Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 9 May 2011,
by
Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player
A,
as “Claimant”
against the club
P,
as “Respondent”
regarding an employment-related
dispute between the parties
I.
Facts of the case
1.
On 12 January 2010, the player A (hereinafter: the Claimant) and the club P
(hereinafter: the Respondent) concluded an employment contract (hereinafter:
the contract) valid from 12 January 2010 until 31 May 2010, according to which
the Claimant was entitled to receive from the Respondent the total net amount of
EUR 20,000 in five monthly instalments of EUR 4,000 net each “starting on 31st
January 2010, until the whole amount is paid”.
2.
On 13 January 2010, the Claimant and the Respondent concluded another
agreement entitled “side agreement” (hereinafter: the side agreement), valid
from 13 January 2010 until 31 May 2010, in accordance with which the Claimant
was inter alia entitled to receive from the Respondent the total amount of EUR
40,000, in five monthly instalments of EUR 8,000 each ”started on 31st of January
2010, until the whole amount is paid”.
3.
On 3 August 2010, the Claimant lodged a claim with FIFA against the Respondent,
requesting from the latter the payment of EUR 39,500 as well as of unspecified
damages and costs. Furthermore, the Claimant asked for sanctions to be imposed
on the Respondent.
4.
In this respect, the Claimant argued that he had only received from the
Respondent the following amounts: EUR 6,000 on 27 January 2010, EUR 6,000 on
12 February 2010, EUR 3,000 on 9 March 2010, EUR 4,500 on 22 March 2010 and
EUR 2,000 on 30 March 2010 and that consequently, according to the contract and
the side agreement, the amount of EUR 39,500 was still outstanding
5.
On 28 August 2010, the Claimant reiterated his claim of EUR 39,500 and, in
addition, deemed that an interest of 5% should also be paid by the Respondent as
from the date in which the claim was lodged.
6.
In spite of having been asked to do so, the Respondent never responded to the
claim lodged against it, although it was informed that, in absence of a reply, a
decision would be taken by the competent decision-making body on the basis of
the information and evidence at disposal.
7.
On 25 February 2011, the Claimant informed FIFA that he had stayed with the
Respondent until the end of the contract, i.e. until the end of May 2010.
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II.
Considerations of the Dispute Resolution Chamber (DRC) judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as:
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 3 August 2010. 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. 2 and 3 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 combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2010) the DRC Judge is competent to deal with the matter at sake, which concerns
an employment-related dispute of an international dimension between a player
and a club.
3.
In particular, in accordance with art. 24 par. 2 lit. i) of the mentioned Regulations
on the Status and Transfer of Players, the DRC judge confirmed that he may
adjudicate in the present dispute which value does not exceed 100,000.
4.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2 of
the 2009 and 2010 editions of the Regulations on the Status and Transfer of
Players, and considering that the present claim was lodged with FIFA on 3 August
2010, the 2009 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the case at hand as to the substance.
5.
His competence and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In doing so and first of all, the
DRC Judge observed that the Respondent had never submitted its position on the
claim lodged against it by the Claimant despite having been asked to do so by
FIFA. Therefore, the DRC judge concluded that, in this way, the Respondent had
renounced to its right of defence and, thus, it had to be assumed that it had
accepted the allegations of the Claimant.
6.
As a consequence, the DRC judge referred to art. 9 par. 3 of the Procedural Rules
and pointed out that in the present matter a decision shall be taken upon the
basis of the documents on file, in other words upon the allegations and
documents provided by the Claimant.
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7.
In this respect, the DRC judge acknowledged that, on 12 January 2010, the
Claimant and the Respondent had concluded an employment contract
(hereinafter: the contract) valid from 12 January 2010 until 31 May 2010 in
accordance with which the Claimant was entitled to receive from the Respondent
the total amount of EUR 20,000 in five monthly instalments of EUR 4,000 each.
Furthermore, the DRC judge took note that, on 13 January 2010, the Claimant and
the Respondent had concluded a second agreement entitled “side agreement”
(hereinafter: the side agreement) valid from 13 January 2010 until 31 May 2010 in
accordance with which the Claimant was entitled to receive from the Respondent
the total amount of EUR 40,000 in five monthly instalments of EUR 8,000 each.
8.
Finally, the DRC judge acknowledged that, in his claim to FIFA, the Claimant,
requested from the Respondent the payment of EUR 39,500 for alleged
outstanding salaries arguing that he had only received from the latter the
following amounts: EUR 6,000 on 27 January 2010, EUR 6,000 on 12 February 2010,
EUR 3,000 on 9 March 2010, EUR 4,500 on 22 March 2010 and EUR 2,000 on 30
March 2010. As to that, the DRC Judge further recalled that said allegations of the
Claimant had not been contested by the Respondent.
9.
Thus, taking into account the legal principle of Pacta sunt servanda, which in
essence means that agreements must be respected by the parties in good faith
and bearing in mind that the Respondent never contested the allegations of the
Claimant, the DRC judge came to the conclusion that the Respondent must fulfil
its obligations stipulated in the contract and in the side agreement and,
consequently, pay the outstanding salaries due to the Claimant.
10.
Having determined the aforementioned and with the aim of establishing the
concrete amount due by the Respondent, the DRC judge took note that, according
to the submissions of the Claimant, he had only received from the Respondent
EUR 6,000 on 27 January 2010, EUR 6,000 on 12 February 2010, EUR 3,000 on 9
March 2010, EUR 4,500 on 22 March 2010 and EUR 2,000 on 30 March 2010, i.e.
the total amount of EUR 21,500. Furthermore, the DRC judge recalled that
according to the contract and the side agreement the Claimant was entitled to
receive from the Respondent the total amount of EUR 60,000.
11.
In view of the above and considering that the Respondent did not contest the
allegations of the Claimant with regard to the amounts that had been allegedly
paid to him and taking into account that according to the contract and the side
agreement the latter was entitled to receive the total amount of EUR 60,000 as
remuneration, the DRC Judge calculated that the amount of EUR 38,500 was still
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outstanding. Therefore, the DRC Judge decided that the Respondent has to pay to
the Claimant outstanding salaries amounting to EUR 38,500.
12.
In continuation and with regard to the Claimant’s request for interest on the
outstanding amount, in accordance with the constant practice of the DRC judge
and of the Dispute Resolution Chamber, the DRC judge decided that the Claimant
is entitled to receive interest at the rate of 5% p.a. over the amount of EUR 38,500
as of 3 August 2010 until the date of effective payment.
13.
In addition and with regard to the second part of the Claimant’s claim, i.e. his
request of payment of damages and costs, the DRC judge observed that such
request had not been accompanied by any documentary evidence. Consequently
and bearing in mind the content of art. 12 par. 3 of the Procedural Rules, which
stipulates that the burden of proof has to be carried by the party claiming a right
on the basis of an alleged fact, the DRC judge concluded that this part of the
Claimant’s claim could not be granted for lack of proof.
14.
Finally and with reference to the sporting sanctions requested by the Claimant
against the Respondent, the DRC judge duly noted that the contract and the side
agreement had not been terminated prior to their expiry date. As a consequence,
the DRC judge reasoned that there is no legal basis to impose sporting sanctions
on the Respondent and decided to reject this request of the Claimant.
15.
In view of all the above-mentioned considerations, the DRC judge decided that
the claim of the Claimant is partially accepted and that the Respondent has to pay
to the Claimant the total amount of EUR 38,500 plus 5% interest on the said
amount as from 3 August 2010 until the date of effective payment.
III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, P, has to pay to the Claimant, A, the amount of EUR 38,500 as
well as 5% interest per year on the said amount as from 3 August 2010 until the
date of effective payment, within 30 days as from the date of notification of this
decision.
3.
Any further claims lodged by the Claimant, A, are rejected.
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4.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
The Claimant, A, is directed to inform the Respondent, P, immediately and directly
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber (DRC) judge of every payment received.
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Note relating to the motivated decision (legal remedy):
According to article 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
Encl. CAS Directives
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