Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Ivan Gazidis (England), member
on the claim presented by the player,
Player V, from country B
as Claimant
against the club,
Club C, from country S
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
The Player V, from country B (hereinafter: player or Claimant), was contractually
bound to Club C, from country S (hereinafter: club or Respondent), as from June
2011 until the end of the 2013-14 season in the context of a loan to the club.
2.
On 25 June 2012, the Claimant and the Respondent signed an agreement by
means of which they terminated the employment contract by mutual agreement
(hereinafter: termination agreement).
3.
In accordance with the termination agreement, the club undertook to pay to the
player the amount of EUR 275,000 net in the three following instalments:
a. EUR 75,000 no later than 1 October 2012;
b. EUR 100,000 no later than 1 December 2012;
c. EUR 100,000 no later than 1 January 2013.
4.
According to clause 4 of the termination agreement, any delay or non-compliance
with the aforementioned payment schedule will result in a penalty of “20% of
the debt” payable by the club to the player plus interest of 5% p.a., calculated
pro rata die, and the “anticipation of the expiration dates of the instalments yet
due”.
5.
Clause 5 of the termination agreement stipulates that in the event that the
parties tolerate any infringement of the clauses or decide not to enforce the
rights acquired by means of the termination agreement, this shall not be
considered an alteration of the agreement nor waiver of any kind, but only an act
of indulgence.
6.
On 14 November 2012, the player lodged a claim against the club in front of FIFA
maintaining that the club had failed to remit the first instalment under the
termination agreement. Therefore, the player held that in accordance with clause
4 of the termination agreement, he is entitled to receive the full amount of EUR
275,000 at once, plus EUR 55,000 as the 20% penalty for non-compliance as well
as 5% interest p.a. starting as from the time limit for payment of the first
instalment, which he claims is 1 September 2012.
Player V, from country B / Club C, from country S
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7.
Consequently, the player asks that the club be ordered to pay the aforementioned
amounts plus legal and procedural costs and that sanctions be imposed on the
club.
8.
In reply to the claim, the club admitted that it owes the amount of EUR 275,000 to
the player and asked to be granted another payment schedule due to its alleged
financial difficulties.
9.
In addition, in the event that the parties would not find an amicable settlement in
this sense, the club rejects the payment of the 20% penalty amount, as it deems
that it is not realistic, bearing in mind that the applicable interest of 5% already
constitutes a penalty. In addition, the club points out that the parties came to an
agreement to terminate the employment contract by mutual consent due to the
fact that not only the club was in breach of contract by being in delay of payment
of salaries, but also due to a breach of contract by the player by having left for
country B. In addition, according to the club, disciplinary proceedings had been
opened against the player.
10.
The new payment schedules granted to the club by the player during the
proceedings in the matter at hand were not respected by the club and therefore,
the player insists on his claim including the payment of the 20% penalty, which
was rejected by the club.
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 2012. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are 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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) 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 country B player and a country S club.
Player V, from country B / Club C, from country S
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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
(editions 2012 and 2010), and considering that the present claim was lodged on
14 November 2012, the 2010 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.
5.
First and foremost, the Chamber acknowledged that the parties had terminated
their employment relation by mutual consent by entering into the termination
agreement on 25 June 2012. In accordance with the termination agreement, the
Respondent inter alia undertook to pay to the Claimant the amount of EUR
275,000 in three instalments.
6.
In continuation, the members of the Chamber noted that according to the
Claimant, the Respondent failed to remit the first instalment of EUR 75,000, which
fell due on 1 October 2012. Consequently, on the basis of clause 4 of the
termination agreement, the Claimant asks that the Respondent be ordered to pay
the full amount of EUR 275,000 at once as well as the amount of EUR 55,000
relating to the 20% penalty fee plus 5% interest p.a. as of expiry of the time limit
for payment of the first instalment.
7.
The Chamber took into account that the Respondent, for its part, admits that it
owes the amount of EUR 275,000 to the Claimant and that, thus, the Respondent
implicitly confirms that it has not made any payment to the Claimant. It was
further noted that the Respondent rejects the claim of the Claimant relating to
the 20% penalty fee in the amount of EUR 55,000, since, so the Respondent
deems, the contractual interest of 5% already constitutes a penalty.
8.
In view of the dissenting viewpoint of the parties with respect to the applicability
of the penalty fee contained in clause 4 of the termination agreement, the
Chamber, to start with, focussed its attention on said contractual clause.
9.
After due deliberation, the members of the Chamber concluded that penalty
clauses may be freely entered into by the contractual parties and may be
considered acceptable, in the event that the pertinent written clause meets
certain criteria such as proportionality and reasonableness. In this respect, the
Chamber highlighted that in order to determine as to whether a penalty clause is
Player V, from country B / Club C, from country S
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to be considered acceptable, the specific circumstances of the relevant case
brought before it shall also be taken into consideration.
10.
In the specific case at hand, the members of the Chamber deemed that the
penalty fee of 20% of the total outstanding amount, which the parties
contractually agreed upon in the context of terminating the employment relation,
is both proportionate and reasonable in the case at hand.
11.
In continuation, the Chamber turned its attention to the argument of the
Respondent, according to which the penalty fee shall not be applied, since the 5%
interest p.a. clause included in the termination agreement in itself constitutes a
penalty.
12.
In this regard, the Chamber outlined that such interest clause was explicitly and
contractually agreed upon between the parties apart from the 20% penalty fee. In
addition, the members of the Chamber found that this specific interest clause of 5%
per annum is not disproportionate or unreasonable in the case at hand. Therefore,
the Chamber decided to reject the Respondent’s argument in this respect.
13.
On account of all of the above, the Chamber decided that said contractual 20%
penalty fee is valid and applicable in the present matter.
14.
For the sake of good order, the Chamber wished to mention that the
Respondent’s additional argument related to the purported situation prior to the
conclusion of the termination agreement are allegations only and that those
allegations are not the subject matter of the present proceeding, which
proceeding, in fact, is based on the Claimant’s failure to fulfil its obligations
according to the termination agreement.
15.
Consequently, 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 EUR 275,000 plus interest at the rate of 5% p.a. as from 2 October
2012, i.e. the date on which the total amount of EUR 275,000 fell due in the light
of the Respondent’s failure to pay the first instalment in a timely manner (cf.
clause 4 of the termination agreement).
16.
In addition, the Chamber decided that the Respondent is liable to pay to the
Claimant the amount of EUR 55,000 relating to the 20% penalty fee in accordance
with clause 4 of the termination agreement.
Player V, from country B / Club C, from country S
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17.
Subsequently, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
18.
The Chamber concluded its deliberations in the present matter by rejecting any
further request filed by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player V, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount EUR 275,000 plus interest at the
rate of 5% p.a. applicable as of 2 October 2012 until the date of effective
payment.
3.
The Respondent has to pay to the Claimant the additional amount EUR 55,000
within 30 days as from the date of notification of this decision. In the event that
the amount of EUR 55,000 is not paid within the stated time limit, interest at the
rate of 5% p.a. will fall due over the said amount as of expiry of the fixed time
limit until the date of effective payment.
4.
In the event that the amounts plus interest due to the Claimant are not paid by
the Respondent within the stated time limits, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
5.
Any further request filed by the Claimant is rejected.
Player V, from country B / Club C, from country S
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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 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player V, from country B / Club C, from country S
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