Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 14 August 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player N, from country B
as Claimant
against the club,
Club P, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 5 May 2009, Player N, from country B (hereinafter: player or Claimant) and
Club P, from country C (hereinafter: club or Respondent), signed an employment
contract valid as from 1 June 2009 until 31 May 2010.
2.
According to the contract, the club agreed to provide, inter alia, an aggregate
salary of EUR 44,500, to be paid in ten monthly instalments of EUR 4,450 each,
starting on 31 August 2009.
3.
The player asserts that, upon termination of the contract, the club had only
complied with the payment of EUR 26,700 and that, consequently, it still owed
him the total outstanding amount of EUR 17,800.
4.
On 30 March 2011, the parties signed an agreement by means of which they
agreed to settle any existing claim under the contract.
5.
According to the abovementioned agreement, the club was to pay the player the
total amount of EUR 11,000, in three instalments of EUR 2,500 each, which were
to become due on the 20th day of May, June and July 2011, and one instalment of
EUR 3,500 to become due on 20 August 2011.
6.
The agreement also contained a penalty clause which reads as follows: “If the
Party A [the club] disregard their obligation, or delays the payment will be
applied to a fine of EURO 7,000 (seven thousand Euro)”.
7.
On 8 July 2011, the player formally notified the club and requested the payment
of the outstanding amounts under the agreement plus the stipulated penalty
sum; i.e. a total of EUR 18,000. However, the player states that none of the
amounts foreseen in the agreement have been paid to him.
8.
On 18 October 2011, the player filed a claim before FIFA requesting (i) that the
club be ordered to pay him EUR 18,000; and (b) that sporting sanctions are
applied.
9.
Despite having been invited by FIFA to provide its response to the claim within
the deadline of 14 May 2012, the club provided its response only on 12 August
2013, at the time that the investigation-phase of the matter at hand had already
been concluded.
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Player N, from country B / Club P, from country C
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II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the case at hand. In this respect, the DRC judge took
note that the present matter was submitted to FIFA on 18 October 2011.
Consequently, the DRC judge concluded that the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, (hereinafter: the Procedural Rules), is applicable to the
matter at hand (cf. art. 21 of the 2008 and 2012 edition of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 lit. i. in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
(edition 2012) the DRC judge 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 C club.
3.
In continuation, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players 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 (editions 2010 and 2012)
and considering that the present claim was lodged in front of FIFA on 18 October
2011, the 2010 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well as
the documentation contained in the file.
5.
In this respect, the DRC judge acknowledged that the parties had signed an
employment contract on 5 May 2009 valid as from 1 June 2009 until 31 May 2010.
Moreover the DRC judge took into account that on 30 March 2011, after the
expiry of the contract, the parties had signed an agreement by means of which
they agreed to settle any existing debts.
6.
According to the above-mentioned agreement it was agreed by the parties that
the Respondent would pay to the Claimant the amount of EUR 11,000 in the
following four instalments, (i) EUR 2,500 payable until 20 May 2011; (ii) EUR 2,500
payable until 20 June 2011; (iii) EUR 2,500 payable until 20 July 2011 and; (iv) EUR
3,500 payable until 20 August 2011. Equally, the agreement at hand contained a
penalty clause by means of which the Respondent, providing it either
disregarded its obligations or it was found to be in delay of the stipulated
payments would be fined with an additional EUR 7,000 (cf. point I./6).
Player N, from country B / Club P, from country C
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7.
In continuation, the DRC judge noted that the Claimant alleged that the
Respondent had failed to pay the amount of EUR 11,000 as established by the
parties in the agreement. Consequently, the Claimant asked to be awarded the
total amount of EUR 18,000 plus sporting sanctions to be applied on the
Respondent.
8.
Subsequently, the DRC judge observed that the Respondent, for its part, in spite
of having been invited to do so, failed to present its response to the claim of the
Claimant within the relevant time-limit. As a result, the DRC judge decided not to
take into account the reply of the Respondent and established that, in
accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision
upon the basis of those documents on file that were provided prior to the closure
of the investigation-phase, in casu, upon the statements and documents
presented by the Claimant.
9.
In view of all the above, the DRC judge concluded that it could be established
that the Respondent had failed to pay to the Claimant the amount of EUR 11,000
as agreed upon between the parties in the agreement dated 30 March 2011 and
as a result, the penalty clause contained therein had been triggered and thus had
to be taken into account.
10.
As a consequence of the foregoing consideration, and in accordance with the
general legal principle of pacta sunt servanda, the DRC judge decided that the
Respondent must fulfil its obligations as per the agreement and is to be held
liable to pay the outstanding amount of EUR 18,000 to the Claimant.
11.
Finally, in relation to the Claimant´s request for sporting sanctions, the DRC judge
pointed out that the present matter only involved a claim for outstanding
remuneration and outlined that sporting sanctions can only be imposed in cases
regarding the early termination of a contract, as clearly established by art. 17 of
the Regulations.
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Player N, is accepted.
2.
The Respondent, Club P, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 18,000.
Player N, from country B / Club P, from country C
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3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and 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 DRC
judge 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player N, from country B / Club P, from country C
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