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
Philippe Piat (France), member
John Bramhall (England), member
Theodore Giannikos (Greece), member
Zola Majavu (South Africa), member
on the claim presented by the player,
A, from country B,
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 February 2012, by means of a document titled “Convention”, the country B
club, Club A (hereinafter: the Respondent) undertook to pay the player A, from
country B (hereinafter: the Claimant) the net amount of EUR 400,000 as “fidelity
premium”, as follows:
- EUR 150,000 within 72 hours of the signature of the contract;
- EUR 50,000 on the date of qualification of the Claimant with the Respondent;
- EUR 100,000 on 1 July 2013;
- EUR 100,000 on 1 July 2014.
2.
The convention further specifies that “the amounts are only due if the [Claimant] is
under contract with [the Respondent]” (free translation).
3.
On an unspecified date, the Claimant and the Respondent concluded an
employment contract (hereinafter: the contract), valid as of 1 July 2012 until 30
June 2015.
4.
Pursuant to annexe 3 to the contract, the Claimant was entitled to receive the
following “gross” remuneration:
- 2012-13 season: EUR 300,000 “net” payable in twelve instalments at the end of
each month;
- 2013-14 season: EUR 300,000 “net” payable in twelve instalments at the end of
each month;
- 2014-15 season: EUR 300,000 “net” payable in twelve instalments at the end of
each month.
5.
Furthermore, art. 36 of the contract provides that “[the Respondent] grants to the
[Claimant] a percentage of 10% on his future sale. This percentage will be
calculated on the amount exceeding one and half million euros” (free translation).
6.
According to the information contained in the Transfer Matching System (TMS), on
1 August 2013, the Respondent and the Club X, from country X concluded an
agreement for the transfer of the Claimant, in accordance with which Club X
committed to pay the amount of EUR 2,000,000 to the Respondent, payable as
follows:
- EUR 1,000,000 on 7 September 2013;
- EUR 1,000,000 on 5 January 2014.
7.
On 8 December 2014, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting to be awarded with “132,000 Euros (120,000Euros +
10%interest and legal cost)”.
Player A, from country B / Club C, from country D
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8.
In his claim, the Claimant argues that the Respondent only paid him EUR 30,000 of
the instalment due on 1 July 2013 as per the Convention and therefore claims the
remaining amount of EUR 70,000.
9.
In addition, the Claimant asserts that Club X paid a compensation amounting to
EUR 2,000,000 to transfer him from the Respondent and that, therefore, in
accordance with art. 36 of the contract, he should be entitled to receive EUR
50,000.
10.
In its reply to the Claimant’s claim, the Respondent alleges that during the 2013-14
season, the Claimant expressed his wish to return to his former club and that,
therefore, they agreed on the payment of EUR 30,000 as “final settlement” (free
translation). According to the Respondent, the final settlement equated to a debt
write-off, which is related to the outstanding fidelity premium as well as to the
percentage on the future transfer fee. In addition, the Respondent outlines that in
virtue of the regulations on Third-Party Ownership, the players are no longer
allowed to claim amounts based on future transfer fees.
11.
In spite of having been invited to do so, the Claimant did not submit any further
comments on the matter at stake.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or
the Chamber) analysed whether it was competent to deal with the matter at stake.
In this respect, it took note that the present matter was submitted to FIFA on 8
December 2014. Consequently, the 2014 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the 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 from country B player and a country D 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
(edition 2015), and considering that the present claim was lodged in front of FIFA
Player A, from country B / Club C, from country D
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on 8 December 2014, the 2014 edition of said Regulations (hereinafter:
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 DRC entered into the substance of the matter. In doing so, it
started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file. 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.
5.
In this respect, the Chamber acknowledged that on 15 February 2012, by means of
the “Convention”, the Respondent committed to pay to the Claimant as “fidelity
premium”, EUR 400,000, as follows:
EUR 150,000 within 72 hours of the signature of the contract;
EUR 50,000 on the date of qualification of the player with the club;
EUR 100,000 on 1 July 2013;
EUR 100,000 on 1 July 2014.
6.
The DRC further noted that the parties concluded a contract valid as of 1 July 2012
until 30 June 2015 and that on 1 August 2013, the Respondent and Club X
concluded an agreement for the definitive transfer of the Claimant.
7.
In continuation, the Chamber noted that the Claimant asserts that the Respondent
had failed to remit him the amount of EUR 120,000, allegedly corresponding to
part of the instalment due on 1 July 2013 plus a percentage of the alleged transfer
fee paid by Club X to the Respondent, in accordance with art. 36 of the contract.
8.
Equally, the DRC took note of the position of the Respondent, which stresses that the
Claimant waived his right to claim the “fidelity premium” as well as the percentage on
the transfer fee. In particular, the Chamber observed that the Respondent sustains that
the parties agreed on the payment of EUR 30,000 as “final settlement” before the
Claimant was transferred to Club X.
9.
In this regard, after referring to the content of art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof, the DRC emphasised that the
Respondent did not submit any element evidencing that the payment of EUR
30,000 had been made as “final settlement”. In view of the above, the Chamber
concluded that the Respondent failed to carry the burden of proof that it had
been discharged from its financial obligations towards the Claimant.
10.
Having stated the foregoing, the Chamber proceeded to the determination of the
outstanding debt. In this respect, the Chamber first noted that in accordance with
Player A, from country B / Club C, from country D
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the “Convention”, the “fidelity premium” was “only due if the player is under
contract with [the Respondent]”. In this regard, the members of the Chamber
pointed out that the Claimant was transferred to Club X on 1 August 2013, and
that therefore, on 1 July 2013, i.e. when the claimed “fidelity premium” fell due,
the Claimant was still under contract with the Respondent. Consequently, the
Chamber held that the Claimant is entitled to receive the outstanding part of the
“fidelity premium” due on 1 July 2013, i.e. EUR 70,000.
11.
In continuation, the DRC recalled the content of art. 36 of the contract, which
stipulates that “[the Respondent] grants to the [Claimant] a percentage of 10% on
his future sale. This percentage will be calculated on the amount exceeding one
and half million euros”. Therefore, and considering that the Respondent and Club
X agreed on a transfer compensation amounting to EUR 2,000,000 for the
definitive transfer of the Claimant, the Chamber concluded that the Claimant is
entitled to receive EUR 50,000, corresponding to 10% of EUR 500,000, i.e. the
amount exceeding EUR 1,500,000.
12.
On account of the aforementioned, the DRC decided that, in accordance with the
general legal principle of pacta sunt servanda, the Respondent is to be held liable to pay
the Claimant the amount of EUR 120,000.
13.
In addition, and taking into account the Claimant’s claim as well as its longstanding
and well-established jurisprudence, the Chamber decided that the Claimant is
entitled to 5% interest p.a. on said amount as of 8 December 2014 until the date of
effective payment.
14.
Moreover, the Chamber rejected any claim for legal costs in accordance with art. 18 par.
4 of the Procedural Rules and its respective longstanding jurisprudence in this regard.
15.
Finally, the DRC concluded its deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
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 120,000 plus 5% interest
p.a. on said amount as from 8 December 2014 until the date of effective payment.
3.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned point 2 is not paid by the Respondent within the stated time
Player A, from country B / Club C, from country D
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limit, 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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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 A, from country B / Club C, from country D
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