Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 April 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Leonardo Grosso (Italy), member
Philippe Diallo (France), member
Todd Durbin (USA), member
on the claim presented by the player,
A, country U,
represented by Mr xxxxx
as Claimant
against the club,
B, country S
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 July 2012, the player from country U, A (hereinafter: the Claimant), and the
club from country S, club B (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid from the date of signature
until 30 June 2013.
2.
According to clause 19 of the contract, the Claimant was entitled to receive inter
alia a monthly salary in the amount of USD 41,666.67 as well as USD 200,000 as
“advance paid on signing this contract”.
3.
On 25 February 2013, the parties concluded an “Agreement for Cordial
Termination of Contract” (hereinafter: the termination agreement), by means of
which they agreed that the Claimant would be entitled to receive the following
amounts:
a. “The Club will transfer to the Player’s Bank account an Amount of 41.666
[… USD] representing one monthly salary.
b. The remaining salaries of the player will be (4) months.
c. The outstanding payment due by the Club to the Player is USA 100.000 […]
the remaining amount of the signing fee in addition to USA 166.664,00 […]
representing four months salaries.
d. The total is US$ 266.664,00 […]. The Club is committed to transfer this
amount to the Player’s Bank account on 25th March 2013”.
4.
On 14 November 2013, the Claimant submitted a claim against the Respondent in
front of FIFA, requesting the payment of USD 308,330, based on the termination
agreement, plus 5% interest as follows:
a. USD 41,666 plus 5% interest p.a. as from 26 February 2013;
b. USD 266,664 plus 5% interest p.a. as from 26 March 2013.
Player A, country U / Club B, country S
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5.
In this regard, the Claimant explained that he contacted the Respondent as well
as the XY Football Federation on 16 April 2013 and 3 July 2013 in order to
demand the amounts stipulated in the termination agreement, however, without
allegedly receiving an answer.
6.
In its response to the claim, the Respondent confirmed owing the Claimant the
total amount of USD 266,664 (cf. point I.3.c). However, it rejected the Claimant’s
request for the amount of USD 41,666, indicating that there appears to be a
misunderstanding and stating that “it is not possible that the player will sign the
agreement without getting his due while signing the document”, i.e. the
Respondent stated that there were no outstanding salaries due at the time the
Claimant signed the termination agreement. Finally, the Respondent offered to
pay the amount of USD 266,664 “without any interest on the proposed date by
the player counsel because he made a mistake with his client on the concept of
Article 2 of the termination agreement [cf. point I.3.a. above] (there is no
payment due in 25/2/2013)”.
7.
In his reaction, the Claimant pointed out that the Respondent confirmed owing
him the total amount of USD 266,664. In this respect, he emphasized that, to date,
he had not received said amount and the respective interests. Equally, the
Claimant rejected the Respondent’s allegation with regard to the salary of USD
41,666 (cf. points I.3.a. and I.4.a.), corresponding to February 2013, already having
been paid to him. In this context, the Claimant explained that the contract had
been terminated on 25 February 2013 and the “payment of the wages was due
until the end of February. The claim of the Player to be paid is wage of February
2013, in the amount of US$ 41,666.00 is then subsidiarily to be deducted from the
Employment Contract, on the one side, and also from the Termination
Agreement, on the other side”.
8.
Despite having been invited to do so, the Respondent did not provide FIFA with
its final comments on the present affair.
Player A, country U / Club B, country S
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II.
Considerations of the Dispute Resolution Chamber
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 14 November 2013. Consequently, the 2012 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par.
2 and par. 3 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 (editions 2012, 2014 and 2015) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country U
and a club from country S.
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
(editions 2012, 2014 and 2015), and considering that the present claim was lodged
on 14 November 2013, the 2012 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.
Player A, country U / Club B, country S
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5.
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.
6.
First and foremost, the Chamber acknowledged that the parties had terminated
their employment relation by mutual consent by entering into the termination
agreement on 23 February 2013, the terms of which are detailed in point I.
3.above.
7.
In continuation, the members of the Chamber noted that the Claimant contacted
FIFA on 14 November 2013 indicating that the Respondent had not fulfilled its
obligations as established in the termination agreement, since it had not paid the
agreed amounts. Consequently, the Claimant asks that the Respondent be
ordered to pay the total amount of USD 308,330 plus 5% interest p.a. as from
each due date.
8.
The Chamber took into account that the Respondent, for its part, admits that it
owes the amount of USD 266,664 to the Claimant and that, thus, the Respondent
confirms that it has not made such payment to the Claimant. It was further noted
that the Respondent rejects the Claimant’s claim relating to the amount of USD
41,666, since, according to the Respondent, no outstanding salaries were due at
the time of the conclusion of the termination agreement and the Claimant would
not have signed such agreement without receiving the aforementioned amount.
9.
At this point already, the Chamber deemed it appropriate to refer the parties to
the content of art. 12 par. 3 of the Procedural Rules, according to which “any
party claiming a right on the basis on an alleged fact shall carry the burden of
proof”. In this particular case, the Chamber pointed out that the Respondent bore
the burden of proving that the Claimant’s salary had in fact been paid, in
accordance with the its response to the claim (cf. point I.6. above). In this respect,
the DRC noted that the Respondent did not present any documentary evidence to
Player A, country U / Club B, country S
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prove that it had in fact paid the player the amount of USD 41,666 in accordance
with the termination agreement.
10.
On account of the aforementioned considerations, the Chamber decided that in
accordance with the general legal principle of pacta sunt servanda, the
Respondent is liable to pay to the Claimant the amount of USD 308,330,
corresponding to USD 41,666 (cf. point I.3. a. above) plus USD 266,664 (cf. points I.
3. c. and d. above), as per the termination agreement.
11.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on
the aforementioned amounts as follows:
a. 5% p.a. as of 26 February 2013 on the amount of USD 41,666;
b. 5% p.a. as of 26 March 2013 on the amount of USD 266,664.
12.
The Chamber concluded its deliberations in the present matter by stating that the
Claimant’s claim is accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, club B, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of USD 308,330 plus 5% interest
p.a. until the date of effective payment as follows:
- 5% p.a. as of 26 February 2013 on the amount of USD 41,666;
- 5% p.a. as of 26 March 2013 on the amount of USD 266,664.
Player A, country U / Club B, country S
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3.
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.
4.
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:
Markus Kattner
Acting Secretary General
Encl.: CAS directives
Player A, country U / Club B, country S
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