F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 27 August 2014, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player D, from country N as Claimant against the club, Club S, from country H as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 27 August 2014, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player D, from country N as Claimant against the club, Club S, from country H as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 14 June 2010, Player D, from country N (hereinafter: player or Claimant), and Club S, from country H (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract) valid as from 1 July 2010 until 30 June 2012. According to art. 35 of the contract, the parties agree to extend the contract until the end of the 2012/2013 season, if the club would notify the player by 31 May 2012 in writing. In such case, the player’s annual salary would increase from EUR 250,000 to EUR 300,000. 2. According to the contract, the salary has to be paid by the end of each month. 3. On 14 March 2014, the player lodged a claim before FIFA against the club claiming the amount of EUR 26,000 corresponding to his remuneration for the month of June 2013, made up of EUR 25,000 as a base salary, plus currency of country H 1,850 for fringe benefits, accommodation and family costs. The player claimed interest of 5% p.a. on the claimed amount as of 1 July 2013. Eventually, the player claimed the amount of EUR 13,000 corresponding to his remuneration for half of the month of June 2013, i.e. from 1 to 15 June 2013, plus interest of 5% p.a. as of 16 June 2013. 4. In this regard, the player explained that the club had failed to pay him his remuneration for June 2013 in the amount of EUR 26,000. The player stated that the club had authorized summer holidays as from 2 to 15 June 2013. The player further held that due to the expiry of his contract at the end of June 2013, the club did not want to have him and did not invite him to take part in pre-season training for the season 2013/2014. Moreover, the player asserted that he had not been made aware by the club of where and when such pre-season training would take place. According to the player, the players who did not have a contract with the club for the upcoming season, were not informed about the training, and so the club apparently only provided the players who had a contract for the upcoming season with information about the beginning of training after the holidays. Thus, the player assumed that his services were no longer requested by the club for the month of June 2013. 5. Furthermore, the player assured that he had always offered his services to the club. The player further stated that it is common with this club that only the players who are part of the team for the upcoming season participate in the preparation. In this respect, the player explained that in 2010, he had also participated in the club’s season preparation as of mid-June 2010, although his contract was only valid as of 1 July 2010. For the period between mid-June and 1 July 2010, the player did not receive any salary. At that time, according to the player, the club’s representatives told him that it was the club’s habit not to pay the players for the season preparation since at the end of the contract, they do not have to work for the club for the exact same time period and still receive their salary until the expiry of the contract. In this regard, the player added that the club should have made him aware that his services were requested and that in the event of his absence, he would lose one monthly salary. 6. The player provided two letters regarding the issue at stake evidencing an exchange of correspondence between the parties. According to such documentation, on 16 August 2013, the player sent a letter to the club requesting the payment of the outstanding salary for the month of June 2013 amounting to EUR 26,000 referring to the above-mentioned line of argument. On 30 August 2013, the club replied to the player’s letter stating that the player did not show up in training on 14 June 2013, unlike all the other players with a contract valid until 30 June 2013. Thus, the club stated that it would not pay the player’s salary for June 2013. 7. In its reply to the claim, the club rejects it in full arguing that the player did not train with the club in June 2013. The club stated that the club’s sport director had informed the team on the occasion of a general information meeting about the gathering taking place on 14 June 2013 after the summer holidays. The club further held that contrary to the player’s allegations, the whole team was present at the information meeting, including the players who did not have a contract for the upcoming season. The club further contests the arrangement allegedly agreed upon between the parties in 2010, according to which the player would not have to come to work during the last 15 days of his contract. The club added that the player should at least have obtained a confirmation from the club entitling him to be absent. The club explained that another player who also had a contract with the club until 30 June 2013 obtained such confirmation after being present at the start of the training sessions after the holidays. Finally, the club pointed out that the salary is the counterpart of the work contribution and, thus, the player is not entitled to receive the salary for June 2013. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 14 March 2014. 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 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014) he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country N player and a country H club. 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 in the present dispute which value does not exceed currency of country H 100,000. 4. 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 2014), and considering that the present matter was submitted to FIFA on 14 March 2014, the 2012 edition of said Regulations is applicable to the present matter as to the substance (hereinafter: Regulations). 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 this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In this respect, the DRC judge acknowledged that the parties had signed an employment contract on 14 June 2010, in accordance with which the player was entitled to receive from the club an annual remuneration in the amount of EUR 250,000 for the 2011/2012 season and EUR 300,000 for the 2012/2013 season. 7. In continuation, the DRC judge noted that the Claimant alleged that the Respondent had failed to pay the amount of EUR 25,000 corresponding to his salary for the month of June 2013. 8. Moreover, the DRC judge noted that the Claimant requested from the Respondent the payment of currency of country H 1,850 corresponding to fringe benefits, accommodation and family costs. 9. Subsequently, the Claimant asked to be awarded with the total amount of EUR 26,000. The DRC judge further noted that eventually, the Claimant requested the amount of EUR 13,000 relating to his remuneration for half of the month of June 2013. 10. In this respect, the DRC judge took note of the Claimant’s allegation that he had not been informed by the Respondent about the details of the club’s pre-season training, which apparently resumed after the summer holidays, i.e. as from 16 June 2013. The DRC judge noted that as the Claimant was apparently not invited to training and considering that the employment contract was set to end on 30 June 2013, the Claimant assumed that his services were no longer requested by the Respondent for the month of June 2013. Furthermore, the DRC judge held that according to the Claimant, the Respondent orally informed him at the beginning of his contract that he would receive his salary until the expiry of his contract, although he would not have to work for the club at the end of his contract during the preparation for the upcoming season. 11. Equally, the DRC judge noted that according to the Respondent, who fully rejects the claim put forward by the Claimant, the player had not trained with the club in June 2013, even though the Respondent had informed the whole team, including the Claimant, about the gathering taking place on 14 June 2013 after the summer holidays. The DRC judge also noted that the Respondent contested the verbal arrangement allegedly agreed upon between the parties, according to which the player would not have to come to work during the last 15 days of his contract. In addition, the DRC judge held that according to the Respondent, the Claimant should at least have obtained a confirmation from the Respondent entitling him to be absent for that time. Finally, the DRC judge took note of the Respondent’s argument that the salary is the counterpart of the work contribution and that, therefore, the Claimant is not entitled to receive the salary for the month of June 2013. 12. Taking into account these contradictory positions, the DRC judge highlighted that the central issue in the matter at stake would be to determine as to whether the Claimant is entitled to receive his salary for the month of June 2013, despite his absence from training in the last two weeks of this month. 13. In continuation, the DRC judge acknowledged that the Respondent undisputedly had not paid the Claimant the remuneration due according to the contract for June 2013. In addition, the DRC judge took into account that the Claimant had not refuted the Respondent’s statement that he had not participated in training in June 2013. 14. As regards the first half of the month of June 2013, the DRC judge established that the summer holidays were undisputedly scheduled as from 2 until 15 June 2013. The DRC judge deemed that during that period of time, the contract was still running and that no services were requested by the Respondent from the Claimant. In this regard, the DRC judge underlined that holidays are considered to be paid absence and, thus, the Respondent must pay the Claimant’s remuneration for the duration of the holidays. 15. Concerning the second half of the month of June 2013, the DRC judge recalled the parties’ arguments in this regard. The DRC judge recalled the Claimant’s allegation that he had not been informed by the Respondent where and when training would take place after the summer holidays. Equally, the DRC judge recalled the Respondent’s allegation asserting that it had informed the whole team when and where training would take place after the summer holidays. 16. In this context, the DRC judge deemed it appropriate to recall the general principle of burden of proof stipulated in 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. The DRC judge established that, whereas it was difficult for the Claimant to demonstrate that he had not been informed by the Respondent, it would have been easier for the latter to present evidence that it informed the Claimant. However, the DRC judge held that for the case at hand, the question whether the Claimant was invited to the training sessions or not does not have to be finally answered. 17. In light of the above, the DRC judge was eager to emphasise the general legal principle of pacta sunt servanda, according to which all parties to a contract must fulfil their obligations as per the contract concluded. The DRC judge highlighted that the essential element of an employment contract is that the employee has to render his services towards the employer, which in counterpart has to pay to the employee a remuneration. In this respect, the DRC judge held that the contract concluded between the Claimant and the Respondent clearly stipulates that it expires on 30 June 2013, which means that the Claimant must render his services towards the Respondent until this date. 18. The DRC judge established that the lack of invitation or information regarding training does not automatically grant the player a right to be absent. The DRC judge was of the view that even in case the Claimant was not informed by the Respondent, one can expect a certain effort from an employee to comply with his work duties. The DRC judge held in this regard, that it would not have been complicated for the player to obtain information regarding training sessions of his club. In this respect, the DRC judge was eager to recall that the Claimant did not submit any document or any explanation attesting that he had not received any information from the club despite having asked or that he had not been allowed to attend training after the summer holidays. 19. Based on the above-mentioned considerations, the DRC judge concluded that the Claimant’s absence from training during the last two weeks of June 2013 was not justified and, therefore, the Respondent was not obliged to pay the Claimant’s salary for that period. 20. Consequently, the DRC judge decided that the Respondent is liable to pay all outstanding monies due to the Claimant under the contract until the date on which the player stopped rendering his services to the club, i.e. until 15 June 2013. 21. As a result, the DRC judge concluded that the Claimant was entitled to receive from the Respondent outstanding remuneration for half of the month of June 2013 in the amount of EUR 12,500. 22. With regard to the claimed interest, the DRC judge noted that according to the contract, the salary is due by the end of each month. Hence, the remuneration for the month of June 2013 – whether half or full month – was due on 30 June 2013. Subsequently, and taking into account the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 12,500 as from 1 July 2013 until the date of effective payment. 23. As regards the claimed amount of currency of country H 1,850 relating to alleged fringe benefits, accommodation and family costs, the DRC judge noted that the contract did not contain any provisions regarding the reimbursement of such alleged costs. In addition, the DRC judge noted that the Claimant did not provide any receipts or invoices in this regard. Hence, the DRC judge decided to reject the Claimant’s claim regarding the reimbursement of such costs. 24. Finally, the DRC judge concluded his deliberations in the present matter 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 D, is partially accepted. 2. The Respondent, Club S, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 12,500 plus 5% interest p.a. as from 1 July 2013 until the date of effective payment. 3. In the event that the aforementioned amount plus interest is not paid within the stated 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. 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 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the DRC judge: Jérôme Valcke Secretary General Encl. CAS directives