Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 20 August 2014,
by Theo van Seggelen (Netherlands), DRC judge,
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 12 June 2012, the Dispute Resolution Chamber judge rendered a decision
according to which the Club of Country D, Club C (hereinafter: the Respondent) was
held liable to pay to the player, Player A (hereinafter: the Claimant) the amount of
EUR 11,000 net plus 5% interest p.a. as of 19 October 2011 until the date of the
effective payment.
2.
On 25 June 2012, the Respondent and the Claimant signed a document (hereinafter:
the agreement) by means of which they agreed that the Respondent would pay the
Claimant the amount of EUR 11,408.50 in three instalments, as follows:
- EUR 4,000 payable at the latest on 15 July 2012;
- EUR 4,000 payable at the latest on 15 August 2012;
- EUR 3,408.50 payable at the latest on 15 September 2012.
3.
Article 1 in fine of the agreement contains a penalty clause stating that “If the Club
doesn’t pay one or more instalment(s) within the prescribed above mentioned
deadlines without prior formal notice from the Player, the Club is indebted without
delay of the totality of the balance remaining due, notwithstanding an interest of 5%
per annum from the date of the payment to the perfect payment in totality in the
chief of the Player and including a supplementary penalty of 2.500,00 (i.e. two
thousand five hundred EUR)”.
4.
By means of the agreement, both parties also waived any right to lodge an appeal
with regard to the dispute in question.
5.
On 29 July 2012, the Claimant noted that the first instalment payable at the latest on
15 July 2012 had not been paid. Therefore, the Claimant referred to the penalty clause
and gave notice to the Respondent to pay him within 5 days the amount of EUR
13,930.50, broken down as follows:
- EUR 11,408.50 as stated in the agreement;
- EUR 22,00 as interest as of 15 July 2012 to 29 July 2012;
- EUR 2,500 as penalty stipulated in article 1 in fine of the settlement.
6.
On 23 August 2012, the Claimant informed FIFA that a first payment of EUR 4,000 had
been made; however, without any explanation or justification.
7.
On 5 April 2013, the Respondent made a payment of EUR 7,410 corresponding to the
outstanding amount due. Subsequently, by means of a correspondence addressed to
the Respondent on the same date, the Claimant pointed out that the Respondent
failed to make some payments and therefore requested it to pay the following
amounts:
- EUR 2,500 as penalty stipulated in article 1 in fine of the agreement;
- EUR 288.25 as interest, broken down as follows:
Player A, Country B / Club C, Country D
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EUR 61.00: 5% of 11,410 as of 15 July 2012 to 23 August 2012;
EUR 227.25: 5% of 7,410 as of 23 August 2012 to 4 April 2013.
8.
On 17 October 2013, making reference to the default of the Respondent, the Claimant
lodged a claim before the FIFA Dispute Resolution Chamber requesting the payment
of the amount of EUR 2,500 as penalty stipulated in article 1 in fine of the settlement
as well as 5% interest p.a. as from 16 July 2012.
9.
Despite having been invited by FIFA to provide its position in respect of the Claimant’s
claim, the Respondent did not provide its answer, although it was informed that in
absence of a reply a decision would be taken upon the basis of the documents already
on file.
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 matter at stake. In this respect, the DRC judge took note
that the present matter was submitted to FIFA on 17 October 2013. Consequently, the
DRC judge concluded that the 2012 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 par. 2 and 3 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 2 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition 2014) the DRC
judge 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.
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 which value does not exceed CHF 100,000.
4.
Furthermore, 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
(editions 2012 and 2014) and considering that the present claim was lodged in front of
FIFA on 17 October 2013, the 2012 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.
5.
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. However, the DRC judge emphasised that in the
following considerations he will refer only to facts, arguments and documentary
evidence which he considered pertinent for the assessment of the matter at hand.
Player A, Country B / Club C, Country D
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6.
In this respect and first of all, the DRC judge acknowledged that the Claimant and the
Respondent had concluded an agreement, by means of which they agreed that the
Respondent would pay to the Claimant the amount of EUR EUR 13,930.50 in three
instalments as set out below: a) EUR 4,000 on 15 July 2012; b) EUR 4,000 on 15 August
2012 and c) EUR 3,408.50 on 15 September 2012.
7.
In continuation, the DRC observed that the Claimant acknowledged having received
EUR 4,000 on 23 August 2012 as well as EUR 7,410 on 5 April 2013.
8.
The DRC judge further noted that according to the Claimant, the Respondent failed to
remit the first instalment of EUR 4,000, which fell due on 15 July 2012, within the
deadline since the first payment was made on 23 August 2012. Consequently, on the
basis of article 1 of the agreement, the Claimant asks that the Respondent be ordered
to pay the penalty fee of EUR 2,500 plus 5% interest p.a. as of expiry of the time limit
for payment of the first instalment, i.e. 16 July 2012.
9.
Furthermore, the DRC judge took note that the Respondent had been given the
opportunity to reply to the amended claim submitted by the Claimant, but that the
Respondent had failed to present its response in this respect. In this way, so the DRC
judge deemed, the Respondent renounced its right of defence and, thus, accepted the
allegations of the Claimant.
10.
As a consequence of the preceding consideration, the DRC judge established that in
accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the
basis of the documents on file.
11.
On account of the aforementioned considerations, the DRC judge established that the
Respondent had failed to pay to the Claimant, within the stipulated deadline, the
amounts as agreed upon in the agreement. Consequently, the DRC judge concluded
that, in accordance with the general legal principle of “pacta sunt servanda”, the
Respondent is liable to pay the Claimant the amount of EUR 2,500 which was
contractually agreed as a penalty fee in case of any delay in payment by the
Respondent.
12.
In continuation and with regard to the Claimant's request for interest, the DRC judge
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. as of 16
July 2012 until the date of effective payment.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 2,500 plus 5% interest p.a. on said
amount as from 16 July 2012 until the date of effective payment.
Player A, Country B / Club C, Country D
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3.
In the event that the amount due to the Claimant in accordance with the abovementioned point 2. 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.
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 judge 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player A, Country B / Club C, Country D
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