Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), member on the claim presented by the player, A, country R represented by Mr xxxxxx as Claimant against the club, B, country S as Respondent regarding an employment-related dispute between the parties

2 I. Facts of the case 1. On 30 June 2010, the player from R, A (hereinafter: player or Claimant), and the club from S, B (hereinafter: club or Respondent), signed an employment contract (hereinafter: the contract), valid from 1 July 2010 until 30 June 2012, as well as an additional agreement (hereinafter: the agreement). 2. According to Annexe 3 of the contract, the club undertook to pay the player EUR net per season. 3. According to the agreement, the club undertook to pay the player, inter alia, 50% of the costs for the children s private school, two return flight tickets to Romania per season and to provide the player with a furnished apartment. 4. Additionally, the player signed a document entitled Directive sur les véhicules mis à disposition [free translation: instruction on cars provided]. According to said document, the club undertook to provide the player with a car as from 28 March 2012 until 4 November Art. 7 of this document reads as follows: Pour les véhicules mis à disposition de manière durable (pendant une saison ou demi-saison le cas échéant), le joueur/membre du staff technique participle de manière forfaitaire aux frais d assurances à hauteur de xxx 1'000.-, prélevés sur son dernier salaire de la saison (le cas échéant de la demi-saison) [free translation: For the cars provided permanently (during a season or a halfseason if applicable), the player/member of the technical staff contributes to the costs of the car insurance with a fixed fee of xxx 1,000, deducted of his last salary of the season (if applicable for the half-season)]. 5. On 24 September 2013, the player lodged a claim in front of FIFA against the club for outstanding salaries and requested to be awarded payment of the following monies: - EUR 43, plus 5% interest as of the due dates, corresponding to partially outstanding salaries of September 2011 plus May and June 2012 as well as interest on late payment of salaries (cf. point I./6. below); - xxx plus 5% interest as of 1 July 2012, corresponding to additional remuneration (cf. point I./7. below); - xxx 25,000 as compensation for personal suffering; - EUR 150,000 as damage compensation; - EUR 110,000 as compensation, corresponding to 6 months of the player s salary. Player A, country R / Club B, country S Page 2 of 10

3 6. In detail, the player claimed remuneration as follows: - Partial salary September 2011 plus 5% interest as of 1 October 2011: EUR 9, Partial salary May 2012 plus 5% interest as of 4 April 2013: EUR 14, Salary June 2012 plus 5% interest as of 1 July 2012): EUR 18, EUR 41, Interest late payment April 2012 salary ( ): EUR Interest late partial payment May 2012 salary ( ): EUR Total EUR 43, The player claimed additional remuneration as follows: - Costs for 50% of children s private school xxx 5, Tax invoices of 2011 plus 5% interest as of 1 July 2012 xxx 7, xxx 13, Interest reimbursement of flight tickets ( ) xxx 87,25 - Interest family allowance (May to June 2012) ( ) xxx 77,40 Total xxx 13, The player argues that the club deducted EUR from his September 2011 salary for unjustified reasons. In this respect, the club had accused him of refusing to play in an under 21 match of the club. However, according to the player, the coach and the sporting director of the club had advised him not to play. 9. Furthermore, the player held that the salaries between April and June 2012 were not paid on time and remained partially outstanding. In this regard, he put the club three times in default of payment of the relevant amounts between 22 June 2012 and 17 January Moreover, the player acknowledged receipt of a partial payment of xxx 31, on 4 April Nevertheless, according to the player, the amounts of EUR 43, and xxx 13, remained outstanding. 11. Due to alleged mobbing the player claimed xxx 25,000 as compensation for personal suffering. 12. Furthermore, the player claimed damage compensation in the amount of xxx 150,000, since he allegedly suffered from a decreased market value following the alleged ban from the first team. According to the player, said Player A, country R / Club B, country S Page 3 of 10

4 development was the reason for the player s unemployment after the expiry of the contract and a direct consequence of the behaviour of the club. 13. In addition, the player claimed EUR as compensation due to an alleged permanent ban from the first team. The player argued that such a ban constitutes an unjustified dismissal without notice and that he therefore should be awarded a compensation of six monthly salaries. 14. In its answer, the club contested all allegations of the player and requested that the claim be rejected. 15. In support of its position, the club submitted an internal document entitled Décompte final [free translation: final balance] regarding the payment made to the player on 4 April In particular, the club argued that according to an additional agreement the player had to pay xxx 1,100 monthly as part of his rent. Furthermore, the club held that it only was to pay the school costs of the player s children and no additional costs like school uniforms, school material and additional school hours. Moreover, the club stated that the player had to contribute xxx 1,000 per season for the car insurance and that said amount was deducted from his receivables. Regarding the player s claim related to tax payments, the club answered that it only had to pay tax invoices addressed directly to the club and that it was not liable to pay taxes regarding fortune or revenue of the player s wife. 17. According to the club the fine of EUR 9,000 was justified since the player refused to play the under 21 match. 18. Furthermore, the club contested the player s allegations regarding mobbing. 19. In his replica, the player upheld his position and contested the existence of an additional agreement regarding participation in rental costs and he referred to the agreement, according to which the club provides the player with an apartment. 20. Furthermore, the player insisted that the claimed school costs are only related to tuition fees. Moreover, the player argued that xxx 1,000 for the car insurance was deducted without valid reason, since the player returned the car early, i.e. on 15 June Player A, country R / Club B, country S Page 4 of 10

5 21. Regarding the claimed taxes, the player pointed out that the club did not deny the duty of paying the player s taxes in general. Furthermore, the player argued that the player s wife was not subject to taxation and that the invoice refers to the player s income of In its duplica, the club upheld its position. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 24 September Consequently, the Rules governing the procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 2015) 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 from R and a club from S. 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 (edition 2015), and considering that the present claim was lodged on 24 September 2013, the 2012 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 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. Player A, country R / Club B, country S Page 5 of 10

6 5. In this respect, the Chamber recalled that the parties had signed an employment contract and an additional agreement valid as from 1 July 2010 until 30 June In continuation, the DRC acknowledged that, in accordance with the annexe of the employment contract, the Respondent was obliged to pay to the Claimant the amount of EUR 220,000 per season, which corresponds to a monthly salary of EUR 18, In this context, the Chamber observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of EUR 43, plus interest, asserting that the Respondent did not fulfil its contractual obligations towards him regarding salary payments and that the aforementioned amount remained unpaid after a partial payment received on 4 April In this regard, the DRC took note of the Claimant s argumentation that the Respondent deducted the amount of EUR 9,000 from his salary of September 2011 for unjustified reasons, that the salary of May 2012 remained partially unpaid and that the salary of June 2012 remained unpaid in its entirety. 9. Further, the Chamber observed that the Claimant requested payment of the amount of xxx 13,992,95 plus interest, asserting that the Respondent had not fulfilled its contractual obligations towards him regarding costs of the Claimant s children s private school and the Claimant s tax invoice of In addition, the DRC took note that the Claimant requested payment of xxx 25,000 as compensation for personal suffering as well as EUR 150,000 and EUR 110,000 as damage compensation. 11. In continuation, the Chamber took into account that the Respondent rejected the claim arguing that the contractual obligations towards the Claimant were fulfilled with the final payment on 4 April 2013, bearing in mind several justified deductions from the player s remuneration. The members of the Chamber noted from the document presented by the Respondent in this regard, i.e. the aforementioned Décompte final, which shows a status as at January 2013, that the club acknowledged, among other items, outstanding salaries for April, May and June 2012 and deducted a sum before arriving at the final amount of xxx 31,415.80, which was paid to the Claimant on 4 April Having said this, the members of the Chamber acknowledged that it first had to address the question as to whether the deductions made by the Respondent from the Claimant s receivables can be accepted. Player A, country R / Club B, country S Page 6 of 10

7 13. In this context, the Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. 14. Turning to the first item, the DRC analysed the fine imposed by the Respondent on the Claimant due to his alleged refusal to play in an under 21 match. 15. In this context, the Chamber concurred that the fine imposed on the Claimant by the Respondent shall be disregarded, since no convincing evidence was presented by the Respondent in this regard. Furthermore, the amount of the fine imposed on the Claimant represents half of the player s monthly remuneration, as a consequence, the fine must be considered disproportionate. For these reasons, the Chamber decided that the fine of EUR 9,000 cannot be accepted and, thus, not be deducted from the Claimant s receivables for September Furthermore, and irrespective of the foregoing consideration, the DRC wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. 17. As regards further deductions, which the Respondent relies on in its defence, i.e., the player s alleged contribution to the rent of the apartment and car insurance, the Chamber noted that the Respondent had not presented convincing evidence corroborating that the related deductions were justified. Consequently, the members of the Chamber decided that the respective deductions made by the Respondent are not acceptable. 18. On account of the above, the Chamber concurred that the deductions made by the Respondent from the Claimant s receivables cannot be accepted. 19. Having established the above, the DRC concluded that the Respondent had not presented any valid reasons nor convincing documentation for the nonpayment of the Claimant s salaries as per the statement of claim. 20. Therefore, the members of the Chamber concluded that the Respondent had failed to pay to the Claimant the amount of EUR 41, corresponding to the partial salary of September 2011, the partial salary of May 2012, and the salary of June As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its obligations as per contract Player A, country R / Club B, country S Page 7 of 10

8 concluded with the Claimant and, consequently, must pay the outstanding salaries in the total amount of EUR 41, to the Claimant. 22. Taking into consideration the Claimant s claim related to interest as well as the Chamber s constant jurisprudence in this regard, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts of EUR 9,000, EUR 14,399.60, and EUR 18, as of the day following the day on which these amounts fell due. 23. On account of the Chamber s constant jurisprudence and in the absence of a related contractual provision, the Chamber decided to reject the Claimant s claim pertaining to interest for late payment of the April 2012 salary and part of the May 2012 salary. 24. In continuation, the Chamber reverted to the Claimant s claim pertaining to allegedly outstanding payments on the basis of the agreement and examined the documentation submitted by the Claimant in this regard, while recalling the above-mentioned art. 12 par. 3 of the Procedural Rules regarding the burden of proof. 25. Subsequently, the DRC concluded that the Respondent did not present convincing evidence in respect of the additionally claimed payments related to private school costs and taxes. In particular, there is no clear evidence as to the source of the taxes indicated by the Claimant and no evidence that the club previously paid tax invoices on behalf of the player. As regards the private school costs, the Chamber agreed that the document presented by the Claimant in support of his claim does not demonstrate that the relevant amount is related to the 50% of the costs payable by the Respondent. 26. In view of the above, the members of the Chamber decided that the Claimant has not provided sufficient evidence in support of his claim regarding the additional amount of xxx 13,922.95, which claim the Chamber, therefore, had to reject. Player A, country R / Club B, country S Page 8 of 10

9 27. Having established the above, the DRC analysed the request of the Claimant corresponding to compensation for personal suffering in the amount of xxx 25,000 as well as his claim for damage compensation in the amounts of EUR 150,000 and EUR 110,000. In this regard, the Chamber deemed it appropriate to point out that the requests for said compensation presented by the Claimant had no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated the damage suffered or its quantity. 28. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, A, is partially accepted. 2. The Respondent, B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 41, plus 5% interest p.a. until the date of effective payment as follows: a. 5% p.a. as of 1 October 2011 on the amount of EUR 9,000; b. 5% p.a. as of 1 June 2012 on the amount of EUR 14,399.60; c. 5% p.a. as of 1 July 2012 on the amount of EUR 18, In the event that the amount due to the Claimant is 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. 4. Any further claim lodged by the Claimant is rejected. Player A, country R / Club B, country S Page 9 of 10

10 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl: CAS directives Player A, country R / Club B, country S Page 10 of 10