Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 28 January 2016,
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 arisen between the parties
I.
Facts of the case
1.
On 28 January 2014, Player A from country B (hereinafter: the Claimant), and
Club C from country D (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid “for a period of 3 years”
until 31 December 2016.
2.
Pursuant to the contract, the Claimant was entitled to the following
remuneration:
- EUR 100,000 upon signature of the contract;
- EUR 17,000 as monthly salary.
3.
In addition, art. X.12 of the contract provides that “[the Respondent] will pay
to the [Claimant] unconditionally and irrevocably 10 / ten / % from any transfer
amount paid to the [Respondent] from any other Club during player’s contract
duration. The percentages shall be paid to [the Claimant] within 20 (twenty)
days after receipt of the transfer fee. If the transfer fee splits into instalments,
then the percentages shall be paid accordingly to [the Claimant]”.
4.
On 11 August 2014, the Respondent, the Claimant and Club E (hereinafter:
Club E) concluded an agreement for the definitive transfer of the Claimant
(hereinafter: the transfer agreement).
5.
In particular, art. 2 of the transfer agreement reads as follows:
“1. The fixed price of the right of the full competitive rights, subject matter of
the hereby contract is in amount of EUR 400 000 /four hundred thousand euro/,
without VAT included.
2. [Club E] pays the mentioned in [par.] 1 price no later than 01.09.2014 (…).
3. In addition to the fixed price in [par.] 1, [Club E] will pay to the [Respondent]
for the right to the full transfer and competitive rights, subject matter of the
hereby contract, a sum in amount of EUR 100 000 / one hundred thousand
euro/, without VAT included, in case that during the 2014/2015 season, [Club
E] qualifies for a participation in the group phase of the Champions League
/2014/2015 season/, organized by UEFA.
The compensation, according to [par.] 3 (in case it is due) will be paid from
[Club E] to the [Respondent] after receiving on behalf of [Club E] the respective
installment, due by UEFA to [Club E] for qualification in the group phase of the
tournament Champions League /2014/2015 season/”.
6.
On 11 August 2014, the Respondent and the Claimant concluded an “act of
mutual termination of an employment contract between a professional
Player A, country B / Club C, country D
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football player and a football club” (hereinafter: the termination agreement).
Said termination agreement states that “the [contract] is terminated by mutual
consent as from 11.08.2014. The financial relations between the parties are
settled and none of the Parties could have any claim with respect to the other
in the future”.
7.
On 19 October 2014, the Claimant sent an e-mail to the Respondent,
requesting the latter to pay him the 10% of the transfer fee paid by Club E in
accordance with art. X.12 of the contract.
8.
On 27 October 2014, the Respondent replied to the Claimant’s e-mail, stating
that “[it] noticed the delay of outstanding payment in line with Art. X12 of
[the contract]”. In continuation, and since “[it cannot] afford to clear this debt
to [him] in the current period”, the Respondent “offer[ed] [him] to reduce the
outstanding debt and make one lump sum payment in the range of EUR 25.000
(twenty five thousand) subject to further agreement between [the
Respondent] and [the Claimant]”.
9.
On 17 April 2015, the Claimant put once again the Respondent in default of
paying him the amount of EUR 40,000.
10.
On 15 July 2015, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the following:
- EUR 40,000 plus 5% interest p.a. as from 21 September 2014;
- EUR 10,000 plus 5% interest p.a. “as from the date of receiving the amount
by the [Respondent] to the date of effective payment”.
- the costs and expenses of the proceedings to be borne by the Respondent.
11.
In his claim, the Claimant explains that Club E qualified for the group stage of
the 2014-2015 Champions League, and that therefore, the extra amount of
EUR 100,000 provided for in art. 2.3 of the transfer agreement fell due.
Accordingly, and since the transfer fee eventually amounted to EUR 500,000,
the Claimant considers being entitled to an amount of EUR 50,000 in
accordance with art. X.12 of the contract.
12.
In its reply to the claim, the Respondent outlines that the Claimant waived his
right to claim any amount against it by means of the termination agreement.
In this regard, the Respondent asserts the transfer agreement was signed
before the termination agreement, which, according to the Respondent,
demonstrates that the Claimant was aware that he was waiving his right to
claim the percentage established in art. X.12 of the contract. In addition, the
Respondent outlines that the aforementioned Claimant’s right was supposed
to arise twenty days after the receipt of the transfer fee and that is the reason
Player A, country B / Club C, country D
3
why the parties referred in the termination agreement to the claims that might
exist “in the future”.
13.
In continuation, the Respondent explains that the e-mail sent on 27 October
2014 was sent by mistake and can in no way be interpreted as an
acknowledgement of debt. In this regard, the Respondent explains that after
sending the e-mail, its procurator realised that he made a mistake and
therefore, sent a new e-mail to the Claimant on 7 November 2014, a copy of
which was provided by the Respondent, informing the Claimant that his
request was groundless since he had waived his rights by means of the
termination agreement.
14.
Furthermore, the Respondent refers to a decision taken by the FIFA DRC on 24
March 2014 by means of which, in a dispute having allegedly the same factual
basis, the FIFA DRC rejected the Claimant’s claim on the basis that the latter
did not prove that his right to a percentage of the transfer fee was excluded
from the obligations referred to in the termination agreement.
15.
In addition, the Respondent alleges that it received an offer of EUR 550,000
for the Claimant but eventually decided to accept the offer received from Club
E of a lower nominal value due to the Claimant’s waiver of his right. In
particular, the Respondent emphasises that the perspective of playing the
Champions League as well as the higher value of the contract with Club E
compensated the Claimant’s waiver of his right.
16.
Finally, the Respondent alleges that it has still not received the additional
amount of EUR 100,000 due in case of participation in the Champions League
and that a claim has been lodged in front of the courts of country D in this
regard.
17.
In his replica, the Claimant asserts that as a principle, a waiver of a future right
is invalid. In this respect, the Claimant outlines that when he signed the
termination agreement, the transfer fee and his right resulting therefrom
were not due yet. Accordingly, the Claimant holds that he could not have
renounced to a non-existing right.
18.
In addition, the Claimant argues that said waiver is a standard and mandatory
element of the termination form, which indicates that the Respondent does
not owe him any “labor remuneration”. Moreover, the Claimant affirms that
he was the weaker party in the negotiations and relied on the Respondent’s
good faith.
Player A, country B / Club C, country D
4
19.
Furthermore, the Claimant sustains that the Respondent’s allegation as to the
offer received is irrelevant since the negotiations with Club F were interrupted
on 7 August 2014, i.e. 4 days before the signature of the termination
agreement.
20.
In continuation, the Claimant explains that he has never received the
Respondent’s correspondence allegedly sent on 7 November 2014.
21.
The Claimant further states that the factual basis of the FIFA DRC’s decision
referred to in the Respondent’s submission is different from the one of the
case at hand. In particular, the Claimant highlights that in the referred case,
the Claimant was transferred on a loan basis.
22.
Finally, the Claimant affirms that the Respondent will have to pay him EUR
10,000 within 20 days of receipt of the payment of the additional amount of
EUR 100,000 from Club E.
23.
In its final comments, the Respondent asserts that the Claimant’s argument
regarding the invalidity of future claims does not rest upon any legal basis. In
this respect, the Respondent explains that under the law of country D and
Switzerland, employees cannot waive “mandatory law claims” prior to the
termination of the employment. Having stated this, the Respondent explains
that in the case at hand, the claim arises from the employment contract, and
not from a mandatory law, and should therefore be considered existing even
if conditional and not future.
24.
In continuation, the Respondent alleges that from an economic perspective,
the transfer fee agreed with Club E was not beneficial taking into account that
it bought the Claimant six months before for an amount of EUR 740,000.
Considering the above, the Respondent sustains that it would have make no
sense to further reduce the amount actually received by paying a part of it to
the Claimant. In this regard, the Respondent stresses that the waiver represents
a compromise between the interests of both parties.
25.
Finally, the Respondent maintains that the Claimant cannot be deemed as the
weaker party, specially considering his remuneration. The Respondent further
adds that it was the Claimant’s responsibility to make sure that he was aware
of the legal consequences of the document signed.
II.
Considerations of the DRC judge
1.
First, 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
Player A, country B / Club C, country D
5
submitted to FIFA on 15 July 2015. 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 judge referred to art. 3 par. 2 and 3 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 2015), he
is competent to decide on the present litigation, which concerns an employmentrelated dispute with an international dimension between a player from country B
and a club from country D.
3.
Moreover, 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 CHF 100,000.
4.
Furthermore, the DRC judge analysed which edition of the 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 matter was
submitted to FIFA on 15 July 2015, the 2015 edition of said Regulations (hereinafter:
the Regulations) is applicable to the present matter 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 by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file. However, the DRC judge emphasised that in
the following considerations he will refer only to 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 28 January 2014, and that, on 11 August 2014, the
Respondent, the Claimant and Club E concluded an agreement for the definitive
transfer of the Claimant. The DRC judge further noted that on the same date, the
Claimant and the Respondent concluded a termination agreement.
7.
In continuation, the DRC judge noted that the Claimant asserts that the Respondent
had failed to remit him the amount of EUR 50,000, allegedly corresponding to 10%
of the alleged transfer fee paid by Club E to the Respondent, in accordance with
art. X.12 of the contract. In this respect, the DRC judge noticed that the Claimant
alleges that the Respondent acknowledged its debt in an e-mail sent on 27 October
2014.
8.
Equally, the DRC judge took note of the position of the Respondent, which stresses
that the Claimant waived his right. In support of its assertion, the DRC judge
observed that the Respondent outlines that by means of the termination
Player A, country B / Club C, country D
6
agreement, the parties agreed that “[t]he financial relations between [them] are
settled and [that] none of [them] could have any claim with respect to the other in
the future”. In addition, the DRC judge noted that the Respondent sustains that the
e-mail of 27 October 2014 was sent by mistake and that a rectification was sent by
e-mail on 7 November 2014.
9.
At this stage, the DRC judge recalled the content of art. X.12 of the contract, which
stipulates that “[the Respondent] will pay to the [Claimant] unconditionally and
irrevocably 10 / ten / % from any transfer amount paid to the [Respondent] from
any other Club during player’s contract duration. The percentages shall be paid to
the [Claimant] within 20 (twenty) days after receipt of the transfer fee. If the
transfer fee splits into instalments, then the percentages shall be paid accordingly
to the [Claimant]”.
10.
In continuation, the DRC judge pointed out that in its e-mail sent on 27 October
2014, i.e. after the signature of the termination agreement, the Respondent
“noticed the delay of outstanding payment in line with Art. X12 of [the contract]”,
at first sight acknowledging a debt towards the Claimant. The DRC judge further
focused on the Respondent’s argument according to which said e-mail was sent by
mistake and was rectified by a later e-mail sent on 7 November 2014. In this regard,
after referring to the content of 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, the DRC judge emphasised that the Respondent did not
submit any element evidencing that said e-mail was actually sent and received by
the Claimant. In view of the above, and considering the Respondent’s failure to
carry the burden of proof that the e-mail dated 27 October 2014 did not express its
real intention, the DRC judge had to conclude that said e-mail constituted a valid
acknowledgment of debt by means of which the Respondent recognised its
obligation to pay the Claimant 10% of the transfer fee received from Club E.
11.
Having stated the foregoing, the DRC judge proceeded to the determination of the
outstanding debt. In this regard, the DRC judge deemed it important to recall the
content of art. 2 of the transfer agreement, which reads as follows:
“1. The fixed price of the right of the full competitive rights, subject matter of
the hereby contract is in amount of EUR 400 000 /four hundred thousand euro/,
without VAT included.
2. [Club E] pays the mentioned in [par.] 1 price no later than 01.09.2014 (…).
3. In addition to the fixed price in [par.] 1, [Club E] will pay to the [club] for
the right to the full transfer and competitive rights, subject matter of the
hereby contract, a sum in amount of EUR 100 000 / one hundred thousand
euro/, without VAT included, in case that during the 2014/2015 season, [Club
E] qualifies for a participation in the group phase of the Champions League
/2014/2015 season/, organized by UEFA.
Player A, country B / Club C, country D
7
The compensation, according to [par.] 3 (in case it is due) will be paid from
[Club E] to the [Respondent] after receiving on behalf of [Club E] the respective
installment, due by UEFA to [Club E] for qualification in the group phase of the
tournament Champions League /2014/2015 season/”.
12.
In this respect, the DRC judged underlined that it remained uncontested that the
amount of EUR 400,000 was paid by Club E to the Respondent on 1 September 2014,
thereby entitling the Claimant to 10% of the latter amount, i.e. EUR 40,000.
13.
The DRC judge further noted that the transfer agreement provided for an extra
payment of EUR 100,000 in case Club E qualified for the group stage of the 20142015 UEFA Champions League. In this regard, the DRC judge deemed it of utmost
importance to point out that the Claimant’s right as per art. X.12 of the contract
only arises twenty days after the payment of EUR 100,000 is made by Club E. Having
said this, the DRC judge recalled the content of art. 12 par. 3 of the Procedural Rules
and concluded that the Claimant had failed to satisfactorily carry the burden of
proof that the Respondent had actually received such payment from Club E and that
his right deriving therefrom had thus fallen due.
14.
On account of the aforementioned, the DRC judge decided that, in accordance with
the general legal principle of pacta sunt servanda, the Respondent is to be held
liable to pay the Claimant the amount of EUR 40,000.
15.
In addition, and taking into account the Claimant’s claim as well as the content
of art. X.12 of the contract, the DRC judge decided that the Claimant is entitled
to 5% interest p.a. on said amount as of 22 September 2014 until the date of
effective payment.
16.
Moreover, the DRC judge rejected any claim for procedural compensation in
accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution
Chamber’s respective longstanding jurisprudence in this regard.
17.
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 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 EUR 40,000 plus 5%
Player A, country B / Club C, country D
8
interest p.a. on said amount as from 22 September 2014 until the date of
effective payment.
3.
In the event that the amount plus interest due to the Claimant in accordance
with the above-mentioned point 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.
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: [email protected]
www.tas-cas.org
For the DRC judge:
Marco Villiger
Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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