Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 August 2015,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Mario Gallavotti (Italy), 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
arisen between the parties
I.
Facts of the case
1.
The Player A from country B (hereinafter: the Claimant), and the Club C from
country D (hereinafter: the Respondent), concluded an undated employment
contract (hereinafter: the contract), valid from 17 July 2011 until 16 July 2015.
2.
According to clause 19 of the contract, the Claimant was entitled to receive inter
alia a monthly salary in the amount of EUR 200,000 for the first and second year
of the contract, and EUR 241,666 for the third and fourth year of the contract.
3.
On 10 July 2012, the parties concluded an “Agreement” (hereinafter: the
termination agreement) by means of which they terminated their employment
relationship and agreed on the definitive transfer of the Claimant to Club E.
According to the agreement, the Claimant is entitled to receive the following
amounts from the Respondent:
“The Club shall pay the Player the following amounts, which represent all due
amounts of the Player on the Club:
a) 500,000 Euros by November 1, 2012;
b) 750,000 Euros by January 10, 2013;
c) 500,000 Euros by July 15, 2013;
d) 500,000 Euros by December 10, 2013;
e) 47,500 Euros upon Club C actually receives the second instalment from
Club E for the Player’s transfer;
f) 200,000 Euros upon Club C actually receives the second instalment from
Club E for the Player’s transfer”.
4.
On 30 October 2014, the Claimant sent a notice to the Respondent by means of
which he reminded it of its arrears as per the termination agreement, claiming
that the Respondent “owe[s] to him the amount of EUR 2,250,000, plus the
amount of EUR 247,500 as a result of the mutual release agreement (…) entered
into on July 10. 2012”, and informed it that, in case he would not be paid within
24 hours, he would initiate legal actions.
5.
On 31 October 2014, the Claimant submitted a claim against the Respondent in
front of FIFA, requesting the payment of EUR 2,747,500, as follows:
Player A, country B / Club C, country D
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a) EUR 2,497,500, as agreed in the termination agreement, plus interest as
from due dates;
b) EUR 250,000 as compensation for damages.
6.
The Claimant explains to have tried to contact the Respondent to be able to
receive the due amounts, but until now, the Respondent has failed to pay him.
7.
In its response to the Claimant’s claim, the Respondent first complains about the
short deadline given by the Claimant to comply with its obligations, however, it
confirmed owing the Claimant the requested amount except the first instalment
amounting EUR 500,000 (cf. point I.3.a. above) affirming that this amount is time
barred. The Respondent further holds that it was not informed of “how to pay his
payments since the date of signing the release agreement”. Having not received
the Claimant’s bank details, it did not have any contact with the Claimant until
the reminder received from him (cf. point I.4. above).
8.
Following the reply of the Respondent, FIFA invited the parties to inform whether
they were able to solve the matter amicably.
9.
The parties then informed FIFA that on 20 March 2015, they signed a settlement
agreement (hereinafter: the settlement agreement) according to which “The
Player and the Club hereby settle and resolve all claims that they have formulated
in the Claim before the DRC or that they may have against each other under the
Employment Contract or in connection with the Release Agreement as set forth
herein and the Player accepts that the payment of the full amount in Article. 1.2
of this Settlement Agreement is in full and final settlement of his claim against
the Club, in particular the claim submitted to the DRC on 31 st October 2014”.
10.
According to art. 1.2 of the settlement agreement “the club recognizes that it
owes the Player the contractual amount of 2,497,500 €”. Art 1.4 of the settlement
agreement, details the payments as follows:
“
a) 500,000 € to be credited to the Player’s Counsel’s account, on 20th April
2015;
Player A, country B / Club C, country D
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b) 750,000 € to be credited to the Player’s Counsel’s account, on 20 th May
2015;
c) 500,000 € to be credited to the Player’s Counsel’s account, on 20th June
2015;
d) 747,500 € to be credited to the Player’s Counsel’s account, on 20 th July
2015. “
11.
According to art. 1.6 of the settlement agreement “ If the Club fails to pay any
amount hereunder on its due date, for any reason whatsoever, the entire unpaid
balance of the Settlement Payment shall become automatically immediately due
and payable by the Club, without notice to or demand upon the Club or taking of
any other form of legal action. Upon such failure, the Player shall have all the
rights and remedies with respect to the Settlement Payment as described herein
and/or otherwise provided by law”.
12.
Art 2.3 further stipulates that “In the event that the Club does not respect any of
its obligations contained in this Settlement Agreement, the player shall
immediately inform without delay the DRC of such a failure. The Club
acknowledges and accepts that in such circumstance, the Player will request the
DRC to reopen the case submitted on 31st October 2014 on the basis of the
original Claim, including his claims for damages”.
13.
After having sent reminders on 15, 20, 21, 22 and 29 April 2015 to the
Respondent, requesting the payment of the first instalment (cf. point I.10.a.
above), on 6 May 2015 the Claimant sent to the Respondent a “Formal notice to
execute the settlement agreement”, underlining that no payment has been made
and giving the Respondent a last deadline until 10 May 2015 to comply with its
obligations.
14.
On 26 May 2015, the Claimant sent a letter to FIFA asking to resume the case in
accordance with art. 2.3 of the agreement (cf. point I.11. above) and obtain a
decision “based on his initial claim, taking into consideration the Settlement
Agreement and the several existing correspondences as well”. In addition, the
Player A, country B / Club C, country D
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Claimant holds that, in spite of the attempt to settle the matter amicably, it did
not receive any payment and never received any reply to his numerous reminders.
II.
Considerations of the Dispute Resolution Chamber
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 case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 31 October 2014. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2014;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 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 par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (editions 2014 and 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.
At this point, the DRC duly noted the objection of the Respondent, regarding the
possible prescription of the 1st instalment stipulated in the termination agreement
(cf. point I.3.a above).
4.
In this respect, the members of the Chamber referred to art. 25 par. 5 of the
Regulations, which, in completion to the general procedural terms outlined in the
Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall
not hear any dispute if more than two years have elapsed since the event giving
rise to the dispute arose.
Player A, country B / Club C, country D
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5.
Bearing in mind the foregoing, the DRC referred to the claim of Claimant,
according to which the latter requested inter alia the payment of EUR 500,000,
which was due by 1 November 2012, in accordance with the termination
agreement.
6.
As a consequence, recalling that the present claim was submitted to FIFA on 31
October 2014, and that the contested amount of EUR 500,000 was due by 1
November 2012, the DRC concluded that the time limit of two years had not
elapsed for claiming the first instalment due in accordance with the termination
agreement. Therefore, such request of the Claimant was not time-barred and,
consequently, the claim of the Claimant is admissible.
7.
Having established the admissibility of the Claimant’s claim, 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 par.
2 of the Regulations on the Status and Transfer of Players (editions 2014 and
2015), and considering that the present claim was lodged on 31 October 2014, the
2014 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
8.
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 the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC
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.
9.
First and foremost, the Chamber acknowledged that the parties had terminated
their employment relation by mutual consent by entering on 10 July 2012 into a
termination agreement, the terms of which are detailed in point I. 3. above.
Player A, country B / Club C, country D
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10.
In continuation, the members of the Chamber noted that the Claimant contacted
FIFA on 31 October 2014 indicating that the Respondent had not fulfilled its
obligations as established in the termination agreement, since it had not paid the
agreed amounts. Consequently, the Claimant asks that the Respondent be
ordered to pay the total amount of EUR 2,747,500 corresponding to EUR
2,497,500 as per the termination agreement and an additional amount of EUR
250,000 as compensation for damages.
11.
The Chamber took into account that the Respondent, for its part, admits that it
owes part of the amount to the Claimant and that, thus, the Respondent confirms
that it has not made such payment to the Claimant because it did not have the
player’s bank details in its possession.
12.
Before entering the analysis of the parties’ arguments, the DRC deemed it
appropriate to briefly refer to the content of the settlement agreement
concluded by the parties on 20 March 2015, in an attempt to solve the matter
amicably. In accordance with art. 2.3 of the settlement agreement (cf. pt. I.12.
above), in case of non-compliance of the Respondent with any of the payments
therein established, the player shall be entitled to “re-open” his original claim
lodged at FIFA on 31 October 2014. In view of the club’s non-compliance with the
settlement agreement, in spite of the Claimant’s reminders, as well as of the clear
wording of art. 2.3 of such agreement, the Chamber concluded that the legal
document at the basis of the present dispute is the termination agreement of 10
July 2012.
13.
Having said that, the Chamber entering the analysis of the parties’ arguments,
referred to art. 12 par. 3 of the Procedural Rules and concurred that the
Respondent did not provide any valid reason not to comply with its obligations
towards the Claimant as per the termination agreement.
14.
On account of the aforementioned considerations, the Chamber decided that in
accordance with the general legal principle of pacta sunt servanda, the
Player A, country B / Club C, country D
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Respondent is liable to pay to the Claimant the amount of EUR 2,497,000 in
accordance with the termination agreement.
15.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on
the aforementioned amounts as follows:
a. 5% p.a. as of 2 November 2012 on the amount of EUR 500,000;
b. 5% p.a. as of 11 January 2013 on the amount of EUR 750,000;
c. 5% p.a. as of 16 July 2013 on the amount of EUR 500,000;
d. 5% p.a. as of 11 December 2013 on the amount of EUR 500,000;
e. 5% p.a. as of 14 July 2013 on the amount of EUR 247,500.
16.
With regard to the Claimant’s claim for EUR 250,000 as compensation for
damages, the Chamber concluded that it must be rejected due to its lack of any
contractual or regulatory basis.
17.
The DRC concluded its deliberations in the present matter by establishing that any
further claim of 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
EUR 2,497,500 plus 5% interest p.a. until the date of effective payment as
follows:
a. 5% p.a. as of 2 November 2012 on the amount of EUR 500,000;
b. 5% p.a. as of 11 January 2013 on the amount of EUR 750,000;
c. 5% p.a. as of 16 July 2013 on the amount of EUR 500,000;
d. 5% p.a. as of 11 December 2013 on the amount of EUR 500,000;
e. 5% p.a. as of 14 July 2013 on the amount of EUR 247,500.
Player A, country B / Club C, country D
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3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
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:
Marco Villiger
Acting Deputy Secretary General
Encl.: CAS directives
Player A, country B / Club C, country D
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