Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Zola Majavu (South Africa), member
Philippe Piat (France), member
John Bramhall (England), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 11 June 2012, the player from country B, Player A (hereinafter: Claimant or
player), and the club from country D, Club C (hereinafter: Respondent or club),
signed an employment contract valid from 11 June 2012 until 31 May 2014.
2.
According to the employment contract, the club undertook to pay to the player the
following amounts:
- EUR 65,000 as salary for the season 2012/2013, payable in 12 instalments of EUR
5,416;
- EUR 67,500 as salary for the season 2013/2014, payable in 12 instalments of EUR
5,625.
3.
On 12 June 2012, the player and the club signed an “image rights contract”,
according to which the club undertook to pay to the player the following amounts:
- EUR 10,000 as “Image Rights advance fee” payable upon signing of the “image
rights contract”;
- EUR 55,000 as “Annual Image Rights fee” for the season season 2012/2013, payable
in 12 instalments of EUR 4,583;
- EUR 10,000 as “Image Rights advance fee” payable on 15 June 2013;
- EUR 57,500 as “Annual Image Rights fee” for the season season 2013/2014, payable
in 12 instalments of EUR 4,791.
4.
The remuneration according to the “image rights contract” further included the
following “prims and Bonuses”:
- “20euro/minute for championship games, provided that the team wins the
championship”;
- “30euro/minute for cup games, provided that the team wins the cup”;
- “30,000euro to be distributed among the players, provided the team wins the super
cup”;
- “180euro/minute for CHL qualifying games, provided that the team qualifies for
the group stage”;
- “90euro/minute for EL qualifying games, provided that the team qualifies for the
group stage”;
- “30% of income gained as prim win/draw by UEFA, in the group stage of the CHL
or EL to be distributed among the players”.
5.
On 28 June 2013, the player and the club signed an agreement by means of which
they terminated their employment relationship (hereinafter: termination
agreement) and in accordance with which the club undertook to pay to the player
the following amounts “for full and final settlement of any outstanding amount”:
- EUR 13,600 upon signing of the termination agreement;
- EUR 63,315 payable in 12 monthly instalments of EUR 5,276.25 starting on 31 July
2013.
Player Player A, country B / Club Club C, country D
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6.
Furthermore, Art. 6 of the termination agreement defines that “Any delay by the
Employer [the club] to execute any of the instalments within 30 days from its due
date, will allow the Employee [the player] to apply to the FIFA DRC for the whole
amount of his contract for season 2013/2014 (135,000 Euros) by deductions of the
amount he received (for the 2013/2014 football season), if at all.”
7.
The termination agreement further defines that “This agreement settles all the
outstanding issues concerning the employment contract dated 11/06/2012 between
the parties and/or any other contract and/or agreement between the two parties
which is signed on an earlier date than this contract.”
8.
On 17 January 2014, with a subsequent amendment on 18 April 2014, the player
lodged a claim in front of FIFA against the club for outstanding remuneration and
requested payment of EUR 102,500, plus interest and reimbursement of his legal
fees.
9.
The player stated that the club failed to pay the instalments due to him on 31
October 2013, 30 November 2013 and 31 December 2013 in accordance with the
termination agreement and, therefore, “breached” the termination agreement.
10.
In light of the above, the player requested to be awarded outstanding remuneration
in the total amount of EUR 102,500, which was detailed as follows:
EUR 130,000
as remuneration due to the player during the season 2012/2013
- EUR 85,585
as acknowledged payments before the termination agreement
- EUR 29,428.75 as acknowledged payments under the termination agreement
= EUR 14,986.25
+ EUR 135,000
as remuneration due to the player during the season 2013/2014
- EUR 47,486.25 as acknowledged payment of 28 March 2014
= EUR 102,500
11.
In its answer, the club requested that the player’s claim be rejected.
12.
The club held that, on the basis of the termination agreement, the total amount of
EUR 76,915 was due to the player and that this amount represented a “full and final
settlement of the all contracts between the parties”. The club further held that it
fulfilled its financial obligations towards the player with the final payment in the
amount of EUR 47,486.25 on 28 March 2014.
Player Player A, country B / Club Club C, country D
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13.
Moreover, the club acknowledged that due to “cash flow problems” and the lack of
a board of directors during a certain period of time, as of 31 October 2013 it had
failed to pay instalments in accordance with the termination agreement. In this
context, the club pointed out that, on 28 March 2014, it paid the entire outstanding
amount to the player.
14.
In addition, the club alleged that in accordance with Art. 6 of the termination
agreement the player could only claim “the whole amount of the second year of the
contract”.
15.
Due to the wording of the termination agreement, the club denied that it would
need to pay such amount since the player cannot claim amounts based on the
employment contract “and/or any other contracts”.
16.
The club argued that FIFA has no competence to deal with the part of the dispute
concerning the “image rights contract” and that the amount resulting thereof, EUR
67,500, must be deducted.
17.
Finally, the club stated that in case the DRC would decide that the player is entitled
to amounts of the “contract for 2013/2014”, the player would need to mitigate his
damages since he allegedly signed a new employment contract.
18.
In his replica, the player insisted that FIFA is competent to deal with the present
matter since the subject of the dispute is the termination agreement and not the
“image rights contract”, the provisions of which would be irrelevant.
19.
Moreover, the player argued that the total amount of EUR 76,915 defined in the
termination agreement included the amounts of EUR 44,415, which remained
outstanding during the 2012/2013 season, and EUR 32,500, which represented a
“settlement” for the player’s “waiver for the 2013/2014 season contract”.
20.
In addition, the player pointed out that the club’s payment of 28 March 2014 was
“very late” and that such delay triggered the terms of Art. 6 of the termination
agreement.
21.
Furthermore, the player held that according to Art. 6 of the termination agreement
due to the delay in the remittance of the instalments, he would be entitled to receive
the amount of EUR 102,500, i.e. EUR 135,000 minus EUR 32,500, which was received
as settlement for the 2013/2014 season under the termination agreement, plus
interest.
Player Player A, country B / Club Club C, country D
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22.
Finally, the player contested the club’s argumentation regarding the deduction of
salaries received under his new employment contract.
23.
In its duplica, the club reiterated its position.
24.
On 13 August 2013, the player signed a new employment contract with the club
from country E, Club F, valid as of 13 August 2013 until 31 May 2014, including a
total salary of 346,620.
II.
Considerations of the Dispute Resolution Chamber
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 17 January
2014. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; 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 (edition
2015) 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 from country B and a club from country D.
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 (edition
2015), and considering that the present claim was lodged on 17 January 2014, the
2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
4.
The competence of the Chamber 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.
Player Player A, country B / Club Club C, country D
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5.
First and foremost, the Chamber acknowledged that the parties had terminated
their employment relation by mutual consent by signing the termination agreement
on 28 June 2013. In accordance with the termination agreement, the Respondent
undertook to pay to the Claimant the amount of EUR 13,600 upon signing of the
termination agreement and EUR 63,315 in twelve monthly instalments of EUR
5,276.25 each, starting on 31 July 2013.
6.
The members further took into account that in accordance with the termination
agreement, the parties had agreed that “Any delay by the Employer [the club] to
execute any of the instalments within 30 days from its due date, will allow the
Employee [the player] to apply to the FIFA DRC for the whole amount of his contract
for season 2013/2014 (135,000 Euros) by deductions of the amount he received (for
the 2013/2014 football season), if at all.”
7.
In continuation, the DRC noted that according to the Claimant, the Respondent
failed to remit the instalments due on 31 October 2013, 30 November 2013 and 31
December 2013. Consequently, the Claimant asks to be awarded EUR 102,500,
corresponding to the total amount resulting from the termination agreement, i.e.
EUR 135,000, minus EUR 32,500, which, according to the Claimant, was due as
settlement for the season 2013/2014.
8.
In continuation, the DRC took into account that the Respondent rejected the claim.
In its arguments, the club acknowledged having failed to pay the instalments of the
termination agreement as of 31 October 2013, but pointed out that it fulfilled all of
its financial obligations with a final payment on 28 March 2014.
9.
Furthermore, the Respondent held that according to Art. 6 of the termination
agreement, the Claimant could only claim the amount of the “second year of the
contract” and that the amount resulting of the “image rights contract”, i.e. EUR
67,500 must be deducted. Moreover, the club highlighted that any salaries received
during the season 2013/2014 under a new employment contract shall be deducted
as well.
10.
Subsequently, the Chamber focussed its attention on the terms of the termination
agreement of 28 June 2013, in particular, its article 6, which establishes that in case
one of the instalments would be delayed for more than 30 days, the Claimant is
entitled to the amount of EUR 135,000 less any amounts the Claimant received for
the 2013/2014 season.
11.
In this regard, in spite of the instalments having been paid off with a final payment
by the end of March 2014, the Chamber took into account that it is undisputed that
the Respondent delayed payment of certain instalments for more than 30 days and
concluded that, therefore, Art. 6 of the termination agreement finds application.
Player Player A, country B / Club Club C, country D
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12.
In continuation, the Chamber turned to the argument put forward by the
Respondent in its defence, in particular, that the amount of EUR 67,500 based on
the “image rights contract” should be deducted from the EUR 135,000 indicated in
the termination agreement, since the DRC allegedly has no competence to consider
the “image rights contract”. In this regard, the members of the Chamber stressed
that the contract at the basis of the present matter is the termination agreement.
What is more, the termination agreement does not contain any clause stipulating
that remuneration based on the “image rights contract” was to be deducted from
the “… whole amount of his contract for season 2013/2014 (135,000 Euros) …” as
set out in Art. 6 of the termination agreement. On the contrary, Art. 6 of the
termination agreement clearly establishes that the entire amount of the Claimant’s
contract for the 2013-14 season was of EUR 135,000, which, in fact, constitutes the
amount payable by the Respondent to the Claimant under both the employment
contract and the “image rights contract”, excluding bonuses. Therefore, the
Chamber decided that the Respondent’s argument in this respect could not be
upheld.
13.
Having said that and bearing in mind that, as stated above, Art. 6 of the termination
agreement finds application, the Chamber turned its attention to the calculation of
the Claimant’s entitlement in accordance with the termination agreement. In this
respect, the DRC agreed that the amount of EUR 135,000 as set out in Art. 6 of the
termination agreement is the basis for said calculation.
14.
The members of the Chamber further took into account that, from the amount of
EUR 135,000, the Claimant himself deducted EUR 32,500, which he acknowledged
having received in relation to the 2013/2014 season, as a consequence of which he
requested to be awarded EUR 102,500.
15.
In continuation, the Chamber took into consideration that Art. 6 of the termination
agreement further establishes that “… the amount he received (for the 2013/2014
football season), if at all.” shall be deducted from the amount of EUR 135,000.
Therefore, the Chamber concurred that the remuneration received by the Claimant
for the 2013/2014 season under his new employment contract signed with Club F,
valid as of 13 August 2013 until 31 May 2014, i.e. EUR 73,487, shall equally be
deducted from the amount of EUR 135,000.
16.
Consequently, 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
total amount of EUR 29,013.
17.
In addition, taking into consideration the Claimant’s claim relating to interest, the
Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the
date on which the amended claim was lodged, i.e. 18 April 2014.
Player Player A, country B / Club Club C, country D
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18.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the Chamber decided to reject the Claimant’s request relating to legal expenses.
19.
The Chamber concluded its deliberations in the present matter by rejecting any
further claim lodged by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 29,013 plus 5% interest
p.a. as of 18 April 2014 until the date of effective payment.
3.
In the event that the aforementioned amount and interest due to the Claimant is
not paid by the Respondent within the stated time limit, the present matter shall
be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and
a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
Player Player A, country B / Club Club C, country D
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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 motivated decision (legal remedy):
According to article 67 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player Player A, country B / Club Club C, country D
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