Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 27 August 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
S,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 24 May 2010, the country C club, A (hereinafter: the Respondent), and the
country E player, S (hereinafter: the Claimant), concluded an employment contract
(hereinafter: the contract) valid as from the date of signature until the end of the
sporting season 2010/11.
2.
According to the contract, the Claimant was to be remunerated with the total
amount of EUR 13,500.
3.
On 1 April 2011, the Respondent and the Claimant concluded an agreement, by
means of which they agreed that the Respondent would pay to the Claimant the
outstanding amount of EUR 4,350 as follows:
a)
EUR 1,350 payable on 20 April 2011;
b)
EUR 1,500 payable on 30 May 2011;
c)
EUR 1,500 payable on 20 June 2011.
4.
On 4 October 2011, the Claimant lodged a claim before FIFA, claiming the amount
of EUR 4,350 plus interests and legal fees, indicating that the Respondent had
breached the agreement and never paid him the outstanding amount of EUR
4,350.
5.
On 24 October 2011, the Respondent rejected a part of the claim and alleged that
it had already paid the Claimant the amount of EUR 3,000. Therefore, it proposed
to pay the Claimant the outstanding amount of EUR 1,350.
6.
On 26 January 2012, the Claimant rejected the Respondent’s allegations and
adhered to his claim requesting payment of the outstanding amount of EUR 4,350.
7.
Despite having been invited by FIFA to provide its final position, the Respondent
did not answer.
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, the DRC judge took note that the present matter was
submitted to FIFA on 4 October 2011. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. art. 21 par. 1 and par. 2 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.
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,
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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 par. 2 of the Regulations (edition 2010), and
considering that the present matter was submitted to FIFA on 4 October 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 by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file.
5.
In this respect, the DRC judge acknowledged that the parties had signed an
employment contract on 24 May 2010, in accordance with which the player was
entitled to receive, inter alia, the amount of EUR 13,500 as total remuneration for
the term of the contract.
6.
In addition, the DRC judge observed that the parties had concluded a private
agreement on 1 April 2011, which stipulated that the Respondent should pay to
the Claimant the outstanding amount of EUR 4,350 in the following three
instalments, (i) EUR 1,350 payable on 20 April 2011; (ii) EUR 1,500 payable on 30
May 2011 and; (iii) EUR 1,500 payable on 20 June 2011.
7.
In continuation, the DRC judge noted that the Claimant alleged that the
Respondent had failed to pay the outstanding amount of EUR 4,350 established by
the parties in the private agreement, which should have been paid in three
instalments. Consequently, the Claimant asked to be awarded with the payment
of the total amount of EUR 4,350, plus interest. In addition, the Claimant
requested that the Respondent should bear the legal costs of the procedure.
8.
Equally, the DRC judge took note of the reply of the Respondent, which asserted
that it had already paid the Claimant the amount of EUR 3,000. In consequence,
the Respondent declared that the amount due to the Claimant would be EUR
1,350.
9.
With due consideration to the above, the DRC judge acknowledged that the
Claimant stated not having received the abovementioned amount; whereas the
Respondent states that it has already paid the Claimant EUR 3,000.
10.
In this respect, the DRC judge recalled the basic principle of burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
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claiming a right on the basis of an alleged fact shall carry the respective burden of
proof.
11.
According to this, the DRC judge noted that the Respondent did not substantiate
its defence, as it did not present any evidence in respect of the payment of EUR
3,000 he sustained to have paid.
12.
In view of the above, the DRC judge concluded that the Respondent has not
provided evidence of its defence and that, therefore, it could be established that
the Respondent had failed to pay to the Claimant the amount as agreed upon
between the parties in the agreement dated 1 April 2011. As a consequence, and
in accordance with the general legal principle of pacta sunt servanda, the
Respondent must fulfil its obligations as per private agreement concluded with
the Claimant and, consequently, is to be held liable to pay the outstanding
amount of EUR 4,350 to the Claimant.
13.
With regards to the claimed interests, the DRC judge noted that, according to the
private agreement, the outstanding amount was to be paid in the following three
instalments, (i) EUR 1,350 payable on 20 April 2011; (ii) EUR 1,500 payable on 30
May 2011 and; (iii) EUR 1,500 payable on 20 June 2011. Consequently, the DRC
judge decided that the Respondent had to pay default interest at a rate of 5% as
follows:
-
5% p.a. as of 21 April 2011 on the amount of EUR 1,350;
5% p.a. as of 31 May 2011 on the amount of EUR 1,500;
5% p.a. as of 21 June 2011 on the amount of EUR 1,500.
14.
The DRC judge further decided that the Claimant’s claim for legal costs is rejected,
in accordance with ar. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber.
15.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, S, is partially accepted.
2.
The Respondent, Club A, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 4,350 plus 5% interest p.a.
until the date of effective payment as follows:
a.
b.
c.
5% p.a. as of 21 April 2011 on the amount of EUR 1,350;
5% p.a. as of 31 May 2011 on the amount of EUR 1,500;
5% p.a. as of 21 June 2011 on the amount of EUR 1,500.
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3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
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 DRC
judge of every payment received.
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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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