Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 2 March 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Mario Gallav otti (Italy ), member
Pav el Piv ov arov (Russ ia), member
Roy Verm eer (Netherlands ), member
Jon New m an (USA), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 10 July 2015, the Player of Country B, Player A (hereinafter: the Claimant) and
the Club of Country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid as of 1 July 2015 until 30
June 2016.
2.
Pursuant to the contract, the Claimant was entitled to a total salary of EUR
3,500,000.
3.
On 31 January 2016, the Claimant and the Respondent concluded a termination
agreement (hereinafter: the termination agreement) in accordance with which
the Respondent undertook to make the following payments:
- EUR 259,091 on 1 February 2016;
- EUR 259,091 on 4 February 2016;
- EUR 206,000 on 28 February 2016;
- EUR 206,000 on 31 March 2016;
- EUR 206,000 on 30 April 2016;
- EUR 206,000 on 31 May 2016;
- EUR 206,000 on 30 June 2016.
4.
In this regard, the termination agreement specifies the following:
“ The Parties determined the payment terms and amounts based on the faith on
the timely payments in full and the [Claimant] waives a part of his salary until the
end of the Professional Contract in the amount of 265.455,00-Euro, accepting to
be paid in the amount of 1.548.182,00-Euro instead of 1.813.637,00-Euro.
Considering this belief on the payments to be paid on timely manner and
aforementioned waiver of the [Claimant], the Parties agree on a contractual
default interest of 5% per month for the delayed payments. This interest shall
apply for each instalment that [the Respondent] is on default of the payments
fully and/or partially. Parties also agree that [the Respondent] shall be given15
(fifteen) days tolerance period for the relevant payment following the date of
payment. This tolerance period shall start automatically after the dates without
the need of any notice, notification and/or court verdict”.
5.
Art. 2.3 of the termination agreement further states that “[t]he payments shall be
made to the bank account of the [Claimant] as follows:
‘Beneficiary: [the Claimant]
Bank: ING Bank
Acc No: XXX
Player A, Country B / Club C, Country D
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IBAN: XXX
Swift: XXX
6.
After having lodged a first claim on 17 May 2016 (Ref. nr. XXX), the Claimant
lodged a second claim in front of FIFA against the Respondent on 12 August 2016.
In particular, the Claimant explains that the Respondent proceeded to the
payment of the seventh instalment on 11 August 2016, i.e. 42 days after its due
date, and therefore claims the amount of EUR 13,883.84 as interest in accordance
with the termination agreement. In addition, the Claimant requests FIFA to order
the Respondent to bear the procedural costs and reimburse his legal fees.
7.
In its reply to the claim, the Respondent explains that in spite of the bank details
stipulated in the termination agreement, the Claimant accepted to be paid the
first three instalments to his bank account in Country D. As to the fourth
instalment, the Respondent argues that it gave the instruction to its bank to make
the payment to the bank account referred in the termination agreement, but the
latter bank was unable to proceed to the transfer since the bank details were
incomplete, in particular the beneficiary’s details were missing. In this regard, the
Respondent alleges that it requested such information to the Claimant; however
to no avail.
8.
In continuation, the Respondent asserts that on 13 July 2016, i.e. within the grace
period granted to pay the seventh instalment, the Claimant closed his account in
Country D. Consequently, the Respondent explains that it had to find an
alternative and eventually after several exchange of correspondence with the
bank in Country D, the latter accepted to transfer the money to the bank account
provided by the Claimant when closing his account in Country D.
9.
In his replica, the Claimant emphasises that the Respondent undertook to pay all
the instalments to the bank account stipulated in the termination agreement. In
this regard, the Claimant points out that the Respondent eventually managed to
pay the seventh instalment to this account in spite of having not received the
requested information, which demonstrates the Respondent’s bad faith.
10.
In its duplica, the Respondent reiterates that the delay was exclusively due to the
Claimant’s bad faith. Furthermore, the Respondent points out that the bank
transfer could eventually be made because the Claimant’s bank in Country D
found out that when closing his account in Country D, the Claimant transferred
money to his account in Country E and was therefore able to complete the
missing information.
Player A, Country B / Club C, Country D
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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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 12 August 2016. Consequently, the 2015 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 2016), 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 of Country B and an Club of 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 par. 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present claim was lodged on 12 August
2016, the 2016 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 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.
5.
Having stated the above, the members of the Chamber acknowledged that the
Claimant and the Respondent signed an employment contract initially valid as
from 1 July 2015 until 30 June 2016. Furthermore, the Chamber observed that on
31 January 2016, the parties concluded a termination agreement, which
constitutes the document at the heart of the dispute. In particular, the Chamber
acknowledged that in accordance with the termination agreement, the
Respondent undertook to make the following payments to the Claimant’s bank
account referred in point I.5:
Player A, Country B / Club C, Country D
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- EUR 259,091 on 1 February 2016;
- EUR 259,091 on 4 February 2016;
- EUR 206,000 on 28 February 2016;
- EUR 206,000 on 31 March 2016;
- EUR 206,000 on 30 April 2016;
- EUR 206,000 on 31 May 2016;
- EUR 206,000 on 30 June 2016.
6.
In this regard, the members of the Chamber observed that the termination
agreement specifies, inter alia, the following:
“[T]he Parties agree on a contractual default interest of 5% per month for the
delayed payments. This interest shall apply for each instalment that [the
Respondent] is on default of the payments fully and/or partially. Parties also agree
that [the Respondent] shall be given 15 (fifteen) days tolerance period for the
relevant payment following the date of payment. This tolerance period shall start
automatically after the dates without the need of any notice, notification and/or
court verdict”.
7.
In continuation, the members of the Chamber noted that on 11 August 2016, the
Respondent proceeded to the payment of the instalment due on 30 June 2016.
8.
Having said this, the DRC observed that the Claimant requests the amount of EUR
13,883.84 allegedly corresponding to the default interest of 5% per month
related to the late payment of the instalment due on 30 June 2016.
9.
Subsequently, the Chamber took into account that the Respondent, for its part,
asserts that it cannot be considered having been in default since the delay in
payment was due to the Claimant’s failure to provide it with his complete bank
details.
10.
At this stage, the Chamber focused on the Respondent’s argument that the
interests are not due since the delay was imputable to the Claimant’s fault. In
doing so, the DRC pointed out that the Respondent stressed that it eventually
managed to make the payment thanks to the information collected by the bank
when the Claimant closed his account in Country D. In this respect, the Chamber
deemed it crucial to point out that the Respondent itself acknowledged that such
closure was performed within the grace period. Considering the above, the
Chamber came to the conclusion that the Respondent could have obtained the
alleged missing information and therefore made the payment within the 15-day
grace period. In this regard, the members of the Chamber were eager to highlight
that grace periods, such as the one granted to the Respondent, are generally used
in order to solve this type of unexpected issues. As a consequence, the members
of the Chamber unanimously concluded that since the late payment resulted
Player A, Country B / Club C, Country D
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exclusively from its lack of diligence, the Respondent must be deemed in default
of payment.
11.
Having established the above, the Chamber went on to determine as of when the
Respondent should have been deemed in default. In this respect, and considering
the Claimant’s stand in his first claim (cf. case Ref. nr. XXX), the Chamber decided
that the day following the expiry date of the grace period must be deemed as the
effective due date.
12.
The Chamber then turned its attention to the consequences of the default of
payment. In this regard, after carefully analysing the above-mentioned provision
contained in the termination agreement, the members of the DRC were of the
unanimous opinion that in accordance with the jurisprudence of this Chamber, a
penalty interest of 5% per month, or 60% per year, is to be considered as
manifestly disproportionate, and as such, cannot be enforced. In view of the
foregoing, the Chamber held that the penalty clause contained in the termination
agreement concluded between the parties should be disregarded and that and in
accordance with its longstanding practice, the Respondent has to pay 5% p.a.
default interest.
13.
On account of all the above, the Chamber decided that the Respondent is liable to
pay to the Claimant an interest for late payment of 5% per annum on the amount
of EUR 206,000 as from 16 July 2016 until 11 August 2016.
14.
Subsequently, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
15.
The Chamber concluded its deliberations in the present matter by rejecting any
further request filed by 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 C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, an interest of 5% per annum on the amount
of EUR 206,000 as from 16 July 2016 until 11 August 2016.
3.
In the event that the abovementioned interest is 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 B / Club C, Country D
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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 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 B / Club C, Country D
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