Decision of the Dispute Resolution Chamber (DRC) judge

Transcription

1 Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the player, Player A, Country B as Claimant against the club, Club C, Country D as Respondent regarding an employment-related dispute between the parties

2 I. Facts of the case 1. On an unspecified date, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 5 December 2012 until the end of Country D Sports season including one season and half. 2. According to the contract, the Claimant was entitled to receive as remuneration from the Respondent as follows: a. For the season 2012/2013, the total amount of USD 170,000 payable as follows: i. USD 50,000 in case of ITC issuance and upon signing the contract ; ii. USD 120,000 in 6 monthly instalments of USD 20,000. b. For the season 2013/2014, the total amount of USD 300,000 payable in 12 monthly instalments of USD 25,000 as from 10/06/2013 until 10/06/ In this respect, Note 1 of the contract provided that all above mentioned amounts ( ) will paid to the player in the late of each month. 4. Moreover, Note 4 of the contract stipulated that all tax related to the all sport seasons (One Sport season and half) is player duty. 5. Furthermore, clause 6-2 of the contract provided as follows: during the total value of the contract period, the club will pay 4 (four) times round ticket in value of USD 2,000 per each ticket totally in amount of USD 8,000 in time trip for the player. 6. Also on an unspecified date, the parties concluded a Complementary Contract (hereinafter: the addendum) which reads, inter alia, as follows based on the mutual agreement [of the parties] this is the all the tax related to the contract is the club duty and the player will be paid all amounts as net. 7. On 22 August 2014, the Claimant lodged a claim against the Respondent in front of FIFA requesting the following amounts: a. USD 6,603 as outstanding salaries of the season 2012/2013; b. USD 16,666 as outstanding salaries of the season 2013/2014; c. USD 2, for flight tickets; Player A, Country B / Club C, Country D Page 2 of 8

3 d. 5% interest p.a. in respect of the outstanding amount. 8. In particular, the Claimant explained that on 25 June 2013, he, the Respondent and the Club of Country E, Club F concluded an agreement for his transfer to Club F. In this respect, the player stressed that he was to remain contracted by the club until 30 June In continuation, the Claimant argued that on 18 August 2013, the Respondent sent him an , which was enclosed to his claim, whereby it confirmed owing him the amount of USD 6, Furthermore, the Claimant stressed that in accordance with the contract, for the month of June 2013, he was entitled to receive the amount of USD 25,000, and since he remained with the Respondent for 20 days in June 2013, he is entitled to USD 16, In continuation, the Claimant sustained that he had to purchase two flight tickets in the amount of USD 2, As such and in accordance with clause 6-2 of the contract, the Claimant stressed that the Respondent needs to reimburse him said amount. In this respect, the Claimant enclosed two invoices for the following flights: a flight ticket dated 14 May 2013 for the route City in Country B City in Country E City in Country B for 1,900 (approx. USD 1,890) and a flight ticket dated 5 June 2013 for the route City in Country G City in Country H for EUR (approx. USD 750). 12. In its reply to the claim, the Respondent stressed the following: a. As to the unpaid salaries in the amount of USD 6,603 ( ) I acknowledge that [the Claimant] already received all the payment in due course in amount of USD 170,000 outstanding and USD 163,397 on net (i.e. 3% duty tax deduction in total), hence the claim in this matter is null and void ; b. As to the unpaid amount of USD 16,666 ( ) I acknowledge since the player was preparing to join [Club F], he didn t participate effectively in any our Football Team training sessions during this 20 days ; c. As to the reimbursement of the flight tickets, the Respondent stressed as follows: I acknowledge with explicit adverb that said-during the total value of the contract, so since the player just cooperated with this club just half season among one half of the total contract period ( ) the club Player A, Country B / Club C, Country D Page 3 of 8

4 exclusively bear all the cost of 2 airline ticket for the player in the beginning of the season that already paid to him. 13. In his replica, the Claimant sustained that in the dated 18 August 2013, the Respondent confirmed owing him the amount of USD 6,603. Moreover, the Claimant referred to the addendum and stressed that according to such, all amounts due to the Claimant should be considered net. 14. As to the Respondent s argument that he did not participate with the team during June 2013, the player stressed that he was not made aware of Club F s offer of employment until 20 June 2013 when he travelled to City in Country E. In this respect, the Claimant stressed that he signed his contract with Club F on 25 June The Claimant continued explaining, During this time, the club s team had left for Country I for a pre-season camp. The player was advised ( ) not to fly from City in Country E to Country I to attend this camp because the club would have to pay for his accommodation. He was therefore told to return to Country G. 15. Along these lines, the Claimant stressed that he complied with all his obligations towards the Respondent and thus he is entitled to receive his salary for the relevant period. 16. As to the flight tickets, the Claimant stressed that article 6-2 does not specify, as the Respondent suggests, that he would only be entitled to reimbursement of two (2) airline tickets per season. 17. In its duplica, the Respondent stressed that the last match of the season 2012/2013 was on 11 May 2013 and that after the end of the Country D season, the player started his individual training optionally to keep himself fitness without any force or club arrangement. Furthermore, the Respondent argued that on 9 June [2013] the club received invitation letter on behalf of the player Agent to Club F and accordingly on 20 June 2013, the player ( ) departure to Country E 18. As to the flight tickets, the Respondent enclosed an undated Cash Payment Receipt for USD 38,300, which reads, inter alia, May salary and ticket flight. Therefore, it sustained that article 6-2 means for the one season and half, not just for the half season we have to pay 4 airline tickets cost. 19. Finally, the Respondent reiterated the arguments of its reply. II. Considerations of the DRC judge Player A, Country B / Club C, Country D Page 4 of 8

5 1. First of all, the DRC judge analysed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 22 August Consequently, the 2014 edition of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate the present dispute which value does not exceed CHF 100, Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 22 August 2014, the 2014 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the DRC judge and the applicable Regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 6. First of all, the DRC judge took note that the parties concluded an employment contract valid as of 5 December 2012 until the end of Country D Sports season including one season and half, whereby the Claimant was entitled to receive from the Respondent inter alia a monthly salary of USD 20,000 for the season 2012/2013 and of USD 25,000 for the season 2013/ Furthermore, the DRC judge acknowledged that the parties entered into an addendum of the contract which inter alia established that based on the Player A, Country B / Club C, Country D Page 5 of 8

6 mutual agreement [of the parties] this is the all the tax related to the contract is the club duty and the player will be paid all amounts as net. 8. In continuation, the DRC judge noted that, the Claimant was transferred from the Respondent to Club F and that on 25 June 2013, the Claimant concluded a employment contract with Club F. 9. Having said this, the DRC judge focused his attention on the Claimant s claim of USD 6,603 as outstanding salaries for the season 2012/2013 and, in this respect, he took note of the Respondent s argument for its non-payment stating that [the Claimant] already received all the payment in due course in amount of USD 170,000 outstanding and USD 163,397 on net (i.e. 3% duty tax deduction in total), hence the claim in this matter is null and void. 10. In this regard, the DRC judge wished to emphasise that according to the clear wording of the addendum, all the amounts to which the Claimant was entitled were to be considered as net. Hence, in the DRC judge s view, the Respondent had no right to withhold any percentage of the Claimant s salary for tax purposes. What is more, in its dated 18 August 2013, the Respondent itself recognised owing the relevant amount to the Claimant. Therefore, the DRC judge concluded that the Claimant is entitled to receive from the Respondent USD 6,603 as outstanding salaries for the season 2012/ Furthermore and as to the Claimant s claim of USD 16,666 as outstanding salaries for the season 2013/2014, the DRC judge noted the position of the Respondent which argued that the Claimant didn t participate effectively in any our Football Team training sessions during this 20 days and thus, he should not be entitled to the aforementioned amount. 12. Having acknowledged the above, the DRC judge highlighted that it is undisputed that it was only until 20 June 2013 when the Claimant travelled to City in Country E in order to join Club F and that he signed his labour contract with Club F on 25 June 2013 only. Therefore, the DRC judge held that a valid contract was in force until 20 June As a consequence, while referring to art. 12 par. 3 of the Procedural Rules, the DRC judge stressed that the Respondent has the burden to proof that the Claimant was not entitled to his salary for the first 20 days of June In this respect, the DRC judge observed that the Respondent had not presented any evidence that could corroborate that the Claimant did not participate effectively in any our Football Team training sessions during this 20 days. Player A, Country B / Club C, Country D Page 6 of 8

7 14. On account of the above, the DRC judge was of the opinion that, contrary to the Respondent s position, it could not be established that the Respondent had a valid reason not to pay the Claimant his salary for the first 20 days of June 2013 and thus, decided that the Claimant is entitled to receive the requested amount for said period of time, i.e. USD 16, In view of all the foregoing considerations, the DRC judge decided that, in accordance with the legal principle of pacta sunt servanda, the Claimant is entitled to receive from the Respondent outstanding remuneration in the amount of USD 23,269 plus 5% interest p.a. as of 22 August 2014, i.e. the date the claim was lodged. 16. Furthermore and in relation to the Claimant s claim of USD 2, for flight tickets, the DRC judge was of the opinion that considering the dates and routes of the flight tickets presented by the Claimant, these do not appear to be in connection with the execution of the employment contract and therefore, decided to reject this part of the Claimant s claim. 17. Finally, the DRC judge concluded his deliberations by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of USD 23,269 plus 5% interest p.a. as of 22 August 2014 until the date of effective payment. 3. In the event that the aforementioned sum plus interest are not paid within the stipulated time limit, the present matter shall be submitted, upon request, to FIFA s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. Player A, Country B / Club C, Country D Page 7 of 8

8 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 DRC judge 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the DRC judge: Markus Kattner Deputy Secretary General Encl. CAS directives Player A, Country B / Club C, Country D Page 8 of 8