Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 February 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Monsen (Norw ay ), member
Joaquim Ev angelis ta (Portugal), member
Taku Nom iy a (Japan), member
Todd Durbin (US A), member
on the claim presented by the player,
Play er 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 cas e
1.
According to the information in the Transfer Matching System (TMS), on 15
July 2012, the Player of Country B, Player A (hereinafter: the Claimant), and
the Club of Country D, Club C, (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid as from 20 July 2012
until 30 July 2015.
2.
On 10 July 2014, the Claimant, the Respondent and the Club of Country B, Club
E, signed a document titled “Contract” (hereinafter: the transfer agreement).
3.
In accordance with the transfer agreement, the Claimant, the Respondent and
Club E agreed inter alia upon the following:
“2) THE PERMANENT TRANSFER / TRANSFER FEE / RELEASE
a) Without prejudice to the provisions of clause 2(i) of this CONTRACT, [the
Claimant] shall, [the Respondent]’S written request, on or before the 15th of
July 2014, fully, unconditionally, finally and perpetually release [the
Respondent] from any and all of [the Respondent]’S liabilities and /or
obligations arising from or related to any and all contracts (including,
without limitation, employment contracts) entered into by and between
[the Claimant] and [the Respondent].
(….)
i) [the Respondent] shall pay to the [the Claimant] the total amount of EUR
600,000 as follows:
- EUR 150,000 on or before 30 August 2014;
- EUR 150,000 on or before 30 September 2014;
- EUR 150,000 on or before 30 October 2014;
- EUR 150,000 on or before 30 November 2014.”
4.
Moreover, the Claimant signed an undated document titled “RELEASE”
(hereinafter: the release), which according to the Respondent, was signed on
10 July 2014. The release established the following:
“Without prejudice to the provisions of clause 2(i) of the contract signed, on
10 July 2014, by and between [the Respondent], Club E, and myself, I, Player A,
hereby:
(1) Expressly, irrevocably, fully, unconditionally, finally and perpetually
release [the Respondent] from:
a. any and all of [the Respondent]’s liabilities and/or obligations
arising from or related to any and all contracts (including,
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without limitation, employment contracts) entered into by and
between [the Respondent] and myself;
b. (…)
c. Any obligations of [the Respondent] towards me;
(2) Irrevocably and perpetually covenant not to sue, and/or bring any other
legal action against [the Respondent]…for any and all past, present,
and/or future claims, of any nature, whether known or unknown,
whether suspected or unsuspected, arising from or related to any and
all contracts (including, without limitation, employment contracts)
entered into by and between [the Respondent] and myself;
(3) Specifically, expressly and irrevocably agree that this document may be
pleaded as an absolute and final bar to any complaint or legal
proceeding that may hereafter be prosecuted by me, arising from or
related to any and all contracts (including, without limitation,
employment contracts) entered into by and between (the club) and
myself.
Nothing herein is intended to prejudice [the Respondent]’s rights under the
contract signed, on 10 July 2014, by and between [the Respondent], CLUB
E, and myself.
…
INTENDING TO BE LEGALLY BOUND
(SIGNATURE)
____________________________
Player A”
5.
Allegedly, by correspondence dated 20 March 2015, the Claimant put the
Respondent in default of payment, via email and facsimile, of EUR 600,000
setting a 5 days’ time limit to the Respondent in order to remedy the default.
Furthermore, allegedly on 6 July 2016, the Claimant put the Respondent in
default of payment, via email, of EUR 600,000 setting a 10 days’ time limit to
the Respondent in order to remedy the default.
6.
On 7 July 2016, the Claimant lodged a claim against the club in front of FIFA
asking that the Respondent be ordered to pay to him outstanding
remuneration in the amount of EUR 600,000. The Claimant further asks to be
awarded interest of 5% p.a. as of 30 August 2014.
7.
According to the Claimant, the Respondent has not fulfilled its obligation
towards him as agreed in the transfer agreement, namely, the payment of EUR
600,000 in accordance with art. 2 (i) of the transfer agreement.
8.
In its reply, the Respondent rejected the player’s claim. First, the club sustained
not having received any of the Claimant’s default notices, as according to it,
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the default notice was sent to the wrong facsimile number and an email “is
not approved as an away of communication”. Moreover, the Respondent held
in respect to the default notices sent via email, that “the one sent to Mr F it’s
as well not received since Mr F is no more working with Club C since
11/11/2015”.
9.
Moreover, the Respondent maintained that the parties, in accordance with the
principle of Pacta Sunt Servanda, had already settled all the matter between
them by means of the release signed by the Claimant (cf. point 4 above).
10.
Alternatively, the Respondent requested that in case that the claim is not
dismissed, and it is decided that the Claimant is entitled to receive the claimed
amounts, the amounts that are in fact prescribed should be deducted.
11.
The Claimant submitted his replica, in which he repeated his initial position
and request for relief. In this respect, the Claimant sustained that the
Respondent “never denies that he owes the sum of EUR 600,000, nor does he
ever deny that he has not made any of the payments”.
12.
In respect to the default notices, the Claimant held that they were sent to the
correct facsimile number and that the email address to which he sent the
default notices was used in the past to communicate with the Respondent.
Moreover, the player argued that the club is not denying that it received the
emails.
13.
The Respondent submitted its duplica, where it repeated its position.
II.
Cons iderations of the Dis pute Res olution Cham ber:
1.
First of all, the Dispute Resolution Chamber (hereinafter: DRC or Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, the DRC took note that the present matter was submitted to FIFA on 7
July 2016. Consequently, the DRC concluded that 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 and 2017 editions of the Procedural
Rules).
Subsequently, the Chamber referred to art. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition 2016) the
2.
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Dispute Resolution Chamber is competent to deal with the matter at stake,
which concerns an employment–related dispute with an international
dimension between a Player of Country B and a Club of Country D.
3.
The competence of the Chamber having been established, the Chamber
analysed 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,
it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (edition 2016), and considering that the
present matter was submitted to FIFA on 7 July 2016, the 2016 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 Chamber 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 Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence which it considered for the assessment of the matter at hand. In
particular, the Chamber recalled that in accordance with art. 6 par. 3 of
Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or
evidence generated or contained in the Transfer Matching System (TMS).
5.
In this respect and first of all, the DRC acknowledged that according to the
information in the TMS, on 15 July 2012, the Claimant and the Respondent
signed the contract, valid as from 20 July 2012 until 30 July 2015.
6.
Furthermore, the Chamber observed that, on 10 July 2014, the Claimant, the
Respondent and the Club of Country B, Club E, signed the transfer agreement
by means of which, inter alia, it was agreed that:
In accordance with art. 2 par “i” (hereinafter: clause/art. 2(i) of the
transfer agreement), the Respondent undertook the obligation to pay
the Claimant EUR 600,000, in 4 instalments of EUR 150,000 each,
payable on or before 30 August 2014, 30 September 2014, 30 October
2014 and 30 November 2014, respectively;
In accordance with art. 2 par “a”, the Claimant agreed to release the
Respondent from all of its obligations arising from or related to any and
all contracts entered into by and between the Claimant and the
Respondent. The clause explicitly stipulated that this is agreed without
prejudice to what was stipulated in clause 2(i) of the transfer
agreement.
Player A, Country B / Club C, Country D
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7.
Equally, the members of the Chamber noted that it was undisputed that on
the same day, i.e. on 10 July 2014, the Claimant signed the release, the
wording of which can be verified in detail in point I.4 above.
8.
In continuation, the Chamber noted that the Claimant, on the one hand,
alleged that the Respondent failed to fulfil its obligations towards him as
established in art. 2(i) of the transfer agreement amounting to EUR 600,000.
The Chamber also took due note that the Claimant sustained having put the
club in default on two occasions, namely, on 20 March 2015 and 6 July 2016.
9.
The DRC further noted that the Respondent, on the other hand, rejected the
claim of the Claimant and referred to the release signed by the player. The
DRC took note that the Respondent asserted that by means of the release, the
parties have already settled all the matters between them and therefore, there
is no overdue amount payable to the Claimant. Moreover, the Respondent
held not having received the Claimant’s default notices and maintained that if
any amounts are granted to the Claimant, the prescribed amounts should be
deducted.
10.
In this moment, the members of the Chamber highlighted the contents of art.
25 par. 5 of the Regulations, according to which, inter alia, the Dispute
Resolution Chamber shall not hear any case subject to the said Regulations if
more than two years have elapsed since the event giving rise to the dispute.
11.
In this respect, the Chamber deemed that, the claim having been lodged on 7
July 2016, and the Claimant’s request for outstanding remuneration falling due
at the earliest, on 30 August 2014 in accordance with the transfer agreement,
must not be considered barred by the statute of limitations in accordance with
art. 25 par. 5 of the Regulations, and therefore, the claim is admissible.
12.
After analysing the opposed positions of the parties, and since evidently,
following its argumentation, the Respondent has not provided any proof of
payment of the amount requested by the Claimant, the Chamber concluded
that that the underlying issue in the matter at hand is to establish if in fact by
means of the release, the Claimant waived his rights to receive the amounts as
per the transfer agreement or not.
13.
For the sake of completeness, the Chamber wished to point out that it duly
observed that the reception of the default notices was contested by the
Respondent. In this regard, the DRC recalled the contents of art. 12 par. 3 and
par. 6 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 and took note that
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the Claimant held that he sent the corresponding default notices via facsimile,
but, did not submit a positive facsimile report that could corroborate his
allegation. In respect to the default notices sent via email, the members of the
Chamber considered the contrasting allegations between the parties and the
evidence provided in this regard, and concluded that it cannot be established
with total certainty if these default notices were indeed received by the
Respondent. However, the DRC wished to highlight that the reception or lack
of it of the default notices sent by the Claimant bears no impact in the
underlying issue in the matter at hand.
14.
At this point, the members of the DRC deemed it appropriate to recall the
wording of the aforementioned release and to emphasize certain parts of it, as
follows:
“Without prejudice to the provisions of clause 2(i) of the contract signed, on 10
July 2014, by and between [the Respondent], Club E, and myself, I, Player A,
hereby:
(1) Expressly, irrevocably, fully, unconditionally, finally and perpetually
release [the Respondent] from:
d. any and all of [the Respondent]’s liabilities and/or obligations
arising from or related to any and all contracts (including,
without limitation, employment contracts) entered into by and
between [the Respondent] and myself;
e. (…)
f. Any obligations of [the Respondent] towards me;
(2) Irrevocably and perpetually covenant not to sue, and/or bring any other
legal action against [the Respondent]…for any and all past, present,
and/or future claims, of any nature, whether known or unknown,
whether suspected or unsuspected, arising from or related to any and
all contracts (including, without limitation, employment contracts)
entered into by and between [the Respondent] and myself;
(3) Specifically, expressly and irrevocably agree that this document may be
pleaded as an absolute and final bar to any complaint or legal
proceeding that may hereafter be prosecuted by me, arising from or
related to any and all contracts (including, without limitation,
employment contracts) entered into by and between (the club) and
myself.
Nothing herein is intended to prejudice [the Respondent]’s rights under the
contract signed, on 10 July 2014, by and between [the Respondent], CLUB
E, and myself”.
15.
Focusing its attention on the underlined parts above, the DRC unanimously
deemed that the wording of the release signed by the Claimant on 10 July
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2014, is a clear and explicit reservation of the Claimant’s right to claim the
amount established in clause 2(i) of the transfer agreement. Consequently, it is
clear that the amount established in the transfer agreement must be paid to
the Claimant and that the latter by no means waived his right to receive them.
16.
Thus, the DRC deemed that the Respondent’s argument in this regard had to
be rejected and that the Claimant was entitled to claim from it the payment of
any unpaid amounts established in the transfer agreement.
17.
In this context, the DRC noted that not only did the Respondent not provide
any proof of having paid to the Claimant the amount of EUR 600,000 claimed
as outstanding, it also did not even deny having failed to pay the Claimant
such amount as per the transfer agreement of 10 July 2014.
18.
Consequently, the DRC decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the
Claimant overdue payables in the total amount of EUR 600,000.
19.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the
relevant payments, as of the day following the day on which the relevant
payments fell due, until the date of effective payment.
20.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claim lodged by the Claimant is
rejected.
Player A, Country B / Club C, Country D
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant w ithin 30 day s as from
the date of notification of this decision, outstanding remuneration in the
amount of EUR 600,000.
4.
Within the same deadline, the Respondent has to pay to the Claimant interest
as follows:
5.
-
5% p.a. over the amount of EUR 150,000 as from 31 August 2014 until
the date of effective payment;
-
5% p.a. over the amount of EUR 150,000 as from 1 October 2014 until
the date of effective payment;
-
5% p.a. over the amount of EUR 150,000 as from 31 October 2014 until
the date of effective payment;
-
5% p.a. over the amount of EUR 150,000 as from 1 December 2014
until the date of effective payment.
In the event that the amount plus interest due to the Claimant in accordance
with the above-mentioned numbers 3. and 4. 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.
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6.
Any further claim lodged by the Claimant is rejected.
7.
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 m otiv ated decis ion (legal remedy):
According to article 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).
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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
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