Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2013,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Joaquim Evangelista (Portugal), member
Philippe Diallo (France), member
Alejandro Marón (Argentina), member
on the claim presented by the club,
Club O, from country C
as Claimant/Counter-Respondent
against the player,
Player W, from country A
as Respondent/Counter-Claimant
and
Club L, from country C
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 28 July 2010, Player W, from country A (hereinafter: the Respondent/CounterClaimant), and Club O, from country C (hereinafter: the Claimant/CounterRespondent), signed an employment contract (hereinafter: contract) valid for
one year for the season 2010/2011.
2.
According to art. 2 of the contract, the Respondent/Counter-Claimant is entitled,
inter alia, to a remuneration of EUR 10,000, payable in ten equal monthly
instalments of EUR 1,000, falling due as from 30 August 2010 until 31 May 2011.
3.
On 29 July 2010, the parties signed a supplementary agreement, according to
which the Respondent/Counter-Claimant is entitled to a remuneration of EUR
75,000, payable as follows: EUR 8,500 upon the signature of the contract and ten
instalments of EUR 6,650 each, falling due as from 30 August 2010 until 31 May
2011.
4.
The supplementary agreement further stipulates that “It is mutually agreed
between the parties that if the player decides to sign a contract with another
third party/club in country C for the season 2011/2012, the club has the
preference to sign a contract with the player for the same period and with the
same values or to receive a bonus of EUR 30,000 from the player”.
5.
According to the country C Football Federation, on 4 July 2011, the
Respondent/Counter-Claimant signed an employment contract with another
country C Club, Club L (hereinafter: the Intervening Party).
6.
On 1 August 2011, the Claimant/Counter-Respondent lodged a claim in front of
FIFA against the Respondent/Counter-Claimant for breach of the supplementary
agreement, and requested the payment of the total amount of EUR 14,700,
corresponding to the EUR 30,000 fee mentioned in point I.4. above minus EUR
15,300, the amount due by the Claimant/Counter-Respondent to the
Respondent/Counter-Claimant by the end of his contract, corresponding to
outstanding salaries for May and April 2011.
7.
The Claimant/Counter-Respondent provided a copy of a letter sent to the
Respondent/Counter-Claimant on 20 May 2011, by means of which it
acknowledged the negotiations between Club L and the Respondent/CounterClaimant, and reminded the latter of the provision of the supplementary
agreement. Furthermore, the Claimant/Counter-Respondent stated that it was
“interested to know any other offer from a country C club and consider an
option to sign a contract with you according to the clause above”. According to
the Claimant/Counter-Respondent, the Respondent/Counter-Claimant never
responded to said letter.
Club O, from country C / Player W, from country A
Club L, from country C
2/8
8.
The
Claimant/Counter-Respondent
stated
that,
even
though
the
Respondent/Counter-Claimant signed a new employment contract with Club L, it
never received the amount of EUR 30,000 stipulated in the supplementary
agreement.
9.
According to the Claimant/Counter-Respondent, the Respondent/CounterClaimant contacted it in order to request the payment of his salaries of April and
May 2011 in the total amount of EUR 15,300. The Claimant/Counter-Respondent,
in turn, proposed that the aforementioned amount be deducted from the EUR
30,000 owed by the Respondent/Counter-Claimant to the Claimant/CounterRespondent. Such proposal was allegedly refused by the Respondent/CounterClaimant.
10.
In its response, the Respondent/Counter-Claimant claimed that the
Claimant/Counter-Respondent has no right to demand any kind of monies from
him, since both the employment contract and the supplementary agreement
were signed for a period of one year only. According to the Respondent/CounterClaimant, the new employment contract was signed after the expiry of the
contract with the Claimant/Counter-Respondent, which never offered the
Respondent/Counter-Claimant a new contract for the season 2011/2012.
According to the Respondent/Counter-Claimant, the provision of the
supplementary agreement cannot be applied, since it refers to a future season
for which there is no legal commitment between the Respondent/CounterClaimant and the Claimant/Counter-Respondent.
11.
Therefore,
the
Respondent/Counter-Claimant
entirely
rejected
the
Claimant/Counter-Respondent’s arguments and, on 3 October 2011, lodged a
counterclaim against it for the payment of his outstanding salaries of April and
May 2011, in the amount of EUR 15,300, plus interest and legal fees.
12.
The Claimant/Counter-Respondent maintained its previous argumentation and
stated that the Respondent/Counter-Claimant did not contest having received its
letter dated 20 May 2011, by means of which it requested that he informed it of
any proposals for his transfer coming from another country C club, in order to be
able to consider offering him a contract for the season 2011/2012.
13.
The Respondent/Counter-Claimant, for his part, maintained his previous
argumentation and pointed out that the letter of the Claimant/CounterRespondent dated 20 May 2011 was sent after the end of the championship and
by then the parties no longer had a contractual relationship.
14.
In spite of having been invited by FIFA to do so, the Intervening Party did not
submit any comments on the present affair.
Club O, from country C / Player W, from country A
Club L, from country C
3/8
II.
Considerations of the Dispute Resolution Chamber
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 1 August 2011. Consequently, the 2008 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 par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b)
of the Regulations (edition 2010), it is competent to decide on the present
litigation, which concerns an employment-related dispute with an international
dimension, between a country C club and an country A player.
3.
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
(editions 2012 and 2010) and considering that the present matter was submitted
to FIFA on 1 August 2011, the 2010 edition of said Regulations is applicable to
the present matter as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
it started to acknowledge the facts of the case as well as the documents
contained in the file.
5.
In this respect, the DRC acknowledged that it was undisputed by the parties that
the Claimant/Counter-Respondent and the Respondent/Counter-Claimant had
signed an employment contract, on 28 July 2010, valid for the 2010/2011 season,
according to which the Respondent/Counter-Claimant was entitled to 10 equal
monthly salaries in the amount of EUR 1,000 each, payable as from August 2010
until May 2011, as well as a supplementary agreement on 29 July 2010, as per
which the Respondent/Counter-Claimant was entitled to, inter alia, 10 equal
installments of EUR 6,650 each, payable as from August 2010 until May 2011.
6.
Furthermore, the DRC noted that it was also undisputed by the parties that, on 4
July 2011, the Respondent/Counter-Claimant signed a new employment contract
with the Intervening Party, Club L.
Club O, from country C / Player W, from country A
Club L, from country C
4/8
7.
The Chamber further noted that, on the one hand, the Claimant/CounterRespondent claims that the Respondent/Counter-Claimant, in spite of having
concluded an employment contract with the Intervening Party valid for the
2011/2012 season and in spite of having been contacted by the
Claimant/Counter-Respondent in writing on 20 May 2011, failed to pay to the
Claimant/Counter-Respondent the amount of EUR 30,000 stipulated in the
supplementary agreement. As the Claimant/Counter-Respondent, at the end of
the contract, still had a debt towards the Respondent/Counter-Claimant in the
total amount of EUR 15,300, corresponding to his salaries of April and May 2011,
the Claimant/Counter-Respondent requests that the Respondent/CounterClaimant be ordered to pay to it the amount of EUR 14,700.
8.
The DRC equally noted that the Respondent/Counter-Claimant, on the other
hand, entirely rejects the claim of the Claimant/Counter-Respondent, claiming
that his employment relation with the Respondent/Counter-Claimant was limited
to a period of one year only. Thus, according to the Respondent/CounterClaimant, when the employment contract with the Intervening Party was signed,
the Respondent/Counter-Claimant was no longer contractually bound to the
Claimant/Counter-Respondent, which never offered the Respondent/CounterClaimant a new contract for the season 2011/2012, but only warned him of the
consequences of the supplementary agreement, on 20 May 2011, i.e. after the
end of the championship.
9.
In addition, the Chamber noted that the Respondent/Counter-Claimant claims
that the provision of the supplementary agreement is not applicable, as it refers
to a future season for which there is no legal commitment between the
Respondent/Counter-Claimant and the Claimant/Counter-Respondent.
10.
Therefore, the Respondent/Counter-Claimant rejected the claim and lodged a
counterclaim against the Claimant/Counter-Respondent for the payment of his
outstanding salaries of April and May 2011, in the amount of EUR 15,300, plus
interest and legal fees.
11.
Furthermore, the Chamber took note of the fact that the Intervening party, in
spite of having been invited to do so, never submitted any comments on the
present affair.
12.
Having established the aforementioned, the DRC first and foremost concluded
that at the centre of the present dispute is the question of whether the provision
relating to the payment of the amount of EUR 30,000 by the
Respondent/Counter-Claimant to the Claimant/Counter-Respondent, established
in the supplementary agreement, is to be considered as valid or not.
Club O, from country C / Player W, from country A
Club L, from country C
5/8
13.
In this respect, the Chamber deemed it appropriate to recall the wording of the
aforementioned provision contained in the supplementary agreement, which
stipulates that, “It is mutually agreed between the parties that if the player
decides to sign a contract with another third party/club in country C for the
season 2011/2012, the club has the preference to sign a contract with the player
for the same period and with the same values or to receive a bonus of EUR
30,000 from the player”.
14.
Having recalled the content of the aforementioned provision, the Chamber
concluded that such clause cannot be considered as acceptable. In fact, the
aforementioned clause provides for the obligation of the Respondent/CounterClaimant to pay compensation to the Claimant/Counter-Respondent even after
the expiry of the contract.
15.
In view of the foregoing, the Chamber was of the opinion that the provision of
the supplementary agreement upon which the Claimant/Counter-Respondent
bases its claim shall not be considered as valid by the DRC.
16.
In this regard, the Chamber further noted that it was undisputed by the parties
that the contract concluded between them was valid for one year, i.e. for the
season 2010/2011 only, and that the new contract between the
Respondent/Counter-Claimant and the Intervening Party was signed on 4 July
2011 and valid for season the 2011/2012. In addition, the members of the DRC
pointed out that it was equally undisputed that no new contractual offer had
ever
been
made
by
the
Claimant/Counter-Respondent
to
the
Respondent/Counter-Claimant for the season 2011/2012.
17.
Bearing in mind all the aforementioned, the DRC concluded that claim of the
Claimant/Counter-Respondent was based on an invalid clause and, consequently,
had to be entirely rejected.
18.
In continuation, the DRC focused its attention on the counterclaim of the
Respondent/Counter-Claimant for outstanding remuneration in the total amount
of EUR 15,300, corresponding to his salaries for April and May 2011, plus interest
and legal fees.
19.
In this respect, the Chamber noted that the Claimant/Counter-Respondent did
not dispute the fact that the amount of EUR 15,300 had indeed remained unpaid
to the Respondent/Counter-Claimant, as it also requested in its claim that such
amount be deducted from the EUR 30,000 that it asked to be paid by the
Respondent/Counter-Claimant, in accordance with the supplementary
agreement.
Club O, from country C / Player W, from country A
Club L, from country C
6/8
20.
As a result and in line with the legal principle of pacta sunt servanda, the DRC
concluded that the Respondent/Counter-Claimant was entitled to receive from
the Claimant/Counter-Respondent the outstanding amounts corresponding to his
salaries for April and May 2011, in the amount of EUR 15,300. In addition,
bearing in mind the counterclaim of the Respondent/Counter-Claimant, the
Chamber decided to award interest at the rate of 5% p.a. over the amount of
EUR 15,300 as of 3 October 2011.
21.
The DRC further held that the Respondent/Counter-Claimant’s counterclaim
pertaining to legal costs is rejected, in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence.
22.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that counterclaim of the Respondent/Counter-Claimant is
partially accepted and that the Claimant/Counter-Respondent is to be held liable
to pay outstanding remuneration to the Respondent/Counter-Claimant in the
total amount of EUR 15,300, plus 5% interest p.a. as of 3 October 2011.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Club O, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Player W, is partially
accepted.
3.
The Claimant/Counter-Respondent, Club O, is ordered to pay to the
Respondent/Counter-Claimant, Player W, within 30 days as from the date of
notification of this decision, outstanding remuneration in the amount of EUR
15,300, plus 5% interest p.a. as of 3 October 2011 until the date of effective
payment.
4.
If the aforementioned sum plus interest is not paid within the above-mentioned
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
5.
Any further counterclaim lodged by the Respondent/Counter-Claimant, Player W,
is rejected.
Club O, from country C / Player W, from country A
Club L, from country C
7/8
6.
The Respondent/Counter-Claimant, Player W, is directed to inform the
Claimant/Counter-Respondent, Club O, 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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Club O, from country C / Player W, from country A
Club L, from country C
8/8