Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 January 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Rinaldo Martorelli (Brazil), member
Jean-Marie Philips (Belgium), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
P, X
represented by Mr YY, attorney-at-law, X
as Claimant
against the club
C, Y
as Respondent
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
The X player P (hereinafter: The Claimant) and the D club C (hereinafter: The
Respondent) signed an employment contract on 2 August 2002 for a period of
validity from 1 July 2002 until 30 June 2004. According to the employment contract,
the Respondent undertakes to remunerate the Claimant, inter alia, as follows:
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Salary of EUR 52,500 gross (for season 2002/2003 and 2003/2004)
Furthermore, the employment contract stipulates: “If C plays in season 2003-2004
in the ere division and player has played 20 official games in previous season he
will receive a salary of (gross) Euro 90,000 a year”;
EUR 68 per month for expenses;
A car put at the disposal of the Claimant
The employment contract stipulates: “The costs of a lease-car will be fully paid by
the club”;
4 return flight tickets per year to X;
Bonuses payable according to the bonus agreement of FC Z.
2.
On 26 July 2005, the Claimant lodged a formal complaint at FIFA, claiming the total
amount of EUR 8,500 (recte: EUR 8,000) from the Respondent for outstanding
salaries and bonus. He claims having left the Respondent after the expiry of the
contract without having received the basic salary for June 2004 in the amount of
EUR 7,500 and the bonus in the estimated amount of EUR 500 which he was
allegedly entitled to receive for the last part of the contractual period.
3.
The Claimant asserts to have reminded the Respondent several times to pay him
the outstanding amounts but that the Respondent had argued that it had offset
the outstanding amount with an alleged damage on the leased car used by the
Claimant. The Claimant rejects being held liable for the alleged car damage as
according to the employment contract, “the costs of a lease-car will be fully paid by
the club” and as the alleged small car damage was due to a contingency. He adds
that his new club, FC N, had to pay EUR 471.91 to the Respondent with respect to
the repair costs of the car and that the amount was then deducted from his salary.
Furthermore, the Claimant affirms never having received any document stating the
amount of the car repair costs nor having received the payslip for the month of
June 2004. The Claimant mentions that the payslip of May 2004 which he
submitted to FIFA marks EUR 7,500 as basic salary.
4.
In its reply thereto, the Respondent explains that the Claimant’s gross salary for
June 2004 amounted to EUR 7,500 and the gross match premium amounted to EUR
250. After deduction of the taxes, the fee for the national insurance, the laundry
costs, the C payment etc., the net salary of the Claimant amounted to EUR 3,057.85
from which amount the following special deductions had to be made:
____________________________________________________________________________________________
Player P, X / Club C, Y
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- EUR 200
- EUR 3,276.81
- EUR 52,95
Earlier advance given to the Claimant
The total repair costs for the car as estimated by the company
which had effected the repair work (incl. EUR 100 for the
cleaning);
A traffic fine of the Claimant.
5.
The Respondent explains that the aforementioned deductions lead to a debt of the
Claimant towards the Respondent of EUR 471.91. It puts forward that the payment
of EUR 471,91 had been a condition for the transfer of the Claimant to his new
club, FC N and that in a meeting held with the Claimant and FC N, the latter had
agreed to pay the amount of EUR 471.91 to it. The Respondent affirms that the
Claimant had not raised any objections to this settlement of the matter. The
Respondent submitted a fax message, signed by the Respondent and FC N, which
states that the latter would pay EUR 471.91 and that in return, the player would be
transferred without costs.
6.
Furthermore, the Respondent points out that traffic fines and car damages are at
the employee’s own risk in case that the insurance company does not pay for them.
Furthermore, it explains that the Claimant was told several times that damages
occurred to the car had to be reported to the car rental company by filling out a
claim form. If the Claimant had done so he would have had to pay EUR 150 only.
The Respondent continues that according to the final invoice, the car repair cost
amounted to EUR 2,811.23 (car damage and traffic fine; recte: EUR 2,827.35) and
that it is therefore willing to pay EUR 937,49 to the Claimant which it owes him due
to the difference of the actual costs and the car repair costs as initially assessed. The
Respondent rejects the rest of the claim and puts forward that the two parties had
reached a settlement of the mutual claims and that the agreement included the
settlement of the car damage. The Respondent submitted a copy of the payslip of
June 2004, a copy of the traffic fine in the amount of EUR 52.95 with the date of
violation of 25 May 2004 and documents regarding the damage of the car
including a copy of the calculation of the assessed costs dated 21 June 2004 which
states an amount of EUR 3,176.81 and a copy of the invoice of the car repair dated
26 October 2004 stating an amount of EUR 2,774.40.
7.
All payment slips submitted to FIFA (for January, March, April, May and June 2004)
mark a gross salary of EUR 7,500. After all the deductions, the following net
amounts are marked on the payment slip:
January 2004:
March 2004:
April 2004:
May 2004:
June 2004:
EUR 1,299
EUR 3,099
EUR 3,217.11
EUR 4,921
EUR - 418.96 (after deduction of EUR 200 as
advance and EUR 3276.81 as deduction for the
car).
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Player P, X / Club C, Y
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8.
In his comments, the Claimant adheres to his claim and rejects that any amount is
being offset against the claimed amount. He emphasized that according to his
employment contract, all costs related to the car are, without exceptions, to be
paid by the Respondent. The Claimant contests the existence of the car damage at
the time of his return. He adds that only a minor dent could be detected on the
right rear end. The Claimant points out that he did not return the car directly to
the garage but to the Respondent because another employee of the Respondent
was allegedly going to use it. Therefore, the Claimant concludes that the damage
could as well have occurred during the subsequent use. With respect to the amount
of EUR 471.91, the Claimant disputes to have accepted the relevant debt.
9.
Despite the invitation of FIFA to submit its final comments and a copy of the bonus
agreement, the Respondent did not submit any reply.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC). The present matter was submitted to FIFA on 26 July
2005, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24 par.
1 in combination with art. 22b) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber (DRC) is the competent body to
decide on the present litigation involving a X player and Y club regarding a dispute
arisen in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand, to
art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed on 2 August 2002 and the claim was lodged
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Player P, X / Club C, Y
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at FIFA on 26 July 2005. In view of the aforementioned, the Chamber concluded
that the current FIFA Regulations for the Status and Transfer of Players (edition
2005, hereinafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging the above-mentioned facts and all further
documentation contained in the file. In particular, they took note of the fact that
an employment contract was concluded between the two parties for the period
from 1 July 2002 until 30 June 2004 and that the Claimant claims payment of EUR
7,500 as alleged outstanding salary for the last month of his contract, i.e. for June
2004, plus an alleged outstanding bonus in the amount of EUR 500. The members
added that the Claimant requested payment of EUR 8,500 from the Respondent
but that the correct amount in dispute was obviously EUR 8,000 (EUR 7,500 plus
EUR 500).
6.
The Chamber further acknowledged that it was undisputed that the Claimant had
not received any salary for the month of June 2004 but instead even had to pay
EUR 471.91 to the Respondent, via his new club. The Chamber continued to
acknowledge that according to the Respondent, the monthly gross salary of the
Claimant amounted to EUR 7,500 and the net monthly salary, i.e. after deductions
of the taxes, the insurance, the pension fund etc., (without the special deductions
of the car repair, the traffic fine and the advance payment) - amounted to EUR
3,057.85.
7.
In this respect, the members of the DRC stated that according to the submitted
payment slips for the months of January 2004 and March until June 2004, the
monthly gross salary of the Claimant indeed amounted to EUR 7,500 which
corresponds to the yearly salary of EUR 90,000 stipulated in the employment
contract.
8.
However, the Chamber mentioned that it is - contrary to the opinion of the
Claimant - common practice that the mandatory payments of an employee are
deducted from the salary by the employer - for foreigners even the deduction for
taxes - wherefore the employee is usually paid the net amount. The Chamber went
on to state that from the submitted payment slips, it could be seen that the club as
the employer had always made the deductions from the salary - even for the taxes and that therefore, the net salary - and not the gross salary - has to be taken into
account for the calculation of a possible outstanding amount.
9.
The Chamber stated that the asserted net salary of the Claimant for the month of
June 2004 of EUR 3,057.85 had not been contested by the Claimant.
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Player P, X / Club C, Y
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10.
The Chamber concluded that the monthly net salary of the Claimant for the month
of June 2004 amounts to EUR 3,057.85, subject to special deductions for the car
repair, the traffic fine and the advance payment which will be examined in the
following considerations.
11.
With respect to the special deductions made by the Respondent, the Chamber
stated that it first had to analyse whether the Claimant could be held liable for the
car repair costs, i.e. to determine who is accountable for damages occurred on a car
which is put at the disposal of the employee.
12.
In this respect, the Chamber recalled that according to the Respondent, the
Claimant had damaged the car put at his disposal and that the repair of the car
had cost EUR 2,774.40 (initially estimated to EUR 3,276.81) and that the amount of
EUR 3,276.81 had been offset by the Respondent with the Claimant’s salary for
June 2004.
13.
In this respect, the DRC stated that it was uncontested that the Claimant had been
using the car during the period of his employment contract with the Respondent,
i.e. until June 2004.
14.
The DRC continued to state that the Respondent had, by providing FIFA with a
copy of the damage report, issued by a repair company in Z, along with an
evaluation of the repair costs and a copy of the final invoice of the actual costs
dated 26 October 2004, presented documentary evidence in support of its
allegation that the car had been damaged. The Chamber added that the Claimant
had admitted that there was a dent on the car.
15.
The Chamber remarked that the damage report was issued on 21 June 2004, month
in which the car was used by the Claimant. The Chamber therefore stated that it
had be concluded that the Claimant had produced the damage, especially since the
Claimant had not produced any counter-evidence.
16.
With respect to the question of the liability, the Chamber stated that as a general
legal principle, the producer of a damage has to assume the costs of the repair. In
addition to that, the Chamber remarked that neither the employment contract not
any other contract provides for the assumption of the liability by the Respondent.
Furthermore, the Chamber drew his attention to the assertion of the Respondent
that the Claimant had not reported the car damage to the insurance company
which would have covered all repair costs exceeding the amount of EUR 150.
17.
On account of all the above, the Chamber concluded that it is the Claimant’s
obligation to assume the total repair costs which amounted to EUR 2,774.40.
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Player P, X / Club C, Y
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18.
The Chamber added that it had to be taken into account that the Claimant had
paid EUR 471.91 to the Respondent, via its new club, FC N, which had first assumed
the costs but had subsequently deducted them from the Claimant’s salary.
19.
With respect to the alleged traffic fine of EUR 52.96, the Chamber remarked that
the Respondent had submitted documentary evidence in this regard and that the
Claimant had not contested having caused the fine. Additionally, the members of
the DRC remarked that the date of the infraction was the 25 May 2004, period in
which the car was used by the Claimant. The Chamber also mentioned that the
Respondent could not be held liable for fines which the Claimant had produced
and decided that therefore, it is the Claimant who has to pay the traffic fine.
20.
Regarding the advance payment of EUR 200, the Chamber remarked that the
Claimant had not contested to have received an advance payment and that he had
not objected to the deduction of the EUR 200. Therefore, the Chamber concluded
that the aforementioned deduction was justified.
21.
Concerning the bonus claimed by the player in the amount of EUR 500, the DRC
noted that no evidence was submitted by the Claimant.
22.
Finally, the Chamber took note of the fact that the Respondent had offered to pay
to the Claimant the amount of EUR 937.49 due to the difference between the
estimated and the real costs of the car repair and in order to settle the matter.
23.
On account of all the above, the Chamber decided that the Respondent has to pay
the amount of EUR 937.49 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the X player P is partially accepted.
2.
The Respondent, FC C, has to pay the total amount of EUR 937.49 to the player P,
within 30 days following the date of the notification of the present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims submitted by the Claimant, P, are rejected.
5.
The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
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Player P, X / Club C, Y
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6.
According to art. 61 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:
Avenue de Beaumont 2
CH-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:
____________________________
Urs Linsi
General Secretary
Enclosed: CAS directives
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Player P, X / Club C, Y
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