Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 23 March 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Theo v an S eggelen (Netherlands ), member
Carlos G. Puche (Colom bia), member
Alejandro Marón (Argentina), member
Wouter Lam brecht (Belgium ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 12 August 2015, the Player of Country B, Player A (hereinafter: the
Claimant) and the Club of Country D, Club C (hereinafter: the Respondent)
signed an employment contract (hereinafter: the contract) valid for two
seasons, as from the date of signature until 31 May 2017.
2.
According to the contract, the Claimant was entitled to a salary of EUR
110,000 for the first season (2015/2016) and of EUR 124,000 for the second
season (2016/2017).
3.
On 7 January 2016, the parties entered into a termination agreement
(hereinafter : the termination agreement) by means of which they
terminated the contract with immediate effect.
4.
Pursuant to art. 3 of the termination agreement, the Respondent committed
to pay the following amounts to the Claimant:
“ 3.1.
EUR 7,000 with a post-dated cheque payable on 25/01/2016
(hereinafter: the first cheque)
3.2.
EUR 7,000 with a post-dated cheque payable on 25/02/2016
(hereinafter: the second cheque)
3.3. EUR 30,000 in cash before 30/03/2016 ”.
5.
According to art. 6 of the termination agreement: “should the cheques
mentioned in paragraphs 3.1 and 3.2 be honoured and paid by the bank
within a maximum of twenty working days from the date that they will be
presented to the bank for payment, the [Claimant] shall waive his right to
the payment of EUR 30,000 mentioned in paragraph 3.3 and he shall accept
the total payment of EUR 14,000 as full and final settlement of his
employment termination”.
6.
On 25 January 2016, the Claimant presented the first cheque to the bank,
which returned it unpaid on 28 January 2016.
7.
On 28 January 2016, the Claimant presented again the first cheque to the
bank, which was again returned unpaid on 29 January 2016.
8.
On 29 February 2016, the Claimant presented the second cheque to the
bank.
9.
On 1 March 2016, the Claimant presented again the first cheque to the
bank.
Player A, from Country B / Club C, from Country D
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10.
On 2 March 2016, the second cheque was paid.
11.
On 3 March 2016, the first cheque was paid.
12.
On 6 May 2016, the Claimant sent a letter to the club, by means of which it
informed that the first cheque “was not paid and honoured” within the
time limit set in art. 6 of the termination agreement. As a consequence
thereof, the Claimant put the Respondent in default for the payment of
EUR 30,000, granting it ten days in order to remedy the default.
13.
On 20 May 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the payment of EUR 30,000
plus 5% interest as from 30 March 2016.
14.
In his claim, the Claimant stated that the deadline set in his default notice
expired, but the Respondent did not pay the requested amount.
15.
In particular, the Claimant explained that, since the first cheque was paid
more than twenty working days as from the date it was presented to the
bank, he was entitled to the amount provided under art. 3.3 of the
termination agreement.
16.
Furthermore, the Claimant affirmed that the Respondent, on 29 February
2016 asked him to present the first cheque to bank again.
17.
In its reply, the Respondent contested the FIFA’s jurisdiction, arguing that
the “deciding body under the Football Association of Country D” was
competent, “since the contract of employment provide this option to the
parties […] please see art. 19 of the employment contract”.
18.
In particular, the Respondent considered that such deciding body was “an
independent arbitration tribunal guaranteeing fair proceedings” and
compliant with FIFA regulations, as provided by the Regulations for the
Registration and Transfer of Football Players and the Procedural Regulations
2013 of the Football Association of Country D.
19.
As to the merits of the case, the Respondent acknowledged that the first
cheque was paid more than twenty working days after that it was presented
to the bank. Nonetheless, the Respondent argued that the Claimant was not
entitled to the claimed amount as he had “orally accepted and impliedly
agreed with the late payment of the first cheque”.
Player A, from Country B / Club C, from Country D
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20.
More in detail, the Respondent alleged that, on the date the second cheque
was presented to the bank, “he accepted and orally agreed with the
[Respondent] to present the first cheque to the bank, which it has been fully
paid”.
21.
Moreover, the Respondent considered that, as a proof of the agreement,
the Claimant accepted the payment of the second cheque earlier than the
payment of the first cheque and he did not complain about it. What is
more, according to the Respondent, the Claimant presented the second
cheque “according to the instructions (agreement) of the [Respondent]”.
22.
Furthermore, the Respondent held that art. 6 of the agreement constitutes
an invalid penalty clause as “it is disproportionate comparing to the amount
of EUR 14,000”. Alternatively, the Respondent considered that said penalty
clause, “according to article 163 (I) of the Swiss Code of Obligations” should
be at least mitigated.
23.
In his replica, the Claimant rejected the competence of the NDRC of Country
D, as he considered that the same was not independent and impartial
because the appointment of its players’ representatives “is not independent
but it is subject to the approval and supervision of the Football Association
of Country D”.
24.
Moreover, the Claimant emphasized that neither the contract contains an
explicit arbitration clause or “a reference to article 19”, nor there is any
collective bargaining agreement in force in Country D.
25.
Furthermore, the Claimant affirmed that he “never impliedly waived his
right to the payment of EUR 30,000” and argued that such payment did not
constitute a penalty clause. In particular, the Claimant emphasized that,
compared to the remaining value of the contract, said payment was not
excessive.
26.
In its duplica, the Respondent maintained its position and rejected the
further Claimant’s arguments.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
the 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
Player A, from Country B / Club C, from Country D
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submitted to FIFA on 20 May 2016. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2015; 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 2016), the Dispute Resolution Chamber would be
in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a
Player of Country B and a Club of Country D.
3.
With the above considerations in mind, the Chamber wished to recall that,
in accordance with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, it is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of
the association and/or a collective bargaining agreement. With regard to
the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular
no. 1010 dated 20 December 2005. Equally, the members of the Chamber
referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
4.
In relation to the above, the Chamber also deemed it vital to outline that
one of the basic conditions, that needs to be met in order to establish that
another organ than the DRC can settle an employment-related dispute
between a club and a player of international dimension, is that the
competence of the relevant arbitration tribunal derives from a clear
reference in the employment contract.
5.
Therefore, while analysing whether it was competent to hear the present
matter, the Dispute Resolution Chamber considered that it should, first and
foremost, analyse whether the employment contract at the basis of the
present dispute actually contained a clear and exclusive arbitration clause in
favour of the “deciding body under the Football Association of Country D”.
6.
With the above-mentioned considerations in mind and after a thorough
analysis of the contract at the basis of the present dispute, the members of
the Chamber concluded that said contract did not contain and arbitration
Player A, from Country B / Club C, from Country D
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clause in favour of the “deciding body under the Football Association of
Country D” or any other national body. Therefore, the members of the
Chamber came to the unanimous conclusion that, in the present matter, one
of the indispensable requirements in order to determine that another body
than the DRC is competent to deal with an international employmentrelated dispute is not met.
7.
On account of the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter
has to be rejected and that, thus, the Dispute Resolution Chamber is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, to entertain the Claimant’s claim as to the
substance.
8.
In continuation, 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 2016), and considering that the present
claim was lodged on 20 May 2016, the 2015 edition of said regulations is
applicable to the matter at hand as to the substance.
9.
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 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
evidence, which it considered pertinent for the assessment of the matter at
hand.
10.
First, the Chamber noted that, on 7 January 2016, the parties entered into a
termination agreement, by means of which they terminated the contract.
11.
Furthermore, the DRC took note that, according to art. 3 of the termination
agreement, the Claimant was entitled to the amount of EUR 14,000, to be
paid with two cheques on 25 January and 25 February 2016 respectively,
and to EUR 30,000 within 30 March 2016.
12.
Moreover, the members of the Chamber noted that art. 6 of the
termination agreement stipulates that the Claimant, “should the cheques be
paid within a maximum of twenty working days from the date they will be
presented to the bank for payment”, committed to waive the abovementioned amount of EUR 30,000.
Player A, from Country B / Club C, from Country D
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13.
In this context, the DRC noted that the Claimant alleged that the
Respondent did not pay him the first cheque within the deadline of twenty
working days and, consequently, he was entitled to the amount of EUR
30,000 provided in the termination agreement.
14.
In continuation, the members of the Chamber highlighted that the
Respondent, for its part, acknowledged that the first cheque indeed had
been paid more than twenty working days after its first presentation to the
bank by the Claimant.
15.
Notwithstanding the above, the DRC took note that the Respondent
pointed out that the Claimant had presented the first cheque to the bank in
two different occasions pursuant to the Respondent’s instructions, because
he allegedly agreed on the delayed payment.
16.
In continuation, the Chamber noted that the Respondent argued that art. 6
of the termination agreement provided a disproportionate and, thus,
invalid penalty clause.
17.
In view of the aforementioned positions of the parties, the members of the
Chamber highlighted that the underlying issue in this dispute was to
determine as to whether the Claimant accepted the delayed payment of the
first cheque and, thus, triggered the waiver under art. 6 of the termination
agreement.
18.
In this regard, the DRC, after having duly analysed the clause at stake, held
that art. 6 of the termination agreement clearly required the timely
payment of both cheques for triggering the Claimant’s waiver of the
claimed amount.
19.
Moreover, the members of the Chamber concurred that, in accordance with
the principle of the burden of the proof under art. 12 par. 3 of the
Procedural Rules, the Respondent did not prove that the fact that the
Claimant required the payment of the first cheque twice would entail his
acceptance of the delayed payment.
20.
As to the dissenting viewpoint of the parties with respect to the
proportionality of the penalty fee contained in art. 6 of the termination
agreement, the Chamber again focussed its attention on said contractual
clause.
Player A, from Country B / Club C, from Country D
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21.
In this regard, the members of the Chamber concurred that art. 6 of the
termination agreement did not consist in a penalty clause, but rather in a
right that could be waived in case certain conditions were met, which, in the
case at stake, were not.
22.
Nonetheless, the members of the DRC deemed that, even if considering art.
6 as a penalty clause, in consideration of the remaining duration of the
contract after the execution of the termination of contract, the claimed
amount is both proportionate and reasonable in the case at hand and, thus,
the relevant clause is valid and applicable in the present matter.
23.
On account of the aforementioned considerations, and in accordance with
the general legal principle of pacta sunt servanda, the Chamber concluded
that the Respondent must fulfil its obligations and, consequently, is to be
held liable to pay the Claimant the amount of EUR 30,000, as stipulated in
the termination agreement.
24.
In addition, taking into account the Claimant’s request, the Chamber
decided that the Respondent must pay to the Claimant interest of 5% p.a.
on the aforementioned amount as from the date it fell due, i.e. 30 March
2016, until the date of effective payment.
25.
As a consequence thereof, the members of the Chamber accepted the
player’s claim in its entirety.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as
from the date of notification of this decision, the amount of EUR 30,000
plus 5% interest p.a. as from 30 March 2016 until the date of effective
payment.
4.
In the event that the aforementioned sum plus interest 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.
Player A, from Country B / Club C, from 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 m otiv ated decis ion (legal remedy):
According to article 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:
__________________________
Marco Villiger
Chief Legal & Integrity Officer
Player A, from Country B / Club C, from Country D
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