Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 September 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Johan van Gaalen (South Africa), member
Leonardo Grosso (Italy), member
on the matter between the player,
Player A, country B
as Claimant / Counter-Respondent 1
and the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country F
as Counter-Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 13 January 2014, the Player A from country B (hereinafter: the player or the
Claimant / Counter-Respondent 1), and the Club C from country D (hereinafter: the
club or the Respondent / Counter-Claimant), entered into an employment contract
(hereinafter: the contract) valid as from 13 January 2014 until 31 May 2014.
2.
According to the contract, the club undertook to pay the player the total amount
of EUR 300,000 in 5 installments of EUR 60,000, due on the 30 th of each month.
3.
Furthermore, art. 5 n) of the contract stipulated that the player was entitled to
EUR 12,500 “each time he is in first 11 for 12 official Super League matches in
country D for any season.”
4.
On 21 May 2015, the player lodged a claim against the club in front of FIFA,
requesting to be awarded the amount of EUR 252,000 plus interest as from the
due dates, corresponding to:
-
EUR 240,000 for 4 monthly salaries of EUR 60,000;
EUR 12,500 for the bonus payment.
5.
In his claim, the player indicated that he had complied with his contractual
obligations until 31 May 2014 and had started in the “first 11” during 12 matches.
However, the club had only paid him one month of salary. In this respect, the
player submitted an extract of the website of the Football Federation of country D
allegedly showing that he played in 12 matches in the starting 11.
6.
On 3 July 2015, the club replied to the claim and first explained that the player had
only started in 8 league matches in the “first 11”, indicating that the player
included matches that were played in the Country D Cup. In this respect, the club
submitted another extract from the website of the Football Federation of country
D. Therefore, the club deems that the player is not entitled to the bonus payment
of EUR 12,500.
7.
Furthermore, the club held that the player had “let off with just a 162,647 Euro
fine after without permission to went from city and got unnecessary yellow card in
season by Club’s 21.05.2014 dated board decision.” In this respect, the club
submitted a decision of its board dated 21 May 2014 which mentions that in
accordance with the club’s disciplinary regulations the player is fined with:
-
EUR 145,000 for “going out of the city without permission”, and
EUR 17,647 for “actions requiring penalties”.
Player A, country B / Club C, country D / Club E, country F
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8.
In addition, the club lodged a counterclaim against the player, providing the
following documents:
- an “international loan and transfer agreement” dated 7 January 2014
signed with the Club G from country H. Said agreement stipulates that the
player’s registration is transferred from Club G to Club C “first for a loan
period of six months (1.1.2014- 30.06.2014) and as per 1 July 2014
definitively (…), paying a transfer compensation of EUR 450,000.
- an “Agreement” dated 10 January 2014 signed by Club G and the player
agreeing upon the loan of the player as well as that the employment
contract between the aforementioned parties is terminated as per 1 July
2014.
- a “Preliminary Protocol” dated 13 January 2014 signed by Club C and the
player.
9.
The Preliminary Protocol contains, inter alia, the following provisions:
“1) Preliminary Protocol validity:
Preliminary Protocol will be valid until 28/07/2014, and will be terminated upon
signing of the Main Contract. Parties have agreed that 4.8. article will be valid
without that clause.
“2) Preliminary Protocol’s subject
Parties have agreed on subject to sign the professional football player Main
Contract for the seasons consisting of 2014/2015, 2015/2016 and one year option.
Parties shall sign the Main Contract until the date of 30/07/2014.
3) Payments
- For the 2014-2015 football season: EUR 50,000 x 10 months / starting August 2014
- For the 2015-2016 football season: EUR 50,000 x 10 months / starting August 2015
(…)
4.8) If the PLAYER and CLUB do not sign or refuse to sign the Main Contract by the
date of 30/07/2014, they accept and vow to pay a compensation fee of EUR
1,000,000 to the other party.
4.9) If the club would relegated to second league, this contract will be null
according to the rules of the Football Federation of country D. Parties shall not
deserve penalty or damages between others.
(…)
4.11) If the main contract would be signed between the parties, this preliminary
contract will be null and void.
(…)”
Player A, country B / Club C, country D / Club E, country F
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10.
In this framework, the club explained that at the end of the 2013/2014 season, the
player did not return to the club in order to sign the definitive employment
contract. In fact, it learned in August 2014 that the player had signed a contract
with the Club E from country F.
11.
In this respect, the club held that the player breached the contract by not signing a
definitive contract with the club which led to a “huge loss from the transfer”. In
particular, the club indicated that the player was very talented, that it received
many offers for him and that by not signing the definitive contract it missed out
on a transfer fee.
12.
As a result, the club requested to be awarded the amount of EUR 1,500,000, which
is the player’s value according to www.transfermarket.com, plus 5% interest as
from 1 September 2014 and to impose sporting sanctions on the player.
13.
In reply to the counterclaim, the player indicated that the club relegated at the
end of the 2013/2014 season, reason for which in accordance with art. 4.9 of the
Preliminary Protocol, said agreement became null and void.
14.
As to the fines, the player indicated that he had never been informed of such fines
and had not been called to defend himself. Also, there is no proof of the alleged
improper acts of the player. Finally, the fines are disproportionate and imposed
while the club had only paid his first salary, which makes the whole process
unacceptable.
15.
In its position, Standard Liege indicated that it signed a contract with the player on
30 August 2014 after having been informed that the player terminated his
contract with just cause. According to the contract signed with Standard Liege,
which is valid until 30 June 2016, the player was entitled to a gross signing bonus
of EUR 420,000 as well as a gross monthly salary of EUR 12,400.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 21 May 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 of
the Procedural Rules).
Player A, country B / Club C, country D / Club E, country F
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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 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, a club from country D
and a club from country F.
3.
Furthermore, the Chamber 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, it confirmed that in accordance with art. 26 of the
Regulations on the Status and Transfer of Players (edition 2015) and considering
that the present claim was lodged in front of FIFA on 21 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, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the 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.
In this respect, taking into account the claim of the player as well as the
counterclaim of the club, the members of the Chamber acknowledged that the
following two questions needed to be addressed:
i) Does the club have any outstanding remuneration towards the player
regarding the period 13 January 2014 – 31 May 2014?
ii) Did the player breach the “Preliminary Protocol” by not signing a
definitive employment contract with the club after the 2013/2014 season?
6.
In relation to the first question, the Chamber acknowledged that whereas the
player is of the opinion that the club still owes him EUR 252,000 in salaries and
bonus payments, the club deems that the player is not entitled to any bonus
payment and, in addition, that he was fined with an amount of EUR 162,647.
7.
In this respect, the Chamber first went on to analyse the two fines imposed by the
club on the player and noted that the club held that said fines were imposed on
the player in accordance with the club’s disciplinary regulations. However, and
whilst referring to art. 12 par. 3 of the Procedural Rules which stipulates that any
Player A, country B / Club C, country D / Club E, country F
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party claiming a right on the basis of an alleged fact shall carry the respective
burden of proof, the members of the Chamber stressed that the club had failed to
submit said disciplinary regulations. As a result, the DRC is of the opinion that the
club per se failed to prove the legal basis for imposing the relevant fines on the
player. Apart from the foregoing, the Chamber also emphasised that a fine
amounting to EUR 145,000 for the alleged infringement of “leaving the city
without permission” is manifestly excessive and disproportionate and can, in any
case, not be upheld. Hence, the Chamber was unanimous in its conclusion that the
fines imposed by the club on the player on 21 May 2014 must be disregarded.
8.
For the sake of good order, and recalling that the fines were imposed on the
player merely 10 days before the expiry of the contract, the Chamber pointed out
that the club, by that time, had already been in severe violation of the contract by
not paying the player his salaries for February, March and April 2014, totalling an
amount of EUR 180,000. In this context, the Chamber wished to stress that the
imposition of a fine, or any other available financial sanction in general, shall not
be used by clubs as a means to set off outstanding financial obligations towards its
players.
9.
In conclusion, the Chamber determined that the club could not set-off its debt
towards the player by means of the two fines imposed on him and that thus, the
amount of EUR 240,000 is due to the player as his outstanding remuneration for
the months of February to May 2014.
10.
In relation to the bonus payment, the Chamber finds that the club has been able
to prove that the triggering element for such payment did not occur. Indeed, the
club was able to substantiate its allegation that the player only played in 8
matches in the National League of country D. Since art. 5 n) of the contract clearly
stipulates that the player was only entitled to EUR 12,500 if he participated in 12
matches played in the “Super League in country D” the Chamber is of the opinion
that the club does not owe the player any bonus payments.
11.
Turning to the second question, the Chamber, after having thoroughly examined
the “Preliminary Protocol”, came to the conclusion that the player did not breach
said document by not signing a definitive employment contract with the club after
the 2013/2014 season. In coming to this conclusion, the Chamber referred in
particular to art. 4.9 of the “Preliminary Protocol” which clearly stipulates that the
contract would be null if the club would be relegated to the second league. Since
it is undisputed that the club relegated to the second league at the end of the
2013/2014 season, the Chamber finds that there was no obligation for the player
to return to the club after 31 May 2014. As such, the Chamber came to the
unanimous conclusion that the counterclaim of the club is to be rejected.
Player A, country B / Club C, country D / Club E, country F
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12.
For all the above reasons, the Chamber decided to partially accept the player´s
claim and determined that the club must pay to the player the total amount of
EUR 240,000 as outstanding remuneration.
13.
In addition, taking into account the player’s request, the Chamber decided that
the club must pay to the player interest of 5% p.a. as follows:
-
14.
5% p.a. as of 1 March 2014 on the amount of EUR 60,000;
5% p.a. as of 31 March 2014 on the amount of EUR 60,000;
5% p.a. as of 1 May 2014 on the amount of EUR 60,000;
5% p.a. as of 31 May 2014 on the amount of EUR 60,000.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the player is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, Player A, is partially accepted.
2.
The claim of the Respondent / Counter-Claimant, Club C, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent 1, within 30 days as from the date of notification of the present
decision, the amount of EUR 240,000 plus 5% interest p.a. until the date of effective
payment as follows:
-
5% p.a. as of 1 March 2014 on the amount of EUR 60,000;
5% p.a. as of 31 March 2014 on the amount of EUR 60,000;
5% p.a. as of 1 May 2014 on the amount of EUR 60,000;
5% p.a. as of 31 May 2014 on the amount of EUR 60,000.
4.
In the event that the amount due to the Claimant / Counter-Respondent 1 is not
paid by the Respondent / Counter-Claimant within the stated time limit, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
5.
Any further claim lodged by the Claimant / Counter-Respondent 1 is rejected.
Player A, country B / Club C, country D / Club E, country F
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6.
The Claimant / Counter-Respondent 1 is directed to inform the Respondent /
Counter-Claimant 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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country F
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