Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 3 July 2019,
by Philippe Diallo (France), DRC judge,
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 26 August 2017, the player of Country B Player A (hereinafter: the Claimant or the
player) and the club of Country D Club C (hereinafter: the Respondent or the club)
concluded an employment contract (hereinafter: the contract), valid as from the date
of signature until 31 May 2018.
2.
According to the contract, the player was entitled to a net monthly salary of EUR
11,111 payable in 9 monthly instalments at the end of each month.
3.
On 31 January 2018, the Claimant and the Respondent concluded an agreement
(hereinafter: the termination agreement) by means of which they terminated the
contract with immediate effect.
4.
According to art. 3 of the termination agreement, the Claimant was entitled to the net
amount of EUR 40,000 payable in 2 instalments as follows:
- EUR 25,000 on 5 February 2018, “with 3 days maximum grace period until 8th February
2018”;
- EUR 15,000 on 31 May 2018, “with 3 days maximum grace period until 3rd June 2018”.
5.
Art. 6 of the termination agreement stipulates that “if the second instalment is not
successfully received by the Player until 4th June 2018, the Parties expressly agree on a
penalty clause, which the parties freely adjust, in the net value of EUR 51,000, which
shall be paid by the [Respondent] to the [Claimant] on 5 June 2018”.
6.
On 6 June 2018, the Claimant put the Respondent in default for the payment of the
second instalment of the termination agreement, in the amount of EUR 15,000.
7.
On 13 August 2018, the Claimant lodged a claim against the Respondent in front of
FIFA, requesting the payment of the second instalment of the termination agreement
and the relevant penalty clause under art. 6, in the total amount of EUR 66,000.
8.
The Claimant also requested 5% interest p.a. on the aforementioned total amount, as
from 5 June 2018, and the imposition of sporting sanctions on the Respondent.
9.
In his claim, the Claimant considered that, as he allegedly did not receive the payment
of the second instalment, he was entitled to the relevant amount together with the
penalty set out under art. 6 of the termination agreement.
Player A, Country B / Club C, Country D
2
10. On 3 September 2018, the Respondent remitted the payment of the second instalment
of the termination agreement, in the amount of EUR 15,000, to the Claimant.
11. In its reply to the claim, the Respondent alleged that, before the expiry of the deadline
for the payment of the second instalment, the Claimant and the Respondent agreed
on the extension of such deadline until 31 August 2018, “with three days grace
period”.
12. Moreover, the Respondent argued that the penalty clause was disproportionate and,
thus, invalid. Furthermore, the Respondent maintained that such clause was not
enforceable, since the payment of the second instalment was made by the Respondent.
13. In conclusion, the Respondent requested the rejection of the claim or, in the
alternative, the imposition of 5% interest on the amount of EUR 15,000 as from 3 June
2018 until 3 September 2018.
14. In his replica, the Claimant confirmed his initial requests and maintained that the
Respondent never contacted him after the conclusion of the termination agreement
and denied having agreed on the extension of the deadline for the payment of the
second instalment.
15. Finally, the Claimant acknowledged having received from the Respondent the amount
of EUR 15,000 “relative to the second instalment of the termination agreement and
this claim was already lodged”.
16. The Respondent, with its final comments, reiterated its previous argumentations.
II. Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 13 August 2018. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition June 2019) he is
competent to decide on the present matter, which concerns an employment-related
Player A, Country B / Club C, Country D
3
dispute with an international dimension between a player of Country B and a club of
Country D.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status
and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present
dispute, the value of which does not exceed CHF 100,000.
4.
In continuation, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that, in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June
2019), and considering that the present claim was lodged on 13 August 2018, the June
2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
he started by acknowledging all the above-mentioned facts as well as the arguments
and the documentation submitted by the parties. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the matter
at hand.
6.
First, the DRC judge noted that the parties entered into an employment contract valid
as from 26 August 2107 until 31 May 2018, which the parties terminated on 31 January
2018 by signing a termination agreement, according to which the Respondent
committed to pay the Claimant the amounts of EUR 25,000 and EUR 15,000 respectively
within 8 February and 3 June 2018.
7.
In this context, the DRC judge took note of the content of art. 6 of the termination
agreement, according to which “if the second instalment is not successfully received
by the Player until 4th June 2018, the Parties expressly agree on a penalty clause, which
the parties freely adjust, in the net value of EUR 51,000, which shall be paid by the
[Respondent] to the [Claimant] on 5 June 2018”
8.
In continuation, the DRC judge acknowledged that it was undisputed that, on 6 June
2019, the Claimant put the Respondent in default for the payment of the second
instalment of the termination agreement, i.e. the amount of EUR 15,000.
9.
Furthermore, the DRC judge duly noted that the Respondent performed the payment
of the aforementioned instalment on 3 September 2018 only, namely after that the
Claimant lodged his claim before FIFA.
Player A, Country B / Club C, Country D
4
10. With the above in mind, the DRC judge proceeded to examine the positions of the
parties and took note that the Claimant, inter alia, considered that the penalty
stipulated in art. 6 of the termination agreement was due.
11. Conversely, the Respondent alleged that the parties had agreed to extend the deadline
for the payment of the second instalment until 31 August 2018 and argued that the
aforementioned penalty, in the amount of EUR 51,000, was disproportionate and,
consequently, invalid.
12. On account of the above and, in particular, the diverging positions of the parties, the
DRC judge considered that the central issue of present dispute consists in assessing
whether the penalty stipulated in the termination agreement is applicable and, in case,
to what extent.
13. In this respect, the DRC judge, before going into the merit of the aforementioned issue,
wished to recall that the Respondent indeed fulfilled its obligation, even though with
delay, to provide the Claimant with the payment of the second instalment of the
termination agreement and, thus, in accordance with the general legal principle of
pacta sunt servanda.
14. Furthermore, with reference to the Respondent’s allegation that the parties had
agreed to postpone the due date for the payment of the second instalment until 31
August 2018, the DRC judge wished to recall the basic principle of burden of proof, as
established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming
a right on the basis of an alleged fact shall carry the respective burden of proof.
15. With the above in mind, the DRC judge considered that, as the Respondent did not
corroborate its allegation with any evidence, he had no other option than to conclude
that no agreement was concluded between the Claimant and the Respondent for the
postponement of the relevant due date.
16. Subsequently, the DRC judge focussed its attention on the penalty clause in light of
the Respondent having paid the second instalment of EUR 15,000 after the relevant
deadline for payment had fallen due and the Claimant’s pertinent request.
17. In this context, the DRC judge acknowledged the arguments of both parties in respect
of the penalty clause and referred to its constant jurisprudence, in accordance with which
penalty clauses may be freely entered into by the 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 DRC judge further
highlighted that, in order to determine as to whether a penalty clause is to be
considered acceptable, the specific circumstances of the relevant case brought before
it shall also be taken into consideration.
Player A, Country B / Club C, Country D
5
18. In the specific case at hand, the DRC judge took into account the business experience
of the Respondent and the interest of the Claimant by timely receiving the outstanding
amounts. The DRC judge concluded that, with regard to these criteria, the Respondent
did not present any evidence that could lead to the conclusion that the Respondent
had valid reasons for the late payment of the agreed amount, i.e. the second
instalment of the termination agreement.
19. In continuation, taking into account the severity of the breach and that, however, the
second instalment was eventually paid, as well as that the amount of the penalty is
more than three times higher than the amount of the second instalment, the DRC
judge considered that there are grounds for limiting the total penalty fee of EUR
51,000.
20. In view of the foregoing, the DRC judge considered that the penalty clause contained
in the agreement concluded between the parties is disproportionate and not
reasonable. Therefore, the DRC judge decided to reduce the penalty to the amount of
EUR 3,000 which, in view of the specific circumstances of the case, was considered as a
fair and reasonable amount in the present case.
21. With regard to the Claimant’s request for interest of 5% per year on the amount owed,
the members of the DRC judge referred to the jurisprudence of the DRC in similar cases
and concluded that the Claimant’s request for default interest on the penalty fee must be
rejected.
22. Finally, the DRC judge established that any further claim lodged by the Claimant is
rejected.
23. Furthermore, taking into account the consideration under number II./4. above, the DRC
judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that,
with its decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts of
outstanding remuneration and/or compensation in due time.
24. In this regard, the DRC judge pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid
and for the maximum duration of three entire and consecutive registration periods.
25. Therefore, bearing in mind the above, the DRC judge decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
Player A, Country B / Club C, Country D
6
new players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the Respondent
in accordance with art. 24bis par. 2 and 4 of the Regulations.
26. Finally, the DRC judge recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts, in
accordance with art. 24bis par. 3 of the Regulations.
III. Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 3,000.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the amount
mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in accordance
with point 2. above to FIFA to the e-mail address [email protected], duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due in accordance with point 2. above is not paid by
the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
Player A, Country B / Club C, Country D
7
8.
In the event that the aforementioned sum is still not paid by the end of the ban of
three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
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 DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
8