Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 August 2011,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
M,
as Claimant
against the club,
K,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 12 February 2010, the player, M (hereinafter: the Claimant), lodged a complaint with
FIFA against the club, K (hereinafter: the Respondent), for breach of the employment
contract (hereinafter: the contract) allegedly concluded between the parties and valid as
from 12 November 2008 until 30 June 2009.
2.
In this respect, the Claimant stated that he was never provided with a copy of the
contract. However, in order to prove that a labour relationship had existed between the
parties, the Claimant submitted to FIFA the following documents:
- a copy of the player passport of the Claimant issued by the Football Federation P
which mentions that he had joined the Respondent on 11 December 2008.
Furthermore, the player passport indicates that the Claimant had been registered
as an amateur with different clubs in the country P since 2006 and after his stay
with the Respondent he was registered as a professional with a club of country P;
- a copy of a cheque dated 17 November 2008 in the amount of EUR 1,500 issued
to the Claimant and signed by the Respondent, allegedly pertaining to the salary
of November 2008.
3.
The Claimant further claimed that the said contract was valid as from 12 November 2008
until 30 June 2009 and that according to it, he was entitled to receive from the
Respondent a net monthly salary of EUR 1,500, payable on the 15th day of each month, as
well as “holiday pay” and “Christmas pay”. In this context, the Claimant claimed to have
received from the Respondent his salaries for November 2008 until February 2009, and
only a partial payment for his salary of March 2009 in the amount of EUR 1,000, always
on the respective due date.
4.
Consequently, the Claimant requests from the Respondent the total amount of
EUR 12,000 as follows:
- EUR 500 partial salary of March 2009;
- EUR 4,500 for the salaries of April until June 2009;
- EUR 1,500 for the holiday bonus;
- EUR 1,500 for the Christmas bonus;
- EUR 4,000 for legal expenses.
5.
In its reply, the Respondent refused the Claimant’s allegation. The Respondent stated
that in November 2008, the parties orally agreed on that the Claimant would play for the
Respondent for five months as from November 2008 to April 2009. For this period the
Claimant played as an amateur and therefore no contract was signed. According to the
Respondent, it was to pay the Claimant a total salary of EUR 6,000, to be paid in five
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monthly equal instalments of EUR 1,200 each, as well as to provide him with an
apartment and a car, which have been provided.
6.
The Respondent stated that it paid the Claimant the entire amount of EUR 6,400, thus
EUR 400 in addition because the Claimant asked the Respondent to receive it since it was
necessary for him. Furthermore, the Claimant allegedly caused damages of EUR 2,000 to
the car and the apartment before he left.
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
12 February 2010. Consequently, the 2008 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).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations;
edition 2010), the DRC judge 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 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 2 of the Regulations (editions 2010 and 2009), and
considering that the claim was lodged on 12 February 2010, the 2009 edition of the said
regulations is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established and entering into the substance of the matter, the DRC judge acknowledged
the above-mentioned facts as well as the documentation contained in the file.
5.
In this respect, the DRC judge took due note that the Claimant alleged having signed an
employment contract with the Respondent valid as from 12 November 2008 until 30 June
2009 and demands to be awarded payments by the Respondent in the amount of
EUR 12,000 for breach of contract by the club as outstanding salaries for the months of
March until June 2009, holiday and Christmas bonus, as well as legal fees. The player
claimed that he was allegedly entitled to receive, according to the employment contract,
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from the Respondent a net monthly salary of EUR 1,500, payable on the 15th day of each
month, as well as “holiday pay” and “Christmas pay”.
6.
In this respect, the DRC judge also noted that the Claimant alleged to have received from
the Respondent his salaries for November 2008 until February 2009, and a partial
payment for his salary of March 2009 in the amount of EUR 1,000, always on the due
date.
7.
On the other hand, the DRC judge took note that the Respondent stated that in
November 2008 the parties only orally agreed that the Claimant would play as an
amateur for the Respondent for five months as from November 2008 until April 2009. It
further denied that it owed the Claimant any outstanding amount for the months of
March until June 2009, since it paid the Claimant the due amount of a total salary of
EUR 6,000 and provided him with an apartment and a car. Since the Claimant was playing
for the Respondent as an amateur, no employment contract was signed between the
parties.
8.
In this respect, the DRC judge took into account that the Claimant did not present a copy
of the alleged employment contract, but instead only provided a copy of his player
passport issued by the Football Federation P which mentions that the he joined the
Respondent on 11 December 2008. The DRC judge observed that the Claimant’s player
passport indicated that he had been registered as an amateur with different clubs in the
country P since 2006 and after his stay with the Respondent he was registered as a
professional with a club of country P. However, the DRC judge noted that the player
passport did not indicate if the Claimant was registered with the Respondent as an
amateur or professional.
9.
In addition, the DRC judge noted that the Claimant provided a cheque dated
17 November 2008 in the amount of EUR 1,500 issued to the Claimant and signed by the
Respondent, allegedly pertaining to the salary of November 2008.
10. In this regard, the DRC judge emphasised that in accordance with the legal principle of
the burden of proof, which is a basic principle in every legal system, a party asserting a
fact has the obligation to prove the same (cf. also art. 12 par. 3 of the aforementioned
Rules).
11. In accordance with the above-mentioned legal principle, the Claimant has the burden of
proof regarding the Respondent’s obligation to pay him the alleged salaries of March
until June 2009 as well as the holiday and Christmas bonus.
12. Furthermore, the DRC judge took into consideration that the Claimant did not provide
any documentary evidence in order to prove that he received the salary payments for the
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months of November 2008 until February 2009, as well as a partial payment for his salary
of March 2009 in the amount of EUR 1,000 from the Respondent.
13. However, based on all documentation received from the Claimant, the DRC judge
concurred that in order to prove the existence of a contractual relationship the Claimant
had not provided sufficient evidence for the alleged labour relationship.
14. As a result, the DRC judge concluded that he had no alternative but to reject the
Claimant’s claim.
15. Finally, the DRC judge decided that the Claimant’s claim for legal costs is rejected in
accordance with art. 18 par. 4 of the Procedural Rules and his respective longstanding
jurisprudence.
III. Decision of the DRC judge
The claim of the Claimant, M, is rejected.
*****
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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
Enclosed: CAS directives
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