F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 24 November 2016
Decision of the Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 November 2016,
by Philippe Diallo (France), DRC judge,
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 5 February 2015, the Player of Country B, Player A (hereinafter: the Claimant) concluded an employment contract (hereinafter: the contract) with the Club of Country D, Club C (hereinafter: the Respondent), valid as from the date of signature until 30 November 2015.
2. According to clause 5.1. of the contract, the Claimant was entitled to a monthly salary in the amount of USD 4,000, to be paid “in local currency at the Exchange rate of the National Bank of Country D” (i.e. USD 40,000 in total).
3. Moreover, the contract included the following clauses:
4.1.1. The [Respondent] shall have the rights:
(…)
4.1.2 to demand from the [Claimant] to perform the work duties timely and personally as well as to comply with the terms of this Contract and the current labor regulation;
4.1.3. In case the level of professional skills due to the systematic violation of the sport mode, skip training sessions and games without a valid reason to change the wage.
4.1.4 In case the failing [the Claimant] of its obligations and not fulfilling expectations hereunder Respondent has the right to revise the terms of this Contract or abandon existing commitments and to terminate the contract without paying any compensation.”
4. On 30 May 2016, the Claimant lodged a claim against the Respondent, and requested the payment of the total amount of USD 9,500 as outstanding remuneration, detailed as follows:
- USD 8,000, corresponding to two months of outstanding salaries, respectively due in October 2015 and November 2015;
- USD 1,500, corresponding to five months of rent, from July 2015 until November 2015 and payable on the basis of a “verbal agreement”.
5. In addition, the Claimant requested the imposition of sporting sanctions against the Respondent.
6. In particular, the Claimant explained that, on 15 October 2015, he sent a default notice via email to the Respondent, by means of which he requested the payment of his salary due in August and September 2015, as well as his “last bonus” and four months of “house rent”.
7. In this regard, the Claimant attached an email allegedly sent by the Respondent on 15 October 2015 in reply thereto, by means of which the latter “confirmed its debts” and stated that they will be settled. According to the same correspondence, the Respondent apparently declared that it was also expecting to extend the Claimant’s contract.
8. The Claimant further acknowledged that at a later stage, the salaries of August and September 2015 were paid by the Respondent, but that at the moment of filing his claim before FIFA, the salaries due in October 2015 and November 2015 as well as the rent were still outstanding.
9. Subsequently, the Claimant stated that he sent a final default notice to the Respondent on 10 March 2016, by means of which he requested the payment of the total amount of USD 9,500, and that failure to do so would entitle him to lodge a claim before FIFA.
10. In its reply, the Respondent rejected the Claimant’s arguments and argued that the Claimant is only focusing on his remuneration, while disregarding his responsibilities which, according to the Respondent, consist in reaching a certain result. In this regard, the Respondent stated that, following clause 4 of the contract, it was entitled to change a player’s remuneration in view of his low professionalism.
11. In his replica, the Claimant considered that the Respondent failed to substantiate his alleged low professionalism and that, under any circumstance, the Respondent was not entitled to unilaterally change the stipulations agreed upon in the contract. Moreover, the Claimant noted that the Respondent, in its correspondence dated 15 October 2015, stated that it was willing to extend his contract.
12. In reference to the claimed rental costs, the Claimant considered that the Respondent already acknowledged said debt by means of its correspondence dated 15 October 2015 (cf. point 6 above).
13. As final comments, the Respondent confirmed its previous arguments. Moreover, the Respondent argued that the payment of rent to the Claimant was not stipulated in the contract.
II. Considerations of the DRC judge
1. First of all, the DRC judge analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 30 May 2016. Consequently, the 2015 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 2015 edition of the Procedural Rules).
2. Subsequently, the DRC judge referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) he is competent to deal with the matter at stake, which concerns an employment-related disputes between a club and a player with an international dimension between a Player of Country B and a Club of Country D.
3. The competence of the DRC judge having been established, he decided thereafter to analyse which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2015 and 2016), and considering that the present matter was submitted to FIFA on 30 May 2016, the 2015 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4. Having established the foregoing, and entering into the substance of the matter, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered for the pertinent assessment of the matter at hand.
5. In this respect, the DRC judge acknowledged that, on 5 February 2015, the parties to the dispute had signed an employment contract, valid until 30 November 2015, in accordance with which the Respondent would pay the Claimant a monthly salary in the amount of USD 4,000.
6. Moreover, the DRC judge took into consideration that according to the Claimant, the Respondent had failed to pay his remuneration in the total amount of USD 9,500, corresponding to unpaid salaries, respectively due in October 2015 and November 2015 (i.e. USD 8,000), as well as the amount of USD 1,500, corresponding to five months of rent, from July 2015 until November 2015 and payable on the basis of a “verbal agreement”.
7. In relation to the claimed outstanding salaries, the DRC judge took note of the Respondent’s argument, according to which it had no overdue payables towards the Claimant since it was entitled to deduct, in accordance with art. 4 of the contract, said amounts in view of the alleged “low professionalism” of the Claimant.
8. In this respect, the DRC judge wished to highlight that the Respondent failed to support with any reliable evidence the alleged “low professionalism” of the Claimant. More importantly, and regardless of the existence or not of said circumstance, the aforementioned deductions, for the total amount of at least USD 8,000, which were imposed for alleged “low professionalism” are manifestly excessive and disproportionate and cannot be upheld. In particular, the DRC judge highlighted that the total amount of said deductions corresponds to two months of the Claimant’s monthly salary with the Respondent. Hence, the DRC judge concluded that the deductions imposed on the Claimant by the Respondent must be disregarded.
9. Furthermore, and in any case, the DRC judge wished to point out that the deduction of salary, 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.
10. In conclusion, the DRC judge determined that the Respondent could not set off its debt towards the Claimant by means of the various fines and deductions imposed on him and that thus, the amount of USD 8,000 is due to the Claimant. Moreover, the DRC judge highlighted that the Respondent never proved that said debt was settled.
11. Moreover, in relation to the claimed reimbursement of the rent costs, the DRC judge observed that the provided copy of the contract did not include any specific stipulation in this regard.
12. For the sake of completeness, the DRC judge noted that, according to the Claimant, said costs were included as a “verbal agreement”.
13. In this respect, the DRC judge 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. In this regard, the DRC judge observed that the Claimant failed to provide any convincing evidence in relation to the existence of said “verbal agreement”. Consequently, the DRC judge decided to reject the Claimant’s claim in relation to the rent costs.
15. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are 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, outstanding remuneration in the amount of USD 8,000.
3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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.
5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 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. 58 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 (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org
For the DRC judge:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives