Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 11 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), 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 in connection with overdue payables
I.
Facts of the case
1.
On 1 July 2013, the Player of Country B, Player A (hereinafter: the Claimant), and
the Club of Country D, Club C (hereinafter: the Respondent) signed an
employment contract valid as of the date of its signature until 31 May 2016.
2.
On 1 September 2014, the parties concluded an “Agreement of Termination of
Employment Contract” (hereinafter: the termination agreement) by means of
which the parties mutually terminated their labour relationship and whereby the
Respondent undertook to pay the Claimant the total amount of EUR 350,000 in
ten instalments of EUR 35,000, the first one payable on 10 September 2014 and
the remaining nine as of October 2014 until June 2015 at the end of each month.
3.
By correspondence dated 30 July 2015, the Claimant put the Respondent in
default of payment of EUR 280,000 setting a time limit expiring on 10 August
2015 in order to remedy the default.
4.
On 14 May 2015, and completed on 17 August 2015, the Claimant lodged a claim
against the Respondent in front of FIFA asking that the Respondent be ordered to
pay to him overdue payables in the amount of EUR 280,000 corresponding to the
payments due on 30 November and 30 December 2014 as well as on 31 January,
28 February, 30 March, 30 April, 30 May and 30 June 2015 in accordance with the
termination agreement. Equally, the Claimant requested interest as from the
relevant due dates.
5.
On its part, the Respondent replied to the claim only after the FIFA administration
informed the parties that the investigation-phase of the matter at hand had been
closed and that no further submissions from the parties would be admitted to the
file.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber of 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 May 2015. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2015; 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 conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 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 of Country B and a Club of Country D.
Player A, Country B / Club C, Country D
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3.
Furthermore, 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
(edition 2015), and considering that the present claim was lodged on 14 May
2015, the 2015 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 documentation on file. 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.
Having said this, the members of the Chamber acknowledged that the Claimant
and the Respondent entered into an employment contract valid as of 1 July 2013
until 31 May 2016, which was thereafter mutually terminated on 1 September
2014 by means of the termination agreement. In this respect, the members of the
Chamber observed that in accordance with the termination agreement, the
Claimant was entitled to receive from the Respondent the total amount of EUR
350,000 payable in 10 monthly instalments of EUR 35,000 as of September 2014
until June 2015.
6.
Furthermore, the DRC took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue
payables towards him in the amount of EUR 280,000 corresponding to the
instalments due on 30 November 2014, 30 December 2014 as well as 30 January,
28 February, 30 March, 30 April, 30 May and 30 June 2015.
7.
In this context, the members of the DRC took particular note of the fact that, on
30 July 2015, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit expiring on 10 August 2015 in order
to remedy the default.
8.
Consequently, the DRC concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the
creditor (player or club) must have put the debtor club in default in writing and
have granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
9.
Subsequently, the Chamber took note that the Respondent’s reply was submitted
to FIFA only after the parties had been duly informed that the investigation-phase
of the matter at hand had been closed and that no further submissions would be
admitted to the file.
Player A, Country B / Club C, Country D
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10.
With the aforementioned in mind, the DRC referred to art. 9. par. 3 of the
Procedural Rules, in accordance with which if no statement or reply is received
before the time limit expires, a decision shall be taken upon the basis of the
documents already on file, as well as to 9 par. 4 which stipulates that parties shall
not be authorised to supplement or amend their requests or their arguments, to
produce new exhibits or to specify further evidence on which they intend to rely,
after notification of the closure of the investigation.
11.
The DRC decided thus not to take into consideration the reply of the Respondent
when assessing the matter at hand. Consequently, the members of the DRC
concluded that they shall take a decision upon the statements and documents
presented by the Claimant only.
12.
Having said this and taking into account the documentation presented by the
Claimant in support of his petition, the Chamber was of the unanimous decision
that the Claimant had substantiated his claim pertaining to overdue payables with
sufficient documentary evidence.
13.
On account of the above, the members of the Chamber established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of
EUR 280,000 corresponding to the instalments due on 30 November and 30
December 2014 as well as on 30 January, 28 February, 30 March, 30 April, 30 May
and 30 June 2015, each in the amount of EUR 35,000.
14.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
15.
In view of the foregoing considerations, the Chamber decided that, in accordance
with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant overdue payables in the total amount of EUR 280,000.
16.
Furthermore, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payment(s) as of the due dates.
17.
In continuation, taking into account the consideration under number II./14. above,
the DRC referred to art.12bis par. 2 of the Regulations which stipulates that any
club found to have delayed a due payment for more than 30 days without a prima
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of
the Regulations.
18.
At this point, the members of the Chamber wished to highlight that, on 17 April
2015, the Respondent had already been found by the Single Judge of the Players’
Status Committee to have delayed a due payment for more than 30 days without
a prima facie contractual basis, as a result of which a fine of CHF 15,000 had been
imposed on the Respondent.
Player A, Country B / Club C, Country D
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19.
With the above-mentioned considerations in mind, the Chamber established that
in virtue of art. 12bis par. 4 of the Regulations, it has competence to impose
sanctions on the Respondent. Moreover, the DRC referred to art. 12bis par. 6 of
the Regulations, which establishes that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty.
20.
In view of the foregoing and bearing in mind that the Respondent did not reply
to the claim of the Claimant as well as the consideration under number II./18.
above, the DRC decided to impose a more severe fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
21.
Along these lines, taking into consideration the amount due of EUR 280,000 as
well as the aggravating circumstance of a repeated offence, the Chamber
regarded a fine amounting to CHF 60,000 as appropriate and hence decided to
impose said fine on the Respondent.
22.
Finally, the DRC decided to reject the Claimant’s claim pertaining to legal costs in
accordance with art. 18 par. 4 of the Procedural Rules and the DRC’s respective
longstanding jurisprudence in this regard.
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 overdue payables in the
amount of EUR 280,000 within 30 days as from the date of notification of this
decision plus interest at the rate of 5% p.a. until the date of effective payment as
follows:
a. 5% p.a. on the amount of EUR 35,000 as from 1 December 2014;
b. 5% p.a. on the amount of EUR 35,000 as from 31 December 2014;
c. 5% p.a. on the amount of EUR 35,000 as from 31 January 2015;
d. 5% p.a. on the amount of EUR 35,000 as from 1 March 2015;
e. 5% p.a. on the amount of EUR 35,000 as from 31 March 2015;
f. 5% p.a. on the amount of EUR 35,000 as from 1 May 2015;
g. 5% p.a. on the amount of EUR 35,000 as from 31 May 2015;
h. 5% p.a. on the amount of EUR 35,000 as from 1 July 2015.
3.
In the event that the amount due to the Claimant 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.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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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.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 60,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
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:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, Country B / Club C, Country D
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