Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Takuy a Yam azaki (Japan), member
Tom is lav Kas alo (Croatia), member
Daan de Jong (The Netherlands ), member
Abu Nay eem S hohag (Banglades h), 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
between the parties
I.
Facts of the cas e
1.
On 14 July 2016, the player of Country B, Player A (hereinafter: the player) and
the club of Country D, Club C (hereinafter: the club) concluded an employment
agreement (hereinafter: the contract), valid from 14 July 2016 until 30 June
2018.
2.
According to article 4.4 of the contract, the player was entitled to receive,
during the entire validity of the contract, the total amount of EUR 240,000,
payable as follows:
EUR 15,000, due on 30 August 2016;
EUR 15,000, due on 30 October 2016;
EUR 30,000, due on 30 December 2016
EUR 30,000, due on 28 February 2017
EUR 30,000, due on 30 May 2017;
EUR 30,000, due on 30 October 2017;
EUR 30,000, due on 30 December 2017;
EUR 30,000, due on 28 February 2018;
EUR 30,000, due on 30 May 2018.
3.
Article 10 of the contract contains the following clause: ‘All disputes between
the parties are settled by the Appeals Committee for the Resolution of
Financial Disputes (PEEOD) at first instance, and the Court of Arbitration of the
Football Federation of Country D at second instance’.
4.
Moreover, on 28 December 2016, the player and the club signed a termination
agreement, based on which the parties agreed that the contract would be
terminated as per an unspecified date and that the player, in return for
accepting the termination of the contract, would receive the total amount of
EUR 159,668.37, payable as follows:
EUR 59,668.37, due on 30 December 2016;
EUR 25,000, due on 15 April 2017;
EUR 25,000, due on 15 May 2017;
EUR 25,000, due on 15 June 2017;
EUR 25,000, due on 15 July 2017.
Player A, Country B / Club C, Country D
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5.
Article 8 of the termination agreement contains the following clause: ‘The
present agreement was executed in five counterparts, which were read and
signed by the Parties and one of them shall be deposited to the Football
Federation of Country D (1st Instance Committee for Financial Disputes) by
Club C within three days from the date of signing’.
6.
On 1 August 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club has to be ordered to pay him the total amount of EUR
100,000, consisting of the second, third, fourth and fifth instalment of the
termination agreement. In addition, the player requested to be compensated
for ‘any damage he suffered as a consequence of the relevant breach of the
termination agreement’ in the total amount of EUR 8,223 plus ‘VAT (22%) and
Pension Contribution Fund (4%)’, consisting of EUR 1,148 as ‘pre-trial legal
activities’ and EUR 7,085 as ‘trail legal activities’.
7.
In his claim, the player explains that the club only paid him the first instalment
in the amount of EUR 59,668.37, and that on 6 July 2017, he put the club in
default, requesting the payment of the (according to the player) outstanding
amount of EUR 100,000, however to no avail.
8.
Further, the player explains that he deems that FIFA is competent to deal with
the matter at hand, since it involves a dispute between a club and a player of
an international dimension, as well as that there are no other pending
procedures ‘within any football federation or any jurisdictional court for this
dispute’.
9.
In its reply to the player’s claim, the club first of all contests FIFA’s competence
to deal with the matter at hand, as it deems that the Appeals Committee for
the Resolution of Financial Disputes (PEEOD) at first instance (hereinafter: the
NDRC of Country D), and the Court of Arbitration of the Football Federation of
Country D at second instance, are the only competent deciding bodies.
10.
In this respect, the club points out that the Football Federation of Country D
has established regulations and a deciding body (PEEOD), ‘that contain
principles that respect the principle of equal representation of clubs’ and
further guarantees fair proceedings, which circumstances are moreover
confirmed by CAS in its jurisprudence.
11.
Moreover, as to the substance, the club requested the rejection of the player’s
claim for legal costs, as this is in conflict with art. 18 par. 4 of the FIFA
Regulations.
Player A, Country B / Club C, Country D
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12.
In his reply to the club’s allegations that FIFA is not competent to deal with the
matter at hand, the player explains that, although the employment contract
indeed contains a jurisdiction clause, referring to the NDRC of Country D (cf.
point 3. above), this is not the case for the termination agreement (cf. points 4.
and 8. above). Further, the player explains that his claim arose from the breach
of Club C of the termination agreement, and that therefore, FIFA is competent
to deal with the matter at hand.
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 1 August 2017. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2017; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par.
1 of the Procedural Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of articles 22 to 24 of the Regulations on
the Status and Transfer of Players (editions 2016 and 2018). In accordance with
art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the
aforementioned Regulations, the Dispute Resolution Chamber would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an
player of Country B and a club of Country D.
3.
However, the Chamber acknowledged that the club contested the competence
of FIFA’s deciding bodies to deal with the matter at hand, as it deems that
based on article 10 of the employment contract, the Appeals Committee for
the Resolution of Financial Disputes (PEEOD), and the Court of Arbitration of
the Football Federation of Country D are the only competent deciding bodies
to deal with the matter at hand.
4.
Furthermore, the Chamber noted that the player rejected such position,
arguing that FIFA has jurisdiction to deal with the present matter, as he based
his claim on a settlement agreement concluded between him and the club on
28 December 2016, and not on the employment contract, the club refers to.
5.
Taking into account the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2010 edition of the Regulations on the Status and
Player A, Country B / Club C, Country D
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Transfer of Players it is competent to deal with a matter such as the one in
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. In this regard, the members of the Chamber further referred
to the principles contained in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations, which came into force on 1 January 2008.
6.
In this context, and while analysing whether it was competent to hear the
present matter, the Dispute Resolution Chamber deemed it of utmost
importance to highlight that the present dispute pertains to the execution of a
termination agreement. The player, in his claim, explained that he concluded a
termination agreement with the club, by means of which the employment
contract dated 14 July 2016 was terminated and by means of which the club
would pay the player an amount of EUR 159,668.37, of which according to the
player, an amount of EUR 100,000 remained outstanding and which he
claimed in the proceedings before the DRC.
7.
Having said this, the members of the Chamber turned to the contents of the
termination agreement signed on 28 December 2016, which is the basis of the
present dispute between the player and the club. In this respect, the Chamber
noted that the termination agreement in fact does not include any exclusive
jurisdiction clause or any reference to a national arbitration body in case of a
dispute between the parties.
8.
Hence, differently from the employment contract, the termination agreement
clearly does not refer to a national dispute resolution chamber or any similar
arbitration body in Country D in the sense of art. 22 lit. b) of the
aforementioned Regulations. Therefore, the members of the Chamber deemed
that there is no such exclusive jurisdiction clause in the termination agreement
which would preclude the Chamber from adjudicating on the present dispute.
9.
In view of all the above, the Chamber established that the club’s objection
towards the competence of FIFA to deal with the present matter has to be
rejected, and that 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
consider the present matter as to the substance.
10.
In continuation, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
Player A, Country B / Club C, Country D
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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
claim was lodged on 1 August 2017, the 2016 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
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.
Equally, the Chamber observed that the parties had agreed, by means of the
aforementioned termination agreement dated 28 December 2016, a total
compensation of EUR 159,668.37 would be paid to the player, by means of an
instalment of EUR 59,668.37, due on 30 December 2016, and another 4
instalments of EUR 25,000 each, respectively due on 15 April, 15 May, 15 June
and 15 July 2017.
13.
In continuation, the Chamber noted that the player, in his claim lodged
against the club on 1 August 2017, requested the payment of the amount of
EUR 100,000, as well as an amount of EUR 8,223 as legal costs, pension fund
contributions and VAT.
14.
The Chamber took note that the club did not contest as to the substance that
the amount of EUR 100,000, corresponding to 4 instalments of EUR 25,000
each to be paid in the period between 15 April and 15 July 2017, remained
outstanding.
15.
Consequently, the members of the Chamber considered that the club failed to
fulfill its obligations towards the player in relation to the termination
agreement concluded between the parties on 28 December 2016.
16.
As a consequence, the Chamber decided that the club, in accordance with the
general legal principle of pacta sunt servanda, is liable to pay to the player, as
per the termination agreement, the outstanding amount of EUR 100,000.
17.
Moreover, the Chamber noted that the player requested an unspecified
amount to be paid by the club, related to VAT and pension fund contributions.
In this respect, the members of the Chamber acknowledged that the
termination agreement signed by both the player and the club on 28
Player A, Country B / Club C, Country D
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December 2016, specifically expressed that the signing parties had nothing else
to claim from each other, besides the agreed amount of EUR 159,668.37.
18.
Equally, the Chamber reiterated its previous statement about the fact that the
present dispute is based on the termination agreement signed by both parties,
and not on the prior employment contract. To this end, the Chamber noted
that such termination agreement did not contain any sort of reference to any
VAT payments or pension fund contributions.
19.
In view of the foregoing, the members of the Chamber concluded that the
Claimant is not entitled to receive amounts for any other concept than those
established in the termination agreement, due to a lack of legal basis.
20.
Moreover, the Dispute Resolution Chamber decided to reject the player’s claim
pertaining to procedural costs in the total amount of EUR 8,223 in accordance
with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective
longstanding jurisprudence in this regard.
21.
Taking into account all the above, the DRC decided that the player’s claim is
admissible and is partially accepted. In conclusion, the Chamber established
that the club has to pay to the player the amount of EUR 100,000.
22.
The Chamber concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decis ion 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, outstanding remuneration in the
amount of EUR 100,000.
4.
In the event that the amount due to the Claimant in accordance with the
above-mentioned number 3. is not paid by the Respondent within the stated
time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and 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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5.
Any further claim lodged by the Claimant is rejected.
6.
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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