Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 May 2012,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player
Player A, from country G
as Claimant
against the club
Club P, from country C
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 16 May 2009, Player A, from country G (hereinafter: the Claimant) and Club P, from
country C (hereinafter: the Respondent) concluded an Employment Contract
(hereinafter: the contract) valid from 1 July 2009 until 30 June 2011.
2.
The clause 3 of the contract established that the Claimant is entitled inter alia to a
salary of EUR 24,000 payable in twelve monthly instalments of EUR 2,000 each, payable
until the last day of every month.
3.
On 10 August 2010, the parties signed a document named “cancellation agreement”
(hereinafter: the termination agreement), by means of which they agreed that the
Respondent would pay to the Claimant a compensation in the amount of EUR 14,000 to
be paid in two instalments, the first one in the amount of EUR 7,000 until the end of
August 2010 and the second one in the amount of EUR 7,000 until the end of
September 2010.
4.
Moreover, the termination agreement further established that “the player has and/or
will have no claim whatever from the club in respect of the [contract] after the
payments are observed.”
5.
On 12 November 2010 the Claimant lodged a claim against the club before FIFA,
requesting the payment of the amount of EUR 34,000.
6.
In this regard, the Claimant detailed the claimed amount as follows:
- EUR 1,500 as the residual payment of the monthly salary of October 2009;
- EUR 500 as the residual payment of the monthly salary of November 2009;
- EUR 16,000 as outstanding salaries corresponding to the monthly salaries from
January until August 2010, each in the amount of EUR 2,000;
- EUR 20,000 as compensation for the remaining monthly salaries from September
2010 until June 2011, each in the amount of EUR 2,000.
In this respect, the Claimant emphasized having deducted the amount of EUR 4,000
from the aggregate amount, since the Respondent paid that sum in relation to the
termination agreement.
7.
According to the Claimant’s statements, the Respondent failed to pay the monthly
salaries as from January 2010. In this respect, the Claimant held that even after having
requested the Respondent several times to settle the outstanding payments, the salaries
remained unpaid.
8.
The Claimant further specified having received the incomplete payments for the salaries
of October and November 2009 and two uncovered cheques for the salaries of January
and February 2010 and not having received any further payment for the salaries from
March to December 2010. On account of the aforesaid, the Claimant declared that the
Player A, from country G / Club P, from country C
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parties concluded the termination agreement as well as stated having received the
amount of EUR 4,000, corresponding to the termination agreement.
9.
Moreover, the Claimant alleged having sent a letter to the Respondent on
21 October 2010, confirming the receipt of the payment in the amount of EUR 4,000
and claiming the payment of the residual amount of EUR 10,000, setting a deadline
until 31 October 2010. However, according to the Claimant, no further payment was
received to date and therefore, the termination agreement should be seen as null and
void.
10.
Even though FIFA has contacted the Respondent, it did not respond to the claim and
did not make any statements in the course of the investigation.
*****
II.
Considerations of the Dispute Resolution Chamber judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge) analysed
whether he was competent to deal with the case at hand. In this respect, he took note
that the present matter was submitted to FIFA on 12 November 2010, thus after 1 July
2008. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players, he is competent to decide on
the present litigation concerning an employment-related dispute with an international
dimension between a country G player and a country C club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2010), and
considering that the present claim was lodged on 12 November 2010, the 2010 edition
of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so, he
started by acknowledging the facts of the case as well as the documents contained in
the file.
Player A, from country G / Club P, from country C
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5.
In this respect, the DRC judge acknowledged that the Claimant and the Respondent
signed a contract setting out a period of validity as from 1 July 2009 until 30 June 2011,
in accordance with which the Claimant was to receive inter alia a monthly salary in the
amount of EUR 2,000 each.
6.
Moreover, the DRC judge took note that on 10 August 2010 the parties concluded a
termination agreement, by means of which the Respondent would have had to pay the
amount of EUR 14,000 to the Claimant.
7.
At this point the DRC judge reviewed the claim of the Claimant who held that he would
be entitled to receive from the Respondent the amount of EUR 34,000, consisting of the
aggregate amount still due in accordance with the contract (EUR 38,000) reducing the
amount of EUR 4,000 already paid by the club in connection with the termination
agreement (cf. point I.5. + I.6.).
8.
Subsequently, the DRC judge noticed that the Respondent, for its part, failed to present
its response to the claim, in spite of having been invited to do so. Consequently, the
DRC judge deemed it appropriate to emphasize that the Respondent renounced to its
right to present its defence and, thus, accepted the allegations of the Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10.
In line with the above, the DRC judge remarked that according to the Claimant, the
parties concluded the termination agreement because the Respondent failed to fulfil
with its obligations stipulated on the contract as of January 2010. In this regard, the
DRC judge observed that the Claimant alleged having received only partial payments for
the months of October and November 2009.
11.
Additionally, the DRC judge noted that the player stated having received only the
amount of EUR 4,000 regarding the termination agreement. Finally, the DRC judge took
note that the Claimant declared having contacted the Respondent asking it to
accomplish with the payment of the remaining amount of EUR 10,000, related to the
termination agreement. To this effect, the DRC judge remarked that according to the
player, he did not receive further payments until the given date and that, as a result,
the termination agreement should be seen as null and void.
12.
Accordingly, the DRC judge first and foremost took note that the Respondent did not
comply with its contractual obligations established in the contract concluded on 19 May
2009 and for that reason the parties concluded the termination agreement on
10 August 2010, by means of which the Respondent should have paid to the Claimant
the amount EUR 14,000 (cf. point I.3.).
Player A, from country G / Club P, from country C
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13.
In this sense, the DRC judge considered the contents of the termination agreement
which reads as follows: “the player has and/or will have no claim whatever from the
club in respect of the [contract] after the payments are observed.” (cf. point I.4.).
14.
In view of the above, the DRC judge considered that the parties found a mutual
agreement in order to prematurely terminate the contract and that the Claimant would
have no further claims against the Respondent in relation with the contract.
15.
On account of the aforesaid, the DRC judge decided that in this present matter the
termination agreement signed on 10 August 2010 is valid and thus the employment
contract was duly terminated. Therefore, the DRC judge considered that the Claimant is
entitled to receive the amounts established in the termination agreement.
16.
Having established the above-mentioned, the DRC judge observed that according to the
Claimant, the Respondent paid only the amount of EUR 4,000 regarding the termination
agreement.
17.
Consequently, the DRC judge decided that the Respondent failed to pay to the Claimant
part of the amount stipulated in the termination agreement, thus the Respondent is
liable to pay the relevant outstanding amount of EUR 10,000 to the Claimant.
18.
In conclusion, the DRC judge decided to partially accept the claim of the Claimant and,
as consequence, that the Respondent is liable to pay the total amount of EUR 10,000 to
the Claimant, in accordance with the termination agreement.
19.
The Dispute Resolution Chamber judge concluded its deliberations in the present
matter by establishing that any further request filed by the Claimant is rejected.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club P, has to pay to the Claimant, Player A, the amount of EUR
10,000, within 30 days as from the date of notification of this decision.
3.
In the event of non-payment of the aforementioned amount by the Respondent,
Club P, within the established deadline, interest at the rate of 5% per year will apply as
of expiring of the fixed time limit and the present matter shall be submitted, upon
request, to the FIFA’s Disciplinary Committee for consideration and a formal decision.
Player A, from country G / Club P, from country C
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4.
The Claimant, Player A, is directed to inform the Respondent, Club P, immediately and
directly of the account number to which the remittance is to be made and to notify the
DRC judge 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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player A, from country G / Club P, from country C
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