Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 August 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay), member
S tijn Boey kens (Belgium), member
Wouter Lam brecht (Belgium) member
Abu Nay eem S hohag (Bangladesh), member
on the matter between the player,
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
The Player of Country B, Player A (hereinafter: the player or the Claimant), and the
Club of Country D, Club C (hereinafter: the club or the Respondent) concluded an
employment contract (hereinafter: the contract), valid as from 11 July 2017 until
31 May 2020.
2.
According to clause 3 of the contract, the Claimant was entitled to the following
remuneration:
- EUR 1,425,000 for the season 2017-2018;
- EUR 1,150,000, for the season 2018-2019;
- EUR 1,000,000, for the season 2019-2010.
3.
On 6 August 2018, the parties concluded a mutual termination agreement
(hereinafter: the termination agreement). According to clause 2 of said
agreement, the Respondent agreed to pay to the Claimant the following amounts:
- EUR 43,762.55, on 15 September 2018;
- EUR 90,000, on 15 October 2018;
- EUR 75,000, on 15 November 2018;
- EUR 75,000, on 15 December 2018.
4.
According to the Claimant, the Respondent never paid him any of the amounts
included in the termination agreement, in the total amount of EUR 243,762.55.
5.
On 14 February 2019, the Claimant lodged a claim for outstanding remuneration
against the Respondent before FIFA and requested the payment of the total
amount of EUR 243,762.55, plus 5% interest p.a. as from the due dates.
6.
In addition, the Claimant requested the payment of 20% of the due amount as
compensation.
7.
Moreover, the Claimant requested the payment of legal fees in the amount of EUR
48,752.51 (i.e. 20% of the claimed amount), as well as procedural costs.
8.
The Claimant explained that it tried to recover the debt amicably, but that the
Respondent explained him that it would only pay if FIFA ordered to do so.
9.
The Respondent argued that it paid the amount of EUR 77,705.37 “for premiums
payment” and that therefore the Claimant “has no any right to claim for 43.762.55
EUR on the other hand the claimant has claimed 43.762.55 EUR for Premium
payment”.
10. The Respondent further noted that it paid “with 13 pieces of payment totally and
equally 77,705.37 EUR Premium payment (…) during the season”. In this respect,
the Respondent submitted some payment receipts as evidence.
Player A, Country B / Club C, Country D
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11. The Respondent further rejected the payment of the legal fees.
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
14 February 2019. 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 members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition June 2019), 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. In continuation, 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
June 2019), and considering that the present claim was lodged on 14 February 2019,
the June 2018 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. First, the Chamber noted that, according to the terms of the termination agreement
concluded between the parties on 6 August 2018, the Respondent had to pay the
Claimant the amount of EUR 243,762.55 as detailed under point I.3 above.
6. In continuation, the DRC noted that the Claimant alleged that the Respondent
failed to pay him the aforementioned amount, the payment of which he requested
together with the payment of compensation and of EUR 48,752.51 for legal fees
plus procedural costs.
Player A, Country B / Club C, Country D
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7. Equally, the Chamber took note of the reply of the Respondent, which maintained
that it provided the Claimant with the payments listed under point I.9 above. In this
respect, the members of the DRC acknowledged that the Respondent submitted
some payment receipts in support of his argumentation.
8. In continuation, the members of the Chamber referred to the basic principle of
burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according
to which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof.
9. With the above in mind, the members of the Chamber went on to analyse the
alleged payment receipts submitted by the Respondent in order to prove the
execution of the payments under paragraph I.9 above. In this regard, the members
of the Chamber first recalled that, in accordance with art. 9 par. 1 lit. e) of the
Procedural Rules, all documentation provided in the context of a dispute in front
of FIFA should be presented in the original version and, if applicable, translated
into one of the official FIFA languages (English, French, Spanish and German).
10. Bearing in mind the wording of the aforementioned provision, the Chamber were
eager to emphasise that the Respondent failed to submit such documents
translated into one of the four official FIFA languages, documents which, therefore,
could not be taken into account. What is more, the DRC was comforted with such
conclusion by the fact that none of the above-mentioned payment receipts
appeared to bear a later date than the date of the first instalment provided in the
termination agreement.
11. Consequently, the members of the DRC deemed that no substantial evidence was
provided by the Respondent with regard to the alleged payments and, in
accordance with the well-established jurisprudence of the DRC, the members of the
Chamber had no other option than not to take into account the alleged payment
receipts submitted by the Respondent.
12. In view of the above, and considering that the Respondent did not invoke any other
reason to justify the non-payment of the Claimant’s receivables, the members of
the Chamber concluded that the Respondent did not provide conclusive evidence
with its defence and that, therefore, it could be established that the Respondent
had failed to pay to the Claimant the amount as agreed upon between the parties
in the termination agreement of 6 August 2018. As a consequence, and in
accordance with the general legal principle of pacta sunt servanda, the Respondent
must fulfil its obligations as per the aforementioned termination agreement and,
consequently, is to be held liable to pay the outstanding amount of EUR 243,762.55
to the Claimant.
Player A, Country B / Club C, Country D
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13. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest on the aforementioned
amount as follows:
-
5% interest p.a. over the amount of EUR 43,762.55 as from 16 September 2018
until the date of effective payment;
5% interest p.a. over the amount of EUR 50,000 as from 16 October 2018 until
the date of effective payment;
5% interest p.a. over the amount of EUR 75,000 as from 16 November 2018
until the date of effective payment;
5% interest p.a. over the amount of EUR 75,000 as from 16 December 2018 until
the date of effective payment.
14. The DRC further decided that the Claimant’s request for compensation shall be
rejected as the Respondent shall already pay the entire value of the termination
agreement and, thus, the aforementioned request of the Claimant has no legal
basis.
15. Finally, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs and procedural fees, in accordance with art. 18 par. 4 of
the Procedural Rules and the Chamber’s respective longstanding jurisprudence in
this regard.
16. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
17. Furthermore, taking into account the consideration under number II./3. above, the
Chamber 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.
18. In this regard, the Chamber 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.
19. Therefore, bearing in mind the above, the DRC 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 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.
Player A, Country B / Club C, Country D
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20. Finally, the Chamber 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 Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant outstanding remuneration in
the amount of EUR 243,762.55, plus interest calculated as follows:
-
5% interest p.a. over the amount of EUR 43,762.55 as from 16 September 2018
until the date of effective payment;
5% interest p.a. over the amount of EUR 50,000 as from 16 October 2018 until
the date of effective payment;
5% interest p.a. over the amount of EUR 75,000 as from 16 November 2018
until the date of effective payment;
5% interest p.a. over the amount of EUR 75,000 as from 16 December 2018 until
the date of effective payment.
3.
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
amounts plus related interest mentioned under point 2. above.
4.
The Respondent shall provide evidence of payment of the due amounts plus
related interest in accordance with point 2. 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).
5.
In the event that the amount due plus related interest in accordance with point 2.
above are 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 amounts are 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).
6.
The ban mentioned in point 5. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player A, Country B / Club C, Country D
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7.
In the event that the aforementioned sums plus interest are 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.
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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. 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player A, Country B / Club C, Country D
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