Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 26 November 2015, in the following composition: Geoff Thompson (England), Chairman Leonardo Grosso (Italy), member John Bramhall (England), member Mohamed Mecherara (Algeria), member Philippe Diallo (France), member on the claim presented by the player, A, from A represented by Mr xxxxxx as Claimant against the club, B, from B represented by Mr xxxxxx as Respondent regarding an employment-related dispute arisen between the parties

2 I. Facts of the case 1. On 13 January 2014, the player from country A, A (hereinafter; the Claimant) and the club from country B, B (hereinafter; the Respondent) concluded an employment contract valid as of the date of its signature until 31 December According to clause SEGUNDA of the contract, the Claimant was entitled to receive from the Respondent as follows: [the Respondent] will pay to [the Claimant] as remuneration ( ) a net monthly salary of 62,500 xxx [xx], corresponding to USD 25,000 with a pre-established value of the US dollar ( ) of xx 2.30, so xx 57,500. To said amount, the sum of xx 5,000 will be added as rent allowance ( ) therefore the total net remuneration is of xx 62,500 per month (free translation from xxxxx). 3. On 17 July 2015, the Claimant lodged a claim against the Respondent requesting the amount of USD 75,000 as per his salaries of October, November and December 2014 as well as 5% interest p.a. as of the respective due dates. In this respect, the Claimant argued that, on 26 June 2015, he put the Respondent in default of payment of the aforementioned amounts, however to no avail. 4. In its reply to the claim, the Respondent stressed that the salary of the Claimant was in xx and not in USD, therefore any amount awarded to the Claimant must be in the former currency. In this respect, the Respondent argued that the salary of the Claimant was of xx 62,500 with the fixed currency rate of 2.3, so that in case of fluctuations up or down in the currency rate, neither of the parties would be undermined. 5. On account of the above, the Respondent asserted that the total amount to which the Claimant is entitled is xx 187, In his replica, the Claimant stressed that the pre-established exchange rate in the contract was precisely to protect him from the depreciation of the xx against the USD as he is Argentinian. Therefore, the Claimant reaffirmed that his salary must be considered in USD. 7. In its duplica, the Respondent reiterated the arguments of its reply. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 17 July Consequently, the 2015 edition of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber Player A, country A / Club B, country B Page 2 of 5

3 (hereinafter; the Procedural Rules) is 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 country A and a club from country B. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber 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 claim was lodged in front of FIFA on 17 July 2015, the 2015 edition of the aforementioned regulations (hereinafter; the 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. First of all, the Chamber acknowledged that, on 13 January 2014, the parties concluded a contract valid until 31 December 2014 according to which the Claimant was entitled to receive from the Respondent as follows: [the Respondent] will pay to [the Claimant] as remuneration ( ) a net monthly salary of 62,500 xxxxxx, corresponding to USD 25,000 with a pre-established value of the US dollar ( ) of xx 2.30, so xx 57,500. To said amount, the sum of xx 5,000 will be added as rent allowance ( ) therefore the total net remuneration is of xx 62,500 per month. 6. Having said this, the members of the DRC focused their attention on the claim of the Claimant who argues that the Respondent failed to pay him his salaries of October, November and December 2014 in the amount of USD 75,000. Conversely, the Chamber took note that the Respondent asserted that the Claimant s salaries were payable in xx and not in USD. In this respect, the Chamber noted that, according to the Respondent, the monthly salary of the Claimant was of xx 62,500 with the fixed currency rate of 2.3, so that in case of fluctuations up or down in the currency rate, neither of the parties would be undermined. Player A, country A / Club B, country B Page 3 of 5

4 7. In view of the foregoing considerations, the members of the DRC wished to highlight, first of all, that the Respondent did not dispute the fact that it did not pay the Claimant s salaries of October, November and December 2014 but rather limited its defence to argue that the salary of the Claimant was payable in xx and not in USD. Therefore, according to the Respondent, the Claimant is entitled to xx187, With the aforementioned in mind, the members of the Chamber, after a thorough analysis of clause SEGUNDA of the contract, unanimously decided that the salary of the Claimant was in fact payable in USD. In this respect, the Chamber was of the opinion that the intention of the parties when agreeing to the fixed exchange rate was, the Claimant being a foreigner, to indeed protect the salary of the Claimant from any potential depreciation of the xx against the USD. 9. In this context, the DRC emphasised that they cannot agree with the line of reasoning of the Respondent as if such was the case, it would mean that the Claimant would not receive USD 75,000 for his outstanding salaries but rather, according to the current exchange rate, approximately USD 48,000 only. What is more, the Chamber pointed out that if it would follow the position of the Respondent, the Respondent would benefit from the non-timely payment of the Claimant s salaries. 10. On account of the above, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the clear content of clause SEGUNDA of the contract in accordance with the general legal principle of pacta sunt servanda. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of USD 75,000, corresponding to his salaries of October, November and December Moreover, and with regard to the Claimant's request for interest, the Chamber decided that he is entitled to receive interest at the rate of 5% p.a. on the aforesaid amount as from the respective due dates. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, A, is accepted. 2. The Respondent, club B, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 75,000 plus 5% interest until the date of effective payment as follows: - 5% p.a. as of 1 November 2014 on the amount of USD 25,000; - 5% p.a. as of 1 December 2014 on the amount of USD 25,000; - 5% p.a. as of 1 January 2015 on the amount of USD 25,000. Player A, country A / Club B, country B Page 4 of 5

5 3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. 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. 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: For the Dispute Resolution Chamber: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org Markus Kattner Acting Secretary General Encl: CAS directives Player A, country A / Club B, country B Page 5 of 5