Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 13 July 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Theo v an S eggelen (Netherlands ), member
Mario Gallav otti (Italy ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 22 July 2015, the Player of Country B, Player A (hereinafter: Claimant) and the
Club of Country D, Club C (hereinafter: Respondent) signed an employment contract
(hereinafter: contract) valid for the 2015-2016 sporting season.
2.
By means of an agreement dated “6/07/2015” (hereinafter: agreement), the
Claimant and the Respondent agreed that the Claimant was allowed to negotiate
and sign a contract with any other club as from “this 16 January 2016”.
3.
According to the second paragraph of the agreement, the parties agreed that “In
case of agreement and signing between Player A and this new club, Club C will pay
immediately to Player A the amount of 20,000 USD Net in cash for having
terminated his contract with Club C. And this amount will be paid 20 working days
after signing this termination paper. And the punishment for not paying on time is
that the amount will rise up to 40,000 USD. This amount will be paid in once and
full.”
4.
According to the third paragraph of the agreement, the parties agreed that “In that
case, both parties confirms that, they will terminate their contract without any claim
from each other.”
5.
By means of an agreement named “Trilateral Agreement” (hereinafter: trilateral
agreement”), which bears the date of 16 July 2016, the Claimant, the Respondent
and the Club of Country D, Club E agreed on inter alia the following terms and
conditions:
Art. 3 par. 2 and 3: “… [the Respondent] and [the Claimant] terminated their
existing contract just in case [the Claimant] enters into a new valid employment
contract with [Club E] for the 2nd half season 94-95” and [the Respondent] and
[the Claimant] “cleared all their financial issues and [the Claimant] confirms that
he has received all his payments and salaries from the club and confirms that
any claim before and after signing this agreement from his side against [the
Respondent] will be considered as null and void in any court.”
Art. I.1.: “[The Respondent] terminated its existing contract with [the Claimant]
just in case [the Claimant] concludes a new employment contract with [the
Claimant] within the ONE day after termination agreement date (…).”
Art. II.: “[Club E] shall conclude an employment contract with [the Claimant]
within the same day of the termination contract of the Claimant with [the
Respondent], the draft of which is already emailed to the PLAYER’S agent email
and would acknowledge the receipt of the contract draft and agreed on all
provisions of it.”
According to art. IV. of the trilateral agreement, it comes into force by the time
of its signing and its validity is conditioned by the signature of a valid
Player A, Country B / Club C, Country D
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employment contract by and between the Claimant and Club E. “If the transfer
of [the Claimant] does not take place because of the fact that the
aforementioned condition is not fulfilled, this Agreement shall be null and void;
in such case the Parties shall have no claim for damages or any form of
compensation against each other. In case [the Claimant] does not come to an
agreement and/or sign the final contract with Club E, [the Claimant] still
belongs to [the Respondent]”.
6.
By means of two default notices respectively dated 21 May 2016 and 11 November
2016, the Claimant requested the Respondent to pay him USD 40,000 on the basis of
the agreement, allegedly signed on 16 January 2016, and the signature of an
agreement between himself and Club E on 16 July 2016.
7.
On 12 December 2016, the Claimant lodged a claim before FIFA against the
Respondent and requested that the latter be ordered to pay him USD 40,000, plus
interest in the rate fixed by the European Central Bank for refinancing, applicable
during the concerned period, increased by two points, as from 16 February 2016 or
at least from 21 May 2016.
8.
According to the Claimant, considering the financial difficulties faced by the
Respondent in 2015, the Claimant and the Respondent signed the agreement
authorizing him to look for a new club as from 16 January 2016 as well as
establishing a compensation in the amount of USD 20,000 for the termination of
the contract. Moreover, the agreement established that, in case of default, the
Respondent had to pay him USD 40,000.
9.
Moreover, the Claimant underlined that although the trilateral agreement indicates
as date 16 July 2016, it was signed on 16 January 2016.
10.
In continuation, the Claimant explained that although all parties thereby confirmed
the termination of the contract and the Claimant’s recruitment by Club E, the
Respondent never paid him the amount of USD 40,000 and did not react to his
default notices.
11.
In spite of having been invited to do so, the Respondent has not responded to the
claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 12 December
2016. 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).
Player A, Country B / Club C, Country D
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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 2016) 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 a Club of 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
2016), and considering that the present claim was lodged on 12 December 2016, the
2016 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 Claimant and the Respondent
signed an employment contract on 22 July 2015 valid for the 2015-2016 season. The
Chamber also took note that the parties, subsequently, signed an agreement, by
means of which the Respondent authorized the Claimant to negotiate and sign an
employment contract with a third club as from 16 January 2016. The agreement
further established that in the event of the Claimant signing a contract with a new
club, the Respondent would pay the amount of USD 20,000 to the Claimant, which
amount would be increased up to USD 40,000 if the Respondent would be in delay
of payment.
6.
The Chamber took note that the Claimant lodged a claim against the Respondent,
requesting to be awarded inter alia the amount of USD 40,000 based on the
agreement.
7.
Subsequently, the DRC took into account that the Respondent, for its part, has not
replied to the claim of the Claimant, in spite of having been invited to do so. In this
way, the members of the DRC considered 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 documents already on file, in other words, upon the
statements and documentation provided by the Claimant.
Player A, Country B / Club C, Country D
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9.
In this respect, the Chamber took note that, according to Claimant, the Respondent
authorized him, by means of the agreement, to negotiate and find a new club,
considering the financial difficulties faced by the Respondent. Moreover, the
Claimant held that the Respondent committed itself to pay him an amount for the
termination of the contract, in case the Claimant indeed concluded a new
employment contract with another club.
10.
Having said this, the DRC acknowledged that, in accordance with the agreement
provided by the Claimant, the Respondent indeed authorized the Claimant to sign
an employment contract with another club and also was obliged to pay to the
Claimant the amount of USD 20,000 for the termination of the contract, in case he
did sign an employment contract with a new club.
11.
In addition, the agreement established that in case the Respondent failed to pay the
amount of USD 20,000 within the agreed deadline, the Respondent would be
responsible to pay the amount of USD 40,000 to the Claimant.
12.
In this context, the DRC considered that it remained undisputed that the Claimant
concluded an employment contract with a new club, Club E.
13.
Notwithstanding the above, the members of the DRC reverted to the further
documentation provided by the Claimant.
14.
In this context, the Chamber turned its attention to the trilateral agreement
concluded by the Claimant, the Respondent and Club E and dated 16 July 2016. In
particular, the DRC took note that art. 3 paras. 2 and 3 of the trilateral agreement
established inter alia that the Respondent and the Claimant “cleared all their
financial issues and [the Claimant] confirms that he has received all his payments
and salaries from the club and confirms that any claim before and after signing this
agreement from his side against [the Respondent] will be considered as null and
void in any court.”
15.
Furthermore, the members of the Chamber referred to the condition precedent
included in art. IV. of the trilateral agreement, in accordance with which inter alia
its validity is conditioned by the signature of a valid employment contract by and
between the Claimant and Club E. Bearing in mind the considerations under
numbers I./6. and II./12. above, the Chamber concluded that such condition was
fulfilled and that the trilateral agreement had come into force.
16.
Having established the above, the DRC took into account that in accordance with
art. 3 paras 2 and 3 of the trilateral agreement, the Claimant expressly
acknowledged having received all financial dues from the Respondent and
confirmed that any claim against the Respondent should be considered null and
void, before and after the signature of the trilateral agreement.
Player A, Country B / Club C, Country D
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17.
On account of all the above, in particular the preceding consideration, the members
of the DRC decided that the claim of the Claimant must be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 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:
Marco Villiger
Chief Legal & Integrity Officer
Encl. CAS Directives
Player A, Country B / Club C, Country D
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