Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 29 July 2016, in the following composition: Geoff Thompson (England), Chairman John Bramhall (England), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the player, D, from country S, as Claimant against the club, Club X, from country X as Respondent I. Facts of the case regarding an employment-related dispute arisen between the parties

2 1. On 1 July 2015, the player D, from country S (hereinafter: the Claimant or the player), and the Club X, from country X (hereinafter: the Respondent or the club), signed an employment contract (hereinafter: the contract), valid as from the date of signature until 31 December According to art. 2 of the contract the Respondent undertook to provide the Claimant inter alia with: - 450,000 as monthly salary; - 450,000 as signing fee after this contract has become valid ; - housing, excluded expenses with water and electricity; - one time economy class round trip air ticket for the employee to return home during the validity of this contract. 3. In addition, art. 5 and 6 of the contract stipulate, respectively, that This contract becomes valid after the approval of the International Transferring Certificate and This contract becomes valid after the employee passes medical examination. According to the information contained in the Transfer Matching System (TMS), the Claimant s International Transfer Certificate (ITC) was issued on 8 July On 8 March 2016, by means of an , the Claimant put the Respondent in default of payment of 900,000 as outstanding monthly salaries for January and February 2016, EUR as air ticket fees and flat rents in an unspecified amount. In his of 8 March 2016, the Claimant refers to previous s allegedly sent to the Respondent on 18 and 23 February 2016 and gives it a final deadline until 9 March 2016 to pay the allegedly outstanding amounts. Otherwise, he would consider the contract as terminated. According to the Claimant, the Respondent did not reply to his default notices. 5. On 11 March 2016, the Claimant lodged a claim before FIFA against the Respondent requesting the payment of the total amount of 5,400,000 plus EUR , broken down as follows: - 900,000 as outstanding salaries for January and February 2016, plus interest of 5% p.a. as from 10 March 2016; - 4,500,000 as compensation for breach of contract (i.e. 10 months x 450,000), plus interest of 5% p.a. as from 10 March 2016; - EUR as reimbursement of a flight ticket, plus interest of 5% p.a. as from 10 March In his claim, the Claimant claims to have purchased himself an air ticket from country A to country X via country Y, the cost of which was not reimbursed by the Respondent. Furthermore, he claims his monthly remuneration for January and February 2016 remained unpaid by the Respondent, in spite of his reminders. Therefore, he considers to have terminated the contract with the Respondent with just cause on 9 March Player D, from country S / Club X, from country X 2/7

3 7. In spite of having been invited to do so, the Respondent did not reply to the claim of the Claimant. 8. On 29 February 2016, the Claimant concluded a new employment contract with the Club Z, from country X, valid as from 1 March 2016 to 30 June 2016, as per which he is entitled to a monthly salary of 50,000 and a monthly accommodation fee of 9,000. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the 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 11 March 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 Procedural Rules). 2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country S player and a country X club. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA s letter dated 22 July 2016 by means of which the parties were informed of the composition of the Chamber, the members Santiago Nebot and Wouter Lambrecht refrained from participating in the deliberations in the case at hand, due to the fact that Mr Santiago Nebot has the same nationality as the Claimant. In order to comply with the prerequisite of equal representation of club and player representatives, also the member Wouter Lambrecht refrained from participating and thus the DRC adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. In continuation, the Chamber analysed which edition of the FIFA Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2014, 2015 and 2016), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 11 March The DRC then concluded that the 2015 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 Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In doing so, the DRC started by Player D, from country S / Club X, from country X 3/7

4 acknowledging the abovementioned facts of the case 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. 6. In this respect, the Chamber acknowledged that the parties to the dispute had signed a valid employment contract on 1 July 2015, in accordance with which the Respondent would pay the Claimant the remuneration detailed in point I.2. above. 7. In continuation, the DRC noted that, on 8 March 2016, the Claimant had put the Respondent in default of payment of allegedly outstanding salaries, ticket fees and flat rents, granting it a deadline until the following day to make the requested payments. Otherwise, he would consider the contract as terminated. According to the Claimant, the Respondent did not reply to his default notice and did not make any payments. Thus, the contract is to be considered as terminated by the Claimant on 10 March 2016, i.e. the day following the deadline for payment given to the Respondent in the default notice. 8. In view of the aforementioned circumstances, the Claimant claims from the Respondent the payment of outstanding remuneration as well as compensation for breach of contract in the amounts mentioned in point I.5. above. 9. Subsequently, the DRC noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. The Chamber was of the opinion that, by not presenting its position to the claim, the Respondent renounced to its right of defence and, thus, accepted the allegations of the Claimant. 10. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation on file; in other words, upon the statements and documents presented by the Claimant. 11. Having established the aforementioned, the Chamber deemed that the underlying issue in the present dispute was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Claimant on 10 March In this respect, the Chamber went on to analyse whether the specific reasons given by the Claimant for the unilateral termination on 10 March 2016, i.e. the alleged existence of outstanding salaries and ticket fees, after the issuance of a default notice, could be considered as a just cause for him to prematurely terminate his employment relationship with the Respondent. 13. At this point and for the sake of good order, the DRC deemed it appropriate to remind the parties of the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Player D, from country S / Club X, from country X 4/7

5 Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. 14. In this respect, the DRC first noted that the Claimant in its default notice of 8 March 2016, granted the Respondent a 1-day deadline to comply with its financial obligations towards him, otherwise the contract would be considered as terminated. The Chamber also noted that, in the default notice of 8 March 2016, the Claimant mentioned having allegedly sent the Respondent two previous notices, on 18 and 23 February No evidence of the existence of such previous reminders was however provided by the Claimant. As such, the DRC deemed that the 1-day deadline granted to the Respondent to make all claimed outstanding payments was extremely short and did not consist of a realistic chance to comply with the contract and avoid its premature termination, which should be considered only as an ultima ratio measure. 15. Furthermore, the Chamber noted that the Claimant claims that ticket fees in the amount of EUR , the costs of which he allegedly bore, remained unreimbursed by the Respondent. In this respect, and still bearing in mind the principle of burden of proof, the DRC noted that the only evidence of such provided by the Claimant is a screenshot of a flight booking from country Y to country X, on 22 January 2016, in the amount of EUR , in which no reference to the name of the player or of any other beneficiary is made. In view of the foregoing, the Chamber deemed that such piece of evidence was inconclusive as to whether the booking had in fact been made on behalf of the player and whether this amount had been paid by him. Thus, the Chamber concluded that this part of the Claimant s claim had to be rejected, due to a lack of documentary evidence. 16. In continuation, the Chamber acknowledged that the Claimant further claims that his salaries for the months of January and February 2016 had remained unpaid. In accordance with the principle of burden of proof, the DRC explained that it was clear that the Respondent bore the burden of proving that such amounts had in fact been paid to the Claimant. Since the Respondent failed to reply to the Claimant s claim, the Chamber concluded that these 2 salaries must be considered as still outstanding. 17. In view of all the foregoing, the Chamber noted that on 10 March 2016, i.e. the date of the termination of the contract by the Claimant, only two monthly salaries for January and February 2016 remained outstanding and that the only default notice for which evidence was provided had not effectively granted the Respondent the chance of making the claimed payments, which, had the Respondent remedied said default in payment, would have meant that the unilateral termination of the contract would have been avoided. Thus, the Chamber was of the opinion that the Claimant could not sufficiently demonstrate that the continuation of the employment relationship with the Respondent was no longer possible and that he consequently had a just cause to prematurely terminate the contract. Therefore, based on the evidence available on file, the Chamber concluded that the employment contract was terminated without just cause by the Player D, from country S / Club X, from country X 5/7

6 Claimant on 10 March Therefore, no compensation for breach of contract is due by the Respondent to the Claimant and that part of his claim must be rejected. 18. Having said the foregoing, the Chamber went on to determine the amounts still due to the Claimant by the Respondent as outstanding contractual dues, amounts which remained uncontested by the Respondent. 19. Taking into account the documentation presented by the Claimant in support of his petition, and as explained in points II.15. and II.16. above, the Chamber concluded that the Claimant is entitled to his contractually agreed remuneration for the period during which he in fact rendered his services to the club, i.e. until 10 March 2016, which remains unpaid until today. 20. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is to be held liable to pay to the Claimant outstanding remuneration in the total amount of 1,045,161, corresponding to the full salaries for the months of January and February 2016 (900,000), as well as 10 days in March 2016 (145,161). 21. In addition, the Chamber took note of the Claimant s request for the application of interests at a rate of 5% p.a. as from 10 March In this respect, the DRC deemed that an interest of 5% p.a. on the amount of 1,045,161 should apply as from 10 March 2016 until the date of effective payment. 22. Finally, the DRC concluded its deliberations in the present matter by establishing that any further claim of the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, player D, is partially accepted. 2. The Respondent, Club X, is ordered to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 1,045,161 plus 5% interest p.a. as from 10 March 2015 until the date of effective payment. 3. In the event that the amount due to the Claimant plus interest 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 of the Claimant is rejected. Player D, from country S / Club X, from country X 6/7

7 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 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 Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Marco Villiger Deputy Secretary General Encl. CAS directives Player D, from country S / Club X, from country X 7/7