Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 February 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Monsen (Norw ay ), member
S téphane Burchkalter (France), member
Philippe Diallo (France), member
Jos eph Bell (Cameroun), 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.
On 16 July 2015, the Player of Country B, Player A (hereinafter: the player or
Claimant) and the Club of Country D, Club C (hereinafter: the club or Respondent)
concluded an employment agreement (hereinafter: the contract), valid from 16 July
2015 until 31 May 2017.
2.
According to the contract, the player was entitled to receive inter alia the following
amounts:
For the 2015/2016 season:
9 monthly payments of EUR 35,000 each for the months of August,
September, October, November and December 2015, as well as February,
March, April and May 2016, due on the 30th day of the respective month, the
salary for February 2016 being due on 28 February 2016;
1 monthly payment of EUR 60,000 for the month of January 2016, due on 30
January 2016;
For the 2016/2017 season:
9 monthly payments of EUR 35,000 each for the months of August,
September, October, November and December 2016, as well as February,
March, April and May 2017, due on the 30th day of the respective month, the
salary for February 2017 being due on 28 February 2017;
1 monthly payment of EUR 60,000 for the month of January 2017, due on 30
January 2017.
3.
On 31 March 2016, the player signed a document, referred to as ‘Positive/negative
confirmation letter to inspector’, which holds the following clause: ‘I personally
confirm with this letter that Club C still owe me 230.000 (thirty thousand) EUR for
the period until 31.12.2015. Also Club has to pay another 200.000 (two hundred
thousand) EUR for the period from 31.12.2015 until 31.05.2016. I accept to receive
these payments as 230.000 (two hundred thirty thousand) EUR until 30.06.2016’.
4.
On 23 January 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club has to be ordered to pay him the total amount of EUR
530,000, specified as follows:
-
EUR 230,000 as outstanding salaries, related to the 2015/2016 season;
EUR 300,000 as outstanding salaries, related to the 2016/2017 season.
Player A, Country B / Club C, Country D
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5.
After the claim of the player was sent to the club for reply on 3 February 2017, both
parties confirmed to FIFA that on 23 February 2017, they concluded a document
referred to as ‘Settlement protocol’ (hereinafter: the settlement agreement), in
order to amicably settle the matter at hand. According to paragraph 1 of the
settlement agreement, the player was entitled to receive the amount of EUR 530,000
‘on 31.05.2017 via the collectibles of Club C from the Football Federation of Country
D’.
6.
Furthermore, the settlement agreement inter alia holds the following clauses: ‘2. […]
Mr Player A hereby releases the Club from all its obligations derived from the
Employment contract such as but not limited to remuneration, compensation. […] 3.
If the club, Club C breaches its obligations set forth in paragraph 1 of this Settlement
Protocol, the club undertakes to pay to Mr Player A the corresponding amount plus
1% interest per month from 01.06.2017 till 30.06.2017 and 3% interest per month
from 01.07.2017 until the date of effective payment […] 5. Mr Player A hereby states
and agrees to withdraw his claim against Club C before FIFA. The Parties have agreed
to submit this Settlement Agreement to FIFA and the aforesaid claim would be
withdrawn’.
7.
On 7 June 2017, the player lodged a new claim against the club in front of FIFA,
requesting that the club be ordered to pay him the total amount of EUR 530,000,
based on paragraph 1 of the settlement agreement dated 23 February 2017.
Furthermore, the player requested the DRC to impose sporting sanctions on the club.
8.
According to the player, the club failed to pay him the amount of EUR 530,000 by
no later than 31 May 2017. The player explains that on 2 June 2017, he put the club
in default for the payment of EUR 530,000, providing a deadline to pay until 6 June
2017, however to no avail.
9.
In its reply to the player’s claim dated 7 June 2017, the club explained that based on
the settlement agreement dated 23 February 2017, ‘the player’s receivables would
be paid directly via the club’s collectibles accrued from the Football Federation of
Country D’ and that the player will receive the respective amount ‘when his
assignment turn will come in order’.
10.
Furthermore, the club argued that the settlement agreement dated 23 February 2017
‘has an assignment nature and carries the same force as a judicial decision pursuant
to Article 35/A of Law No. 1136 of Country D’. As a result the club considers that the
claim of the player has to be rejected, as ‘in this aspect and as a general rule of the
legal perspective, it is needless to say that an adjudicated issue cannot be re-litigated,
i.e. res iudicata’.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 7 June 2017.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 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 (editions 2016 and
2018) the Dispute Resolution Chamber is, in principle, 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.
Before entering into the substance of the present matter and while exercising its
duty to analyse ex officio the admissibility of every claim lodged in front of it, the
Chamber noted that the Respondent, as a preliminary remark, alleged the
inadmissibility of the Claimant’s claim, claiming that it would have been affected by
res iudicata, as the settlement agreement ‘has an assignment nature and carries the
same force as a judicial decision pursuant to Article 35/A of Law No. 1136 of Country
D’ (cf. point I.10 above).
4.
In this respect, the DRC wished to briefly recall that on the basis of the principle of
res iudicata, a decision-making body is not in a position to deal with the substance
of a case in the event that another deciding body has already dealt with the same
matter by passing a final and binding decision on it. Furthermore, the Chamber
underlined that the principle of res iudicata is applicable if, cumulatively and
necessarily, the parties to the disputes and the object of the matter in dispute are
identical.
5.
Bearing in mind the foregoing, the Chamber noted that from the information on
file, it does not appear that another deciding body has already dealt with the same
matter by passing a final and binding decision. What is more, the reasoning of the
club that the settlement agreement has to be considered as a final and binding
decision cannot be followed, as none of the parties who signed the settlement
agreement, i.e. the player and the club, can be considered as deciding bodies.
6.
In light of the above, the Chamber unanimously decided that the general legal
principle of res iudicata does not apply to the matter at hand, and that the claim of
the player is admissible, since FIFA has competence to deal with the substance of the
Player A, Country B / Club C, Country D
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present matter, which concerns an employment relate dispute with an international
dimension.
7.
Having concluded that the Claimant’s claim is admissible, the Chamber went on to
analyse which regulations 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 (editions 2016 and 2018), and
considering that the present claim was lodged on 7 June 2017, the 2016 edition of
said regulations (hereinafter: Regulations) is applicable to the matter at hand as to
the substance.
8.
Its competence and the applicable regulations having been established, the Chamber
entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. 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.
9.
In this respect, the Chamber acknowledged that on 16 July 2015, the parties signed
an employment contract valid between 16 July 2015 and 31 May 2017. In accordance
with said contract, the player was entitled to receive, inter alia, a monthly salary of
EUR 35,000, as well as sign-on fee of EUR 60,000 per season.
10.
In continuation, the members of the Chamber noted that the player alleged that at
the end of March 2016, the club failed to pay him an amount of EUR 230,000 and
that another amount of EUR 200,000 would fall due on 31 May 2016. What is more,
the player confirmed towards the club that he would accept to receive an amount
of EUR 230,000 on 30 June 2016.
11.
Moreover, the members noted that on 23 January 2017, the player lodged a first
claim before FIFA, claiming the payment of EUR 530,000, corresponding to EUR
230,000 as outstanding payments for the 2015/2016 and EUR 300,000 as payments
due for the 2016/2017 season. After the club was asked for its position to said claim,
the player and the club concluded a settlement agreement, on the basis of which
the player was entitled to receive the total amount of EUR 530,000 from the club,
payable by no later than 31 May 2017.
12.
Furthermore, the Chamber took note that on 7 June 2017, the player again reverted
to FIFA, explaining that the club failed to pay him the amount of EUR 530,000 on 31
May 2017, even after having been put in default on 2 June 2017 and given a final
deadline for payment until 6 June 2017. Consequently, the player requested FIFA to
be awarded the payment of EUR 530,000.
Player A, Country B / Club C, Country D
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13.
Equally, the members of the Chamber took note of the reply of the club on the
substance of the dispute, which explained that it would pay the amount it owed to
the player as soon as it would have received its collectibles form the Football
Federation of Country D.
14.
Bearing in mind the abovementioned facts, the positions of both parties as well as
the principle of burden of proof, as displayed in art. 12 par. 3 of the Procedural Rules,
the Chamber went on to analyse whether the Respondent had presented any
substantial argument, which would justify the uncontested non-payment of the
amount due to the Claimant as per the settlement agreement. In this respect, the
Chamber turned its attention to the club’s argument that it would pay the amount
the player was entitled to after it had received its collectibles form the Football
Federation of Country D. In this respect, the Chamber was of the firm opinion that
the fulfilment of a contractual obligation cannot be made dependant on receiving
a payment from a third party. What is more, the alleged payment of collectibles from
the Football Federation of Country D to the club, and the alleged consequences
thereof, is a circumstance, which can by no means be held against the player, who
had no influence whatsoever on these processes and bore no responsibility in this
regard.
15.
In view of all the above and taking into account that the club did not provide any
valid reasons why it did not pay the amount of EUR 530,000 to the player as per the
settlement agreement undisputedly concluded between the parties, the Chamber
decided that, in accordance with the general legal principle of pacta sunt servanda,
the club must fulfil its obligations as per the settlement agreement. Consequently,
the club is held liable to pay the outstanding amount of EUR 530,000 to the player.
16.
Finally, the Chamber concluded its deliberations in the present matter by
establishing that the Claimant’s claim was admissible and accepted.
III.
Decision 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 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, the amount of EUR 530,000.
4.
In the event that the aforementioned sum is not paid by the Respondent within the
stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
Player A, Country B / Club C, Country D
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aforementioned time limit and the present matter shall be submitted, upon request,
to FIFA’s Disciplinary Committee for consideration and a formal decision.
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 m otiv ated 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 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
Player A, Country B / Club C, Country D
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