Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 12 June 2012,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player V, from country B
as Claimant
against the club,
Club O, from country P
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 11 July 2008, Player V, from country B (hereinafter: the Claimant), and Club O, from
country P (hereinafter: the Respondent), signed an employment contract valid as from
12 July 2008 until 30 June 2011.
2.
On 25 November 2008, the parties mutually terminated the employment contract in
writing as of 1 December 2008.
3.
According to clause 4 of the termination agreement, the Claimant is entitled to receive:
“For global compensation due to the sporting labor contract revoked, the first
contractor promises to pay the second contractor the total amount of EUR 70.412,80
[…]”.
4.
On 18 January 2010, the Claimant lodged a complaint before FIFA against the
Respondent for the outstanding amount of EUR 31,957.17 based on the termination
agreement.
5.
In its reply to the claim, the Respondent explained that it only owes the Claimant EUR
30,000, since it paid the amount of EUR 38,647.83 as well as flight tickets for the
player’s return to country B in the amount of EUR 1,764.96 (EUR 70,412.80 – EUR
38,647.83 – 1,764.96 = EUR 30,000).
6.
In his replica, the Claimant recognized that the Respondent owed him EUR 30,000 and
explained that by e-mail exchanges between him and the Respondent they came to the
agreement that the Respondent would pay the Claimant EUR 30,000, payable in the
following instalments:
- EUR 12,000 to be paid in four equal instalments of EUR 3,000 each on 20 September
2010, 10 October 2010, 10 November 2010 and 10 December 2010;
- EUR 18,000 to be paid in twelve equal instalments of EUR 1,500 each on 10 January
2011, 10 February 2011, 10 March 2011, 10 April 2011, 10 May 2011, 10 June 2011, 10
July 2011, 10 August 2011, 10 September 2011, 10 October 2011, 10 November 2011
and 10 December 2011.
7.
On 20 March 2012, the Claimant informed FIFA that he only received EUR 16,500 from
the Respondent and thus claims the outstanding amount of EUR 13,500 made up of the
instalments due as from 10 April 2011 as well as requiring “the immediate appliance of
established penalties for this case.”
8.
In spite of having been invited by FIFA to do so, the Respondent failed to provide its
final position.
Player V, from country B / Club O, from country P
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II.
Considerations of the DRC Judge
1.
First of all, 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 18
January 2010. Consequently, the 2008 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 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations;
edition 2010) the DRC judge is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
country B player and a country P 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 (editions 2010),
and considering that the present claim was lodged on 18 January 2010, the 2009 edition
of 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. The DRC judge
started by acknowledging the above-mentioned facts and documentation contained in
the file.
5.
In doing so, the DRC judge first of all established that it was undisputed that the parties
had signed, on 11 July 2008 an employment contract valid as from 12 July 2008 until 30
June 2011.
6.
Furthermore, the DRC judge noted that it was uncontested by the parties that on 25
November 2008, they signed a termination agreement to mutually terminate the
employment contract as of 1 December 2008 and according to which the Respondent
would pay the Claimant an amount of EUR 70,412.80.
7.
Moreover, the DRC Judge pointed out that throughout the present proceedings, the
Respondent has partially paid an outstanding amount from the termination agreement
and the parties agreed that the amount of EUR 30,000 was still outstanding and agreed
on a payment plan by e-mail.
Player V, from country B / Club O, from country P
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8.
In continuation, the DRC judge took due note that, on the one hand, the Claimant
demands, after having amended its claim throughout the proceedings, to be awarded
payment by the Respondent of the amount of EUR 13,500, made up of the instalments
that were still outstanding as of 10 April 2011 as well as “the immediate appliance of
established penalties for this case”.
9.
The Respondent, for its part, after having complied partially with its financial obligation
of the termination agreement, has failed to provide its final position. In this way, the
DRC Judge concluded, the Respondent accepted the allegations of the Claimant
regarding the final amount claimed by the latter as being outstanding.
10.
As stated above, in accordance with the termination agreement and the exchange of emails between the parties presented by the Claimant, the Respondent was obliged to
pay to the Claimant, after having partially complied with its financial obligations, the
total amount of EUR 30,000 payable in the following instalments:
- EUR 12,000 to be paid in four equal instalments of EUR 3,000 each on 20 September
2010, 10 October 2010, 10 November 2010 and 10 December 2010;
- EUR 18,000 to be paid in twelve equal instalments of EUR 1,500 each on 10 January
2011, 10 February 2011, 10 March 2011, 10 April 2011, 10 May 2011, 10 June 2011, 10
July 2011, 10 August 2011, 10 September 2011, 10 October 2011, 10 November 2011
and 10 December 2011.
11.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC Judge concluded that the Claimant had substantiated his claim
pertaining to outstanding monies with sufficient documentary evidence.
12.
On account of the aforementioned considerations, the DRC Judge established that the
Respondent failed to remit the outstanding instalments as of 10 April 2011 in the total
amount of EUR 13,500 to the Claimant.
13.
Consequently, the DRC Judge decided that the Respondent in accordance with the
general legal principle of pacta sunt servanda, is liable to pay to the Claimant the
outstanding amount of EUR 13,500.
14.
Lastly, the DRC Judge turned his attention to the Claimant’s request for “the immediate
appliance of established penalties for this case” to be imposed on the Respondent in
line with art. 17 par. 4 of the Regulations, which was rejected by the DRC Judge in view
of the fact that the present matter pertains to the breach of a termination agreement
and thus does not involve a breach of the employment contract in the sense of the
aforementioned provision. In other words, art. 17 par. 4 of the Regulations is not
applicable in the present matter.
Player V, from country B / Club O, from country P
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15.
The DRC Judge concluded its deliberations in the present matter by establishing that
any further claims lodged by the Claimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player V, is partially accepted.
2.
The Respondent, Club O, has to pay to the Claimant within 30 days as from the date
of notification of this decision the amount of EUR 13,500.
3.
If the aforementioned sum is not paid within the above-mentioned deadline, interest at
the rate of 5% p.a. will fall due as of expiry of the above-mentioned time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its
consideration and a formal decision.
4.
Any further claim filed by the Claimant is rejected.
5.
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 DRC judge of
every payment received.
*****
Player V, from country B / Club O, from country P
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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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player V, from country B / Club O, from country P
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