Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 August 2011,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player,
D,
as Claimant
against the club,
E,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 14 January 2009, the player D (hereinafter: the player or Claimant), and the club
E (hereinafter: the club or Respondent), signed an employment contract
(hereinafter: the contract) valid as from the date of signature until 30 June 2010.
2.
According to art. 7 of the contract, the player is entitled to receive the following
amounts:
- signing-on fee of USD 100,000, of which USD 60,000 payable after signing the
contract and USD 40,000 payable on 1 July 2009,
- monthly salary of USD 13,800 net, payable at the end of each month.
3.
On 18 April 2011, the player lodged a claim in front of FIFA against the club for
breach of contract, claiming the total amount of USD 105,400 net, plus interest of
5% p.a. as from the date it became outstanding. The claimed amount corresponds
to his partial salary for October 2009 (USD 1,400) and the salaries for the period
from November 2009 until June 2010 (8 x USD 13,000 = USD 104,000).
4.
In addition, the player requests that E should bear the legal costs.
5.
In his arguments, the player stated that he had only received the total amount of
USD 243,000 as the contract came to an end on 30 June 2010, his partial salary of
October 2009 and his salaries for November 2009 until June 2010 having remained
unpaid by the club from I.
6.
In spite of having been invited by FIFA to do so, the club from country I did not
reply to the player’s claim.
II. Considerations of the DRC judge
1.
First of all, the 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 18 April 2011. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art.
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22 lit. b) of the Regulations on the Status and Transfer of Players, edition 2010
(hereinafter: the Regulations), he is competent to decide on the present litigation,
which concerns an employment-related dispute with an international dimension
between a player from country P and an club from country I.
3.
Furthermore, the DRC judge analysed which edition of the 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 par. 2 of the Regulations (edition 2010) and
considering that the present matter was submitted to FIFA on 18 April 2011, the
2010 edition of said Regulations is applicable to the present matter 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. In doing so, he
started to acknowledge the facts of the case as well as the documents contained in
the file.
5.
In this respect, the DRC judge noted that the Claimant claims that the Respondent
has failed to pay his partial salary for October 2009, in the amount of USD 1,400,
and his salaries for the period from November 2009 until June 2010, in the total
amount of USD 104,000, taking into account a monthly salary of USD 13,000.
Consequently, the Claimant asks to be awarded the payment of the total amount of
USD 105,400, plus interest of 5% p.a. as of the day on which each of such salaries
had fallen due. In addition, the player requests that the Respondent should bear
the legal costs of the procedure.
6.
Subsequently, the DRC judge took note of the fact that the Respondent, for its part,
had failed to present its response to the claim of the player, in spite of having been
invited to do so. Consequently, the DRC judge deemed it appropriate to emphasize
that the Respondent renounced its right to present its defense and, hence, accepted
the allegations of the Claimant.
7.
As a consequence of the aforementioned consideration, the DRC judge concurred
that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
8.
Subsequently, the DRC judge went on to analyze the arguments and the
documentation presented by the Claimant. In this respect the DRC judge
acknowledged that the parties had signed an employment contract on 14 January
2009, in accordance with which the player was entitled to receive, inter alia,
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monthly remuneration in the amount of USD 13,800 net, payable at the end of each
month.
9.
In continuation, the DRC judge acknowledged that the Claimant states not having
received his partial salary for October 2009 or his salaries for the period from
November 2009 until June 2010, in the total amount of USD 105,400.
10. For the sake of good order, the Chamber recalled the basic principle of burden of
proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a
party claiming a right from an alleged fact shall carry the respective burden of
proof.
11. In this respect, the DRC judge noted that the Claimant has provided evidence of the
alleged existence of arrears of the Respondent towards him in the total amount of
USD 105,400; namely, he presented the contractual basis of such arrears and
provided the DRC judge with a detailed breakdown of them, specifying which
salaries had remained unpaid and to which period of time they corresponded.
12. In view of the above, the DRC judge concluded that the Claimant had substantiated
his claim regarding his outstanding salaries with sufficient documentary evidence.
Consequently, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfill its obligations as per the employment
contract concluded with the Claimant and, consequently, is to be held liable to pay
the outstanding remuneration due to the latter. Hence, the DRC judge proceeded
with the calculation of the outstanding monies payable to the Claimant under the
terms of the employment contract, as from October 2009 until June 2010.
13. In this context, the DRC judge acknowledged that, according to art. 7 of the
contract, the Claimant is entitled to a monthly salary of USD 13,800 net, payable at
the end of each month. Subsequently, the DRC judge pointed out that the Claimant
requests from the Respondent the payment of USD 1,400, corresponding to his
partial salary for October 2009, and USD 104,000, corresponding to his salaries for
November 2009 until June 2010, taking into account for the calculations a monthly
salary of USD 13,000.
14. In view of the above, the DRC judge decided that the Respondent is liable to pay to
the Claimant outstanding salaries in the total amount of USD 105,400,
corresponding to his partial salary for October 2009 and his salaries for November
2009 until June 2010.
15. With regards to the claimed interests, the Chamber noted that, according to the
employment contract, the salary payments were to be made by the end of each
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month. Consequently, the Chamber decided that the Respondent had to pay
default interest at a rate of 5% as follows:
- 5% p.a. as of 31 October 2009 over the amount of USD 1,400;
- 5% p.a. as of 30 November 2009 over the amount of USD 13,000;
- 5% p.a. as of 31 December 2009 over the amount of USD 13,000;
- 5% p.a. as of 31 January 2010 over the amount of USD 13,000;
- 5% p.a. as of 28 February 2010 over the amount of USD 13,000;
- 5% p.a. as of 31 March 2010 over the amount of USD 13,000;
- 5% p.a. as of 30 April 2010 over the amount of USD 13,000;
- 5% p.a. as of 31 May 2010 over the amount of USD 13,000;
- 5% p.a. as of 30 June 2010 over the amount of USD 13,000.
16. The DRC judge further decided that the Claimant’s claim for legal costs is rejected,
in accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber.
17. Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
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III. Decision of the DRC judge
1.
The claim of the Claimant, D, is partially accepted.
2.
The Respondent, E, has to pay to the Claimant, D, within 30 days as from the date
of notification of this decision, the amount of USD 105,400, plus interest of 5% p.a.
until the date of effective payment as follows:
- 5% p.a. as of 31 October 2009 over the amount of USD 1,400;
- 5% p.a. as of 30 November 2009 over the amount of USD 13,000;
- 5% p.a. as of 31 December 2009 over the amount of USD 13,000;
- 5% p.a. as of 31 January 2010 over the amount of USD 13,000;
- 5% p.a. as of 28 February 2010 over the amount of USD 13,000;
- 5% p.a. as of 31 March 2010 over the amount of USD 13,000;
- 5% p.a. as of 30 April 2010 over the amount of USD 13,000;
- 5% p.a. as of 31 May 2010 over the amount of USD 13,000;
- 5% p.a. as of 30 June 2010 over the amount of USD 13,000.
3.
If the aforementioned sum plus interest is not paid within the above-mentioned
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, D, are rejected.
5.
The Claimant, D, is directed to inform the Respondent, E, 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.
*****
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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 DRC judge
Jérôme Valcke
Secretary General
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