on the other hand, a premium for his participation in
41,66% of all of the club’s championship matches in the 2005/2006, at the end of
which the club was proclaimed S champion.
5.
On account of the above, the members present at the meeting proceeded to
examine each one of the two alleged entitlements of the player in detail, starting
with his claimed participation to the compensation agreed upon between the club
and M for his transfer.
6.
In this respect, the Dispute Resolution Chamber took due note that, according to
the player, the relevant transfer compensation amounted to EUR 500,000.
Consequently, in the light of item 3 of Annex 3 to the employment contract, he
deemed that he was entitled to receive 25% thereof, i.e. EUR 125,000.
7.
The club on its part had insisted that, according to a supposedly established
practice and the alleged consent between the parties, the amounts paid by the
club to the player for his marketing rights would have to be deducted from the
gross transfer compensation in order to establish the net amount, on the basis of
which the player’s possible entitlement of 25% could then be calculated.
8.
Notwithstanding the foregoing, the club had also maintained that, on the
occasion of its training camp in the U prior to the player’s transfer to M, the player
had agreed not to claim any amounts whatsoever from the club, which was
allegedly to be confirmed in writing in Z before the beginning of the second half
of the season 2005/2006. Such written confirmation was however apparently never
issued.
9.
Having deliberated extensively on the parties’ respective positions, the members of
the Dispute Resolution Chamber came to the conclusion that the club’s
argumentation could not be upheld. First of all, the Dispute Resolution Chamber
confirmed that, in principle, a club paying for the marketing rights of a player
receives a countervalue to such payment(s). In addition, the members of the
Chamber could see no obvious reason why precisely marketing right payments
should be taken into account while establishing a player’s participation in the
compensation of his further transfer, unless the parties have explicitly and
demonstrably agreed on this.
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10.
In this respect, the Dispute Resolution Chamber pointed out that the club had not
been able to prove its contested allegation that it had agreed with the player that
the amounts paid by the club to the player for his marketing rights would have to
be considered in the calculation of the net transfer compensation. Likewise, the
members of the Chamber held that the club had omitted to provide documentary
evidence corroborating its statement that such an approach would correspond to
an established practice.
11.
The above led the Dispute Resolution Chamber to conclude that the deductions
made by the club in order to establish the player’s participation in the transfer
compensation paid for him by M had to be disregarded.
12.
In this respect, the Chamber emphasized that the “net transfer compensation”
rather had to be understood as the amount that was effectively credited to the
club’s accounts by M. Bearing this in mind, the members of the Chamber took due
note of the fact that the club had asserted and demonstrated through bank
statements that M had deducted 5% of the transfer compensation agreed upon,
i.e. EUR 25,000, on account of the solidarity mechanism as set out in the
Regulations. The members present at the meeting concurred in that it had indeed
been the obligation of the G club to withhold the relevant 5% from the club
receiving the transfer compensation and to distribute the solidarity contribution to
the player’s training clubs as per art. 21 and Annex 5 of the Regulations, and that
this circumstance had to be taken into account in order to establish the net
transfer amount in the present case. Consequently, the Dispute Resolution
Chamber decided that the net transfer compensation in the present case amounts
to EUR 475,000.
13.
Subsequently, with regard to the club’s argument according to which the player
had renounced all his entitlements towards the club at a training camp prior to his
transfer to M, the Dispute Resolution Chamber held that the club had not
provided any documentary evidence at all in order to prove this statement. In this
respect, the Chamber referred to art. 12 para. 3 of the Procedural Rules,
stipulating that any party deriving a right from an alleged fact shall carry the
burden of proof. As the club had not provided any documentary evidence proving
the player’s alleged waiver, the Chamber concluded that the respective
argumentation of the club could not be upheld.
14.
As a consequence, the Chamber held that the player is entitled to receive from the
club 25% of the relevant net transfer compensation amounting to EUR 475,000,
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i.e. EUR 118,750, along with 5% interest per annum on the said amount as of 15
May 2006.
15.
Having established the above, the members of the Chamber turned their attention
to the player’s claim for a championship premium for the season 2005/2006 in
accordance with item 2 of Annex 3 to his employment contract with the club and
the respective premium regulations.
16.
In this regard, the player referred to the club’s premium regulations for the season
2005/2006, according to which a player is allegedly entitled to a championship
premium in the amount of 24,000 if he participates in 41–60% of all championship
matches. The Chamber noted that the player had only presented the club’s
premium regulations for the season 2004/2005 and explained that they had
remained the same for the following season, a statement that had not been
contested by the club.
17.
In this regard, the player maintained that since he had played in 41,66% of all of
the club’s championship matches in the season 2005/2006, at the end of which the
club had been proclaimed S champion, he was entitled to the respective
championship premium of 24,000.
18.
Turning their attention to the counterarguments of the club, the members of the
Chamber acknowledged that the club did not contest that the player surpassed the
threshold of 41% of all championship matches during the season 2005/2006, but
rather held that the player was not entitled to the corresponding championship
premium as he was not a member of the club anymore at the time it won the S
championship 2005/2006.
19.
With regard to the above, the Dispute Resolution Chamber recalled that, in order
for a player to receive the claimed bonus in accordance with the relevant premium
regulations, according to its wording basically two conditions had to be fulfilled.
On the one hand, the club must win the S Championship, on the other hand a
player must have participated in 41-60% of the championship matches during the
relevant season. In this respect, the Dispute Resolution Chamber determined that
these two preconditions were undisputedly fulfilled in the present case.
20.
As far as the club’s argument is concerned, according to which a player must be
part of the team at the moment it wins the championship, the Dispute Resolution
Chamber acknowledged that no such prerequisite was mentioned in the clause in
question. In this respect, the members of the Chamber held that the player’s
entitlement to a championship premium could in principle not be made dependent
upon additional conditions that were not explicitly provided for. In this regard, the
Dispute Resolution Chamber held that it had to assume that the listing of the
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explicitly mentioned prerequisites was exhaustive, particularly in view of the fact
that for another type of premium, i.e. for the Champions League qualification, it
had been explicitly set out in the premium regulations that a player was only
entitled to such a premium if he was still a member of the team at the moment of
the qualification matches. Per a contrario, the Dispute Resolution Chamber
concluded that such condition was precisely not applicable for the relevant
championship premium claimed by the player, since it had not been mentioned in
such context.
21.
Furthermore, with respect to the club’s explanations regarding the player’s alleged
waiver of his entitlements towards the club, the Dispute Resolution Chamber
referred to its previous appreciation under point II.13. above.
22.
All the foregoing led the Dispute Resolution Chamber to conclude that the player
had fulfilled the conditions in order to receive the championship bonus he claimed
and that, therefore, the club had to pay the outstanding premium amounting to
24,000 to the player, along with 5% interest per annum on the said amount as of
15 June 2006.
23.
On account of all of the above, the Dispute Resolution Chamber decided that the
player’s claim had to be partially accepted, and that the club shall pay the amount
of EUR 118,750, along with 5% interest per annum on the said amount as of 15
May 2006, as well as the amount of 24,000, along with 5% interest per annum on
the said amount as of 15 June 2006, to the player.
24.
The Chamber concluded its deliberations on the present case by determining that
any further claims of the player had to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player T, is partially accepted.
2.
The Respondent, the club FC Z, shall pay the amount of EUR 118,750, along with
5% interest per annum on the said amount as of 15 May 2006, as well as the
amount of 24,000, along with 5% interest per annum on the said amount as of 15
June 2006, to the Claimant T within 30 days as from the date of notification of the
present decision.
3.
Any further claims of the Claimant are rejected.
4.
In the event that the above-mentioned amounts are not paid within the indicated
deadline, the present matter will be submitted to the FIFA Disciplinary Committee
for its consideration and decision.
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5.
The Claimant is instructed to inform the Respondent 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.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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