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 Mons en (Norw ay ), member
S téphane Burchkalter (France), member
Philippe Diallo (France), member
Jos eph Bell (Cameroon), member
on the claim presented by the player,
Play er A, Country A
as Claimant
against the club,
Play er B, Country B
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
In January 2017, the country A player, Player A (hereinafter: the Claimant), and
the country B club, Club B (hereinafter: the Respondent), signed an employment
contract valid as from 19 January 2017 until 31 May 2018.
2.
According to art. 3 of the employment contract, for the second half of the
2016/2017 season the Claimant was entitled to receive, inter alia, EUR 60,000
and a bonus of EUR 25,000 conditioned to the Respondent promoting to the
“Super Toto Super League”.
3.
According to the same provision, for the 2017/2018 season the Claimant was
entitled to receive, inter alia, EUR 116,000 and a bonus of EUR 25,000
conditioned to the Respondent promoting to the “Super Toto Super League” at
the end of the season.
4.
On 30 June 2017, the Claimant and the Respondent signed a termination
agreement, by means of which they terminated the employment contract and
agreed that “as of the mutual termination date of 30.06.2017, the non-paid
allowances of the [Claimant] for the 2016/2017 Season is the NET total amount
of EUR 31.500 – being EUR 27.500 as salary and EUR 4.000 as staying on the
league bonus (50% of the 35.000)”.
5.
Moreover, pursuant to the termination agreement, the parties agreed that “the
total NET amount of EUR 51.500 (EUR 31.500 balance due from 2016/2017
Season and EUR 20.000 – as agreed early termination compensation for the
2017/2018 Season) to be paid as follows:
EUR 7.500 NET on the signing date of this Mutual Termination (10.07.2017),
Release and Waiver Agreement.
The Remaining EUR 44.000 NET, being EUR 11.000 NET on 7 August 2017, EUR
11.000 NET on 7 September 2017, EUR 11.000 NET on 7 October 2017 and EUR
11.000 NET on 7 November 2017”.
6.
Additionally, according to the termination agreement, “the [Claimant] hereby
and unconditionally and irrevocably waives all of his rights in connection with
the amount of EUR 121.000 (The amount foreseen for the 2017/2018 Season
after deducting EUR 20.000 – agreed early termination compensation) that is
payable from the early termination date of 30.6.2017 until 31.5.2018,
conditioned down payment, salary, conditional bonus payments, premiums and
any kind of allowances arising from the Employment Agreement dated
19.1.2017 and also to claim these amounts before any judicial authorities”.
7.
Furthermore, the termination agreement sets forth that “If the remaining part
of the NET amount of EUR 44.000, payable in various instalments as stated
above, is not paid within 15 days after the respective due dates, than the NET
amount of EUR 96.000 will immediately become due as a penalty”.
By letter dated 30 August 2017, the Claimant put the Respondent in default of
the payment of EUR 96,000, as the instalment which fell due on 7 August 2017
had allegedly remained unpaid for more than 15 days after the deadline.
8.
Player A, country A / Club B, country B
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9.
On 5 October 2017 the Claimant lodged a claim against the Respondent in front
of FIFA, requesting to be awarded EUR 96,000.
10.
More specifically, the Claimant explained that, on 30 August 2017, he had not
yet received the instalment due on 7 August 2017. Therefore, according to him,
the Respondent’s delay had triggered the provision contained in the
termination agreement according to which he was automatically entitled to
EUR 96,000 if the Respondent failed to meet the deadline of 15 days after the
date on which the payment fell due.
11.
Despite having been invited by FIFA to provide its comments on the present
matter, the Respondent did not answer to the Claimant’s claim.
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
stake. In this respect, the DRC took note that the present matter was submitted
to FIFA on 5 October 2017. Consequently, the DRC concluded that 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 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 DRC 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 DRC 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, the DRC confirmed that in accordance with art. 26 par. 1 and par.
2 of said Regulations (edition 2018) and considering that the present claim was
lodged in front of FIFA on 5 October 2017, the 2016 edition of the Regulations
on the Status and Transfer of Players (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. In this respect, the Chamber started by acknowledging all the abovementioned 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
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evidence, which it considered pertinent for the assessment of the matter at
hand.
5.
In this respect, the DRC acknowledged that, following the conclusion of an
employment contract in January 2017, the Claimant and the Respondent signed
a termination agreement, on 30 June 2017, by means of which they regulated
inter alia financial obligations of the Respondent towards the Claimant and
which provided for a specific clause to be applied in case the Respondent failed
to remit the agreed amount to the Claimant within the relevant deadlines.
6.
More specifically, the members of the Chamber observed that, by means of said
termination agreement, the Respondent undertook to pay the Claimant the
amount of EUR 44,000 by means of 4 instalments of EUR 11,000 each, falling
due, respectively, on 7 August 2017, 7 September 2017, 7 October 2017 and 7
November 2017.
7.
Equally, the Chamber noted that the termination agreement established that “if
the remaining part of the NET amount of EUR 44.000, payable in various
instalments as stated above, is not paid within 15 days after the respective due
dates, than the NET amount of EUR 96.000 will immediately become due as a
penalty”.
8.
In continuation, the members of the Chamber noted that, according to the
Claimant, the Respondent had failed to pay the instalment due on 7 August
2017 within 15 days from that day, allegedly entitling him to EUR 96,000. In this
respect, the DRC deemed worthwhile to point out that the Claimant lodged his
claim with the sole aim of redeeming the penalty envisaged in the termination
agreement, without filing any request for relief concerning the underlying
principal amount of EUR 44,000.
9.
Furthermore, the Chamber took note that the Respondent, for its part, failed to
present its response to the claim of the Claimant, despite having been invited to
do so. In this way, the Chamber deemed, the Respondent renounced its right to
defence.
10.
Moreover, and as a consequence of the aforementioned consideration, the
Chamber established 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.
11.
Having said that, the members of the Chamber firstly underlined that it
remained uncontested that the first instalment of EUR 11,000, which fell due on
7 August 2017, had not been paid by the Respondent within the 15 day time
limit set forth in the termination agreement. Consequently, the DRC agreed
with the Claimant’s conclusion that the penalty clause envisaged therein had
been triggered.
12.
However, after having established the foregoing, the Chamber deemed
necessary to focus its attention on the content of the penalty clause.
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13.
In this respect, the DRC referred to its constant jurisprudence, in accordance
with which penalty clauses may be freely entered into by the parties and may be
considered acceptable, in the event that the pertinent written clause meets
certain criteria, such as proportionality and reasonableness.
14.
In relation to the above, the Chamber deemed important to recall that, as a
consequence of signing the termination agreement, the Respondent undertook
to pay to the Claimant the total amount of EUR 44,000. Therefore, the Chamber
emphasised that a penalty clause of EUR 96,000 would represent more than
200% of the total outstanding amount which the parties contractually agreed
upon in the context of terminating the employment relationship. The members
of the Chamber concluded that a penalty clause of this kind is disproportionate
and not reasonable.
15.
Consequently, given the imbalance between justice and fairness on the one
hand and the liquidated damages on the other that such a penalty clause would
determine, the Chamber felt the duty to reduce it to EUR 22,000, i.e. 50% of the
principal amount of the settlement agreement.
16.
On account of the above considerations as well as the specificities of the matter
at hand, the DRC decided that the Respondent is liable to pay a penalty in the
amount of EUR 22,000 to the Claimant.
17.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim of the Claimant.
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 the amount of EUR 22,000
as penalty w ithin 30 day s as from the date of notification of this decision.
3.
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 aforementioned time limit and 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
Dispute Resolution Chamber of every payment received.
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*****
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 (CAS)
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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