Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 August 2014,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Guillermo Saltos Guale (Ecuador), member
Jon Newman (USA), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player C, from country G
as Claimant
against the club,
Club E, from country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 14 August 2010, Player C, from country G (hereinafter: the Claimant), and Club E, from
country B (hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid from 1 July 2010 until 30 June 2011.
2.
According to art. 11 and 13 of the contract, the Respondent undertook to provide the
Claimant, inter alia, with a gross monthly salary of EUR 5,700, payable at the latest on the
7th working day of the subsequent month.
3.
On 16 August 2010, the Respondent issued a document named “Attestation”, by means of
which it undertook to pay the Claimant an amount of EUR 65,000 for the 2010/2011
season, payable as follows:
- EUR 20,000 due on 30 November 2010;
- EUR 25,000 due on 31 March 2011;
- EUR 20,000 due on 30 July 2011.
4.
On 24 February 2011, the Claimant lodged a claim in front of FIFA against the Respondent,
requesting, after amending his claim, the payment of the total amount of EUR 103,547.86
net, plus interest of 5% p.a. as from each due date, broken down as follows:
- EUR 5,000 as full salary for July 2010, plus interest as from 8 August 2010;
- EUR 5,000 as full salary for August 2010, plus interest as from 8 September 2010;
- EUR 1,979.36 as partial salary for September 2010, plus interest as from 8 October
2010;
- EUR 1,880.85 as partial salary for October 2010, plus interest as from 8 November
2010;
- EUR 20,000 as the full instalment due on 30 November 2010, as per the
“Attestation” , plus interest as from 1 December 2010;
- EUR 1,335.84 as partial salary for November 2010, plus interest as from 8
December 2010;
- EUR 1,988.65 as partial salary for December 2010, plus interest as from 8 January
2011;
- EUR 2,471.39 as partial salary for January 2011, plus interest as from 8 February
2011;
- EUR 2,471.38 as partial salary for February 2011, plus interest as from 8 March
2011;
- EUR 25,000 as the full instalment due on 31 March 2011, as per the “Attestation” ,
plus interest as from 1 April 2011;
- EUR 2,471.39 as partial salary for March 2011, plus interest as from 8 April 2011;
- EUR 4,476.10 as partial salary for April 2011, plus interest as from 8 May 2011;
- EUR 4,472.90 as partial salary for May 2011, plus interest as from 8 June 2011;
- EUR 5,000 as full salary for June 2011, plus interest as from 8 July 2011;
- EUR 20,000 as the full instalment due on 30 July 2011, as per the “Attestation”,
plus interest as from 31 July 2011.
Player C, from country G / Club E, from country B
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5.
According to the Claimant, he was prohibited from taking part in the Respondent’s
activities as from 11 February 2011, without any explanation. In spite of the Claimant’s
alleged request, the Respondent refused to readmit him to the club’s activities.
6.
Furthermore, according to the Claimant, several payments established in the contract and
in the “Attestation” remained outstanding, as detailed in point I.4. above. The Claimant
deems that the amounts established in the “Attestation” are to be considered as net. In
this regard, the Claimant claims that said document fails to specify whether the payments
therein established are net or gross and such an omission should be interpreted in favour
of the employee.
7.
In its reply to the Claimant’s claim, the Respondent claims that the “validity of the contract
depended on the suspensive condition that the plaintiff [the Claimant] possessed a work
permit as well as an international transfer certificate (ITC)”. In this respect, the Respondent
provided FIFA with a print out from the Transfer Matching System (TMS), indicating that
the Claimant’s ITC was issued on 18 August 2010. Based on the foregoing, the Respondent
deems that the Claimant’s contract entered into force on 1 September 2010 and expired
on 30 June 2011. Thus, no payments are due for the months of July and August 2010, as
claimed by the Respondent.
8.
Furthermore, the Respondent stated that all payments due to the Claimant from 18
August 2010 until 30 June 2011 were duly made. In this regard, the Respondent presented
the following payment statements:
- EUR 3,020.64, dated 8 October 2010, for the period of September 2010;
- EUR 3,119.15, dated 5 November 2010, for the period of October 2010;
- EUR 3,664.16, dated 2 December 2010, for the period of November 2010;
- EUR 3,011.15, dated 4 January 2011, for the period of December 2010;
- EUR 2,528.61, dated 2 February 2011, for the period of January 2011;
- EUR 2,528.62, dated 3 March 2011, for the period of February 2011;
- EUR 2,528.62, dated 5 April 2011, for the period of March 2011;
- EUR 527.10, dated 5 May 2011, for the period of April 2011;
- EUR -3.20, dated 23 April 2011, for the period of March 2011;
- EUR 527.10, dated 4 June 2011, for the period of May 2011;
- EUR 0.00, dated 10 June 2011, for the period of May 2011;
- EUR 0.00, dated 23 June 2011, for the period of May 2011;
- EUR 527.10, dated 2 July 2011, for the period of June 2011.
- Total: EUR 19,703.05
9.
In continuation, the Respondent explains that on 24 April 2011 it was informed about an
order to seize the Claimant’s remuneration, which “[…] resulted from the plaintiff’s [the
Claimant’s] tax debts to the country F fiscal government for the years 2009 and 2010, EUR
181,566.47 in total”. In this regard, the Respondent provided a copy of a court order of
execution dated 21 April 2011, issued upon request of the collector of direct taxes of XY,
Player C, from country G / Club E, from country B
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country F, as a result of the demand for assistance of the relevant country F authorities.
The Respondent also provided a copy of a statement issued by the Centre of Public
Finances of country F, according to which the amount of EUR 180,539 is due by the
Claimant. The aforementioned writ orders the Respondent to retain the Claimant’s
remuneration in order to obtain the payment of the total amount of EUR 181,566.47 plus
interest as from 1 May 2011. In particular, the Respondent is requested to retain the entire
amount of remuneration exceeding EUR 1,300 per month.
10.
In this regard, the Respondent claims that “In attempt to enforce the seizure the
defendant was prohibited from making payments to the plaintiff. The remaining amount
of EUR 30,277.77 (after deduction of country B taxes) is subject to the seizure and could
therefore not be paid to the plaintiff. As this amount was properly accounted for, it
consequently has to be considered as the fulfilment of the plaintiff’s salary demands. The
remaining amount is payable to the competent enforcement authority”. Based on the
foregoing, the Respondent claims that no amounts are due to the Claimant.
11.
Finally, the Respondent claims that the parties never agreed that the amounts stipulated in
the contract are to be considered as net. In addition, the Claimant never contested the
deduction of taxes made every month to his remuneration. Thus, the Respondent deems
that the Claimant’s claim should be entirely rejected.
12.
In his replica, the Claimant points out that the Respondent did not provide substantial
evidence of having paid his full remuneration, as it claims. In addition, the Claimant rejects
the Respondent’s argument that the salaries for July and August 2010 are not due and
claims that the validity of the contract – explicitly stipulated in its art. 2, as from 1 July
2010 until 30 June 2011 – is not subject to the issuance of a work permit or of an ITC in
favour of the Claimant.
13.
The Claimant further claims that the Respondent did not provide a copy of the work
permit, issued allegedly after the start date of the contract. In any case, even if the DRC
would take into account the date of the issuance of the ITC, i.e. 18 August 2010, the
Claimant would be entitled at least to his pro rata salary for August 2010. The Claimant
further points out that the Respondent did not contest the assertion that his gross salary
of EUR 5,700 corresponds to EUR 5,000 net.
14.
With regard to the court order of execution dated 21 April 2011 (cf. point I.9. above), the
Claimant claims that the payment of the remuneration due to him by the Respondent up
to that date shall not be affected in any way by such order. Consequently, the salaries
claimed by the Claimant for the period as from July 2010 until March 2011 (cf. point I.4.
above), in the total amount of EUR 69,598.86, should be paid in full by the Respondent to
the Claimant, since the order of execution of 21 April 2011 does not have a retroactive
effect.
Player C, from country G / Club E, from country B
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15.
With regard to the salaries payable after 21 April 2011, in the total amount of EUR
33,421.90 (cf. point I.4. above), the Claimant states that they could in principle be affected
by the court order of execution, provided that he still received a minimum amount of EUR
1,300 as monthly wage (cf. point I.9. above). However, according to the Claimant, the
Respondent did not provide any evidence that the remuneration due to him as from 21
April 2011 was either paid to him or to the relevant tax authorities. Thus, as the
Respondent bears the burden of proof in this regard, this argument must be rejected, as it
is not supported by any substantial evidence.
16.
In addition, the Claimant points out that the Respondent failed to explain how the
amount of EUR 30,277.77 (cf. point I.10. above) was calculated. As per the Claimant, the
Respondent equally failed to present any evidence of the alleged deduction of country B
taxes from the aforementioned amount. Finally, the Claimant claims that no evidence was
provided by the Respondent that it paid to the Claimant at least the minimum amount due
per month, as per the order of execution, i.e. EUR 1,300. In view of all the aforementioned,
the Claimant claims that also the remuneration payable after 21 April 2011, in the total
amount of EUR 33,421.90 remains outstanding and should be paid to him by the
Respondent.
17.
In the alternative that the DRC deems that the order of execution should be taken into
account for the calculation of the amounts due to the Claimant, the latter claims that he
should be entitled to receive at least the amount of EUR 2,321.90 net, corresponding to
the minimum amount due to him from April to June 2011 (3 x EUR 1,300 = EUR 3,900)
minus the amount actually paid by the Respondent for this period (EUR 523.90 + EUR
527.10 + EUR 527.10 = EUR 1,578.10).
18.
Furthermore, the Claimant insists that the “Attestation” be interpreted in his favour and
that in the absence of an explicit stipulation the amounts therein established should be
considered as net. In this respect, the Claimant claims that, if he never contacted the
Respondent before requesting the payment of the net amounts stipulated in the
“Attestation”, that is because the Respondent never paid him any of the amounts therein
stipulated. Thus, the Claimant maintains his initial claim.
19.
In its final position, the Respondent maintains its previous allegations and insists on the
fact that the contract only started to be executed on 1 September 2010. In this regard, the
Respondent provides a copy of an e-mail of Mr P, from company E, addressed to the
former general manager of the club, dated 7 October 2010, according to which the
Claimamnt’s contract would start on 1 September 2010. The date mentioned in the
contract, i.e. 1 July 2010, was a mistake, according to the Respondent.
20.
The Respondent further claims that the Claimant’s net remuneration as per the contract is
not EUR 5,000, as claimed by the Claimant, but varies every month, in accordance with the
obligatory deductions that should be made by the Respondent, concerning social security
or income tax, for example. In this regard, the Respondent refers to the payment
Player C, from country G / Club E, from country B
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statements mentioned in point I.8. above and indicates that each of them contains a
detailed explanation of the amounts deducted from the Claimant’s gross remuneration
from September 2010 to June 2011. In particular, the Respondent refers to the payment
statement of September 2010, in which the following amounts are indicated:
- EUR 5,700 as basic monthly remuneration;
- minus EUR 256,20 as contribution to the social security;
- minus EUR 1,506.59 as prepayment over normal remuneration;
- minus EUR 236.57 as supplementary prepayment;
- minus EUR 680 as advance payment;
- EUR 3,020.64 as amount paid out.
21.
According to the Respondent, the “prepayment over normal remuneration” corresponds
to the payment of income taxes. All other deductions made by the Respondent to the
Claimant’s monthly remuneration, as detailed in the pay slips provided as evidence (cf.
point I.8. above), correspond to mandatory tax deductions, in accordance with country B
tax law. Thus, the Respondent claims that all the Claimant’s salaries as per the contract
were duly paid until March 2011 and no amount is due to the Claimant in this regard.
22.
With regard to the amount of EUR 65,000 stipulated in the “Attestation” (cf. point I.3.
above), the Respondent claims that this amount should be considered as gross. As per the
pay slip dated 10 June 2011, for the period of May 2011 (cf. point I.8. above), the amount
of EUR 34,643.83 was deducted from the amount of EUR 65,000 as income tax and
contribution to the social security. The residual amount of EUR 30,227.77 was paid to the
relevant authority in accordance with the court order of attachment of the Claimant’s
remuneration. In this context, the Respondent claims that according to country B law, a
party that fails to seize an amount in disrespect of a court order is subject to sanctions,
among which the payment of two-fold the amount that should have been seized.
23.
The Respondent further claims that, in principle, the amount EUR 1,300 would be due to
the Claimant, corresponding to the maximum amount payable to him from the
“Attestation” (cf. point I.9. above, in fine).
24.
As to the salaries due to the Claimant from April to June 2011, the Respondent refers to
the relevant pay slips provided and maintains that the amount of EUR 92.90 per month is
in fact still due to the Claimant, considering the amount of EUR 1,300 which the
Respondent should have paid to the Respondent (cf. point I.9. above, in fine).
25.
However, the amounts mentioned in points I.23. and I.24. above are no longer due to the
Claimant, since he remained in the apartment rented for him by the Respondent even
after the expiry of his contract on 30 June 2011, in violation of the “convention” signed by
the parties on 14 September 2010, by means of which the Respondent undertook to sign a
contract of lease for the Claimant’s apartment, to be occupied by him during the validity
of his contract with the Respondent. The “convention” further states that the rent and the
Player C, from country G / Club E, from country B
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relevant expenses would be deducted from the Claimant’s salary and detailed in the pay
slips.
26.
The Respondent further states that the Claimant correctly received all his salaries from
September 2010 to July 2011, never having made any remark as to his current allegation
that his net monthly salary would amount to EUR 5,000.
27.
Finally, the Respondent provides a copy of the correspondence exchanged between the
Respondent and the Claimant’s former legal representative and points out that the latter,
on 28 September 2011, allegedly lodged a complaint before the arbitration body of the
country B Football Association, requesting inter alia the payment of half of his salary for
August 2010, his full salaries for January and June 2011, as well as the payment of EUR
65,000 as per the “Attestation” and the holiday bonus, as per the collective bargain
agreement. A copy of the aforementioned claim dated 28 September 2011 was provided
by the Respondent. Thus, the claim of the Claimant before FIFA should not be admissible.
28.
FIFA has contacted both the Respondent and the Claimant in order to obtain further
information on the aforementioned claim apparently lodged in front of the country B
Football Association, in particular, on its current status. The Respondent failed to reply to
FIFA’s request, whereas the Claimant claimed not having been able to obtain any
information in this regard. In addition, he claims that the Respondent bears the burden of
proof of its allegations and, as per the documentation provided in their support, the claim
lodged at FIFA and the one allegedly – and at a later stage – lodged at the country B
Football Association do not have the same object, cause or parties. Therefore, according to
the Claimant, the case would not be subject to lis pendens or res iudicata.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules).
The present matter was submitted to FIFA on 24 February 2011. Therefore, the Chamber
concluded that the edition 2008 of the Procedural Rules was applicable to the matter at
hand (cf. art. 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 b)
of the Regulations on the Status and Transfer of Players (editions 2010, 2012 and 2014;
hereinafter: the Regulations), the Dispute Resolution Chamber was, in principle,
competent to adjudicate on employment-related dispute between a country G player and
a country B club.
Player C, from country G / Club E, from country B
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3.
At this point, the Chamber stated that, prior to deliberating on the substance of the
matter, the DRC must verify whether the competent FIFA body would be able to deal with
the present affair or not for formal reasons. In particular, the Chamber took note of the
formal objection of the Respondent, according to which the Claimant’s claim would not be
admissible due to res judicata, as the Claimant had allegedly lodged a complaint before
the arbitration body of the country B Football Association, requesting the same amounts
contemplated in the claim lodged before FIFA.
4.
In this context, the DRC deemed it appropriate to remind the parties of the content of 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”.
5.
In continuation, the Chamber noted that the Respondent provided FIFA with a copy of the
claim allegedly lodged by the Claimant in front of the country B Football Association, on
28 September 2011. On the one hand, the Chamber noted that its request addressed both
to the Claimant and to the Respondent with a view to obtain more information on the
claim allegedly pending before the country B Football Associaiton remained unanswered
by the Respondent. On the other hand, the Chamber noted that, in reply to the
aforementioned information request, the Claimant rejected the Respondent’s objection
regarding litis pendens and pointed out that the Respondent bore the burden of proof of
its allegations.
6.
In view of the aforementioned, the DRC deemed that the Respondent indeed was the
party responsible to provide documentary evidence in support of its allegation of an
alleged situation of litis pendens – or even res judicata – affecting the claim at hand.
However, it failed to reply to FIFA’s request for information.
7.
Furthermore, the Chamber noted that while the claim allegedly lodged by the Claimant in
front of the country B Football Association is dated 28 September 2011, the claim of the
Claimant in front of FIFA was lodged on 24 February 2011, i.e. prior to the one allegedly
pending in country B. Therefore, FIFA should be considered as the competent forum for
the analysis and decision of the present dispute involving the Claimant and the
Respondent.
8.
Based on the aforementioned, the DRC concluded that the present claim is not affected by
litis pendens or res judicata and that the Chamber is competent to analyse the substance
of the dispute.
9.
Having established that the Claimant’s claim of 24 February 2011 is admissible, the
Chamber went on to analyse which regulations were applicable as to the substance of the
matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the
Regulations (editions 2010, 2012 and 2014), and considering that the present claim was
lodged on 24 February 2011, the 2010 edition of said regulations is applicable to the
matter at hand as to the substance.
Player C, from country G / Club E, from country B
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10.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. 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.
11.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 14 August 2010, the Claimant and the Respondent signed an employment
contract valid as from 1 July 2010 until 30 June 2011, in accordance with which the
Claimant was entitled to receive a gross monthly salary of EUR 5,700.
12.
Furthermore, the Chamber acknowledged that it was also undisputed by the parties that,
on 16 August 2010, the Respondent issued an “Attestation”, according to which it
undertook to pay the Claimant the amount of EUR 65,000 for the 2010/2011 season, as
stipulated in point I.3. above.
13.
In continuation, the Chamber noted that, on the one hand, the Claimant claims that
several payments, due from July 2010 to July 2011, as per the contract and the
“Attestation” remain outstanding. In this regard, the Claimant claims that his gross salary
of EUR 5,700 established in the contract corresponds to the amount of EUR 5,000 net. As to
the “Attestation”, since the latter does not specify whether the amounts therein
established should be considered gross or net, they should be interpreted in favour of the
employee and considered as net. Based on the foregoing, the Claimant claims from the
Respondent the payment of the total amount of EUR 103,547.86, detailed in point I.4.
above.
14.
On the other hand, the Chamber noted that the Respondent entirely rejects the
Claimant’s claim. Firstly, the Respondent deems that the contract concluded between
the parties is valid only as from 1 September 2010, since its validity is dependent on the
issuance of a work permit and of the Claimant’s ITC. Based on the foregoing, the
Respondent deems that the salaries claimed by the Claimant for the months of July and
August 2010 are not due. Furthermore, the Respondent states that all payments due to the
player were duly made, and in this regard it provided copies of detailed statements of
payment referring to the period of October 2010 to July 2011. In addition, it points out
that the Claimant never complained about the monthly deductions made to his salaries,
which are obligatory and correspond to income tax or social security, inter alia.
15.
Furthermore, the Respondent claims that it received a court order dated 21 April 2011,
according to which it should seize the Claimant’s remuneration in order to guarantee the
payment of his tax debts in country F, which amount to EUR 181,566.47. Therefore,
according to the Respondent, the Claimant’s salaries due after 21 April 2011 were affected
by said court order.
Player C, from country G / Club E, from country B
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16.
In principle, the Respondent admits owing the Claimant the amount of EUR 92.90 per
month from April to June 2011. However, since the player remained in the apartment
rented by the Respondent for him even after the expiry of his contract, this amount is no
longer due. Thus, the Respondent claims to have no outstanding debts towards the
Claimant.
17.
The Chamber also took note of the content of the Claimant’s replica, in which he
rejects the Respondent’s allegations and maintains that the start date of the contract is
1 July 2010, since its validity does not depend on the issuance of a work permit or of an
ITC. Furthermore, the Claimant rejects the deductions made by the Respondent to his
monthly salaries and insists on the fact that, as from 21 April 2011, he should have
received at least EUR 1,300 per month. Thus, he maintains his claim.
18.
Finally, the DRC noted that the Respondent maintained its argumentation in its final
position on the Claimant’s claim.
19.
Having established the aforementioned, the Chamber deemed that the underlying issue in
this dispute, considering the claim of the Claimant and the allegations of the Respondent,
was to determine which was the outstanding remuneration towards the Claimant, if any.
20.
In this context, the Chamber first deemed it appropriate to address the Respondent’s
allegation related to the date of entry into force of the employment contract concluded
between the parties.
21.
In this regard, bearing in mind art. 18 par. 4 of the Regulations, the Chamber considered
relevant to recall its jurisprudence in accordance with which the validity of an employment
contract cannot be made conditional upon the execution of (administrative) formalities,
such as, but not limited to, the registration procedure in connection with the international
transfer of a player, which are of the sole responsibility of a club and on which a player has
no influence, or the issuance of a work permit. Bearing in mind that according to Annexe 3
of the Regulations an ITC request depends on the new club’s application to the new
association to register a professional, the club is actually in the position to prevent the
occurrence of the condition preceding the receipt of an ITC by willfully choosing not to
proceed with the application for an ITC. For these reasons, the members of the Chamber
decided to reject the Respondent’s arguments in this regard and to establish that the
employment contract entered into force on 1 July 2010.
22.
As a consequence, the DRC also had to reject the Respondent’s argument according to
which the Claimant’s salaries for July and August 2010 were not due, based on the alleged
entry into force of the contract only on 1 September 2010.
23.
In continuation, the Chamber went on to analyse the content of the court order of
execution dated 21 April 2011, issued by the tax authorities in country F, as well as its
possible influence on the payment of the Claimant’s remuneration as per the contract and
Player C, from country G / Club E, from country B
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the “Attestation”. In this regard, the Chamber first noted that neither the Claimant nor
the Respondent contest the existence or the validity of the court order.
24.
From the content of the aforementioned court order as well as from the documentation
related thereto presented by the Respondent, the DRC understands that the payments due
to the Claimant prior to 21 April 2011 cannot be affected by such writ and are, therefore,
due as specified in the employment contract and in the “Attestation”. Nevertheless, all
payments due to the Claimant by the Respondent as from 21 April 2011 are affected by
the court order of execution, as the parties themselves mention. However, a payment of
EUR 1,300 per month should be guaranteed to the Claimant, in accordance with the
content of the court order of 21 April 2011. The Chamber noted that this understanding is
not disputed by the parties.
25.
Having established the foregoing and bearing in mind the content of art. 12 par. 3 of the
Procedural Rules, the Chamber noted that the Respondent has submitted several
statements of payment, related to the period from October 2010 to July 2011 (cf. point I.8.
above). Such statements contain a detailed explanation of all monthly payments made to
the Claimant for the indicated time period, specifying every discount, its amount and what
it corresponds to. The Chamber deemed that such documentation consisted of substantial
and reliable evidence in order to determine the amounts that were indeed paid to the
Claimant during the relevant time frame. In fact, the Chamber noted that the amounts
indicated in the statements of payment provided by the Respondent are indeed in line
with the claim of the Claimant, differing only in the fact that the Claimant deducts the
amounts received from the net amount he deems to be entitled to, and that the
Respondent does so based on different amounts, which can vary each month.
26.
At this point, the DRC deemed that, in order to establish the amount or even the existence
of any outstanding remuneration due to the Claimant by the Respondent, and given the
parties’ divergent positions in this regard, it would have to address the question as to
whether the amounts stipulated in the contract and in the “Attestation” are to be
considered as net or gross.
27.
In this respect, the DRC noted that the evidence provided by the Respondent in this
regard, as explained before, is very detailed and consistent, whereas the figure indicated
by the Claimant, i.e. EUR 5,000 net, is not supported by any evidence. Therefore, the
Respondent’s explanation with regard to the net amount of the Claimant’s remuneration
as per the contract should be upheld.
28.
As to the “Attestation”, the DRC has taken due note of the diverging allegations of the
parties and referred, therefore, to the wording of the “Attestation”. Indeed, the Chamber
observed that the “Attestation” establishes an amount of remuneration payable to the
Claimant, namely EUR 65,000, without making any reference as to whether such amount
should be considered net or gross. In order to preserve the good faith of the Claimant
when signing the “Attestation”, and in the absence to any evidence to the contrary, the
Chamber concluded that the amount therein established is to be considered as net.
Player C, from country G / Club E, from country B
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29.
Having established all the foregoing, the Chamber focused its attention on the payments
due before 21 April 2011, as per the employment contract. In this regard and for the
reasons detailed in points II.20. to II.22. above, the Chamber concluded that the
remuneration for the months of July and August 2010 was due to the Claimant and had
not yet been paid by the Respondent.
30.
In line with the analysis made in point II.27. above, the Chamber deemed that it had to
determine the net amount of remuneration due to the Claimant as per the contract for
the aforementioned months. In order to determine this amount and in absence of any
other explicit indication, the Chamber calculated the average of the amounts paid to
player as monthly salary between October 2010 and April 2011 and came to the result of
EUR 2,915. This amount is to be considered the Claimant’s average monthly salary and, as a
consequence, the total amount of EUR 5,830 was due to the Claimant as outstanding
remuneration for July and August 2010, as per the contract. An interest rate of 5% p.a. as
from each due date should apply to this amount, as requested by the Claimant.
31.
For the months of September 2010 to March 2011, the Chamber deemed that the
Respondent, in compliance with art. 12 par. 3 of the Procedural Rules, provided consistent
and sufficient evidence of the payment of the Claimant’s remuneration as per the
employment contract, as evidenced by the relevant payment statements provided to FIFA.
Thus, the DRC concluded that the Claimant’s request for outstanding remuneration as per
the contract for the months of September 2010 to March 2011 could not be upheld.
32.
As to the payments due to the Claimant after 21 April 2011 as per the employment
contract, the Chamber once again asserted that they are affected by the court order of the
21 April 2011, in accordance with the previous considerations. However, the DRC stated
that, as per the same court order, the payment of EUR 1,300 per month should be
guaranteed to the Claimant. In this respect, the Chamber noted that for the period from
April to June 2011, the total amount of EUR 3,900 should have been paid to the Claimant.
However, as per the payment statements provided, only the amount of EUR 1,578.10 was
effectively paid. Therefore, the Chamber concluded that the amount of EUR 2,321.90 still
had to be paid by the Respondent to the Claimant for the aforementioned period. An
interest rate of 5% p.a. as from each due date should apply to this amount, as requested
by the Claimant.
33.
Subsequently, the Chamber went on to establish the amounts due to the Claimant as per
the “Attestation” until 21 April 2011, which should be considered as net, as previously
established. In the absence of relevant proof of payment provided by the Respondent, the
Chamber could establish that the total amount of EUR 45,000 was to be paid by the
Respondent to the Claimant, corresponding to the instalments due on 30 November 2010
and on 31 March 2011, in full. An interest rate of 5% p.a. as from each due date should
apply to this amount, as requested by the Claimant.
Player C, from country G / Club E, from country B
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34.
As to the amounts due to the Claimant as per the “Attestation” after 21 April 2011,
namely the instalment of EUR 20,000 payable on 30 July 2011, the Chamber noted that,
due to the monthly limit of EUR 1,300 established by the court order of 21 April 2011, said
amount would exceed the limit. Thus, the Claimant’s request in this respect cannot be
upheld.
35.
In conclusion, the Chamber decided that the claim of the Claimant is partially accepted and
that the Respondent is ordered to pay to the Claimant the total amount of EUR 53,151.9
plus 5% interest p.a. until the date of effective payment, as follows:
a. 5% p.a. as of 8 August 2010 over the amount of EUR 2,915;
b. 5% p.a. as of 8 September 2010 over the amount of EUR 2,915;
c. 5% p.a. as of 8 May 2011 over the amount of EUR 773.9;
d. 5% p.a. as of 8 June 2011 over the amount of EUR 773.9;
e. 5% p.a. as of 8 July 2011 over the amount of EUR 773.9;
f. 5% p.a. as of 1 December 2010 over the amount of EUR 20,000;
g. 5% p.a. as of 1 April 2011 over the amount of EUR 25,000.
36.
Finally, the Chamber decided that any further claims lodged by the Claimant are rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player C, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club E, is ordered to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 53,151.9 plus 5% interest p.a. until
the date of effective payment, as follows:
a.
b.
c.
d.
e.
f.
g.
5% p.a. as of 8 August 2010 over the amount of EUR 2,915;
5% p.a. as of 8 September 2010 over the amount of EUR 2,915;
5% p.a. as of 8 May 2011 over the amount of EUR 773.9;
5% p.a. as of 8 June 2011 over the amount of EUR 773.9;
5% p.a. as of 8 July 2011 over the amount of EUR 773.9;
5% p.a. as of 1 December 2010 over the amount of EUR 20,000;
5% p.a. as of 1 April 2011 over the amount of EUR 25,000.
4.
Any further claims of the Claimant are rejected.
5.
In the event that the amounts due to the Claimant plus interest are not paid by the
Respondent within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
Player C, from country G / Club E, from country B
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6.
The Claimant is directed to inform the Respondent immediately and directly of the account
number to which the remittances are to be made and to notify the Dispute Resolution
Chamber of every payment received.
*****
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
Player C, from country G / Club E, from country B
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