Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 January 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Daan de Jong (The Netherlands ), member
Alex andra Gom ez Bruinew ood (Uruguay ), member
on the claim presented by the player,
Angella Gabriele, Italy
represented by Mr Fabio Giotti
as Claimant
against the club,
Roy al Charleroi S C, Belgium
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
The Italian player, Angella Gabriele (hereinafter: the player or the Claimant) was
transferred on a temporary basis from the Italian club Udinese Calcio S.p.A to the
Belgium club, Royal Charleroi SC (hereinafter: the club or the Respondent) for the
season 2018/2019 .
2.
On 30 August 2018, the player concluded an employment contract (hereinafter:
the contract) with the club, valid as from signature until 30 June 2019.
3.
According to clause 6 of the contract, the club accepted to pay the player a gross
monthly salary of EUR 7,500, a gross sign on fee of EUR 900,000 to be paid in 10
monthly instalments, as well as bonuses per match as follows (art. 6 par. 2 of the
contract):
« Prime par match victoire Noyau A si titulaire: 3.000€
Prime par match victoire Noyau A si réserviste: 1.500€
Prime par match nul Noyau A si titulaire: 1.000€
Prime par match nul Noyau A si réserviste: 500€ »
4.
The player was also entitled to receive certain benefits (company car, apartment,
group insurance). Art. 6 par. 5 of the contract, governing the insurance group,
provides the following: “(…) La rémunération de référence est le total des
rémunérations fixes et variables déterminées dans le contrat de travail (…)”.
5.
On 30 August 2018, i.e. same day the contract was signed, the Parties also signed
another agreement (hereinafter: the agreement) according to which the club
confirmed that by 30 June 2019, i.e. expiry date of the contract, the player “will be
received (if he stays all the season in Charleroi) a net total amount of
remuneration equal to 500.000€ fund pension not included.
6.
On 8 August 2019, the player sent a default letter to the club, granting a ten-day
deadline to make the payment of EUR 62,982.98 “net reported on a gross basis
with any taxes to Sporting Du Pays De Charleroi”.
7.
On 21 August 2019 in response to the default letter of 8 August 2019, the club
replied to the player, asserting that he received the total net remuneration of EUR
511’468,99 for the season 2018/2019.
8.
On 20 August 2019, the Claimant lodged a claim against the Respondent in front
of FIFA for outstanding remuneration requesting the total amount of EUR
62,982.98“plus interest reported on a gross basis with any taxes to Sporting Du
Pays De Charleroi, or in the alternative the sum that Dispute Resolution Chamber
will ascertain”.
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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9.
According to the Claimant, pursuant to the agreement signed between the Parties
on 30 August 2019, he should receive a total net amount of remuneration equal to
EUR 500,000 during the term of the contract, i.e. until 30 June 2019, if he stayed at
the club for the whole season.
10.
According to the player, the Parties concluded the agreement at his request, in
order to ensure that the fixed net amount of EUR 500,000 would be paid to him
during the term of the season, “plus bonuses if due”. In other words, the player
considers that the bonuses should not be taken into account when calculating the
fixed remuneration as “(t)he obligations declared by the Respondent before the
start of the official sporting activity were necessarily related to the fixed net
remuneration because it was the only obligation that the Club could guarantee
and arrange/order at that time because the payment of any variable remuneration
it depended only of the future performance of the Player in relation to which the
Club could not guarantee anything.”.
11.
This said, the Claimant claimed to have only received a total net amount of EUR
478,267.02 over the course of the season 2018/2019, including EUR 41,250 net as
bonuses (as per art. 6 par. 2 of the contract). As evidence, the Claimant provided
ten payment slips dated from October 2018 to July 2019.
12.
In his claim, the Claimant made the following subtraction to calculate the total
amount the club paid him as remuneration pursuant to the agreement: EUR
478,267.02 (total net amount received) – EUR 41,250 (amount paid by the
Respondent as bonuses) = EUR 437,017.02.
13.
The Claimant therefore considered that only EUR 437,017.02 out of the EUR
500,000 have been paid by the Respondent as “remuneration” and requests the
payment of the outstanding remuneration in the amount of EUR 62,982.98 net.
14.
Finally, the player asks that all the costs of the proceedings be borne by the club.
15.
In its reply, the Respondent held that the Claimant received a total net salary of
EUR 511,468.99 over the season 2018/2019. As evidence, the Respondent provided
its letter to the Claimant dated 21 August 2019. The Respondent also claimed that
said amount is confirmed by the club’s “payroll journal entries”.
16.
According to the Respondent, the “Claimant falsely relies on the fact that the
generic term of “remuneration” as used in Respondent’s Declaration dated 30
August 2018 should be regarded as fixed salary”.
17.
The Respondent mentions that the rationale for its commitment to pay at least
EUR 500,000 over the duration of the contract is “to guarantee to the player a
total amount of take-home pay out of the remuneration package as provided in
the Agreement (Article 6: INDEMNITÉ), namely, fixed monthly gross fee, variable
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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gross fee, signing-on gross bonus, advantages; the group insurance (assurance de
groupe), poorly translated to English as “fund pension”, being excluded”.
18.
Finally, the Respondent asked that all the costs of the proceedings be borne by the
Claimant.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the 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 August
2019. Consequently, the 2018 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 of the 2018 and
2019 editions 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 (2020), the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between an Italian player and a Belgian club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 (edition 2020) and
considering that the present claim was lodged in front of FIFA on 20 August 2019,
the June 2019 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, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber first acknowledged that the Claimant and the
Respondent signed an employment contract valid, as from 30 August 2018 until 30
June 2019, in accordance with which the Claimant was entitled to a gross monthly
salary of EUR 7,500, a gross sign on fee of EUR 900,000 to be paid in 10 monthly
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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instalments and diverse match bonuses. The DRC took note that the contract
entitled to Claimant to further benefits such as a car, apartment, insurance.
6.
The Chamber further recalled that on the same day, i.e. 30 August 2018, the
Claimant and the Respondent signed the agreement in accordance with which, the
Claimant was entitled to receive “a net total amount of remuneration equal to
EUR 500,000 fund pension not included”.
7.
The Chamber then reviewed the claim of the Claimant who requested outstanding
remuneration in the total amount of EUR 62,982.98 plus interest, as he considered
that pursuant to the agreement, for the season 2018/2019 he was entitled to the
total remuneration of EUR 500,000 but deemed to have received less.
14.
The Chamber took note that according to the Claimant, he received the total
amount of EUR 478,267.02 for the relevant season, including EUR 41,250 as
bonuses. The DRC took note that the Claimant provided his monthly payslips for
the relevant period.
15.
Consequently, the DRC understood that the Claimant was of the opinion that out
of EUR 500,000 that should have been paid to him only EUR 437,017.02 had been
paid to him as remuneration and the bonuses paid to him should not be
considered as remuneration and therefore should have been paid on top of the
EUR 500,000 of the agreement.
16.
The member of the DRC then observed that the Respondent held that the
Claimant received for the relevant season the net remuneration of EUR 511,468.99
17.
In this respect, and in the view of the diverging opinions of the parties, the
members of the Chamber was to determine whether or not the Claimant had
received all the amounts that were due to him by the Respondent in accordance
with the contract and the agreement.
18.
In this respect, the Chamber recalled that in accordance with the contract, the
Claimant was entitled to a monthly gross monthly remuneration of EUR 7,500
(“indemnité mensuelle fixe brut”) as well as to a sign on fee of gross EUR 900,000
and bonuses also mentioned in gross amounts.
19.
The Chamber further recalled that in accordance with the agreement, the
Claimant was entitled to received “a net total amount of remuneration equal to
EUR 500,000 fund pension not included”.
20.
With this in mind, the DRC was of the opinion that it had to assess what should be
included in the “net total amount of remuneration” and more precisely, what was
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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the net amount of remuneration payable and paid to the Claimant by the
Respondent.
21.
In this respect, the Chamber took note that the Claimant was of the opinion that
this net amount of remuneration could not include the bonuses as the amount of
EUR 500,000 provided in the agreement was foreseeable, while bonuses were not.
22.
In this regard, the Respondent held that the Claimant received EUR 511,468.99
basing itself on the Respondent’s payroll journal entries.
23.
In view of the above, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal system, a
party deriving a right from an asserted fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the Procedural Rules).
24.
In this regard, the Chamber observed the different evidence provided by the
Claimant and the Respondent. The Claimant provided his payment slips (“Fiche de
paie”) for the duration of the contract. The Respondent provided its payroll
journal entries for the duration of the contract.
25.
In this regard, the Chamber observed that the argumentation of the Claimant was
to argue that the net receivable (“net à recevoir”) provided in the payslip was to
be taken into account minus any bonuses also provided in the payslip.
26.
While the Chamber noted that the Respondent took into account the amount of
the “totalisation net” which included some of the benefits such as the rent, the car
and more, included in the contract.
27.
Taking notes of the argumentations of the parties and the documentation on file,
the Chamber found it pertinent to assess the spirit of the agreement and the will
of the parties when drafting and signing such agreement. In this regard, the
Chamber was of the opinion that when drafting the agreement, the parties
wanted to determine a minimum remuneration that the Claimant was supposed to
receive for the duration of the contract. By that, the Chamber understood that this
remuneration was to be a reflection of the actual monies received by the Claimant.
Taking this into account and observing both the payslips provided by the Claimant
and the payroll journals provided by the Respondent, the Chamber found it
pertinent to take into account the amounts provided in the net receivable (net à
payer/net à recevoir) section.
28.
With this in mind, the Chamber also decided that, contrary to the argumentation
of the Claimant, bonuses provided in the payslips, should not be deducted from
the net receivable, but should also be counted.
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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29.
Taking all of the above into account, the Chamber determined that the Claimant
had received for the duration of the contract, the total net amount of EUR
478,267.02. Consequently and in view of the wording of the agreement which
provided for a “net total amount of remuneration equal to EUR 500,000”, the DRC
was of the firm opinion that some amounts were still outstanding and due to the
Claimant by the Respondent.
30.
The Chamber subsequently that the Claimant should be entitled to the balance
between EUR 500,000 and EUR 478,267.02. With these considerations in mind, the
DRC concluded that, in accordance with the general legal principle of pacta sunt
servanda, EUR 21,732.98 should be awarded to the Claimant as outstanding
remuneration.
31.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. as of the date of
claim, i.e. 20 August 2019 until the date of effective payment as the Claimant did
not provide sufficient elements to calculate the respective due dates.
32.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
33.
Furthermore, taking into account the consideration under number II./3. above, the
DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that,
with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
34.
In this regard, the DRC pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
35.
Therefore, bearing in mind the above, the Chamber decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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36.
Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations
37.
The Dispute Resolution Chamber concluded its deliberations in the present matter
establishing that any further claim lodged by the Claimant is rejected.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Angella Gabriele, is partially accepted.
2. The Respondent, Royal Charleroi SC, has to pay to the Claimant outstanding
remuneration in the amount of EUR 21,732.98, plus 5% interest p.a. as from 20
August 2019 until the date of effective payment.
3. Any further claim lodged by the Claimant is rejected.
4. The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2. above.
5. The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected],
duly translated, if need be, into one of the official FIFA languages (English,
French, German, Spanish).
6. In the event that the amount due plus interest in accordance with point 2. above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
7. The ban mentioned in point 6 above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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8. In the event that the aforementioned sum plus interest is still not paid by the end
of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 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. 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Angella Gabriele, Italy / Club Royal Charleroi SC, Belgium
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