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 Antoine Bell (Cam eroon), member
on the claim presented by the player,
Play er A, country A
as Claimant
against the club,
Club B, from country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the cas e
1. On 15 June 2013, the player, player A, from country A (hereinafter: the
Claimant) and the Club B, from country B (hereinafter: the Respondent), signed a
document named “Private Instrument for preliminary agreement” (hereinafter:
the private agreement), valid from the date of the signature until 15 June 2014.
2. According to clause III.1 of the private agreement, the Claimant was entitled to a
monthly salary of 100,000, 30% in accordance with country B Labour Law and
70% in the contract of image rights. In this regard, clause III.2 of the private
agreement established that “the payment in advance of the amount
correspondent to its monthly remuneration of the last month of the contract in
the moment of the signature”.
3. The Claimant was also entitled to receive a monthly housing allowance for 2,000
and eight flight tickets country A / country B / country A for the Claimant or a
Claimant’s family member.
4. Clause VI of the private agreement established that in case of termination of the
contract, the responsible party would have to pay the penalty of 800,000.
5. On 20 June 2013, the Claimant and the Respondent signed another document
named “Special Sports Labor Contract” (hereinafter: the standard contract), valid
from the date of signature until 30 June 2014, according to which the Claimant
was entitled to a monthly salary of 20,000.
6. On that basis, clause 18 of the standard contract established a “sporting
compensation” of 1,500,000 in case of a national transfer and of USD 1,500,000
in case of an international transfer. Moreover, the standard contract determined
that the “Sporting compensation” shall apply in case the Claimant is transferred
during the contractual term or “in the event the [Claimant] return to its
professional activities in another entity of practice of sports (club), within 30
(thirty) months”.
7. On 20 June 2013, the Claimant and the Respondent signed a third document
called “License Agreement for Use of Image, Voice, Name, and Sports Nickname
of the Profesional Football Athlete” (hereinafter: image rights contract) with a
company, regarding the exploitation of the Claimant’s image rights, valid from
the date of the signature until 30 July 2014.
8. On 3 January 2014, the Claimant put the Respondent in default, requesting
428,000, amount corresponding to late salaries, image rights and housing
allowances.
Player A, from country A / Club B, from county B
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9. On 22 January 2014, the Claimant and the Respondent signed a document
named “private instrument of contract termination and payment adjustment”
(hereinafter: the termination agreement”), by means of which the Respondent
acknowledged a debt to the Claimant of 428,000 amount corresponding to late
salaries, image rights and housing allowance. Furthermore, the termination
agreement referred to clause VI of the private agreement, in which it was
established a “fine for termination of such contract in the amount of 800,000”.
10. In this respect, in accordance with the termination agreement, the parties
mutually agreed to “rescind the [private agreement], as well as the employment
contract signed between the parties, so as not to remain at all any financial or
obligatory onus of legal or contractual nature between the parties.”.
11. Moreover, according to the termination agreement it was agreed that “with the
termination, [the Respondent], since now, is obliged to terminate [the standard
contract] signed with [the claimant] within 24 (twenty-four) hours from the
signing of this termination”.
12. According to clause 2 of the termination agreement, the Respondent must pay
to the Claimant the amount of 720,000 as follows:
-
“1st instalment, in the amount of 40,000 (forty thousand), to be paid until
5 May 2014;
2nd instalment, in the amount of 40,000 (forty thousand), to be paid until
5 July 2014;
3rd instalment, in the amount of 40,000 (forty thousand), to be paid until 5
August 2014;
4th instalment, in the amount of 40,000 (forty thousand), to be paid until 5
September 2014;
5th instalment, in the amount of 40,000 (forty thousand), to be paid until 5
October 2014;
6th instalment, in the amount of 40,000 (forty thousand), to be paid until 5
November 2014;
7th instalment, in the amount of 40,000 (forty thousand), to be paid until 5
December 2014;
8th instalment, in the amount of 40,000 (forty thousand), to be paid until 5
January 2015;
9th instalment, in the amount of 40,000 (forty thousand), to be paid until 5
February 2015;
10th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 March 2015;
11th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 April 2015;
Player A, from country A / Club B, from county B
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-
12th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 May 2015;
13th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 June 2015;
14th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 July 2015;
15th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 August 2015;
16th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 September 2015;
17th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 October 2015; and
18th instalment, in the amount of 40,000 (forty thousand), to be paid until
5 November 2015.”
13. In this regard, the termination agreement established that, “in the event of any
breach of the instalment above, the next instalments automatically will become
overdue, subjecting [the Respondent] to the implementation of this extrajudicial
title, adding a fine of 10% (ten percent) over the remaining amount, statutory
interest in the order of 1% per month and monetary adjustment according to
the variation of the IGP-M index until the date of the effective payment”.
14. Clause five of the termination agreement emphasized that “this termination is
effective between the parties, immediately producing its regular and legal
effects from the date of its signature, choosing the parties to the jurisdiction of
Fedération Internationale De Football Association – FIFA and its regulations to
settle any doubts or controversies regarding this, renouncing therefore, any
other jurisdiction whatever or not more privileged”.
15. On 13 April 2015, the Claimant lodged a claim against the Respondent in front
of FIFA, requesting the amount of 720,000, plus the penalty of 10% and interest
in the rate of 1% per month and monetary adjustment according to the
variation of the IGP-M index until the date of effective payment. According to
the Claimant, on the date of the claim, the due amount would be 894,988.41,
detailed as follows:
-
737.020,37 (= 720,000 after applying the monetary adjustment related to
the IGP-M index);
84,266 as interest (343 days);
73,702.04 as penalty of 10%.
16. According to the Claimant, the Respondent stopped paying his salaries and
housing allowances as from September 2013 and as from November 2013, it
forbid him to participate in the training sessions.
Player A, from country A / Club B, from county B
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17. Moreover, the Claimant held that the Respondent did not pay for the flight
tickets for him and his wife during Christmas holidays, reason why he had to buy
the flight tickets himself.
18. In this context, the Claimant held that after the signature of the termination
agreement, he did not receive any payment, and therefore, he submitted his
claim in the basis of the termination agreement and requested the amount of
720,000 plus the penalties established in said agreement, in addition with the
monetary adjustment at the date of the claim.
19. In its reply to the claim, the Respondent acknowledged that the parties signed
the private agreement, the standard contract, the image rights contract and the
termination agreement, respectively. Furthermore, the Respondent rejected the
claim.
20. According to the Respondent, the Claimant took advantage of the
disorganization and changes of the administration of it when signing the
termination agreement, hence, it held that the termination agreement should
be considered null and void. Moreover, the Respondent held that after the
president was changed, the termination agreement was only signed to transfer
the Claimant to Club X, from country A.
21. In this respect, the Respondent sustained that said agreement was made upon
false statements and wrong confessions, since it, allegedly, had no debts towards
the Claimant at the moment the termination agreement was signed. In this
regard, the Respondent stated that “before the first instalment became due, the
new administration of the Respondent finally put everything in order in the club
and found out that every payment charged have been paid by the old
direction”.
22. In this context, the Respondent submitted payment receipts allegedly signed by
the Claimant, regarding the outstanding salaries of October, November and
December 2013, the housing allowance of September, October, November and
December 2013, the image rights payment of September, October, November
and December 2013, as well as the plane tickets allegedly bought to the
Claimant. As a consequence, the Respondent, deemed it did not have to pay the
amount established in the termination agreement.
23. Subsequently, the Respondent argued that FIFA was not competent to deal with
part of the claim, since according to it, the requested payment is partially related
to image rights, and therefore the Dispute Resolution Chamber of FIFA shall
disregard this part of the claim. In other word, it held that the payment
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established on the termination agreement included image rights payments, and
as a consequence, this part cannot be dealt by FIFA.
24. In addition to that, the Respondent confirmed that the Claimant was not
allowed to train, after some declarations to the press from the Claimant.
25. In his replica, the Claimant insisted that his claim is based on the termination
agreement signed between the parties and not in any of the first three
documents signed with the Respondent, therefore the Claimant held that FIFA is
competent to deal with the claim.
26. Moreover, the Claimant argued that he never received any amount from
September to December 2013 (salaries) and from October to December 2013
(housing) and that, all this receipts are false. In this regard he held that “[his]
signature in all of them is completely different from the real signature”. In reply
thereto, the Claimant submitted an examination of his signature which
concluded that “are false the signatures presented in the disputed documents,
described in section I and reproduced in Annex I, not having the same emanated
from Player A…”. In this respect, the Claimant held that the proof of validity was
that he was not transferred until the termination agreement was signed.
27. After having been granted a deadline extension upon its request, on 3 April
2017, the Respondent sent its duplica after the deadline granted by FIFA to
provide its final comments which was set to 24 March 2014.
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 13 April 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 2015, 2017 and 2018 editions 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018), the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between an player and a club.
3. The DRC, however, acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis that the requested payment is
related to the payment of image rights.
Player A, from country A / Club B, from county B
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4. In this regard, the Chamber noted that the Claimant insisted on the competence
of the DRC to adjudicate on the claim lodged by him against the Respondent.
The Claimant added that the competence of FIFA is undeniable on the basis that
the claim is based on the execution of the termination agreement, and not
related to any of the other agreements signed by the parties.
5. With regards to the argument of the Respondent that part of the claim was
related to the payment of image rights, the DRC underlined that the claim is
based on the execution of the termination agreement only. In this respect, the
Chamber noted that the amount established in said agreement does not
mention is payable as image rights, and since the object of the termination
agreement was to “rescind the [private agreement], as well as the employment
contract signed between the parties, so as not to remain at all any financial or
obligatory onus of legal or contractual nature between the parties.”. The DRC
concluded that the amount derives from the employment relationship and is
therefore, in principle competent to deal with the Claimant’s claim.
6. Moreover, the Chamber took into consideration that clause five of the
termination agreement (cf. point I/14. above) contained a jurisdiction clause by
means of which FIFA’s deciding bodies are appointed to settle any doubts or
controversies arisen between the parties in relation to the termination
agreement. Therefore, the members of the DRC deemed that there is no reason
which would preclude the Chamber from adjudicating on the present dispute.
7. In view of the above, the Chamber established that the Respondent’s objections
to the competence of FIFA no to deal with part of the present matter had to be
rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter
as to the substance.
8. Furthermore, the Chamber analysed 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 2015, 2016 and 2018), and considering that the present claim was
lodged on 13 April 2015, the 2015 edition of said regulations (hereinafter:
Regulations) is applicable to the matter.
9. 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.
10. The DRC acknowledged that, on 15 June 2013, the parties to the dispute had
signed a private agreement valid as from the date of the signature until 15 June
2014, in accordance with which the Respondent would pay the Claimant a
Player A, from country A / Club B, from county B
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monthly salary in the amount of 100,000, as well as a monthly housing
allowance in the amount of 2,000 and 8 flight tickets country A / country B /
country A for the Claimant or the Claimant’s family.
11. Subsequently, the DRC noted that on 20 June 2013, the parties signed a standard
contract valid as from the date of the signature until 30 June 2014, according to
which the Claimant was entitled to a monthly salary of 20,000. Moreover, the
Chamber acknowledged that on the same date, the parties signed an image
rights contract valid as form the date of the signature until 30 June 2014.
12. In this regard, the Chamber observed that, according to the Claimant, the
Respondent failed to pay his monthly salaries and housing allowances as from
September 2013, and that as from November 2013, the Respondent prohibited
the Claimant to participate in any training sessions. In this respect, the members
of the Chamber noted that on 3 January 2014, the Claimant put the Respondent
in default, since the Respondent allegedly failed to pay him 428,000,
corresponding to late salaries, image rights and housing allowance.
13. In continuation, the DRC acknowledged that on 22 January 2014, the parties
signed a termination agreement by means of which, the parties mutually agreed
to terminate the private agreement and the standard contract and in which, the
Respondent acknowledged a debt of 428,000 towards the Claimant.
14. In this context, the members of the Chamber observed the content of the
termination agreement, by means of which it was established that the
Respondent must pay to the Claimant the amount of 720,000 divided in 18 equal
instalments of 40,000, each payable the 5th of each month starting on 5 May
2014 until 5 November 2015. Moreover, the DRC recalled the content of the
termination agreement, which established that “in the event of any breach of
the instalments, the next instalment automatically will become overdue,
subjecting [the Respondent] to the implementation of this extrajudicial title,
adding a fine of 10% over the remaining amount, statutory interest in the order
of 1% per month and monetary adjustment according to the variation of the
IGP-M index until the date of the effective payment.”.
15. In this respect, the Chamber noted that the Claimant lodged a claim against the
Respondent since it failed to pay him 720,000 regarding the termination
agreement. Consequently, the Claimant requested to be awarded with his
outstanding dues plus the penalties established in the aforementioned
agreement, as well as the monetary adjustment.
16. In this regard, the DRC took particular note that the Respondent acknowledged
the existence of the termination agreement and the fact that no payment was
done regarding said agreement.
17. Furthermore, the Chamber took note of the arguments used not to proceed with
the payment established in the termination agreement. In this respect, the DRC
observed that the Respondent held that it did not had any outstanding debts
Player A, from country A / Club B, from county B
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with the Claimant, therefore no payment had to be done regarding the
termination agreement. In particular, the Respondent presented alleged
payment receipts.
18. In this regard, the DRC observed that the Respondent sustained that after its
President was changed, the termination agreement was only signed to transfer
the Claimant to the Club X, from country A.
19. In continuation, the Chamber noted that on his replica, the Claimant held that
he never received any payment either from the monthly salaries from September
to December 2013, the housing allowances from October to December 2013 and
the payment of plane tickets for the Claimant or in relation to the termination
agreement. In this respect, the Claimant argued that the signature of the alleged
payment receipts presented by the Respondent was forged submitting an
examination of the signature and stating that the proof of the validity regarding
the termination agreement was that the Respondent never formally released
him until the termination agreement was signed.
20. In this regard, the DRC took into account that the Respondent on its part, sent
its duplica after the deadline had expired, therefore, the Chamber concurred
that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file. This being established,
the members of the Chambers concluded that, the Respondent had de facto
accepted the allegation of the Claimant.
21. In line with the above, the DRC deemed that the arguments raised by the
Respondent cannot be considered as valid reasons for non-payment of the
payment claimed by the Claimant, in other words, the reasons brought forward
by the Respondent on its defence do not exempt the Respondent from its
obligation to fulfil its contractual obligations towards the Claimant. Moreover,
the Chamber considered that the termination agreement cannot be null and
void, since it was duly signed by the Respondent, fact that remains uncontested.
22. Along this line, the Chamber noted that it remains uncontested that the
Respondent did not pay any amounts to the Claimant in connection with the
termination agreement, which is the basis of the claim.
23. In this context, the Chamber observed that there is no contractual basis to the
Claimant’s request in respect to the monetary adjustment. The DRC, in
consequence, rejected this part of the Claimant’s request.
24. To that end, and in accordance with the general principle of “pacta sunt
servanda”, the Chamber unanimously established that the Respondent has to
pay to the Claimant the amount established in the termination agreement (i.e.
720,000).
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25. In addition, taking into account the Claimant’s request of interest in accordance
with the penalties established in the termination agreement, after due
deliberation, the members of the Chamber were of the opinion that clauses such
as the one at hand may be freely entered into by the contractual parties and
may be considered acceptable in the event that the pertinent written clause
meets certain criteria such as proportionality and reasonableness. In this respect,
the Chamber emphasised that in determining whether such a clause is valid or
not, the specific circumstances of the relevant case brought before it shall also
be taken into consideration.
26. Consequently, the DRC decided that the Respondent shall pay interest of 1% per
month since the date of each instalment; plus 10% of the amount as a penalty,
which is USD 72,000, which the members of the Chamber deemed that it comply
with Chamber’s criteria of proportionality and reasonableness.
27. The Chamber concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
*****
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club B, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of 720,000 plus interest as
follows:
-
1% per month on the amount of 40,000 as from 6 May 2014 until the date
of effective payment;
-
1% per month on the amount of 40,000 as from 6 July 2014 until the date
of effective payment;
-
1% per month on the amount of 40,000 as from 6 August 2014 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 September 2014 until
the date of effective payment;
-
1% per month on the amount of 40,000 as from 6 October 2014 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 November 2014 until
the date of effective payment;
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-
1% per month on the amount of 40,000 as from 6 December 2014 until
the date of effective payment;
-
1% per month on the amount of 40,000 as from 6 January 2015 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 February 2015 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 March 2015 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 April 2015 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 May 2015 until the date
of effective payment;
-
1% per month on the amount of 40,000 as from 6 June 2015 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 July 2015 until the date
of effective payment;
-
1% per month on the amount of 40,000 as from 6 August 2015 until the
date of effective payment;
-
1% per month on the amount of 40,000 as from 6 September 2015 until
the date of effective payment;
-
1% per month on the amount of 40,000 as from 6 October 2015 until the
date of effective payment; and
-
1% per month on the amount of 40,000 as from 6 November 2015 until
the date of effective payment.
3. In the event that the above-mentioned amounts (cf. point 2. above) plus interest
due to the Claimant are 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. The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, a penalty in the amount of 72,000.
5. In the event that the aforementioned sum (cf. point 4. above) is not paid within
the stipulated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the above-mentioned time limit and the present matter shall be submitted,
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upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
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 remittances are 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 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
CH-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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