Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Guillermo Saltos (Ecuador), 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 between the parties
I.
Facts of the case
Facts relating to the preliminary issue of competence:
1.
In January 2013, the player from country B, Player A (hereinafter: player or
Claimant), and the club from country D, Club C (hereinafter: club or Respondent),
concluded an employment contract (hereinafter: contract) which stipulates in its
article 15.2 that “Any dispute in respect of matters of football, discipline, or transfers
shall be submitted to the arbitration committee of the Football Association of
country D, and the arbitral award shall be final (when the subject of the dispute is
of a domestic variety). Any other dispute of a more international nature, involving
for example any international transfer or any matters which fall under the ambit of
any FIFA regulations, shall be submitted to the arbitration committee of FIFA, and
FIFA’s decision is final.”
2.
Art. 17.6 of the contract reads as follows: “Matters uncovered in this contract shall
be managed in accordance with the laws, rules of country D and the relevant
provisions of FIFA and the Football Association of country D.”
3.
The club contested the competence of FIFA to deal with the claim lodged against it
by the player in front of FIFA, arguing that the country D’s laws stipulate a
compulsory jurisdiction of an arbitration commission for employment-related
disputes in country D.
4.
Furthermore, the club held that the parties did not establish an arbitration
agreement in favour of FIFA and argued that the wording of Article 15.2 of the
contract states that only disputes regarding football, discipline or transfers “of a
more international nature” shall be submitted to FIFA and that therefore the abovementioned article cannot include the present employment related dispute involving
“payment of salary, breach of contract, early termination of contract and
compensation”.
5.
In addition, the club argues that the present dispute is not covered by a jurisdiction
clause and therefore, according to Art. 17.6 of the contract, it shall fall within the
compulsory jurisdiction of a country D’s arbitration commission for employmentrelated disputes.
6.
The player, for his part, contested the club’s arguments regarding the issue of
competence and held that Art. 15.2 of the contract confirms that the parties have
chosen FIFA’s deciding body, especially regarding international matters “which fall
under the ambit of any FIFA regulations”.
Player A, country B / Club C, country D
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7.
Finally, the player argued that the club failed to establish that the arbitration
committee of the Football Association of country D fulfils the requirements of an
independent arbitration tribunal guaranteeing fair proceedings and respecting the
principal of equal representation of players and clubs, for which it carries the burden
of proof.
Facts relating to the substance of the matter:
8.
In January 2013, the player and the club concluded an employment contract, valid
as of 1 January 2013 until 31 December 2013.
9.
According to Art. 5 of the contract, the club undertakes to pay the player, inter alia,
the following amounts:
- USD 1,400,000 within 15 working days as of receipt of the international transfer
certificate (ITC);
- USD 1,400,000 as total salary paid in 12 monthly instalments of USD 116.666.66.
10.
According to Art. 7 of the contract the club undertakes to pay a monthly housing
allowance of USD 3,000 to the player.
11.
On 3 March 2013, the player signed a confirmation stating that: “I, Player A, hereby
confirm that I have received a cash cheque with the amount of 10,281,600.00
provided by Club C. I acknowledge and understand that such cheque is a guarantee
for the payment of my salary USD 1,632,000.00 as set forth in the Working Contract
signed by the Club and me and agree that the Club shall pay the said amount into
my designated bank account before March 31 2013 or the club shall pay “player”
The amount: USD 116,666.50 as compensation for the delay in paying all above
mentioned amount. Upon receiving the said amount in my bank account, I will
return such cheque to the club immediately. I hereby confirm that I will not cash the
cheque before March 31 2013.”
12.
Furthermore, the club, the player and two other players signed an agreement, dated
4 April 2013, which defined in its Art. 1 that: “Upon signing of this Agreement, Party
A [the club], through a certain third party, shall promptly remit USD 500,000 to the
bank account designated by the Players. Players and Party A [the club] further
confirm, that the designated bank account listed below is held by Mr. E […], who is
the agent of the Players, Mr. E shall further allocate the USD 500,000 to the players.”
13.
Art. 5 of the agreement dated 4 April 2013 reads as follows: “The players
acknowledge and agree that the remaining part of the unpaid amount will be paid
to them 45 days after the date of receiving the amount as mentioned in Clause 1)
and 2), otherwise, Party A [the club] shall pay the Players USD 300,000 (Three
Player A, country B / Club C, country D
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hundred thousand dollar) as compensation. This compensation will be pay in 10
days.”
14.
On 26 May 2014, the player lodged a claim in front of FIFA against the club and
requested to be awarded payment of the following monies:
- USD 1,374,229 as outstanding salaries plus 5% interest p.a. as of “the mean
maturity date” of 17 July 2013;
- USD 466,664 as compensation for late payment (4x USD 116,666) plus 5% interest
as of 31 December 2013.
15.
In his arguments, the player stated that he only received a total of USD 1,425,771, in
various payments, instead of the contractually agreed USD 2,800,000, which results
in outstanding remuneration of USD 1,374,229.
16.
With regard to the additional amount of USD 466,664 claimed by the player for late
payment by the club of the outstanding salaries, the player argued that in
accordance with the confirmation of 3 March 2013 (cf. point I./11. above), the club
agreed on payment of a first penalty fee in the amount of USD 116,666 in case the
outstanding amount would not be remitted until 31 March 2013. According to the
player, the club did not make the relevant payment and the cheque, received as a
guarantee, was not covered.
17.
In addition, the player argued that the club committed itself to pay another penalty
fee in the amount of USD 116,666 in accordance with the agreement of 4 April 2013
(cf. points I./12. and I./13. above).
18.
Finally, the player claimed an additional two monthly salaries as penalty fee for late
payment, arguing that this would be “adequate and fair”.
19.
In its reply, the club stated that it paid the player’s salaries and a part of the “signingon fee” to Mr E, allegedly the agent of the player.
20.
Moreover, the club pointed out that it paid USD 9,548 more than the contractually
agreed housing allowance to the player and requested that said amount be
deducted from the player’s remuneration.
21.
Finally, the club acknowledged that USD 1,364,681 of the “signing-on fee” are
outstanding.
22.
Regarding the penalty fees relating to late payment, the club acknowledged having
agreed to pay a penalty fee of USD 116,666 in line with the confirmation of 3 March
2013.
Player A, country B / Club C, country D
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23.
Nevertheless, the club contested that any other penalty fees are due to the player.
24.
Regarding the agreement of 4 April 2013, the club stressed that Art. 5 refers to salary
payments instead of the outstanding “sign-on fee” and that these salary payments
were made and therefore no compensation for late payment resulting therefrom
would be due.
25.
Furthermore, the club highlighted that there is no other contractual basis to claim
additional compensation for late payment.
26.
Finally, the club held that the interest on the outstanding “sign-on fee” should be
due as of 24 March 2014, instead of 17 July 2013 as claimed by the player. The club
put forward that the player agreed to a late payment in the confirmation of 3 March
2013 and that the player, in his letter dated 17 March 2014, set a deadline until 24
March 2014 to remit the outstanding amount.
27.
In his replica, the player upheld his position and contested the statement of the club
that “the players whole salary and part of the signature fee” were paid and
highlighted that no proof of such payments were submitted.
28.
In addition, the player pointed out that the club acknowledged a debt of USD
1,374,229 towards the player and that the club, on top of that, admitted that one
penalty fee in the amount of USD 116,666, on the basis of the confirmation of 3
March 2013, is due.
29.
Furthermore, the player contested the argument of the club, which alleged that the
agreement of 4 April 2013 refers to salary payments that were allegedly remitted,
and denied having received such payments. The player added that the USD 500,000
mentioned in this agreement constitute a further penalty fee for 3 players (USD
116,666 each).
30.
Despite having been invited to do so, the club has not submitted its duplica.
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 matter at hand. In this
Player A, country B / Club C, country D
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respect, it took note that the present matter was submitted to FIFA on 26 May 2014.
Consequently, the Rules governing the procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2012; 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 and par. 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber, would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an player from country B and a
club from country D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 18 September 2015 by means of which
the parties were informed of the composition of the Chamber, the member F and
the member G refrained from participating in the deliberations in the case at hand,
due to the fact that the member F has the same nationality as the Claimant and that,
in order to comply with the prerequisite of equal representation of club and player
representatives, also the member G refrained from participating and thus the
Dispute Resolution Chamber adjudicated the case in presence of three members in
accordance with art. 24 par. 2 of the Regulations.
4.
In continuation, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding body on the basis of art. 15.2 and art. 17.6 of the
employment contract invoking country D’s law and an alleged compulsory
jurisdiction of an arbitration commission for employment-related disputes in country
D.
5.
In this regard, the DRC noted that the Claimant rejected such position and insisted
that FIFA has jurisdiction to deal with the present matter.
6.
While analysing whether it was competent to decide on the matter, the Chamber
recalled that art. 15.2 of the employment contract stipulates that “any dispute in
respect of matters of football, discipline, or transfers shall be submitted to the
arbitration committee of the Football Association of country D, and the arbitral
award shall be final (when the subject of the dispute is of a domestic variety). Any
other dispute of a more international nature, involving for example any
international transfer or any matters which fall under the ambit of any FIFA
regulations, shall be submitted to the arbitration committee of FIFA, and FIFA’s
decision is final.” The members of the Chamber outlined that art. 15.2, which deals
with the question of jurisdiction, thus determines that any dispute of international
Player A, country B / Club C, country D
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nature which falls within the scope of the FIFA regulations shall be submitted to the
“arbitration committee of FIFA”.
7.
Therefore, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected and that the
Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to deal with the present matter
as to the substance.
8.
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
2015), and considering that the present claim was lodged on 26 May 2014, the 2012
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
9.
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.
10.
Having said this, the Chamber recalled that the parties had signed an employment
contract valid as from 1 January 2013 until 31 December 2013.
11.
In continuation, the DRC acknowledged that, in accordance with the employment
contract the Respondent was obliged to pay to the Claimant, inter alia, USD
1,400,000 within 15 days after receipt of the ITC and USD 1,400,000 divided in 12
monthly instalments due at the end of each month, plus a monthly housing
allowance of USD 3,000.
12.
In this respect, the Chamber took into consideration that according to the Claimant,
the Respondent had failed to pay his remuneration in the total amount of USD
1,374,229 and pointed out having received the total amount of USD 1,425,771 in
various payments. Consequently, the Claimant requested to be awarded payment of
the amount of USD 1,374,229.
13.
Furthermore, the DRC observed that the player claimed four penalty fees in the
amount of USD 116,666 each. One penalty fee in the amount of USD 116,666 was
claimed on the basis of the confirmation dated 3 March 2013. The claim for the
second penalty fee in the amount of USD 116,666 is based on the agreement of 4
Player A, country B / Club C, country D
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April 2013 and two penalty fees in the amount of USD 116,666 each were claimed,
since the Claimant deemed it “adequate and fair” to be awarded these additional
fees.
14.
In continuation, the DRC noted that the Respondent acknowledged outstanding
remuneration towards the Claimant in the amount of USD 1,364,681, which
corresponds to the claimed amount of the player less USD 9,548, which according to
the Respondent were paid in excess of the player’s contractual housing allowance.
15.
In this regard and referring to 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 burden
of proof, the members of the Chamber noted that the Respondent did not submit
any evidence in support of its allegation that it had paid the amount of USD 9,548
in excess of the Claimant’s contractual housing entitlements.
16.
On account of the above, the DRC decided to reject the Respondent’s argumentation
related to the deduction of USD 9,548 from the Claimant’s receivables and
determined that the Respondent failed to pay the total amount of USD 1,374,229 to
the Claimant.
17.
Consequently, on account of the above and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is liable
to pay to the Claimant outstanding remuneration in the amount of USD 1,374,229.
18.
In addition, bearing in mind the Claimant’s request, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the outstanding amount
as of the date on which the claim was lodged, i.e. 26 May 2014, until the date of
effective payment.
19.
Having established the above, the Chamber turned its attention to the claimed
penalty fees and took into account that the Respondent acknowledged that it owes
one penalty fee in the amount USD 116,666 to the Claimant based on the
confirmation of 3 March 2013, whereas the Respondent contested that any further
penalty fee would be due since, according to the Respondent, there is no legal basis.
20.
In continuation, the Chamber noted that the document dated 4 April 2013, which is
invoked by the Claimant in connection with his request to be awarded a further
penalty fee of USD 116,666, is rather unclear in that it refers to and was signed by
other players as well, involves an intermediary and does not clearly set forth that the
Respondent would owe another penalty fee of USD 116,666 to the Claimant in the
event of late or non-execution of the contractual terms. In addition, the Chamber
highlighted that the employment contract signed by and between the Claimant and
the Respondent does not include any penalty fee or kind of compensation in the
Player A, country B / Club C, country D
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event of late or non-execution by the Respondent of its financial obligations towards
the Claimant. Therefore, the Chamber decided that in the absence of a (clear)
contractual or a regulatory basis, the Claimant’s claim regarding 3 additional penalty
fees in the amount of USD 116,666 each must be rejected.
21.
Consequently, on account of the above, the Chamber decided that the Respondent
is liable to pay to the Claimant the additional amount of USD 116,666 in connection
with the penalty fee based on the confirmation of 3 March 2013.
22.
The members of the Chamber concluded their deliberations by rejecting any further
claim of the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
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
USD 1,374,229 plus 5% interest p.a. as of 26 May 2014 until the date of effective
payment.
4.
The Respondent, has to pay to the Claimant the additional amount of USD 116,666
within 30 days as from the date of notification of this decision.
5.
In the event that the amount due to the Claimant in accordance with the abovementioned number 4. 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.
6.
In the event that the amounts due to the Claimant are not paid by the Respondent
within the stated time limits, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
7.
Any further claim lodged by the Claimant is rejected.
8.
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.
Player A, country B / Club C, country D
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*****
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 Dispute Resolution Chamber:
Marco Villiger
Acting Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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