Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 22 June 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player A, Country B & Country C,
as Claimant
against the club,
Club D, Country E,
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 29 September 2013, the player of Country B and Country C, Player A (hereinafter:
Claimant), and the club of Country E, Club D (hereinafter: Respondent) signed an
employment contract valid as from the day of signature until 31 July 2016.
2.
Thereafter, on 29 January 2015, the Claimant and the Respondent mutually agreed
to terminate the employment contract and, in consequence, concluded a settlement
agreement (hereinafter: settlement agreement) by means of which the Respondent
undertook to pay the Claimant the amount of EUR 750,000 within three days after
the signing of the settlement agreement.
3.
Clause 2.2 of the settlement agreement establishes the following: “In the event the
payment is done to another bank account different from the one contained herein,
the payment shall be deemed as not done”.
4.
Moreover, in accordance with clause 2.3 of the settlement agreement, should the
Respondent not fulfil the payment agreed therein, a default interest at the rate of
5% p.a. will accrue as from the due date until the date of effective payment.
5.
By correspondence dated 30 March 2015, the Claimant put the Respondent in
default of payment of the amount of EUR 750,000 setting a time limit expiring on 9
April 2015 in order to remedy the default.
6.
On 25 March 2015, the Claimant lodged a claim against the Respondent in front of
FIFA that was completed on 30 March 2015, asking that the Respondent be ordered
to pay to him overdue payables in the amount of EUR 750,000 corresponding to the
full amount agreed in the settlement agreement.
7.
The Claimant further asked to be awarded interest at a rate of 5% p.a. as of 1
February 2015 as well as legal costs.
8.
In reply to the claim, the Respondent held that it was not willing to make the
relevant payment to the bank account established by the Claimant in the settlement
agreement. In this respect, the Respondent explained that the circumstances of the
player, i.e. being a citizen of Country B and Country C living in Country F, together
with the fact that the bank account informed by the Claimant is an account of
Country G, turned the transfer of such amount of money “suspicious” in terms of tax
compliance.
9.
Based on the above, the Respondent offered to pay the outstanding amount to the
Claimant in any other bank account located in a different country from Country G.
Player A, Country B & Country C / Club D, Country E
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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
of DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 25 March
2015. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 and par. 2 in
conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a player of Country B and Country C and a club of
Country E.
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 par. 2 of the Regulations on the Status and Transfer of Players (2015), and
considering that the present claim was lodged on 25 March 2015, the 2015 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 all the above-mentioned facts as well as the
arguments and the documentation on file. 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.
5.
Having said this, the members of the Chamber acknowledged that the Claimant and
the Respondent signed an employment contract valid as of 29 September 2013 until
31 July 2016. Moreover, the members of the Chamber acknowledged that the
employment contract was mutually terminated on 29 January 2015 by means of the
settlement agreement signed by both parties, according to which the Respondent
undertook to pay the Claimant the amount of EUR 750,000 within the next three
days following the day of its signature.
Player A, Country B & Country C / Club D, Country E
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6.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining
that the Respondent has overdue payables towards him in the total amount of EUR
750,000 corresponding to the full amount established in the settlement agreement.
7.
In this context, the DRC took particular note of the fact that, on 30 March 2015, the
Claimant put the Respondent in default of payment of the aforementioned amount,
setting a time limit expiring on 9 April 2015 in order to remedy the default.
8.
Consequently, the Chamber concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the
creditor (player or club) must have put the debtor club in default in writing and have
granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
9.
Subsequently, the Chamber took into account that the Respondent, for its part, held
that it was not willing to make the relevant payment to the bank account
established by the Claimant in the settlement agreement. In this respect, the DRC
took note of the argument of the Respondent, which explained that the
circumstances of the player i.e. being a citizen of Country B and Country C living in
Country F, together with the fact that the bank account informed by the Claimant is
an account of Country G, turned the transfer of such amount of money “suspicious”
in terms of tax compliance.
10.
With due consideration to the above, the members of the Chamber, at this point,
turned their attention to the contents of the settlement agreement and, in
particular, to its clause 2.2 which reads as follows: “In the event the payment is done
to another bank account different from the one contained herein, the payment shall
be deemed as not done”.
11.
In this regard and with reference to clause 2.2 of the settlement agreement, the DRC
considered that the arguments raised by the Respondent cannot be considered a
valid reason for non-payment of the monies claimed by the Claimant as it was
mutually agreed in the settlement agreement, duly signed by both parties, that the
payment of the due amount would explicitly be made in the bank account informed
by the Claimant therein. In other words, the reasons brought forward by the
Respondent in its defence do not exempt the Respondent from its obligation to fulfil
its contractual obligations towards the Claimant.
12.
Consequently, the Chamber decided to reject the argumentation put forward by the
Respondent in its defence.
13.
On account of the aforementioned considerations, the Chamber established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
750,000 corresponding to the amount mutually agreed in the settlement agreement.
Player A, Country B & Country C / Club D, Country E
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14.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
15.
Consequently, the members of the Chamber decided that, in accordance with the
general legal principle of pacta sunt servanda, the Respondent is liable to pay to the
Claimant overdue payables in the total amount of EUR 750,000.
16.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of EUR 750,000 as from
2 February 2015 until the date of effective payment.
17.
Furthermore, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to the long-standing and well-established
jurisprudence of the DRC, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request relating to legal
expenses.
18.
In continuation, taking into account the consideration under number II./14. above,
the Chamber referred to art.12bis par. 2 of the Regulations which stipulates that any
club found to have delayed a due payment for more than 30 days without a prima
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
19.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent duly replied to the claim of the Claimant and in the absence of the
circumstance of repeated offence, the Dispute Resolution Chamber decided to
impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of
the Regulations.
20.
In this respect, the Chamber wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club D, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, overdue payables in the amount of EUR 750,000,
Player A, Country B & Country C / Club D, Country E
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plus interest at the rate of 5% p.a. as from 2 February 2015 until the date of effective
payment.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged 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 Dispute
Resolution Chamber of every payment received.
6.
A warning is imposed on the Respondent.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
Player A, Country B & Country C / Club D, Country E
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Encl: CAS directives
Player A, Country B & Country C / Club D, Country E
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