Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 July 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Theodore Giannikos (Greece), member
on the claim presented by the player,
Player J, from country M
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 18 June 2012, Player J, from country M (hereinafter: the Claimant) and Club L,
from country C (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the contract) valid as of 20 June 2012 until 30 June 2015.
2.
Clause IV of the contract, which governs the player’s salary, reads as follows:
“Both Parties agree that the player’s annual salary is 1,700,000 Euro. Within ten
days of the signing of the contract by both parties, the club prepays the player
salary 620,000 Euro, and the club pays the player salary 400,000 Euro before 20th
January 2013, and the rest salary is paid 113,300 Euro per month. The first contract
year is from June 20, 2012 to June 30, 2013. The second contract year is from July
1, 2013 to June 30, 2014. The third contract year is from July 1, 2014 to June 30,
2015.”
3.
On 31 January 2013, the parties signed an “agreement for mutual termination
employment contract” (hereinafter: the termination agreement), by means of
which they agreed that “[the Respondent] shall pay [the Claimant] contract
release compensation fee 600,000 EURO plus 4.5 month salary (Jan, Feb,
March, April and Half of May 2013), totally amount should be 1,237,000 EURO
NET”. The amount of EUR 1,237,000 is broken down as follows:
EUR 400,000 payable on 31 January 2013;
EUR 200,000 payable on 1 February 2013;
EUR 637,000 payable within five working days as of 31 January 2013.
4.
The termination agreement further states that “late charge will be paid 0.02%
per day”.
5.
On 28 February 2013, the Claimant lodged a claim before FIFA indicating that the
club had not yet fulfilled all its obligations in connection with the termination
agreement and, in particular claimed the outstanding amount of EUR 449,800,
plus 0.02 % interest per day as of 9 February 2013 until the date of effective
payment.
6.
In his claim, the Claimant acknowledges receipt of the payment of the amount of
EUR 787,200 net; the last payment having been made on 8 January 2013.
7.
In its reply, the Respondent sustains that as of the date of signature of the
contract until the end of 2012, it paid EUR 1,299,800 to the Claimant while the
amount of EUR 850,000 was actually due in consideration of the period the player
provided his services and the fact that his annual salary is of EUR 1,700,000.
Therefore the Claimant received an amount of EUR 449,800 in excess of his due
remuneration. Consequently, the Respondent concluded that it was entitled to
deduct this excess payment from the amount due in accordance with the
termination agreement and therefore has complied with its obligations.
Player J, from country M / Club L, from country C
2/5
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 28 February 2013. Consequently, the 2012 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 2012 edition 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 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 M player and a country C club.
3.
In continuation, 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 2 of the Regulations on the Status and
Transfer of Players (edition 2012), and considering that the present claim was
lodged on 28 February 2013, the 2012 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, entering into the substance of the matter, the members of the
Chamber started by acknowledging the facts of the case and the arguments of
the parties as well as the documents contained in the file.
5.
In this respect and first of all, the DRC acknowledged that, on 18 June 2012,
the Claimant and the Respondent had concluded an employment contract
valid as from 20 June 2012 until 30 June 2015.
6.
Equally, the Chamber took note that, on 31 January 2013, the parties had
concluded a termination agreement by means of which the parties agreed that
“[the Respondent] shall pay [the Claimant] contract release compensation fee
600,000 EURO plus 4.5 month salary (Jan, Feb, March, April and Half of May
2013), totally amount should be 1,237,000 EURO NET”.
7.
In addition, the DRC observed that the Claimant is claiming the amount of EUR
449,800 from the Respondent, thereby asserting that the Respondent had
partially complied with the above-mentioned termination agreement.
8.
Finally, the Dispute Resolution Chamber took note that, for its part, the
Respondent had acknowledged having signed the termination agreement with
Player J, from country M / Club L, from country C
3/5
the Claimant and admitted it did not pay the amount claimed by the Claimant.
However, the Respondent justified the non-payment by arguing that, as of the
date of signature of the contract until the end of 2012, it paid a total of EUR
1,299,800 to the Claimant while the amount of EUR 850,000 was actually due
in consideration of the period the player provided his services and the fact that
his annual salary is of EUR 1,700,000. Therefore the Respondent considered
that the Claimant received an amount of EUR 449,800 in excess of his due
remuneration. Consequently, the Respondent concluded that it was entitled to
deduct this excess payment from the amount due in accordance with the
termination agreement and therefore complied with its obligations.
9.
In this context, the Chamber was eager to emphasise that the parties signed a
termination agreement on 31 January 2013 by means of which the Respondent
undertook to pay an amount to the Claimant and thereupon agreed on the
manner of payment of such amount. In this respect, the DRC stressed that by
signing the termination agreement, the Respondent was bound by its terms
and, particularly, the obligation of payment of the amount provided for. Thus,
the DRC deemed that the Respondent could not, after having concluded the
termination agreement, contest the content of said agreement on the basis of
alleged payments in excess that were made prior to the date of signing the
termination agreement and which, as such, bear no relation with said
termination agreement dated 31 January 2013. In other words, the
Respondent is not in a position to set-off its debts from said agreement with
amounts it would allegedly be entitled to on the basis of a separate
contractual agreement, i.e. the employment contract.
10.
On account of all the above, the DRC judge found that there was no basis to
deduct any amount from the amount of EUR 1,237,000 and, bearing in mind
that it was undisputed that the Respondent only paid EUR 787,200, as well as
the legal principle of pacta sunt servanda, the Dispute Resolution Chamber
decided that the Respondent is liable to pay the amount of EUR 449,800 to the
Claimant.
11.
In addition, taking into consideration the Claimant’s request as well as the
provisions of the termination agreement, the Chamber decided to award the
Claimant interest at the rate of 0.02% per day as from 9 February 2013 until
the date of effective payment.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player J, is accepted.
2.
The Respondent, Club L, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 449,800 plus
interest on said amount at a rate of 0.02% per day as from 9 February 2013
until the date of effective payment.
Player J, from country M / Club L, from country C
4/5
3.
In the event that the abovementioned amount plus interest is not paid 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.
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 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
Encl. CAS Directives
Player J, from country M / Club L, from country C
5/5