Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 21 September 2012,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Thilina Panditaratne (Sri Lanka), member
on the claim presented by the player,
B,
as Claimant
against the club,
M,
as Respondent
I.
regarding an employment-related dispute between the parties
Facts of the case
1.
The country S player, B (hereinafter: player or Claimant) and the country U club, M
(hereinafter: club or Respondent) signed an employment contract, not dated, which
was valid as from 1 July 2003 until 1 July 2008.
2.
Moreover, on 30 August 2006, the club and the country S club, X, signed an agreement
over the loan of the player to the latter as from 30 August 2006 until 30 June 2007
(hereinafter: loan agreement), under which club X undertook to pay a loan
compensation to the club in the total amount of EUR 150,000 in seven installments
falling due as from the signature of the loan agreement until 30 June 2007. This loan
agreement was also signed by the player.
3.
The player alleges that it was orally agreed among the parties to the loan agreement
that he was to receive EUR 120,000 as compensation for his services to club X and EUR
30,000 were to be received by the club for his loan to club X. Moreover, he claims that
it was agreed that his compensation was not to be directly paid to him but to the club.
4.
Furthermore, the player sustained that the payment schedule contained in the loan
agreement was subsequently amended. To this end, the player presented a fax dated
21 June 2007 addressed to him by club X in accordance with which club X confirmed
``our offer for payment of amounts pending with club M (…)’’ and proposed new
deadlines for payment. In accordance with this correspondence, the fourth installment
of EUR 30,000 was due on 15 October 2007.
5.
According to the player, the club paid him the first three installments of EUR 30,000
each.
6.
The player further alleged that the fourth installment of EUR 30,000, which was paid by
club X to the club, was not transferred to him. Moreover, and despite having contacted
the club on several occasions, the player claimed not to have obtained any response in
this regard. The player also presented a fax dated 12 March 2008 sent to him by club
club X, with the heading ‘payment player B’, stating that the payment of the amount
owed, EUR 30,000, will take place between 20 to 25 June 2008 and that it was
mandatory that such payment be made in favour of the club with whom the contract
was signed.
7.
Therefore, on 13 October 2009, the player lodged a claim against the club in front of
FIFA, sustaining that the club failed to pay him the amount of EUR 30,000, which
allegedly was paid by club X to the club, on 16 July 2008, as the fourth installment of
compensation, in accordance with club X’s letter of 21 June 2007. Consequently, the
player asked to be awarded EUR 30,000 plus interest accrued as from 17 July 2008.
8.
In spite of having been invited to submit its position in this matter, no reply was
received from the club.
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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 13 October 2009.
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. article 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, 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 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 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 2010 and
2009), and considering that the present claim was lodged on 13 October 2009, the 2009
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber acknowledged that the Respondent and club X, on 30 August 2006, signed a
loan agreement valid during 10 months and expiring on 30 June 2007, under which
club X undertook to pay a loan compensation to the Respondent in the total amount
of EUR 150,000 in seven installments.
5.
At this stage, the Chamber noted that the parties to the loan agreement were the
Respondent and club X, whereas the Claimant only co-signed such agreement
pertaining to his loan to club X.
6.
In this context, the Chamber noted that the Claimant based his claim on an alleged oral
agreement, according to which the Claimant was to receive from the Respondent, as
compensation for his services to club X, EUR 120,000 out of the compensation of EUR
150,000 stipulated in the loan agreement.
7.
The Chamber duly noted that the Respondent, for its part, had failed to respond to the
claim. Therefore, in accordance with art. 9 par. 3 of the Procedural Rules, a decision
shall be taken upon the basis of the documents already on file, i.e. the submissions and
documentation presented by the Claimant.
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8.
In addition, the members of the DRC referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall carry
the burden of proof. The application of this principle in the present matter led the DRC
to conclude that it was up to the player to prove that the Respondent is liable to pay to
him the amount of EUR 30,000 in connection with his loan to club X.
9.
In this respect, the members of the Chamber highlighted that the relevant loan
agreement does not at all include such alleged and rather unusual payment modalities
pertaining to the loan compensation agreed upon between the Respondent and club
X.
10.
In continuation, the Chamber proceeded with a thorough examination of the
documents submitted by the Claimant in connection with the alleged verbal
agreement. In this respect, the Chamber noted that the banking documents presented
by the Claimant, in respect of his allegation that the Respondent had paid him three
instalments of EUR 30,000 each, make no reference whatsoever to the Respondent and
that the figures shown on these documents appear to differ from the amounts
allegedly received by the Claimant.
11.
Furthermore, as regards the documents issued by club X dated 21 June 2007 and 12
March 2008, the Chamber concluded that such documents cannot be held against and
do not legally bind the Respondent as alleged by the Claimant.
12.
On account of the above, the members of the Chamber concurred that the Claimant
failed to submit convincing evidence corroborating his allegation that the Respondent
would be liable to pay to him the amount of EUR 30,000 in connection with his loan to
club X.
13.
On account of all the above, the Chamber decided to reject the claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, B, is rejected.
*****
Note relating to the motivated decision (legal remedy):
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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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