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 téphan Burchkalter (France), member
Philippe Diallo (France), member
Jos eph Bell (Cameroon), member
on the matter between the player,
Play er A, Country A
as Claimant
and the club,
Club B, Country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case:
1.
On 20 July 2014, the player of country A, Player A (hereinafter: the Claimant),
and the club from country B, Club B (hereinafter: the Respondent), concluded
an employment contract (hereinafter: the contract) valid as from 1 July 2014
until 30 June 2017.
2.
On 24 June 2017, the Claimant and the Respondent signed a document called
“Settlement Agreement and Financial Clearance” (hereinafter: the settlement
agreement).
3.
Clause 2 of the settlement agreement stipulates that the “the first party [the
Respondent] will have to pay to the second party [the Claimant] an amount of
EUR 400,000 (only four hundred thousand Euros) in thirty days as from the date
of signing this agreement…”.
4.
Additionally, according to clause 3 of the settlement agreement “besides the
amount provided by clause 2 above, the first party [the Respondent] will have
to pay to the second party [the Claimant] the amount of EUR 268,000 (two
hundred sixty eight thousand Euros), as per the second party’s [the Claimant]
salaries of May and June 2017, within thirty (30) days from the date of execution
hereof…”.
5.
Furthermore, clause 4 of the settlement agreement reads as follow: “If the first
party [the Respondent] fails to perform its obligations according to clause 2 or
3 within the time limits specified above, it shall pay to the second party [the
Claimant] a penalty in the amount of EUR 133,600 (one hundred thirty-three
thousand, six hundred Euros), which is equivalent to 20% (twenty percent) of
the total due to by the first party [the Respondent] to the second party [the
Claimant] under this agreement…”.
6.
On 21 September 2017, the Claimant lodged a claim before FIFA against the
Respondent and requested a total amount of EUR 533,600 plus 5% interest per
annum. In addition, the Claimant also requested the legal expenses and
procedural costs to be paid by the Respondent.
7.
In support of his claim, the Claimant stated that the Respondent did not pay the
amount of EUR 400,000 established in clause 2 of the agreement plus the
penalty fee of EUR 133,600 stipulated in clause 4 of the agreement.
8.
Despite having been invited by FIFA to provide its comments on the present
matter, the Respondent did not respond to the Claimant’s claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
Player A, country A / Club B, country B
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1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 21
September 2017. Consequently, the 2017 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 2017 edition 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 (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 a player and a club.
3.
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 2016 and 2018), and considering that the present matter was
submitted to FIFA on 21 September 2017, the 2016 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter, while emphasizing that, although having acknowledged all the abovementioned facts, 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.
5.
In this respect and first of all, the DRC acknowledged that following the
conclusion of an employment contract on 20 July 2014, the Claimant and the
Respondent had concluded a settlement agreement on 24 June 2017.
6.
In continuation, the members of the Chamber observed that according to clause
2 of the settlement agreement “the first party [the Respondent] will have to pay
to the second party [the Claimant] an amount of EUR 400,000 (only four
hundred thousand Euros) in thirty days as from the date of signing this
agreement…”.
7.
Moreover, the DRC noted that clause 3 of the settlement agreement stipulates
that “besides the amount provided by clause 2 above, the first party [the
Respondent] will have to pay to the second party [the Claimant] the amount of
EUR 268,000 (two hundred sixty eight thousand Euros), as per the second party’s
Player A, country A / Club B, country B
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[the Claimant] salaries of May and June 2017, within thirty (30) days from the
date of execution hereof…”.
8.
Furthermore, the DRC also observed that clause 4 of the settlement agreement
reads as follow: “if the first party [the Respondent] fails to perform its
obligations according to clause 2 or 3 within the time limits specified above, it
shall pay to the second party [the Claimant] a penalty in the amount of EUR
133,600 (one hundred thirty-three thousand, six hundred Euros), which is
equivalent to 20% (twenty percent) of the total due to by the first party [the
Respondent] to the second party [the Claimant] under this agreement…”.
9.
The DRC further observed that, on 21 September 2017, the Claimant lodged a
claim against the Respondent before FIFA requesting the payment of EUR
533,600 plus 5% interest per annum. In particular, the DRC noted that the
Claimant stated that the Respondent did not pay the amount of EUR 400,000
established in clause 2 of the settlement agreement plus the penalty fee of EUR
133,600 stipulated in clause 4 of the settlement agreement.
10.
Furthermore, the members of the Chamber noted that the Respondent had
been given the opportunity to reply to the claim submitted by the Claimant, but
that the Respondent had failed to present its response in this respect. In this
way, so the DRC deemed, the Respondent renounced to its right of defence and,
thus, accepted the allegations of the Claimant.
11.
As a consequence of the preceding consideration, the Chamber established that
in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision
upon the basis of the documents on file.
12.
Having said this, the DRC observed that the Respondent did not pay to the
Claimant the amount of EUR 400,000 established in clause 2 of the settlement
agreement
13.
In continuation, the DRC focussed its attention on clause 4 of the settlement
agreement. In this respect, the DRC observed that the penalty fee established in
clause 4 of said document would apply if the Respondent failed to pay any of
the amounts established in clause 2 or 3 of the settlement agreement.
14.
Subsequently, the members of the Chamber concluded that penalty clauses 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
highlighted that in order to determine as to whether a penalty clause is to be
considered acceptable, the specific circumstances of the relevant case brought
before it shall also be taken into consideration.
15.
In the specific case at hand, the members of the Chamber deemed that the
penalty fee of 20% of the total amount, which the parties contractually agreed
Player A, country A / Club B, country B
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upon in the context of terminating the employment relation, is both
proportionate and reasonable in the case at hand.
16.
Consequently, the Chamber decided that said contractual penalty fee is valid
and applicable in the present matter.
17.
On account of the above considerations, the Chamber decided that in
accordance with the general legal principle of pacta sunt servanda, the
Respondent is liable to pay to the Claimant the amount of EUR 400,000 plus
interest at the rate of 5% per annum as from 25 July 2017, i.e. the date on which
the amount of EUR 400,000 fell due in the light of the Respondent’s failure to
pay in a timely manner.
18.
In addition, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of EUR 133,600 relating to the penalty fee in accordance
with clause 4 of the settlement agreement.
19.
Furthermore, as regards the claimed legal expenses and procedural costs, the
Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the DRC, in accordance with
which no procedural compensation shall be awarded in proceedings in front of
the Dispute Resolution Chamber. Consequently, the DRC decided to reject the
Claimant’s request relating to legal expenses.
20.
Finally, the Chamber concluded its deliberations by rejecting 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, w ithin 30 day s as from
the date of notification of this decision, the outstanding amount of EUR 400,000
plus interest at 5% per year over said amount as from 25 July 2017 until the date
of effective payment.
3.
Within the s ame deadline, the Respondent has to pay to the Claimant the
amount of EUR 133,600.
4.
In the event that the amounts due to the Claimant in accordance with the
above-mentioned numbers 2. and 3. 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.
Player A, country A / Club B, country B
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5.
Any further claim lodged by the Claimant is rejected.
6.
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
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 A / Club B, country B
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