Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 July 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1. On 1 October 2011, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract) valid from the date of signature
until 1 October 2012.
2. According to art. 4 of the contract, the Claimant was entitled to receive inter alia:
- 100,000,000 as a signing-on fee;
- 40,000,000 as monthly salary payable for ten months;
- “Furnish Player Welfare Facility (such as accommodation, transportation, etc.)
shall be provided when the Player signs this Agreement 20 percent”.
3. On 24 May 2012, the Claimant and the Respondent signed an agreement
(hereinafter: the agreement), in which the Claimant is referred to as “former
midfieler at Club C”. In the agreement, the Respondent accepted owing the
Claimant a total amount of 202,500,000 corresponding to:
- 80,000,000 concerning two outstanding monthly salaries;
- 80,000,000 concerning two monthly salaries as compensation;
- 18,300,000 concerning an unpaid flight ticket;
- 24,000,000 concerning “over stay of” from December to March 2011.
The agreement established that the total amount would be paid in five instalments,
respectively:
- 20,000,000 on 29 May 2012;
- 40,000,000 on 4 June 2012;
- 20,000,000 on 13 June 2012;
- 40,000,000 on 23 June 2012;
- 82,500,000 on 27 June 2012.
4. On 28 February 2014, the Claimant lodged a claim against the Respondent for
breach of contract, claiming the total amount of 2,345,472,000, composed as
follows:
- 200,000,000 as outstanding salaries;
- 400,000,000 as moral and psychological damages;
- 416,300,000 as reimbursement of expenses;
- 960 000 000 as compensation for breach of contract; and
- 369,172,000 as interest as from the termination of the contract (one year and
seven months).
Player A, country B / Club C, country D
Page 2 of 7
5. In this respect, the Claimant held that the parties agreed to mutually terminate the
contract in April 2012.
6. According to the Claimant, the Respondent signed a document on 24 May 2012
recognizing a debt towards him in the amount of 202,500,000, which was never
paid. Subsequently, the country D league allegedly assumed the responsibility to pay
the Respondent’s debts to the players, but to this date it only paid him the total
amount of 23,500,000.
7. In this context, the Claimant held that, since the Respondent never paid any of the
instalments established in the agreement, the latter became null and void and the
Respondent must pay the remuneration as established in the contract.
8. According to the Claimant, the Respondent failed to pay the monthly salaries as
from February 2012 and the flight ticket in the amount of 18,300,000.
9. Moreover, the Claimant affirmed that the Respondent failed to pay for his working
visa and as a consequence, he had to pay a monthly penalty for illegal residence in
country D, for himself and his family, amounting to 138,000,000. In addition, the
Claimant held that such situation caused moral and psychological damage to his
family.
10. Furthermore, the Claimant stated that the Respondent did not provide him with the
car, as established in the contract, causing him a financial loss of 60,000,000.
11. Additionally, the Claimant claimed
corresponding to 24 monthly salaries.
compensation
for
breach
of
contract
12. Also, the Claimant requested the amount of 200,000,000 as reimbursement of
expenses allegedly incurred regarding accommodation, food, and his stay in the
country to receive the outstanding remuneration.
13. Finally, the Claimant indicated that the interest rate for loans in country D is 11,8%
per year.
14. Although invited to do so, the Respondent failed to provide its position to the claim
of the Claimant.
Player A, country B / Club C, country D
Page 3 of 7
II. Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
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 28 February
2014. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; 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 2 in
combination 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 from country B and a club from country
D.
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 2 of the Regulations on the Status and Transfer of Players (edition
2015), and considering that the present claim was lodged on 28 February 2014, 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, 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 submitted by the parties. 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.
In this respect, the DRC acknowledged that the parties to the dispute had signed an
employment contract on 1 October 2011 valid until 1 October 2012 and,
subsequently, on 24 May 2012, concluded an agreement, by means of which the
Respondent accepted owing the Claimant the total amount of 202,500,000 to be
paid in 5 instalments.
6.
Furthermore, the members of the DRC took note that the Claimant lodged a claim
against the club for breach of contract, requesting a total amount of
2,345,472,000.
Player A, country B / Club C, country D
Page 4 of 7
7.
Subsequently, the Chamber noted that the Respondent failed to present its response
to the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the DRC was of the opinion that the Respondent
renounced its right to defence.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documentation already on file; in other words, upon
the statements and documents presented by the Claimant.
9.
In continuation, the Chamber noted that, according to the Claimant, the contract
was mutually terminated in April 2012 and, on 24 May 2012, the parties signed the
agreement, establishing the Respondent’s obligation to pay him the amount of
205,500,000 divided in instalments.
10. Subsequently, the DRC observed that the Claimant reverted to FIFA indicating that,
considering the Respondent had failed to pay the instalments established in the
agreement, the latter became null and void. Consequently, the Claimant lodged a
claim against the Respondent for breach of the contract.
11. In this respect, the DRC noted that, on the one hand, the Claimant himself indicated
that the parties had mutually terminated the contract and that, on the other hand,
he alleged the agreement became null and void and the Respondent should pay the
remuneration established in the contract.
12. In this context, the DRC deemed necessary to analyse the agreement signed by the
parties.
13. First and foremost, the DRC highlighted that the Claimant is a party to the
agreement, referred to as “former midfielder at Club C” (emphasis added), which is
a clear indication that the contractual relationship was terminated. In addition, the
members of the DRC took note that the agreement does not establish that, in case
of non-payment of the instalments on the respective due dates, the agreement
would become null and void. In fact, the Chamber emphasised that the agreement
does not establish any consequence in case of non-payment by the Respondent.
14. Moreover, the Chamber emphasised that the Claimant even accepted having
received the amount of 23,500,000 in relation to the agreement.
15. At this point, the DRC recalled that according to the legal principle of the burden of
proof, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof (cf. art. 12 par. 3 of the Procedural Rules). In this respect, the
Player A, country B / Club C, country D
Page 5 of 7
members of the DRC considered that the Claimant had failed to discharge his
burden of proof.
16. On account of the above, the Claimant’s argument that the agreement became null
and void and that he, therefore, would be entitled to claim remuneration on the
basis of the employment contract must be rejected.
17. Considering the documentation provided, the members of the Chamber concluded
that the contract was terminated by mutual consent of the parties and thus, the
Claimant is only entitled to receive the amounts established in the agreement.
18. In continuation, the DRC recalled that the Claimant accepted having already
received the amount of 23,500,000 regarding the agreement. Consequently, the
Chamber considered that the amount of 179,000,000 remained outstanding.
19. Consequently, the DRC decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total
amount of 179,000,000.
20. Furthermore, taking into account the Claimant’s petition and the constant practice
of the Dispute Resolution Chamber, the members of the Chamber decided to award
the Claimant interest at the rate of 5% p.a. on the amount of 179,000,000, as from
the respective due dates as established in the agreement until the date of effective
payment.
21. Finally, the DRC concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, 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, outstanding remuneration in the amount of
179,000,000 plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
5% p.a. as of 5 June 2012 on the amount of 36,500,000;
5% p.a. as of 14 June 2012 on the amount of 20,000,000;
5% p.a. as of 24 June 2012 on the amount of 40,000,000;
5% p.a. as of 28 June 2012 on the amount of 82,500,000.
Player A, country B / Club C, country D
Page 6 of 7
3.
In the event that the aforementioned amount plus interest 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.
*******
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
Page 7 of 7