Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
L,
as Claimant
against the club,
X,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 16 March 2009, the country F player L (hereinafter: player or Claimant), a
players’ agent (hereinafter: agent), and the country R club X (hereinafter: club or
Respondent) signed a “civil convention of sportive services” (hereinafter:
convention).
2.
Art. VIII. of the convention stipulates that the parties undertake not to bring any
legal actions before ordinary courts before having exhausted all the recourse
existing, inter alia, within the Football Federation R and the country R Football
League. Therefore, in case of dispute, and after a first attempt to settle it in an
amicable way, the case will be submitted to the special decision-making body of
the Football Federation R, depending on the nature of the case at hand.
3.
Art. III.2) c) of the convention stipulates that the player undertakes to respect the
by-laws, the Regulations, the decisions and orders from, inter alia, the club and
the Football Federation R.
4.
On 20 June 2009, the player lodged a claim before FIFA against the club on the
basis of the alleged non-payment of various salaries and bonuses.
5.
In its reply to the player’s claim, the club held that FIFA has no jurisdiction over
the matter at hand.
6.
In this respect, the club referred to art. 22 lit. b) of the FIFA Regulations on the
Status and Transfer of Players as well as to the clause stipulated in art. VIII of the
convention, and asserted that there are, within the Football Federation R and the
Professional Football League, independent jurisdictional commissions that have,
according to the domestic regulations, full and exclusive competence to hear any
dispute or litigation arising between country R clubs and players.
7.
The club further asserted that the rules governing the procedures (inter alia, the
composition, the representation of the parties, the parties’ right to be heard, and
appeal procedures before another Committee of the Professional Football
League or to the Court of Arbitration for Sport) in front of the country R
Professional Football League are in line with the requirements pertaining to the
FIFA Regulations on the Status and Transfer of Players.
8.
In order to substantiate its position, the club presented various extracts of
domestic Regulations related to the handling of litigations by local decisionmaking bodies.
9.
The player, for his part, rejected the jurisdiction of the country R deciding bodies,
asserting that he does not trust the Football Federation R nor the club. He
insisted that the relevant FIFA decision-making body decides on the case at hand.
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10.
FIFA’s request to the club to provide a full set of the applicable Regulations, both
in country R language and translated into one of the official FIFA languages has
remained unanswered.
11.
The aforementioned convention signed between the parties on 16 March 2009
was valid as of its signature date until 30 June 2009, i.e. for three and a half
months.
12.
Art. III.a) of the convention stipulates that the club will pay the player on the
basis of the results of his sportive performances.
13.
Additionally, art. III.g) of the convention stipulates, inter alia, that the player will
receive the agreed amounts, the percentages, depending on the number of
official matches he played.
14.
Furthermore, art. IV. of the convention stipulates that the player’s remuneration
is EUR 250 net per month.
15.
Art. V. of the convention establishes that any modifications of its terms shall be
done via an additional agreement signed by both parties or as a result of a
decision of the club’s directors.
16.
Finally, and according to art. IX. par. 3, it is stipulated that the convention
represents the parties’ will and cancels any other precedent or posterior verbal
agreement.
17.
The player held that in addition to the aforementioned convention, a separate
agreement (hereinafter: document) was signed on the same day, but that the
club refused to remit him a copy of it.
18.
Along with his statement of claim, the player presented a copy of the document,
which he declared having received from the agent who also had signed the
convention. The transmitted copy of said document only bears the agent’s
signature.
19.
The document stipulates, inter alia, the following:
The player shall receive EUR 3,250 net per month;
The player shall receive EUR 1,625 as an advance payment for the month of
March upon receipt of the player’s International Transfer Certificate;
If the club is promoted, a promotion premium based on the “IR”;
Premiums will be paid on the basis of the “IR”;
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The club will provide the player with an apartment and pay the rent related
thereto. Any other costs will be paid by the player (telephone, electricity,
maintenance, etc);
The club will pay for round trip flight tickets countries R-F for the period
between 16 March 2009 and 15 June 2009;
The club will pay to the player the agreed amounts, the percentages,
depending on the number of official matches played.
20.
On 28 May 2009, 8 June 2009, and 12 June 2009, the player put the club in
default of payment of his salary as of April 2009 in the amount of EUR 3,500 per
month plus match and promotion bonuses.
21.
His default notices having remained unanswered, on 20 June 2009, the player
lodged a claim in front of FIFA against the club, asserting that he had only
received from the club EUR 1,750 net and flight tickets.
22.
Therefore, the player asked to be awarded payment of the net amount of EUR
18,200 which was detailed as follows:
a) EUR 10,500 as outstanding salaries, based on the convention and the
document (respectively EUR 250 and EUR 3,250 net per month multiplied by
three months, i.e. April, May and June 2009);
b) EUR 3,700 corresponding to match bonuses and the promotion bonus ;
c) EUR 4,000 ex aequo et bono for moral damages and the loss of fringe
benefits.
23.
In addition to his financial claim, the player requested the imposition of sporting
sanctions on the club consisting of a transfer ban and points deduction.
24.
The player submitted a letter dated 28 July 2009 he received from the club’s new
secretary general, in which the latter states that he is “informed and fully aware
of the problems [the player has] with the club. As [he has] already told Mr T, [he]
managed to gather all the written documents concerning this matter and it is just
a matter of a few days [he] draws conclusion and let [the player know] about it.
[He] should like [the player] to be sure that [his] only aim is to find a solution in
the benefit of all parties involved.”
25.
In addition to the foregoing, the player attached written testimonies from a
team-mate named Mr T as well as from another player, who unsuccessfully went
through tests for the club in June 2009. Both players testified that they witnessed
the club’s representative’s refusal to hand over to the player a signed copy of the
document and of the payment receipt for the amount of EUR 1,750. Reportedly,
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the club’s representative also refused to pay the player his salaries for the months
of April and May whereas all the other team members, except for Mr T, had
received their dues.
26.
Furthermore, the player’s agent testified in writing that after a first test in
country R, the club offered on 16 March 2009 a contract to the player, consisting
of a two pages’ convention and a single page additional agreement.
27.
In its reply as to the substance of the matter, the club acknowledged having
signed, on 16 March 2009, a convention with the player, in accordance with
which the player would receive the total amount of EUR 875 over the duration of
the convention. The club recalled that the player acknowledged having received
EUR 1,750 as well as flight tickets. Therefore, the club considered that it has no
outstanding monies towards the player but rather that, to the contrary, the
player actually received more than what he was entitled to.
28.
Furthermore, the club referred to art. III lit. g) of the convention and pointed out
that during the contractual period, the player had low sportive performances
resulting of his lack of interest in the preparation. As a consequence, the player
only sporadically participated in the club’s matches.
29.
However, according to the club, the player started to complain about alleged
outstanding payments whereas he had received his dues.
30.
In continuation, the club addressed the player’s claims based on the document. In
the club’s opinion, the player’s thesis is unjustified and contradicted by the
documents that were communicated within the frame of the investigation in the
case at hand.
31.
In this regard, the club referred to art. V of the convention and denied having
ever signed any other agreement apart from the convention it signed with the
player on 16 March 2009. In this regard, the club asserted that the player was
unable to transmit a signed copy of the document, because the club never signed
such a document.
32.
Also, the club held that a faxed document which was only signed by the recipient
of said fax, i.e. the player’s agent, who alleged having received it from the club,
cannot be taken into account. Should the club have wanted to have the
contractual relation (also) governed by the terms the document, it would have
sent to the agent a draft bearing the signature of a club’s representative, which is
not the case here.
33.
Furthermore, the club stressed that it considers as absurd the hypothesis in
accordance with which it would have signed a convention to be immediately
modified by another separate document allegedly signed on the same date.
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34.
Also, the club pointed out that the written testimonies of the player’s agent and
the player’s team-mate, Mr T, cannot be accepted, as their respective authors are
biased and interested in seeing the player’s view prevailing. What is more, the
club pointed out that the player brought his testimony in favor of Mr T in the
latter’s case against the club pending in front of FIFA and that by doing so, the
two players are backing each other against the club.
35.
Besides, from the club’s point of view, the testimony of the other player, who
failed to pass the test to join the club, is motivated by his frustration and is also
to be rejected.
36.
The club pointed out that if the three players all state in their testimonies that
the club refused to provide the player with a signed copy of the document, none
of them declared having ever seen a signed copy of the document at stake.
37.
The club therefore concluded by rejecting the player’s claim and insisted on the
fact that it has never signed the document. It also underlined that the only
obligations it had towards the player were based on the convention, which have
been entirely fulfilled, and even more, since the player received more than what
he was entitled to.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) 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 20 June 2009, thus after 1 July 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
In continuation, 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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2010) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player and a club.
3.
However, the Chamber noted that the Respondent maintains that the Dispute
Resolution Chamber has no competence to deal with the matter at stake by
virtue of the contents of art. VIII. of the convention. Furthermore, the members
of the Chamber took into account that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
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4.
In this respect, and regardless of the fact that the relevant convention contains a
reference to a dispute resolution system at national level, which reference, the
Chamber pointed out, does not clearly indicate a specific arbitration body and
must be considered too vague, the members of the Chamber referred to the
contents of art. 22 b) of the Regulations on the Status and Transfer of Players
according to which, in general, in employment-related disputes between a club
and a player that have an international dimension, i.e. the parties do not belong
to the same country, both parties were entitled to refer the dispute to FIFA’s
deciding bodies, unless an independent arbitration tribunal respecting the
principle of equal representation of players and clubs with an independent
chairman has been established at national level.
5.
The members of the Chamber acknowledged that in the case at hand, the
Respondent has failed to submit documentary evidence demonstrating that an
independent arbitration tribunal in compliance with the requirements as laid
down in art. 22 lit. b) of the aforementioned FIFA regulations and the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations as well as
FIFA Circular no. 1010 has been established in country R. As a consequence, the
Chamber established that the Respondent’s objection to the competence of FIFA
to deal with the present matter has to be rejected and confirmed that the
Dispute Resolution Chamber is competent to consider the present dispute as to
the substance on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players.
6.
In continuation, 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 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2009 and 2010), and considering that the present claim was lodged on
20 June 2009, the 2008 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
7.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
8.
By doing so, the Chamber turned its attention to the Claimant’s statement of
claim and noted, inter alia, that the Claimant was requesting to receive from the
Respondent the amount of EUR 18,200 corresponding to allegedly outstanding
salaries based on the convention and the document as well as unpaid bonuses
and damages.
9.
Also, the Chamber noted that the Claimant specified having received from the
club the total amount of EUR 1,750 as well as flight tickets over the period of
time during which he stayed in country R and rendered his services to the
Respondent.
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10.
On the other hand, the Chamber took due note that the Respondent, for its part,
recognised having the signed the convention at stake but denied having ever
signed any other agreement with the Claimant, in particular the document
presented by the Claimant. As a result thereof, the Respondent held that the
Claimant was entitled to receive the amount of EUR 875 during the three and a
half months of the contractual relationship and that, the Claimant having
admitted to have already received EUR 1,750 from the Respondent, it has no debt
towards the player.
11.
In continuation, the members of the Chamber reverted to the documentation on
file and acknowledged that the Claimant had not been able to submit a copy of
the document bearing the Respondent’s signature on which the Claimant inter
alia bases his financial claim against the Respondent.
12.
In view of the above, the Chamber deemed it fit to recall that in accordance with
the legal principle of burden of proof, which is laid down in art. 12 par. 3 of the
Rules, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof.
13.
As regards the further documents presented by the Claimant along with his
statement of claim (cf. points I./24. to I./26. above), the members of the Chamber
highlighted that these documents either do not substantiate the Claimant’s
financial claim or cannot be taken into consideration since the relevant
statements are issued by persons closely linked to the Claimant and, thus, appear
to lack objectivity.
14.
With the above considerations in mind, the members of the Chamber had no
alternative but to unanimously hold that in the absence of a copy of the
document bearing both parties’ signature, in particular, the Respondent’s
signature, the Claimant had failed to prove that the Respondent was actually
bound by the terms of the document at stake.
15.
Having so found, the Chamber reverted to the Claimant’s claim related to
outstanding salaries and concluded that said claim could only be analysed on the
basis of the terms contained in the convention that was duly signed by and
between the parties.
16.
In this respect, the Chamber recalled that according to the convention, the
Claimant was to receive from the Respondent the total amount of EUR 875 over
the execution of the three and a half months of the contractual relationship.
17.
In continuation, the Chamber was eager to recall that the Claimant had admitted
in his statement of claim that he had received from the Respondent the amount
of EUR 1,750, apart from flight tickets, during the execution of said contractual
relationship. At this stage, and on a side note, the members of the Chamber
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wished to express their surprise at the fact that the Claimant appears to have
received payments from the Respondent not based on any contract.
18.
In view of the above-mentioned, in particular, due to the lack of documentary
evidence, the Chamber considered that the Claimant had no outstanding salaries
to receive from the Respondent.
19.
Therefore, the Chamber decided that the Claimant’s claim against the
Respondent in relation with salaries was rejected.
20.
Following its analysis of the matter at hand, the Chamber turned its attention to
the Claimant’s claim in accordance with which the Respondent would owe him
the amount of EUR 3,700 in connection with match bonuses as well as a
promotion bonus (together hereinafter referred to as bonuses).
21.
After having consulted the documentation at its disposal, the Chamber found
that the Claimant had not presented any documentary evidence proving that he
would have been entitled to bonus payments.
22.
As a consequence, on the basis of the afore-cited legal principle of burden of
proof, the Chamber concluded that the Claimant had failed to prove that any
amount was due to him by the Respondent in connection with bonuses.
23.
In view of the above-mentioned consideration, the members of the Chamber
decided to reject the Claimant’s claim against the Respondent with regard to
bonuses.
24.
Likewise, the Chamber decided to reject the Claimant’s claim for payment of EUR
4,000 relating to damages and loss of fringe benefits due to a lack of legal basis.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is admissible.
2.
The claim of the Claimant, L, is rejected.
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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