Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (Sw itzerland), Deputy Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
Wouter Lam brecht (Belgium ), 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 2 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 from 1 July 2015 until 30 June 2017.
2.
On 31 August 2016, the parties concluded a termination agreement which stipulated
inter alia the following:
“2.2 … [the Respondent] accepts to pay to the [Claimant]’s monthly salaries of June, July, August,
September, October, November and December 2016 with a total amount of EUR 1,641,666…
2.3 In additions to the compensation mentioned in article 2.2 the [Respondent] also accepted to
pay the following amount provided receiving a written confirmation from Club E, Private Company
F and Sports Medicine Clinic G accepting their payments/ outstanding to be paid to the [Claimant]
as follows:
a) The outstanding of the transfer fee due to Club E on 1st February 2016 with a total amount
of EUR 1,250,000 … pursuant to an official letter will be received from to Club E.
b) The remuneration due to the Intermediary pursuant to the official letter will be received from
Private Company F with a total amount of EUR 162,450 …
c) A percentage of 50% of the invoices from Sports Medicine Clinic G concerning the sports
rehabilitation of the [Claimant] with a maximum amount of EUR 16,335 … pursuant to the
official letter will be received from Sports Medicine Clinic G.
2.4 The Parties agree that there are no further open monetary claims of each party under any
name whatsoever (including but not limited with, the obligations due before the termination, the
obligations to be due after the termination, the compensation for the early termination or any
penalties whatsoever), by signing this agreement by both Parties and delivering the cheques.
In this context; [the Respondent] and the [Claimant] accept and undertake to release each other
irrevocably for all the obligations set forth in the Professional Contract.
2.5 The amounts stipulated in article 2.2 and / or 2.3 will be paid as follows:
1- 25% upon signing this agreement.
2- 15% on 1st October 2016.
3- 15% on 1st November 2016.
4- 15% on 1st December 2016.
5- 15% on 1st January 2017.
6- 15% on 1st February 2017.
(…)
2.9 The [Claimant] shall deposit an amount of 150,000 in the currency of Country D … to the
[Respondent] in anticipation of traffic fines or maintenance expenses of the Car under the use of
the [Claimant] and the renewal of his accommodation contract from 6th September until 6th
November (two months). The balance of this deposited amount will be returned to the [Claimant]
in 60 days of the date of this Agreement.
(…)
3.3 The disputes arising from the present Agreement may be referred by either Party to FIFA …
as the competent party for solving any dispute arising from this Agreement and Court of
Arbitration for Sports (CAS) as the appeal body.”
Player A, Country B / Club C, Country D
2/10
3.
On 16 February 2017, the Claimant lodged a claim before FIFA against the Respondent
and requested the following amounts (total EUR 2,353,603):
EUR 246,159.90 “regarding the termination payment of 1 October 2016” plus
5% interest p.a. as of 1 October 2016;
EUR 246,159.90 “regarding the termination payment of 1 November 2016”
plus 5% interest p.a. as of 1 November 2016;
EUR 246,159.90 “regarding the termination payment of 1 December 2016”
plus 5% interest p.a. as of 1 December 2016;
EUR 246,159.90 “regarding the termination payment of 1 January 2017” plus
5% interest p.a. as of 1 January 2017;
EUR 246,159.90 “regarding the termination payment of 1 February 2017” plus
5% interest p.a. as of 1 February 2017;
EUR 929,018.50 “regarding the waiver of the second instalment from Club E
to the player of 31 August 2016” plus 5% interest p.a. as of 1 September 2016;
EUR 162,450 “regarding the indebted commission that has been waived to
the player on 31 August 2016” plus 5% interest p.a. as of 1 September 2016;
EUR 16,335 “with regard to the recovery costs of the player, due to the player
on 31 August 2016” plus 5% interest p.a. as of 1 September 2016;
Legal costs of EUR 15,000.
4.
According to the Claimant, the Respondent paid him an amount of EUR 731,248 on 11
October 2016 pertaining to the percentage established under article 2.5 (1) of the
termination agreement (25% of EUR 1,641,066 = EUR 410,266.50) as well as a part of the
amount stipulated under article 2.3 a) of the termination agreement (EUR 320,981.50).
5.
The Claimant held that the Respondent has not made any further payments, despite the
default notice of 9 January 2017, sent by his legal representative on behalf of “Player A
and Mr H”, granting a deadline of 7 days to pay “the outstanding 75%”.
6.
In its reply, the Respondent stated that the claim is “not admissible in some parts which
results that the whole claim shall be considered as rejected and dismissed”. In particular,
the Respondent pointed out that the Claimant is requesting to receive the remuneration
of the intermediary which is governed by a specific agreement between the Respondent
and the intermediary which establishes the exclusive jurisdiction of the Football
Federation of Country D for any disputes about said agreement. Equally, the Respondent
argued that FIFA does not have competence to hear the dispute between the Respondent
and Sports Medicine Clinic G.
7.
In continuation, as to article 2.3 a) of the termination agreement, the Respondent argued
that “such outstanding of the transfer fee is not actually a transfer fee but third party
ownership of the player’s economic rights and the player and his former club get around
FIFA’s regulations and manipulated Club C” and therefore, the Respondent decided not
to sign the agreement of 31 August 2016.
Player A, Country B / Club C, Country D
3/10
8.
Furthermore, the Respondent argued having paid the following amounts:
-
EUR 767,612 on 11 October 2016, pertaining to “25% upon signing the termination
agreement”;
EUR 460,568 on 30 March 2017, pertaining to “15% which was due on 1st October
2016”.
9.
Finally, the Respondent requested 8,000 from the Claimant to cover its legal costs.
10.
In his replica, the Claimant reiterated his arguments and maintained that his entire claim
is admissible, referring to article 3.3 of the termination agreement and the fact that all
amounts claimed by him are stipulated in the termination agreement.
11.
As to the alleged payments mentioned by the Respondent (cf. point I.8.), the Claimant
stated that “this statement of [the Respondent] cannot be taken seriously”.
12.
Finally, the player amended his claim and requested the additional amount of 150,000 in
the currency of Country D (equivalent to EUR 36,000 according to the player) based on
article 2.9 of the termination agreement, arguing that said amount has never been
reimbursed to him.
13.
In its duplica, the Respondent reiterated its position.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was submitted to FIFA on 16 February 2017.
Consequently, 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 2017 and 2018 editions of the
Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed that, in
accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the
Status and Transfer of Players (edition 2018), 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 the Country D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 23 March 2018 by means of which the parties were
informed of the composition of the Chamber, the member, Member L and the member,
Player A, Country B / Club C, Country D
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Member M, refrained from participating in the deliberations in the case at hand, due to
the fact that the Member L has the same nationality as the Claimant and that, in order
to comply with the prerequisite of equal representation of club and player
representatives, also the Member M refrained from participating and thus the Dispute
Resolution Chamber adjudicated the case in presence of three members in accordance
with art. 24 par. 2 of the Regulations on the Status and Transfer of Players.
4.
However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies arguing that the Claimant is requesting to receive the commission
of the intermediary which is governed by a specific agreement between the Respondent
and the intermediary which establishes the exclusive jurisdiction of the Football
Federation of Country D for any disputes about said agreement. Equally, the Respondent
argued that FIFA does not have competence to hear the dispute between the Respondent
and Sports Medicine Clinic G.
5.
The Claimant, for his part, rejected such position and insisted that FIFA has jurisdiction to
deal with the present matter, referring to art. 3.3 of the termination agreement and the
fact that all amounts claimed by him are stipulated in the termination agreement.
6.
The members of the Chamber then turned their attention to said art. 3.3 of the
termination agreement, which reads as follows: “The disputes arising from the present
Agreement may be referred by either Party to FIFA … as the competent party for solving
any dispute arising from this Agreement and Court of Arbitration for Sports (CAS) as the
appeal body.” Hence, the DRC was eager to outline that said clause leaves no room for
any other interpretation than that FIFA’s deciding bodies are competent. Equally, said
clause is laid down in a termination agreement signed by the parties by means of which
they terminated their employment relationship.
7.
Furthermore, the members of the DRC highlighted that the termination agreement
contains payment obligations, albeit subject to certain conditions, of the Respondent
towards the Claimant, but not to any third parties.
8.
For this reason, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected.
9.
On account of the above, the Dispute Resolution Chamber established that it is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of
Players, to consider the present matter as to the substance.
10.
Furthermore, the DRC analysed which edition of the regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2016 and 2018) and considering that the present matter was submitted to FIFA on 16
February 2017, the 2016 edition of said Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the present matter as to the substance.
Player A, Country B / Club C, Country D
5/10
11.
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.
12.
In this respect, the DRC acknowledged that, on 2 July 2015, the Claimant and the
Respondent signed an employment contract, valid as from 1 July 2015 until 30 June 2017.
13.
Subsequently, the members of the DRC observed that the parties concluded a termination
agreement, dated 31 August 2016, which includes inter alia the following provisions:
“2.2 … [the Respondent] accepts to pay to the [Claimant]’s monthly salaries of June, July, August,
September, October, November and December 2016 with a total amount of EUR 1,641,666…
2.3 In additions to the compensation mentioned in article 2.2 the [Respondent] also accepted to
pay the following amount provided receiving a written confirmation from Club E, Private Company
F and Sports Medicine Clinic G accepting their payments/ outstanding to be paid to the [Claimant]
as follows:
a) The outstanding of the transfer fee due to Club E on 1st February 2016 with a total amount
of EUR 1,250,000 … pursuant to an official letter will be received from to Club E.
b) The remuneration due to the Intermediary pursuant to the official letter will be received from
Private Company Fwith a total amount of EUR 162,450 …
c) A percentage of 50% of the invoices from Sports Medicine Clinic G concerning the sports
rehabilitation of the [Claimant] with a maximum amount of EUR 16,335 … pursuant to the
official letter will be received from Sports Medicine Clinic G.
2.4 The Parties agree that there are no further open monetary claims of each party under any
name whatsoever (including but not limited with, the obligations due before the termination, the
obligations to be due after the termination, the compensation for the early termination or any
penalties whatsoever), by signing this agreement by both Parties and delivering the cheques.
In this context; [the Respondent] and the [Claimant] accept and undertake to release each other
irrevocably for all the obligations set forth in the Professional Contract.
2.5 The amounts stipulated in article 2.2 and / or 2.3 will be paid as follows:
1- 25% upon signing this agreement.
2- 15% on 1st October 2016.
3- 15% on 1st November 2016.
4- 15% on 1st December 2016.
5- 15% on 1st January 2017.
6- 15% on 1st February 2017.
(…)
2.9 The [Claimant] shall deposit an amount of 150,000 in the currency of Country D … to the
[Respondent] in anticipation of traffic fines or maintenance expenses of the Car under the use of
the [Claimant] and the renewal of his accommodation contract from 6th September until 6th
November (two months). The balance of this deposited amount will be returned to the [Claimant]
in 60 days of the date of this Agreement.”
14.
Entering into the arguments set forth by the parties, the Chamber took note of the
Claimant’s claim, according to which the Respondent failed to pay several amounts as
Player A, Country B / Club C, Country D
6/10
stipulated in the termination agreement. In particular, the Chamber observed that the
Claimant held that the Respondent only paid him an amount of EUR 731,248 on 11
October 2016 pertaining to the percentage established under article 2.5 (1) of the
termination agreement (calculated by the Claimant as 25% of EUR 1,641,066 = EUR
410,266.50) as well as a part of the amount stipulated under article 2.3 a) of the
termination agreement (EUR 320,981.50). Consequently, the Claimant argued that the
total amount of EUR 2,353,603 remained outstanding.
15.
Subsequently, the Chamber noted that the Respondent held that it had not signed the
waiver from Club E to the Claimant of 31 August 2016, arguing that this concerned “third
party ownership of the player’s economic rights”. Furthermore, the Chamber observed
that the Respondent held that it had made several payments to the Claimant, in particular
the amount of EUR 767,612 on 11 October 2016 and the amount of EUR 460,568 on 30
March 2017.
16.
In continuation, the DRC took note of the Claimant’s replica, in which he reiterated his
position and held that the Respondent’s statement as to the alleged payments “cannot
be taken seriously”. Furthermore, the DRC noted that the Claimant amended his claim
and requested the additional amount of 150,000 in the currency of Country D based on
art. 2.9 of the termination agreement.
17.
The members of the DRC subsequently took note of the Respondent’s duplica, in which
it reiterated its position.
18.
Having established the aforementioned and considering the specific events in the present
dispute, the DRC deemed that it had to analyse which amount, if any, remained
outstanding in accordance with the termination agreement concluded by the parties.
19.
In this regard, the members of the Chamber, referring to the principle of the burden of
proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, stressed that the
Respondent had not submitted any conclusive documentary evidence in support of its
allegation that a total amount of EUR 1,228,180 was paid to the Claimant. In particular,
the DRC observed that the payment slips provided by the Respondent referred to random
amounts without indicating a currency and did not make any reference to the recipient
of the payments. Consequently, the DRC concluded that it could not establish that said
payments were indeed made to the Claimant.
20.
In continuation, the members of the DRC turned their attention to the documentation
submitted by the Claimant in support of his claim that the total amount of EUR 2,353,603
remained outstanding.
21.
In this regard, as to the payment established in art. 2.2 of the termination agreement,
the members of the Chamber took note that the Claimant acknowledged having received
the amount of EUR 410,266.50, whereas he is claiming the remaining amount divided in
five instalments of EUR 246,159.90 each. The Chamber also noted that the Respondent
Player A, Country B / Club C, Country D
7/10
did not further dispute said amount and did not provide any evidence from which it could
be established that the remaining amount was paid to the Claimant. Consequently, the
Chamber concluded that the amount of EUR 1,230,799.50 remained outstanding.
22.
Furthermore, as to the payment established in art. 2.3 a) of the termination agreement,
the members of the Chamber took note that the Claimant submitted an agreement dated
31 August 2016 between himself, the Respondent and Club E. The Chamber noted that
said agreement was not signed by the Respondent, which is confirmed by the latter’s
statement (cf. I.7. above).
23.
However, after having thoroughly analysed the wording of art. 2.3 and 2.3 a) of the
termination agreement, the members of the DRC understood that the only condition was
the receipt of a written waiver from Club E, for which the Respondent’s signature was
not needed. Consequently, the members of the DRC concluded that Club E had validly
waived its entitlement to the second instalment of the transfer fee in the amount of EUR
1,250,000 in favour of the Claimant, waiver that was effectively received by the
Respondent pursuant to its aforementioned statement. Consequently, the Chamber held
that said amount was due to the Claimant.
24.
Having established the foregoing, the Chamber turned its attention to the Claimant’s
claim for the payment established in art. 2.3 b) of the termination agreement. In this
respect, the members of the DRC understood that the only condition for the Claimant to
receive such payment was the receipt by the Respondent of a written waiver from the
intermediary, Private Company F. In this regard, the members of the Chamber took note
that the Claimant submitted a letter dated 31 August 2016 from Private Company F
addressed to the Respondent, by means of which the intermediary waived the amount of
EUR 162,450 in favour of the Claimant. Consequently, the Chamber held that said amount
was due to the Claimant.
25.
On the contrary, with reference to the Claimant’s claim for the amount established in art.
2.3 c) of the termination agreement, the members of the DRC observed that the Claimant
could not provide a written confirmation from the medical institution, Sports Medicine
Clinic G, to the Respondent in which it waived “50% of the invoices”. Consequently, the
Chamber decided to reject the Claimant’s claim for the amount of EUR 16,335.
26.
Thereafter, the Chamber turned its attention to the Claimant’s additional claim for an
amount of 150,000 in the currency of Country D, based on art. 2.9 of the termination
agreement and put forward in his replica. In this regard, the members of the Chamber
emphasised that said claim remained undisputed by the Respondent. Consequently, the
Chamber decided that said amount has to be paid by the Respondent to the Claimant.
27.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as of the
day following the day on which said amounts fell due. However, the members of the
Chamber noted that the Claimant had not requested interest on the amount of 150,000
Player A, Country B / Club C, Country D
8/10
in the currency of Country D and, consequently, decided not to apply the interest rate on
said amount.
28.
Finally, the Chamber rejected any claim for legal expenses and procedural compensation
in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective
longstanding jurisprudence in this regard.
*****
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 partially 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 2,322,268 as well as interest as follows:
-
5% p.a. on the amount of EUR 246,159.90 as from 2 October 2016 until the date of
effective payment;
-
5% p.a. on the amount of EUR 246,159.90 as from 2 November 2016 until the date of
effective payment;
-
5% p.a. on the amount of EUR 246,159.90 as from 2 December 2016 until the date of
effective payment;
-
5% p.a. on the amount of EUR 246,159.90 as from 2 January 2017 until the date of
effective payment;
-
5% p.a. on the amount of EUR 246,159.90 as from 2 February 2017 until the date of
effective payment;
-
5% p.a. on the amount of EUR 929,018.50 as from 1 September 2016 until the date of
effective payment;
-
5% p.a. on the amount of EUR 162,450 as from 1 September 2016 until the date of
effective payment.
4.
In the event that the aforementioned sum plus interest is not paid within the stated time
limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
5.
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 150,000 in the currency of Country D.
Player A, Country B / Club C, Country D
9/10
6.
In the event that the aforementioned sum is not paid within the stated time limit, interest
at the rate of 5% p.a. will fall due as of the date of expiry of the stipulated time limit and
the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
7.
Any further claim lodged by the Claimant is rejected.
8.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances under points 3. and 5. above are to be made
and to notify the Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decision (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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